The Agenda with Steve Paikin (Audio) - Does Bill 5 Miss the Mark for Indigenous Communities?

Episode Date: June 5, 2025

Ontario Premier Doug Ford launched his most controversial piece of legislation this session, Bill 5, the Protect Ontario by Unleashing our Economy Act. Sparking much debate from Indigenous communities and the opposition, The Agenda invites, Chief Peter Wesley of Moose Cree First Nation, Chief June Black of Apitipi Anicinapek Nation and Indigenous rights lawyers, Kate Kempton, senior counsel at Woodward and Company Lawyers LLP, and Zachary Davis, partner with Pape Salter Teillet LLP to discuss.See omnystudio.com/listener for privacy information.

The Protect Ontario by Unleashing our Economy Act, better known as Bill 5, is the province's answer to the red tape it says is holding back major infrastructure, mining and resource development projects such as the Ring of Fire. The bill has sparked major opposition from Indigenous leaders who say it circumvents the government's duty to consult First Nations. Here with us now to give us a better take on Bill 5 and its implications, we welcome on the line from Moose Creek First Nation, Chief Peter Wesley. And with us in studio Kate Kempton, Senior Counsel at Woodward and Company Lawyers, LLP, an Indigenous rights lawyer. And Zachary Davis, partner with Pape Salter-Teyay, LLP specializing in Indigenous rights law. Welcome to both in studio and she for joining us on the line. Kate, I'm coming to you first.

Bill 5 is technically called Protect Ontario by Unleashing Our Economy Act. What do you think its mission is? I think its mission is to do what Trump is doing south of the border, which is anti-democratic and anti-firstocratic and anti-First Nations and environmental rights. I think it's designed to vest a bunch of power in the executive to make politically-based decisions that are not grounded in law or rights or their obligations legally

or in science. And I think across the board the entirety of Bill 5 is a breach of the rule of law, the Constitution, and it the entirety. I don't see anything good in it at all and I think it's designed to be anti-democratic and to allow the Ford government to push on ahead, to make a bunch of money now for itself and its developer buddies, and push the costs forward of environmental devastation and human rights devastations to future governments

and future generations who will be so harmed by what we're doing that they may not be able to cover those costs. Zach, I'll get your take. Yeah, I would agree with a lot of that. You know, what it does technically is empower the provincial government to create these special economic zones or special economic people, so-called trusted proponents,

that they could exempt from the application of any law in the province. And this isn't just environmental assessment. This could be the human rights code. trusted proponents that they could exempt from the application of any law in the province. And this isn't just environmental assessment. This could be the human rights code. This could be basic labor laws. And we don't know what criteria they would use because they will design those themselves. We don't know for what purposes they could do this because they will design those criteria

themselves in regulation. And you know, there's a lot of talk about mining, but it could be used for any project of any size anywhere in the province, or for any proponent of any size anywhere in the province. So it really is a ragging of legislative authority towards the executive. All right, Chief, I want to get your thoughts, maybe not on the potential impacts here, but the purpose of the bill

as the way that the the provincial government is setting it up what are your thoughts on that? Well for most Cree we share a lot of a lot of the sentiments that are being expressed by other First Nations against this bill like to us it's a they say they're cutting red tape but for us our treaties are not red tape. You just can't do away with that. It's just not acceptable. And they even put in references in the amendments that were proposed. That's not sufficient.

We need greater clarity on just exactly how they're going to achieve those in talking with First Nations. We're the ones going to be most impacted. And we need to be part of the process. It's just not acceptable just to come and say, we're going to do this and crush this. That doesn't work that way. We simply can't operate on that.

Nobody would be able to operate like that. I actually want to show a map of Ontario highlighting the various nations you, both Kate and Zachary, are representing in relation to the Ring of Fire. You can see Thunder Bay to the south, Moose Creek right there to the border, and the Ring of Fire in red. Zachary, one measure of Bill 5 is to create,

as you mentioned, those special economic zones, including the Ring of Fire. Legally speaking though, break down the jargon here. What does that mean? Right, so I think the first level of concern is we don't know. Right? There aren't a lot of details about what the rules would be in a special economic zone because all that the bill says is that the government will come up with them later in regulations.

This is particularly concerning with the new language we started here last week that the bill would also provide for Indigenous-led economic zones. Now, I agree we need to acknowledge Indigenous leadership. last week that the bill would also provide for indigenous-led economic zones. Now, I agree we need to acknowledge indigenous leadership. But beyond that, that is just a string of words. They have provided no details as to what goes into that. Here's the problem. The government of Ontario cannot exempt themselves from the duty to consult.

That's a constitutional obligation. Right now, we're not huge fans of the mining regime, but there are a series of decision points in the mining regime. An exploration plan, exploration permits, all the way down to a closure plan and closure permits. Each one of those decision points triggers the duty to consult. That's when First Nations engage with the government, share their concerns, there's a potential for negotiation. There's a potential for accommodation. In the special economic zone, those could just be wiped off the table.

So First Nations don't know when, how, where, or if they're going to be consulted. And that's the real concern. When Chief Wesley mentioned the amendment last week, that says that the government will respect treaty rights and the duty to consult. But it doesn't say how. So we're just sort of floating in the consultative ether. That's the problem. All right, lots of question marks there.

Kate, Zachary had kind of mentioned some examples. Can you give us a couple of other examples of provincial loss that companies working on these projects can be exempted from? Yeah, Kate, can I just, though, address something that's already been said? There's a case filed in court now in Ontario that says that First Nations never gave up and the Crown governments, like the Ontario government, never legally acquired the right to take over all decision-making authority or governance rights over the land that comprises Ontario or frankly Canada. That First

Nations retain their right to govern not just on their little reserves but across the land alongside equally with the Crown governments. That this was guaranteed by treaties and so when Chief Wesley is talking about treaty rights we're not just talking about the right to hunt or fish or gather berries. It's the right to a way of life including the governance of the land on which that life has always been, always been for the indigenous nations. They've always been here. And so I want to make it clear that what many First Nations, if not all, in Ontario are

now saying about Bill 5 is what it's really harming is the right to decide. First Nations right to decide. Which when we, the duty to consult is a part of made up by the Supreme Court of Canada from originally almost 30 years ago. And it started off as a, as a what might have held a promising legal concept and it said that essentially any crown government that was going to make any decision at all that would affect a First Nation or its rights needed to consult to the extent that they were substantially addressing that First Nations concerns i.e. what

will it take to get you to consent to this thing that I as crown government am planning to permit to happen. And it got watered down and whittled away over the last couple of decades by pressures brought to bear on crown governments and on the courts. But it started off well, it's become a bad thing. The duty to consult now is just a box ticking exercise and the Ford government has been particularly bad at ignoring its real intent was to have mutual decision-making. And instead it's just become an exercise of we're going to take you to the keg steakhouse

and wine and diner and say that we've talked to you and we're going to plow on ahead, literally, bulldoze over your lands and the law lets us, the Canadian law lets us do so because we talk to you first. And that's what it's devolved to in many circles, particularly in Ontario. And that's not what it's ever been about. And First Nations have moved off of that track because of UNDRAP, the UN Declaration of the Rights of Indigenous Peoples, and its domestication into Canadian law. So it's law here that says that First Nations have the right to decide. And we have to get real about what that means here.

Bill 5 is the straw that is breaking that camel's back. It is the one that after a series of other omnibus bills that the Ontario government has passed over the last seven or so years that have stripped away environmental protections. As Zach was saying, decision points around which the government would engage legally with First Nations, if you take away a bunch of decisions because you're not regulating anything at all, you're not issuing any permits, then there's no trigger for the duty to engage. And this is the last of a series of those that is just so bad in its degree and Cumulatively is just the line of the sand is way over like being crossed and First Nations are saying you're not listening to us

The word consult may be you is but what it really means is you need to we have to be mutually there at the table With you. This is our land You can't it from the ivory tower of Toronto be making decisions without us at the table with you, this is our land. You can't, from the ivory tower of Toronto, be making decisions without us at the table, being there, making those decisions with you. That is really what is going on. The right to decide is at issue here. And Bill 5 crushes it entirely.

Chief, I am curious, you know, Kate Kate had mentioned if not all First Nations are on board with kind of fighting back and pushing back Bill 5 but I am curious how do you balance or strike that balance with some nations that might be looking forward to something like this looking forward to potentially getting you know roads and some infrastructure in the area? I would start by saying, I'd be very cautious on proceeding, given that the bill is being debated

and eventually a decision will be made down the road. I wanna give an example of how Moose Creek, how, where we are. Like we started a co-planning process on a project, a potential hydro development project within our territory with another first nation in our area and to the point where on April, I believe it was April 9th, we stood shoulder to shoulder with Minister Lecce and we made a joint announcement on how we were going to work together in developing a potential hydro development site and announced to us a few days later, Bill 5 was announced and that was just we thought we were like that would be a perfect example on how

to engage First Nations work together collaboratively on determining, like at the end of the day, the First Nation would be able to support it. But now given Bill 5, we have to revisit this. I don't know. It's concerning. And if other First Nations aren't supportive of this, I would express caution to them. There's no details. We don't know what the details are. You see the devil's in the details. So until we know the details, I'd be cautious in supporting it. Alright, I'm going to read a statement from the Governor of Ontario. This is via email.

They wrote, We are upholding high environmental standards, labor laws and duty to consult and have introduced amendments to the legislation to be very clear about that. There is no provision in the bill that would allow for laws to be circumvented nor would legislation ever be used to change that. Any suggestion otherwise is false. We will work throughout the summer in consultation with Indigenous partners to develop regulations to create a new special economic zone and Indigenous-led economic zones as part of Bill 5. This amendment creating a new category of zone is at the request of some First Nations who like us want to build projects that will unlock economic prosperity for generations.

Chief, I'm going to get your thoughts on that statement first and then I would like to get your, we'll go around the block there. Chief? I think it's a little too late. We should have been there at the very beginning. I think they're scrambling now to be honest, just to try to meet their obligations that they should have done in the first place. And I'd go even further to say it affects the Ontario public as well, not only First Nations. Because it has the potential. The public of Ontario will remember the green belt fiasco. And this act would actually give the power to the Premier to do that again if he so pleases. So it's not only about First Nations, I think the public of Ontario needs to be aware of this as

well and a lot of other organizations are against this bill given the overreaching authority it's trying to achieve. Zachary, I'll get your thoughts. You also had mentioned, you know, the Indigenous-led economic zones. I want to get your thoughts on there, but also understanding what do you take that to mean? Yeah, I would say two things in response to that statement. First of all, the government of Ontario's insistence that their approach here respects the duty to consult rings very hollow. Here's one example.

Ontario has what's called a free entry mining regime, which allows prospectors to stake claims without any consultation and by staking those claims, they acquire exclusive rights. That's a regime that is found to violate the duty to consult and be unconstitutional in two provinces and a territory. This was an opportunity for the province to fix that regime and demonstrate to First Nations they believed in the duty to consult, they would respect their rights, and they would work with them as partners. They didn't do that. Instead of correcting that known problem, they are repealing other existing safeguards. So that's number one. It's really hard to believe the province when they say they'll respect the duty to consult. Number two, I really take issue with us and against us rhetoric coming out of the provincial government.

I think we need to distinguish between First Nations that are against Bill 5 and First Nations that are against development. They're not the same groups of people. Lots of First Nations are pro-development, but they want to do it in partnership. They're cautious about the consequences of development. The Ring of Fire is a great example. The First Nations, we work up for there, are pro-roads. They want an all-season road.

It will improve their life. But they're conscious that it will come with other dangers, drugs. It will come with the potential for more missing and murdered indigenous women. And they want to make sure that that change to their lifestyle is carefully considered and done in a way that's collaborative. So when Doug Ford says there is only one way to do development,

and that is Bill 5, I think he's absolutely wrong. And I think Chief Wesley raised a really good example of how to do it right, which they did only a week before they announced this. So it's really a case of pulling the rug out from under. All right. Kate, on Monday, Justice Minister Sean Fraser said the federal government's duty to console indigenous people in the development of nation-building projects does not grant those communities

blanket veto power. I'm going to assume you do not agree with that statement, but give me your thoughts on that. Let's talk about propaganda. The Captain Canada, you know, after Trump was elected and announced tariffs, has turned around and as Tanya Talaga correctly pointed out in an article or op-ed in the Globe and Mail, did exactly the same thing as Trump has done and has been opportunist in terms of using tariffs as an excuse. I mean most of the development that could occur that the Ford

government is saying we need to do to address tariffs won't commence into operation until Trump has long gone in a distant memory. And so it's propaganda. It's building on fears of people. And by the same token, the Ford government is, I think it's frankly immoral and illegal behavior to feed on the fears of First Nations based on a couple of centuries of colonialism and the impoverishment that that has caused.

Many First Nations, their members live in abject poverty to the extent that most Ontarians will never see or experience. And sort of dangling the carrot, preying on that vulnerability that comes with impoverishment to say oh, but we'll give you your own money Effectively it's dangling the the possibility of money from having some economic development Why does do First Nations have to choose between? the right of self-determination to make decisions about the territory from which they have always been and which they've always governed. There's no non-Indigenous town up in the Ring of Fire area.

It's all only ever First Nations. Why should they be forced to choose from the right to decide what happens alongside the government of Ontario with those lands and to the people and animals and plants in and on those lands and economic quality of life that the rest of us take for granted? Why are they being forced to choose? And that's exactly what this dangling of the carrot. Let us please, you know, if I'm Premier Ford, and this is what Bill 5 is saying, let us go ahead and ruin the landscape,

ruin your lands, ruin your rights over here, but we'll throw you a little bit of money for your own economic zone over there. It's a disgusting, it's disgusting to prey on vulnerability like that. And so some development always occurs on First Nations lands, and some of it occurs with their consent. We're not ever suggesting that all development is bad and wrong.

But it needs to be done considering the consequences, understanding first of all what they are, what the impacts may be on people and the rest of the environment because we're part of it, and then making informed decisions to either prevent or minimize certain consequences or compensate and take other measures to offset them. And the very kind of set of laws he's saying we need to wipe out will avoid understanding consequences and addressing them. And on the last point about the statement that you read to Zach about the duty to consult will be honored. You know, one of the shortcomings of the way that in some circles Canadian law and the

duty to consult has been interpreted says it is only triggered if there is a Crown or Ontario like government decision. And if you take away all those decision points, then they can still say, well, I'm abiding by Canadian law and the duty to consult, by simply having no decisions to consult on. And again, it's trickery, it's propaganda, it's opportunism, and we need to see this for what it is. All right. I want to play a clip.

This is of Marit Stiles in the Legislative Assembly of Ontario earlier this week. Let's have a look. I do not know how this government can face anyone right now, knowing how you are trampling on the rights of Ontarians. So I would like to know how creating more chaos and more conflict is going to bring economic security to this province. All right, Zach, I want to get a better understanding. We've heard NDP Deputy Leader Salman Mokwai predict more chaos and more conflict in Ontario

with the passage of this bill. Any idea what that would look like? Well, first I want to say I think she's absolutely right that this bill gets it wrong in that what attracts investment? Regulatory certainty. People need to know that they're going to get money back for the money that they put in. And the biggest risk to regulatory uncertainty is if the approvals and permits issued by a government are not legally valid or legally sound. That's how what otherwise could be a productive project ends up in years of litigation.

And I think that's exactly where this is headed. If you strip away the rules, the criteria, the framework for how an approval is issued and just start handing them out in a way that doesn't in any obvious way reflect the rights of First Nations or other constitutional rights, they will be challenged and you'll have otherwise good projects end up in court. All right. We have less than a minute left, but I want to get the Chief and Kate's take on this. If there was a message Chief to the to the province to the provincial government and they had your ear what's your message to them? I would say you need to withdraw Bill 5 it

doesn't work for anybody and you know we've prior to Bill 5 coming out we've reached out to Premier Ford and Minister Rickford to engage with us. Because we're like that, like what's been stated here, we're not against development. We just want you to work with us and how we want things to be developed within our homeland. And we never received a response. And now they're saying, well, trust us, we'll fill in the details after. No, no, no, sorry, that's simply not gonna work. You need to work with the First Nations. At the end of the day, you need to work with us. First Nations are not happy and they're willing to do whatever, I believe. Don't think that's a road anybody wants to go down on.

All right. Kate, you get the last word. What message do your communities want to send to the provincial government? Look out. There will be litigation and there will be protests and there may well be blockades and that's an exercise of indigenous laws to stop a fundamental wrongdoing. I totally agree with the statement from the NDP representative that all hell is going to break out if this continues on the course that it's on. And a number of First Nations are going to do what they have to do to stop it. All right. We're going to leave it there.

Kate, Zachary, Chief Wesley, thank you so much for your time today. Thank you. Thank you. Thank you. Thank you. Thank you.