Demonstrators protest the federal government’s Bill C-5 on Parliament Hill, June 17. Bill 5 and Bill C-5 would allow governments to skip legislated processes that currently involve First Nations consultations.Blair Gable/Reuters
A group of First Nations in Ontario has filed a constitutional challenge of two bills passed by both the province and the federal government aimed at speeding up the construction of mines, pipelines and other projects.
Lawyers acting for nine First Nations filed the application in Ontario Superior Court this week, claiming the provincial and federal laws allow development to be rammed through without proper consultation with Indigenous people.
The legal filing challenges both the province’s Bill 5, which allows for the creation of “special economic zones” where any provincial law could be suspended, and the federal government’s Bill C-5, which would allow the waiving of legislative requirements for projects deemed in the national interest.
The application says the two laws violate the Crown’s constitutional obligation to act honourably toward First Nations, a legal concept that has been upheld in previous Supreme Court of Canada rulings on Indigenous treaty rights. The group of First Nations wants both laws struck down and is asking for an injunction to block governments from using the legislation pending a final ruling.
Both pieces of legislation have prompted previous warnings from First Nations of protests or court action. Many Indigenous groups say that, while they are not against development, these new laws run roughshod over their constitutionally protected rights to be consulted about projects that affect their traditional territories.
Ontario Premier Doug Ford and Prime Minister Mark Carney argue the acceleration of often-delayed megaprojects, including the mining of critical minerals in Ontario’s North, is needed as Canada faces down the economic threat of U.S. tariffs. Both politicians have also pledged to consult First Nations about their legislation, after passing it.
The First Nations involved in the challenge include Attawapiskat First Nation on the western shore of James Bay, as well as Aroland First Nation – one of a handful of Northern Ontario bands that has supported the provincial government’s plans to build all-season roads into the remote Ring of Fire area, where Premier Doug Ford has vowed to accelerate mining for critical minerals.
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Also backing the legal application is Kitchenuhmaykoosib Inninuwug (KI), which is about 580 kilometres north of Thunder Bay. The First Nation made headlines after a clash with a mining company that saw six members, including KI Chief Donny Morris, jailed for contempt of court in 2008 for a blockade that defied a court order.
Mr. Morris said in an interview on Tuesday that he is concerned that both Bill 5 and Bill C-5 will trample on his First Nation’s work over the past 15 years to secure its rights over its traditional territory.
Mr. Morris said his First Nation needs a say in any potential project in its traditional territory – and an equal share of any revenue. He said the initial tactic is the legal challenge and then assess any future actions after that.
“We needed to do something to get their attention,” he said of the constitutional challenge. “If you’re going to talk about economic development in our region, we play a role in it, too. We cannot be pushed to the sidelines and just be given beads and blankets this time. We want to play a role.”
The legal application, filed on Monday, says both Bill 5 and Bill C-5 allow governments to override existing legislation, including environmental rules, in order to “ram through” projects without “meaningful” Indigenous consultations, skipping various procedures that currently require seeking First Nations input.
The court filing cites the 2018 Supreme Court of Canada decision in a case brought by the Mikisew Cree First Nation, saying this ruling determined that the Crown was required to act honourably in the making and passing of legislation.
“It was left for another case to determine what form that honourable conduct might take. That case is now,” the document says.
The Mikisew decision, the application says, also held that it “may not be constitutional to legislate in a way that effectively removes future Crown conduct which would otherwise trigger the duty to consult” First Nations.
Bill C-5 reveals fault lines between Ottawa and Indigenous peoples over consultation, consent
The legal filing says the two bills would allow governments to approve major projects “without knowing, considering or addressing the costs” to First Nations, “effectively negating the no-go option despite what the ‘costs’ to a First Nation, the environment or otherwise might be.”
The legal filing also dismisses the provisions for consultations with First Nations that remain under both bills, saying they would occur only at an early stage and amounts to a “smoke-and-mirrors trick.”
The federal government has previously said that Indigenous groups affected by potential projects will be fully consulted at key stages of the process.
Privy Council Office spokesperson Pierre-Alain Bujold in a statement Tuesday noted Bill C-5’s preamble, which states it is committed to upholding its obligations under the United Nations Declaration on the Rights of Indigenous Peoples Act and constitutionally protected rights, including Aboriginal and treaty rights.
Mr. Bujold, asked about this week’s legal filing, said that “as Canada has only just received the Notice of Application and is now reviewing it, it would be inappropriate to comment further at this time.”
The Prime Minister, who has committed to engaging with First Nations, Inuit and Métis this summer about the implementation of Bill C-5, is set to meet with First Nations leaders on Thursday at the Canadian Museum of History in Gatineau, Que.
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Ontario’s Premier has also said his government would consult First Nations over the summer about Bill 5, and before it declared any special economic zones. In the face of mounting opposition earlier this year, the government also said it could allow “Indigenous-led” special economic zones.
Hannah Jensen, a spokesperson for the Premier’s Office, sent a statement by e-mail saying the government would “continue to build consensus” with First Nations and that “productive conversations” had already begun with those “who share our vision of unlocking economic opportunity and critical infrastructure in their community.”
Last month, Mr. Ford warned that First Nations who oppose mines or other development “cannot keep coming hat in hand all the time to the government.” He later publicly apologized in a face-to-face meeting with Indigenous leaders for the comments, which were condemned as racist.
Monday’s application makes various arguments that the two laws violate the Charter of Rights and Freedoms, impinging on the rights of First Nations people to equality, and to life, liberty and security of the person, including by reducing protections against megaprojects that could harm Indigenous lands, and their drinking water, food supplies or way of life.
Federal Justice Minister Sean Fraser did not identify Bill C-5 to have any potential effects on Charter rights and freedoms, according to a note posted on his department’s website in June.