5 days ago
Why First Nations are clashing with Ontario and Ottawa over bills aimed at speeding up megaprojects
First Nations leaders have opposed both the federal government's Bill C-5 and Ontario's Bill 5, pieces of legislation that would allow the two governments extraordinary powers to ignore existing laws – including environmental regulations – to fast-track megaprojects such as mines or pipelines.
They say the two bills run roughshod over the constitutional requirement that governments consult First Nations about development on their traditional territories. A group of nine First Nations in Ontario launched a constitutional challenge this week of both Ontario's and Canada's bills.
Both Prime Minister Mark Carney – who met with First Nations leaders in Gatineau, Que., on Thursday – and Ontario Premier Doug Ford have pledged to consult Indigenous people as they implement their two bills.
They say the legislation is needed to quickly boost the Canadian economy in the face of U.S. tariffs, and speed up what are often overlapping, red-tape-laden approval processes that can hamstring projects with years of delay.
Ontario's Bill 5, formally known as the Protect Ontario by Unleashing Our Economy Act and passed in June, 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.'
Detailed regulations laying out how it will work, or precisely which laws could be blotted out, have not been released. The Ontario government pledged to hold consultations on those, and even allow for what it calls 'Indigenous-led' special economic zones, over the summer.
The Premier has said he aims to designate the remote northern Ring of Fire region, where he claims reserves of critical minerals are key to Ontario's economy, as the first special economic zone 'as soon as possible' – after consulting First Nations. While three First Nations in and near the region support plans for all-season roads to the area, others have opposed the push to mine there, and none have spoken out in favour of Bill 5.
The focus of First Nations opposition to the federal government's Bill C-5, which also passed last month, is legislation included in the bill called the Building Canada Act, which grants sweeping authority to disregard existing laws in order to speed up projects the government deems to be in the national interest.
Once a megaproject is designated as a project of national interest, it would be deemed approved from the start. It would then fall under the authority of a single central major projects office, which will include an Indigenous advisory council.
As Mr. Carney stressed in remarks on Thursday to First Nations leaders, the legislation mandates consultation with Indigenous peoples during the process of determining which projects are in the national interest – and in a new process of developing one set of conditions proponents would have to meet.
Properly called the 'duty to consult and accommodate' First Nations, the concept has been recognized in court rulings dating back to the 1980s and affirmed by the Supreme Court of Canada in 1997.
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 fleshed out and strengthened this obligation.
Instead of scrapping Indigenous consultations, let's make them better
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 potential effects on treaty rights, such as the preservation of hunting or 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.
During his province's Bill 5 debate, Ontario Indigenous Affairs Minister Greg Rickford repeatedly asserted that Ontario did not, referencing a 2018 Supreme Court ruling. In that case, the Mikisew Cree First Nation argued the then-Conservative federal 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 gradual implementation of this new standard. But lawyers say the meaning of 'free, prior and informed consent', with regard to different projects that impact First Nations rights in different ways across Canada, remains legally contested ground.
Canadian courts have held that it does not amount to an absolute veto. UNDRIP itself states that it does not authorize 'any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.'
Bill C-5 reveals fault lines between Ottawa and Indigenous peoples over consultation, consent
In a recent decision, the Federal Court held that free, prior and informed consent did not amount to a First Nations veto but rather the right to a 'robust process.'
Ontario has not signed onto UNDRIP, or adopted it in its law, and the province has said it will abide by its duty to consult First Nations.
This legal concept, affirmed in Supreme Court of Canada rulings, requires the Crown to act honourably in dealings with First Nations, and it is at the heart of a legal application filed in July challenging both Bill 5 and Bill C-5.
The court application by nine First Nations in Ontario accuses both governments of failing to act honourably toward Indigenous people by passing legislation that would eliminate many existing opportunities for input on large projects in their traditional territories.
Citing the 2018 Supreme Court of Canada's decision in Mikisew, the bands' lawyers say that ruling held that the governments' obligation to act honourably still applies to the making and passing of legislation. But it was left to future cases to work out what this means in practice.
