Ontario's Bill 5 has passed. Here's why it has sparked conflict with First Nations

Globe and Mail

2 days ago

Ontario's Bill 5, which passed on Wednesday, will give the provincial government sweeping powers to disregard its own laws in order to speed up mining or other projects – and has prompted warning of protests or blockades from Indigenous leaders who say they should have been consulted.
Formally known as the Protect Ontario by Unleashing Our Economy Act, the legislation allows the Ontario government to designate 'special economic zones' where it could suspend any provincial law – including environmental or labour rules and municipal bylaws – for companies or entities it labels 'trusted proponents.'
The federal government, and B.C., are also pushing to accelerate major resource projects to try shore up the country's economy in the face of U.S. tariffs and China's dominance in critical minerals. But these moves are being made amid a shifting legal landscape on Indigenous issues – and could put governments on a collision course with First Nations.
In addition to allowing for special economic zones, the bill also rewrites Ontario's endangered species legislation, allowing cabinet, instead of scientists, the final say on what species are protected. And it would loosen the rules around preserving Indigenous archeological sites.
(It also includes other provisions to streamline mining approvals, supported both by the industry and even the opposition, that would see key projects funnelled through a centralized, 'one project, one process' system.)
The government has said it aims to designate the remote northern Ring of Fire region, where it says reserves of critical minerals are key to Ontario's economy, as its first special economic zone. While three First Nations in and near the region are supporting plans for all-season roads to the area, others have opposed the push to mine there.
How these zones will be implemented – and what rules will take the place of any laws wiped off the books – is supposed to be laid out in regulations that have not been released. Those regulations must also be subject to both First Nations and public consultations, which the government has promised over the summer. First Nations leaders say they should have been consulted first, and want the bill scrapped.
As opposition to Bill 5 mounted from First Nations in recent days, the government said these future regulations could include provisions to allow 'Indigenous-led economic zones,' but provided no details.
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Ontario's Bill 5 falls into a category lawyers label 'Henry VIII legislation,' as Laura Bowman, a staff lawyer at the group Ecojustice, has pointed out. The term invokes the infamous 16th-century English king – who had two of his wives beheaded – in giving the executive branch the power to pick and choose which laws passed by the legislature apply and to whom.
This aspect has alarmed not just First Nations, but the Canadian Civil Liberties Association and opposition MPPs. Liberal MPP John Fraser compares Bill 5 to the executive powers now being abused by U.S. President Donald Trump. The government defends the need for the extraordinary powers, saying it can take 15 years to open a new mine in Ontario, much longer than in other jurisdictions.
Properly called the 'duty to consult and accommodate' First Nations, it has been recognized in court rulings dating back to the 1980s. It obligates the Crown – meaning governments – to consult First Nations about activities that impact their treaty rights, which were embedded in Section 35 of the Constitution in 1982. Landmark Supreme Court of Canada rulings in the past 20 years have outlined and strengthened this obligation.
In essence, if governments want to allow the construction of a mine or another project in a First Nation's traditional territory, they must engage in meaningful consultations and accommodate Indigenous concerns about its effects on treaty rights, such as hunting grounds of fishing grounds.
The duty to consult has seen many First Nations sign 'impact benefit agreements' with mining companies or others operating on their traditional territories, which usually involve revenue for Indigenous governments.
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Ontario Indigenous Affairs Minister Greg Rickford has repeatedly asserted it does not, referencing a 2018 Supreme Court ruling. In that case, the Mikisew Cree First Nation argued the then federal Conservative government had a duty to consult before bringing in contentious 2012 legislation that sparked the 'Idle No More' protest movement.
In a split decision, the top court ruled against the First Nation, concluding that parliamentary privilege means governments do not trip over their constitutional obligation if they draft legislation without consulting first. But lawyers say the Mikisew ruling does not preclude governments from choosing to consult First Nations before tabling a bill. Governments routinely consult industry or other interest groups while drafting legislation.
That phrase, routinely invoked by First Nations, comes from the United Nations Declaration on the Rights of Indigenous Peoples, which Canada had at first avoided endorsing but fully signed onto in 2016. Federal legislation in 2021 began the implementation of this new standard, which clearly goes beyond a 'duty to consult.'
However, Ontario has not signed onto UNDRIP or adopted it in its law. And lawyers say what 'free, prior and informed consent' will precisely mean across Canada, in different contexts, remains legally contested ground.
This is also increasingly contested ground, as First Nations argue their forebears understood these documents, signed hundreds of years ago in many cases, much differently than governments did.
In a case working its way through the courts, 10 First Nations that signed Treaty 9 in 1905 – which covers two-thirds of Ontario's land mass and includes the Ring of Fire – argue they never gave up decision-making power on their lands and that a new 'co-jurisdiction' regime must be established. They are also seeking $95-billion they say they are owed under the treaty, which was signed by both Ontario and Canada.
'What First Nations are really saying is, forget the duty to consult,' said Kate Kempton, a veteran lawyer for First Nations in battles with mining companies who is leading the Treaty 9 case. 'It doesn't work. It needs to be the right to decide. Bill 5 is really just the straw that is breaking the camel's back.'
The government has committed to consultations with the public and First Nations on the regulations it must draft before any 'special economic zones' are named. But Grand Chief Alvin Fiddler of the Nishnawbe Aski Nation, which represents 49 First Nations across Northern Ontario including those in the Ring of Fire, has warned of an 'Idle No More 2.0″ wave of protests against bill, as have other Indigenous leaders.