Nine First Nations in Ontario are seeking a court-ordered injunction that would prevent the federal and provincial governments from using newly passed laws to fast-track infrastructure projects.
The constitutional challenge states provincial Bill 5 and federal Bill C-5 “both represent a clear and present danger” to the First Nations, which include Attawapiskat, Fort Albany and Apitipi.
The First Nations argue 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 calls the promises of consultation with Indigenous communities a “smoke and mirrors trick” and says the “authorized exclusions” of First Nations contained in the legislation are “unconstitutional.”
“It is like a law that authorizes what should in fact be prohibited, such as authorizing commercial airline pilots to fly drunk, without knowing the flight path, and without having to engage with air traffic control,” the claim reads.
“Both governments have tried to soften the effects of their laws by effectively saying to First Nations, ‘Don’t worry, we’ll speak to you.’ This is hollow. The content of the laws authorizes the opposite.”
Bill C-5 allows the federal cabinet to quickly approve big projects deemed to be in the national interest. They include mines, ports and pipelines.
Ontario’s bill allows its cabinet to suspend provincial and municipal laws in “special economic zones.”
The First Nations are asking court to strike down the laws, require the federal and provincial governments to make a series of declarations about how they were passed without respect to First Nations or the constitution, and pay $100 million in damages to the communities.
“Sort of a penalty, if you will, on the Crown for failure to act honourably,” senior counsel Kate Kempton, who is representing the First Nations in the legal challenge, said in an interview with CBC.
“And so, we simply applied precedent. There’s no magic in the dollar amount. It’s a substantial amount because the breach in this case is substantial ….”
Ontario passes Bill 5 despite opposition from First Nations, environmental groups
Kempton said while these laws are “supposed to be addressing the manoeuvring of the Trump administration” (a reference to the U.S. president’s tariffs), they will instead turn Canada into “a nation prepared to ‘build, baby build’ or ‘drill, baby drill,’ despite the pretty horrific consequences in this case if these bills are allowed to go ahead unchecked.”
The federal and Ontario governments have 30 days to comment on the claim in court.
CBC asked the office of Premier Doug Ford about the legal challenge and was provided with the following statement:
“We will continue to build consensus with First Nations on shared priorities including legacy infrastructure, all-season roads and resource development that support long-term prosperity.
“We have begun productive conversations with First Nations who share our vision of unlocking economic opportunity and critical infrastructure in their community, and will continue these consultations throughout the summer. These consultations will shape the regulations and criteria for new special economic zones and Indigenous-led economic zones.”
