5 more First Nations join legal challenge against Bill 5 and C-5

Five more First Nations have joined a court challenge against new federal and provincial laws aimed at fast-tracking development, saying they threaten Indigenous rights.

Bill C-5, passed by Parliament last June, allows cabinet to quickly grant federal approvals for big projects deemed to be in the national interest such as mines, ports and pipelines by sidestepping existing laws, while Ontario’s Bill 5 allows its cabinet to suspend provincial and municipal laws through the creation of so-called “special economic zones.”

Walpole Island First Nation, along with Kashechewan First Nation, Mississaugas of the Credit First Nation, Wapekeka First Nation and Wunnumin Lake First Nation, is joining the legal challenge.

“Bill 5’s removal of the requirement for an environmental assessment of the proposed Dresden Landfill is a direct threat to my community’s wellbeing and our ability to continue to practise our way of life,” said Bkejwanong (Walpole Island First Nation) Chief Leela Thomas in a news release Jan. 27.

Laryssa Waler, spokesperson for YORK1 Environmental Waste Solutions, owners of the Dresden landfill and waste transfer facility, said it holds existing environmental compliance approvals issued by Ontario’s Ministry of the Environment, Conservation and Parks.

Lead counsel Kate Kempton of Woodward and Company Lawyers said the laws set reconciliation back 40 years. She said Indigenous nations have tried to reclaim their rights and autonomy but any law that enshrined these rights can now be ignored, “no matter what these politicians are saying publicly.”  

“Both of these laws give the respective governments absolute power … to make huge decisions about massive developments on lands without applying and abiding by any other laws at that level of government,” said Kempton.

Kempton said laws that threaten and provide for sweeping environmental damage including climate change are in violation of section 7 of the Canadian Charter Rights and Freedoms, the right to life, liberty and security of the person, because they cause severe mental, cultural and social distress in addition to the trauma First Nations have already endured. 

She said Bill 5 and C-5 will disproportionately and unequally harm First Nations more than others and is also a violation of the right to equal effect from the law under section 15 of the Charter.

Constitutional challenge

The rest of the case is about Indigenous rights under section 35 of Canada’s Constitution, pinned on the 2018 decision in Mikisew Cree First Nation v. Canada, where the Supreme Court said that Crown governments have a duty to act honourably to Indigenous peoples in procedure to pass legislation, though not a duty to consult.

Kempton said their case takes precedence from the Mikisew decision to define how the government must act honourably, which has never been decided by a court before.

“Our case says it means that you can’t set reconciliation back,” she said.

“It means that you can’t make it harder to effect reconciliation, as both of these laws do.”

Kempton said she disagrees with the Mikisew decision that Crown governments do not have a duty to consult Indigenous peoples in preparing legislation.

“These laws are unconstitutional and need to be struck out,” she said.

Chief Sheri Taylor of Ginoogaming First Nation, one of the original nine nations to file the court challenge, said they had no choice.

“We need to be part of that conversation well ahead of time before they even receive a permit,” Taylor said.

Taylor said their experts, land users, and elders need to be involved because that’s how their nation’s laws are determined. 

Kerrie Blaise, founder of Legal Advocates for Nature’s Defence and legal counsel to two proposed intervenors for the challenge from Attawapiskat First Nation, said Bill 5 contains a clause that says causes of action are extinguished, thereby eliminating the public’s ability to challenge government actions or seek accountability and transparency in what they’re doing.

“The government has the power right now to repeal Bill 5,” she said.

‘Full consultation’

Ontario’s Ministry of Indigenous Affairs and First Nations Economic Reconciliation declined to comment as the matter is before the courts.

A spokesperson for the Privy Council Office said in an emailed statement that Canada has reviewed the Notice of Application and is determining next steps.

The statement said there is a need to boost Canada’s economy through diversifying trade, building infrastructure, and responsibly developing its energy and natural resources, “at speeds not seen in generations.”

“The prime minister has emphasized that national interest projects can only be done in full consultation and co-operation with Indigenous Peoples, to strengthen Indigenous ownership and partnerships, and support generational economic opportunities in their communities,” the statement said.