First Nations Commence Legal Action Against Laws Aimed at Bypassing Their Consent
Nine Ontario First Nations filed a claim at the Ontario Superior Court on July 14 against the Ontario and Canadian governments seeking an injunction to prohibit the governments of Ontario and Canada from taking any steps pursuant to two recent bills they passed without their consent. The two laws in question are Ontario's Bill 5, the Protect Ontario by Unleashing our Economy Act, 2025; and the federal Bill C-5, the One Canadian Economy Act, which includes the Building Canada Act (BCA).
Specifically, the First Nations are seeking "an interim, interlocutory, and/or permanent injunction prohibiting Ontario and Canada from taking any step involved in acting pursuant to the purported authority of Bill 5 and the BCA (respectively), including by carrying out or implementing Special Economic Zones, the identification of National Interest Projects, or otherwise acting in a way that affects the Territories of the Applicant First Nations without their consent."
The application sets out how these laws violate the hereditary and
treaty rights of these First Nations, as well as Canada's
obligations under the UN Declaration on the Rights of Indigenous
Peoples (UNDRIP) and other laws. They note the "Henry VIII clauses"
included in both pieces of legislation, "which grant sweeping
powers respectively to the Federal and Ontario Cabinets to speed
up development, dispense with regulatory requirements and ignore
the rights and interest of Indigenous Peoples."
Such clauses are derogatively named after Henry VIII, as they allow the Cabinet to modify primary legislation without going through the legislature or to set aside statutory regulatory requirements in the name of removing impediments to "economic development" and the "national interest."
The First Nations note that the federal and provincial legislation are "both consistent with Canada's expressed purpose to shift the focus of reviews from 'whether' to 'how' projects should be built. While First Nations would normally be engaged at the first stage question of designation of a project as a National Interest Project, the Henry VIII provisions authorize Canada to remove or degrade opportunities for Indigenous engagement and rights protection at all material stages thereafter."
The filing argues that the two laws build on one another, compounding their effects. "Since both are similar in their violative regimes, purposes and effects, there is no escape for First Nations," the lawsuit reads. Their claim notes that both laws "represent a clear and present danger" to the First Nations. They argue that both pieces of legislation authorize the Crown "to unilaterally ram through projects without meaningful or any engagement with First Nations" and "violate the constitutional obligation of the Crown to advance [...] reconciliation." The claim also dismisses the Crown's promises of consultation with Indigenous communities as a "smoke and mirrors trick" and says the "authorized exclusions" of First Nations contained in the legislation are "unconstitutional."
On July 16, the claimants held a press conference at Queen's Park to inform the public of their case.
Kate Kempton, the lawyer representing the First Nations involved, speaking at the beginning of the press conference, noted that these two laws give the "cabinet and governments unfettered powers" to fast-track megaprojects and sweep aside laws and processes that are in place to protect the lands and the people living on those lands. She noted that the claim made by both levels of government that the laws are necessary to protect the "national interest" and defend Canada against the Trump tariffs do not mean that they can override the rights of Indigenous Peoples. Kempton noted that both levels of government have failed to address "for decades" the dire human rights abuses in Indigenous communities including lack of housing, lack of clean water, health care and other basic rights and that these two laws will only further worsen the dire conditions Indigenous Peoples in Canada are living in. She noted the claimants will not permit the Crown to implement these laws and that they intend to pursue justice until victory.
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June Black, Chief of the Apitipi Anicinapek Nation, one of the First Nations on the claim, said at the press conference, "What's about to happen is going to be very harmful. Bill 5 and Bill C-5 are pieces of legislation that attempt to bulldoze over our First Nation rights and lands with no respect for our decision-making and jurisdiction."
"First Nations have a right to self-determination," she said. "We
have a right to a way of life in our lands, and that way of life
includes decision-making and government authorities. Canada and Ontario
cannot continue to make unilateral decisions about developments and
major projects."
"We will not and do not tolerate Crown governments taking over our lands in whatever way they want. Crown governments are required to act honourably with respect to all decisions and dealings with First Nations. Speeding through projects and exempting projects from authorizations and approvals is far from honourable. Approving projects without the consent of First Nation peoples, who have been on this land forever, is even less honourable," Chief June Black added.
Taynar Simpson, Chief of Alderville First Nation, said: "We are the
only people that have been here for 10,000 years straight, and we're
always going to be here. It is our duty to ensure that our lands are
protected, that our nature is protected, that our ancestors who are
buried all over this territory are protected."
Sheri Taylor, Chief of Ginoogaming First Nation, noted: "Ontario and Canada are supposedly worried about President Trump and are using this as an excuse to further erode and degrade First Nations involvement, engagement and consent and decision-making."
"Crown governments are showing they are more concerned with the threats of our neighbouring president than the threats that First Nations have been facing for centuries," Taylor said.
Todd Cornelius, Chief of the Oneida Nation of the Thames, noted: "We are against our lands being taken from us and used in ways we do not agree with. We are interested in development that is done the right way. The right way means protecting and conserving the environment, lands, waters and species. The right way also means full participation in decision-making of First Nations who have the rights on our lands." The Chief also noted that this move by the Ontario and federal governments has aroused First Nations youth to become active in fighting for their rights and that this was a very important development.
Aroland First Nation is part of this legal challenge which is noteworthy because in January, the Ford government made much of its "partnership" with Aroland First Nation to build a road and other infrastructure to the Ring of Fire, implying the First Nation had agreed with everything the government is planning to do with the Ring of Fire. At the time, Aroland Chief Sonny Gagnon pointed out that Aroland agreed to the road and infrastructure upgrades for their community, but did not commit to anything else. The Ford government's misrepresentation of its agreement with the Aroland First Nation is par for the course of those who interest is purely self-serving.
To read the full application, click here.
(CBC, APTN, Government of Ontario, Windbreaker)
This article was published in
Volume 55 Number 7 - July-August 2025
Article Link:
https://cpcml.ca/Tmlm2025/Articles/M550072.HTM
Website: www.cpcml.ca Email: editor@cpcml.ca