More legal battles likely as First Nations launch first lawsuit against new federal, provincial laws

National Observer

16-07-2025

As First Nations launch the first constitutional challenge against federal Bill C-5 and Ontario's Bill 5 — sweeping laws to fast-track mines and major infrastructure — legal experts say the governments' refusal to consult has left Indigenous communities with no other option and more court battles are likely ahead.
'They didn't engage with First Nations, they didn't engage with labour unions, and they simply passed bills that don't work for either group — making a lawsuit almost inevitable,' said Luke Hildebrand, a lawyer not involved with the lawsuits. 'I'd be surprised if this is the only one.'
Hildebrand said both governments escalated the situation by refusing to consult the very people most affected. He sees the legal challenge as grounded in three core arguments: that both laws violate the constitutional duty to consult, undermine treaty rights, and conflict with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which protects the right to free, prior and informed consent.
'This is about unilateralism,' Hildebrand said. 'Instead of sitting down and building something together, they [both governments] said, 'We're doing this — you catch up.' That's the wrong approach.'
'No escape for First Nations'
The two laws allow governments at both federal and provincial levels to bypass environmental assessments and permit requirements, clearing the way for major development projects with little or no First Nations involvement.
Bill 5 allows the provincial cabinet to create 'special economic zones,' where selected projects and developers could be exempt from environmental regulations and planning laws, undermining First Nations consultation. The government has already signalled its intent to designate the Ring of Fire as a 'special economic zone' under the new law.
The lawsuit, filed Tuesday in Ontario Superior Court by nine First Nations, argues both pieces of legislation violate constitutional rights, treaty obligations and Canada's international commitments.
The lawsuit, filed Tuesday in Ontario Superior Court by nine First Nations, argues both pieces of legislation violate constitutional rights, treaty obligations and Canada's international commitments.
The filing argues that the two laws build on one another, compounding their effects. 'Since both are similar in their violative regimes, purposes and effects, there is no escape for First Nations,' the lawsuit reads.
'Our case is not a fight against development,' said Chief Taynar Simpson of Alderville First Nation in a statement. 'It is a fight against dangerous development pushed ahead by factless, thoughtless and reckless decision-making from government ministers behind closed doors with little accountability.'
First Nations leaders say the speed at which the bills were passed left them with no time to respond. There was little warning, no meaningful engagement and no opportunity to shape the legislation.
'Rushing headlong into major projects without knowing the costs means the governments are playing a dangerous game with our lands and futures,' said Attawapiskat First Nation Chief Sylvia Koostachin-Metatawabin.
She pointed to the Ring of Fire region — a sensitive peatland ecosystem critical to carbon storage — as an area at serious risk. She warned that damage from mining and infrastructure could have catastrophic consequences.
'Our way of life, our children's futures and our shared environment, which is the basis of all life, is not a pawn in some political game,' she said.
Governments defend bills
The federal and provincial governments have defended the legislation as a necessary response to economic uncertainty caused by US tariffs.
In an email response, a spokesperson from the federal Privy Council Office said the government is reviewing the court challenge, noting it had 'just received the Notice of Application,' and declined to provide further comment.
However, the statement reaffirmed the government's commitment to Indigenous rights under the Constitution and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). It said Bill C-5, the Building Canada Act, includes multiple stages of consultation with Indigenous communities before major projects are approved.
Prime Minister Mark Carney is expected to meet with First Nations leaders in the coming days, the statement added.
In an email, Ontario Premier Doug Ford's office said it has begun consultations with First Nations to shape regulations for special economic zones.
'We will continue to build consensus with First Nations on shared priorities, including legacy infrastructure, all-season roads and resource development that support long-term prosperity,' Ford's office said.
But Hildebrand says the harm has already been done.
'This wasn't about consultation — it was about centralizing power and sidelining not just First Nations, but workers and municipalities too,' he said.
Sara Mainville, an Anishinaabe lawyer, said the legal challenge is unusual but valid. She says while constitutional challenges typically follow a specific project approval, this case is different: the laws themselves may be enough to violate Indigenous rights.
'The federal government only gave First Nations seven days to respond to Bill C-5,' Mainville said. 'That's not real consultation. It erased years of relationship-building.'
Mainville pointed to the Mikisew Cree Supreme Court decision, which confirms that even legislation — not just project decisions — can trigger constitutional challenges if it strips away protections that would normally require consultation.
Mainville said this case might follow the same path Alberta and Ontario used to successfully challenge federal impact assessment law.
Both Mainville and Hildebrand believe the lawsuit may delay the very projects the government hoped to fast-track — and more challenges are likely.
Schreiner: Ford ignored the warnings
Green Party Leader Mike Schreiner said the Ford government was warned repeatedly that Bill 5 would end up in court.
He said the failure to consult First Nations made legal action inevitable, and even members of the premier's own party raised concerns about the bill's flaws.
'Had the government worked collaboratively from the start, we'd be much further along,' Schreiner said. 'First Nations consent is non-negotiable. Their involvement strengthens both the process and the outcome.'
He warned that Ford's actions will delay progress.
'Ford's reckless disregard for Indigenous rights and democratic debate will slow down development because of court challenges and the lack of public support,' he said.
Hildebrand said that if the courts strike down the bills, it could restrict the use of fast-track economic zones across Canada and force governments to rethink how major projects are approved.
'If Indigenous nations succeed, it will affirm that economic development can't come at the expense of Indigenous sovereignty, workers' rights or environmental protection,' he said.
But he added that real reconciliation must happen through dialogue — not just legal battles.
'Reconciliation doesn't happen in a courtroom — it happens at the nation-to-nation table,' Hildebrand said. 'My hope is that this lawsuit is a wake-up call to both Prime Minister Carney and Premier Ford. But whether they'll answer it is another question.'