Ontario seeks to "protect Ontario" by undermining protection of nature and Indigenous rights

The Protect Ontario by Unleashing our Economy Act (Bill 5) is an abuse of the sense of public urgency for "major projects" and greater independence from the US.

The image above is of what the Ontario government calls the “Ring of Fire” area. On its website, the government states: “Ontario’s Ring of Fire region is one of the most promising mineral development opportunities for critical minerals in the province. It’s located approximately 500 kilometres northeast of Thunder Bay and covers about 5,000 square kilometres.” And: “Ontario is working directly with First Nations through bilateral agreements that support each community’s unique needs and priorities. First Nation communities are leading proposed road projects in the Ring of Fire, including assessing any potential social and environmental impacts, as well as maximizing opportunities for First Nations people.”

Today we were going to write about how to reconcile the need for solidarity and flexibility in federal provincial relations but that will wait. This week the implications of the passage by the Ontario government of Bill 5 take precedence. For an overview of the bill, see this May 30 CBC report, “Doug Ford's controversial Bill 5: Here's what you need to know.”

Bill 5 (bearing the Orwellian title of Protect Ontario by Unleashing our Economy Act) has just been rammed through the Ontario legislature and now only needs the Lieutenant-Governor’s signature to become law. The bill raises two issues that are important for all Canadians wherever they live. The first is about speed. All our governments are rightly committed to speeding up approvals of major projects; of course it shouldn’t routinely take five years or more to get things moving or even to determine if the projects should be launched at all. No doubt real gains could be made by harmonizing or integrating processes, having dedicated expertise for managing big projects, and more effective upfront engagement with Indigenous Peoples and key stakeholders. But Bill 5 is a reminder that speed cannot come at all costs. That we will all pay heavily if environmental stewardship is given short shrift or sacrificed for short term gain. Speed has costs both for nature and for justice.

And recent history should also have taught us that ignoring Indigenous rights and environmental obligations may not actually speed things up! That is because no legislation can eliminate the constitutionally protected rights of Indigenous peoples — including the right to be consulted on resource projects that may impact those rights. That said, Indigenous leaders do have serious concerns that Bill 5 actually seeks to circumvent such constitutional protections, even if the bill does not state that expressly. These concerns are entirely understandable and they are not without basis (see the postscript).

Consider this wake-up call two days ago from the David Suzuki Foundation, entitled “Reckless and chilling: Bill 5 is Doug Ford’s most dangerous legislation yet.” Here is part of the Foundation’s news release:

The Ontario government has passed Bill 5, and with it ushered in a frightening new era of environmental rollbacks and democratic decline. …

The legislation repeals the Endangered Species Act, weakens environmental safeguards and gives cabinet sweeping new powers to approve development in “special economic zones.” Those zones would require no environmental assessment, public consultation or Indigenous consent….

The Foundation warns that Bill 5 sets a dangerous precedent — not just for Ontario but for all of Canada — by prioritizing short-term industrial gain over long-term ecological and societal wellbeing. …

And, yesterday, Charlie Angus / The Resistance penned an important reminder for us in a piece called: “"Diplomacy Ends Today: Indigenous resistance to Doug Ford's ‘Special Economic Zones’”

Charlie observes near the start of his piece :

Bill 5 gives a blank cheque to any grifter company, donor developer or mining company to start making money in Ontario without having to bother with troublesome zoning or environmental laws. It also exempts resource companies from their duty to consult Indigenous people.

Never mind that Canada has signed treaties with First Nations or that there is extensive legal precedent on the duty to consult.

Canada is also a signatory to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which commits governments and companies to respect the prior and informed consent of Indigenous people before exploiting resources on their lands.

And it ends:

First Nation people and their allies know what is on the line. Breaking the treaties has long been the oldest con in Confederation. And it can't continue.

This teaching moment of resistance is essential for our nation.

Canada's greatest resource isn’t the gold, the critical minerals, or the oil and gas. It lies in the strength and potential of this generation of Indigenous youth.

As allies, our first responsibility must be to stand with the young people — not the politicians who would steal their land, their rights and their future.

When we begin to invest in Indigenous youth, Canada will become the nation it was meant to be.

To read the stirring middle of Charlie’s essay, click here below:

"Diplomacy Ends Today"

Bill 5 is also a vivid reminder that what happens in one jurisdiction matters to the rest of us. Nature doesn’t respect provincial boundaries. All governments must respect Indigenous rights. And the last thing we need is a race to the bottom in how to manage our economic and environmental priorities. More on this next week.

What’s your thinking on the implications of Bill 5?

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Postscript: (We add the following explainer to assist in understanding some of the claims and fears regarding Bill 5 and Indigenous engagement in deciding and implementing resource projects.)

You will have noticed that both the David Suzuki Foundation and Charlie Angus pieces are alleging that the bill, when enacted, will allow the ignoring of Indigenous rights in relation to project approvals. It is crucial, however, to know that the “duty to consult” on such approvals is a constitutional protection under s.35 of the Constitution Act, 1982, and, as such, no statute can simply override it. Indeed, Bill 5 does not say that it will — ‘only’ that in special economic zones, and some other circumstances, the Cabinet can decide to exempt the zone from statutory rules or local municipal bylaws, not from the constitution. Indeed, the Minister, when debating the bill at second reading, stated more than once that the constitutional duty to consult must be adhered to by the streamlined processes Bill 5 creates.

So, why the worries?

First of all, many statutory rules and some municipal bylaws for environmental impact assessment and consulting local communities (i.e., generally, and not only Indigenous communities) double as the procedures in which much or some consultation occurs with Indigenous peoples. Where exemptions from the application of such general rules are created, these procedures will no longer be available to Indigenous peoples, just as they won’t be available for others. Uncertainty will arise as to which (new) rules will be stipulated by the government as sufficient to meet the constitutional duty to consult. Worse, in specifying what steps count as adequate consultation, the government may seek to exploit how very generally the requirements for the duty to consult are framed in the guiding judicial case law.

Secondly, governments decide in the first instance when to cut off whatever they are calling consultation, in order to then decide on the project — whether it will proceed; whether special conditions are to be placed on how it proceeds; etc.. Governments will of course always claim they listened and took into account what they heard. Consultation is a notoriously loose notion, and many a government has tried to go through very formal motions and call it “consultation” — and then either hope Indigenous communities will not go to court to challenge a decision that goes against the views they provided or that a judge will treat a very formalistic process as sufficient. And, so, many critics are likely putting three and three together: that the whole logic of Bill 5 is to ram approvals through in much-shortened time spans; that consultation is a concept that some courts may not treat as offering a major hurdle, especially in the present context of national urgency; and that this government has no better record than most Canadian governments historically have in engaging in meaningful consultations — a fancy way of saying its record is not great.

Thirdly, what the critics tend to be talking about is not the duty to consult in the Canadian constitution but, rather, a higher standard calling on the state to seek and, in some contexts, secure “free, prior and informed consent” (FPIC), a standard from international law — notably, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). It is likely that the Ontario government is, first of all, counting on the fact that this international standard has not yet been recognized by the Supreme Court of Canada as also being a Canadian constitutional standard and, next, relying on the fact that Ontario has not otherwise legislated FPIC as a standard. By way of contrast, the federal Parliament did pass a statute making UNDRIP part of federal law and thus created a statutory reference point for FPIC to apply to federal government conduct; the existence of this law almost certainly explains — or explains in part — why the Speech from the Throne delivered by King Charles committed the federal government to “free, prior and informed consent.” For the moment, Ontario will be able to claim a freer hand to stick with formalistic consultation and to insist that consent is neither a constitutional nor a statutory duty in Ontario. (This freer hand will only be stayed if courts in Ontario read the UNDRIP duty to seek FPIC into the constitution as an evolved, higher standard than the duty to consult. Or — a much more complicated route — if the federal Parliament adopts new legislation requiring provinces to respect FPIC and then win in court against the inevitable challenge Ontario would bring saying such legislating of provincial conduct is unconstitutional because of it is outside federal legislative jurisdiction granted by the Constitution Act, 1867; for Ottawa to win, a court would need to find that the essence of legislating FPIC indeed does fall within the subject matter exclusively assigned to Parliament in s. 91 of the Constitution Act — that is, the archaically phrased subject of “Indians and lands reserved for Indians.”)

The matter of just what duties Ontario assumes it has and how it may legally comply with them is thus complex. But the worry — that the result sought is circumvention of a serious role for Indigenous peoples — is real.

(For information about the Pledge for Canada / Engagement pour le Canada, see the “About” page of the Pledge’s publication: here.)