Northern Ontario First Nations fear uphill battle to preserve rights as Bill 5 speeds through legislature

Bill 5 is a broad piece of legislation that has implications for mining development, endangered species, archeology and Indigenous peoples. 

It's part of the Ford government's "plan to protect Ontario" by cutting "the red tape that has held back major infrastructure, mining and resource development projects." 

The bill was tabled a few weeks ago and is now slated to be examined by a standing committee at Queen's Park, which Friends of the Attawapiskat River founder Michel Koostachin is set to address in the coming weeks. 

What does Bill 5 mean for the Duty to Consult?

"There's not going to be any consultations whatsoever with this bill,"  said Koostachin.

In a statement, the province says, "We want to be clear. The proposed legislation is about unlocking Ontario's true economic potential. The duty to consult will not be compromised as part of this process."

But Bill 5 proposes the creation of "special economic zones" where a "trusted proponent" can conduct business while being exempt from provincial or municipal laws and regulations, including requirements for permits. 

If there are no regulatory requirements in a "special economic zone," then the consultation owed to Indigenous communities is set to be limited, warns Olthuis Kleer Townshend LLP, a firm involved in several First Nation rights lawsuits.

What's more, the firm says the proposed law does not include any oversight mechanisms for First Nations to participate in or oppose decisions made in "special economic zones."

"We are saying: 'Kill this bill', because it's very dangerous," said Koostachin, adding that he was particularly worried about the proposed law's focus on the Ring of Fire deposit in the province's northwest. 

He intends to issue a stark warning when he addresses the Ontario government in the coming weeks. 

"I'm going to remind them: if you disturb the peatlands, this carbon sink, you're asking for trouble," he said. "It'll disturb the air we breathe. It's your future also."

"We are tied together in this, First Nations and the rest of society." 

Bill 5 has garnered a lot of enthusiasm from people in the mining industry, with CEOs of companies like Alamos Gold, Frontier Lithium, Generation Mining, Agnico Eagle Mines and Wyloo praising the government for its willingness to speed up the permitting process in a press release dated April 17. 

The province says this proposed law is needed so that Ontario can move quickly on high-impact projects in the face of growing global economic uncertainty.

Limits on legal recourses

Koostachin is also worried about what the proposed law means for First Nations' use of the court system. 

"We couldn't even sue the Government of Ontario," he said. 

The bill also prohibits lawsuits for things done or not done under this proposed law and its regulations, and would limit the legal actions First Nations can take outside the Constitution Act.  

Olthuis Kleer Townshend LLP warns that, if the Act regulating the special economic zones passes in its current forms, First Nations will need to be prepared to "act swiftly, aggressively and proactively" to protect their rights. 

That could mean implementing monitoring programs across their territories, developing positive relationships with mining companies who understand the importance of Indigenous interests, and maintaining detailed records of their efforts to have their rights respected with the government. 

Other First Nations, like the ones represented by Anishinabek Nation, warn a proposed bill like this could harm the treaty relationship. 

"We will continue to assert our jurisdiction in the face of any legislation that seeks to erase or ignore governments' constitutional obligations to us as treaty partners," said Anishinabek Grand Council Chief Linda Debassige.

Concerns for wildlife and treaty rights

Debassige also raises concerns about the implications for endangered species and archaeological assessments. 

Bill 5 proposes to replace the Endangered Species Act with the Species Conservation Act, which will enable the government to override experts on what species should be protected, and what is considered a habitat, among other things. 

"To allow lands of economic value that have been cited for development to be exempt from protective checks and balances, such as archeological assessments and wildlife and ecosystem protections as proposed in this bill will cost First Nations and Ontarians profoundly," said Debassige. 

Koostachin echoes those concerns, specifically citing impacts a this proposed law could have on sturgeon or caribou populations, which are of great cultural importance to Cree communities in the far north. 

As for the province, it says the Species Conservation Act would balance conservation with the economy, and would create a special program that would make up to $20 million available for species conservation annually.

A day before the public comment period closes on Bill 5, over 100 organizations are submitting a letter to oppose the proposed changes, listing concerns over the elimination of species recovery strategies, the politicization of species listings and the failure to acknowledge Indigenous peoples' right to free, prior and informed consent. 

"These short-sighted proposals may benefit industry and developers in the short term, but they will open a Pandora's box of problems for future generations," said Ontario Nature's Shane Moffatt.