The only certainties in life may be death and taxes, but in Canada “major legislation will be challenged in court” should probably receive an honourable mention. So it is with a pair of bills from the Ontario legislature and the federal Parliament. Premier Doug Ford’s Bill 5 and Prime Minister Mark Carney’s C-5, passed hastily with the stated rationale of accelerating priority infrastructure projects, allow the respective governments to waive otherwise applicable laws to speed up approvals. On Wednesday, nine First Nations announced a legal application to strike down Ontario’s Special Economic Zones Act, as well as key parts the federal Building Canada Act.
“Absolute power corrupts absolutely,” said Kate Kempton, the lead counsel in the legal challenge, alongside four of the nine chiefs involved. In this instance, she argues, the legislation “is unconstitutional because First Nations have rights in this country that the rest of us don't.”
The argument, spelled out in the application filed in Ontario’s Superior Court of Justice, says that by curtailing the rights of the public (including First Nations) to comment and consult on major projects, the laws breach Indigenous rights protected by Section 35 of the Charter of Rights and Freedoms.
In 2018, the Supreme Court of Canada rejected a challenge from Mikisew Cree First Nation that argued Harper-era changes to environmental law breached the Crown’s “duty to consult,” a constitutional principle in Canadian law. The court held that the duty to consult did not require Parliament to consult with First Nations as it crafted the legislation in question, but three justices (including Chief Justice Richard Wagner) approvingly cited a warning from Yukon’s Court of Appeal: legislation that leaves First Nations with no meaningful role to object to decisions made about them or their lands “are defective and cannot be allowed to subsist.”
The new application includes specific criticism of so-called “Henry VIII clauses” in both the provincial and federal law. At the risk of getting too technical, a Henry VIII clause allows a minister to amend or repeal parts of a piece of legislation. Here, it allows cabinet to designate projects as priorities and thereafter exempt them from laws that would generally impose procedural or regulatory barriers.
The federal law includes some guardrails (it was amended during the committee process to expand the list of laws Ottawa can’t ignore, including the Indian Act) but Ontario’s law includes only a generic restriction requiring the government to adhere to “existing Aboriginal or treaty rights of the Aboriginal peoples of Canada as recognized and affirmed in section 35.” It’s a superfluous clause: by definition, the law can’t be overtly unconstitutional.
The application argues that Henry VIII clauses in both bills violate Indigenous rights under the Constitution, and further argues that additional Ontario-specific changes in Bill 5, such as changes to Ontario’s endangered species and heritage protection laws, also impair Indigenous rights. The challenge also argues that aside from Indigenous rights under Section 35 of the Charter, the laws infringe the right to security of the person (Section 7) and equality (Section 15).
The effect of both bills in concert is more than the sum of their legal parts, the First Nations argue. “They each compound one another and their harms to First Nations. Since both are similar in the violative regimes, purposes, and effects, there is no escape for First Nations,” the complaint reads.
The prospects for success aren’t clear: the Supreme Court in Mikisew was divided on whether the duty to consult included meaningful input in the legislative process. Historically, the courts have largely held that parliamentary supremacy and privilege mean that the direct work of introducing, debating, and passing legislation isn’t subject to the scrutiny of courts. More broadly, it’s a sticky situation for courts to effectively dictate what kind of consultation is sufficient for legislative and executive action, particularly at a time when elected governments are emphasizing the need to build more and more quickly.
It will be interesting to see if the court revises its jurisprudence regarding Henry VIII clauses. They’ve been accepted as constitutional in Canadian law since World War I, and affirmed as recently as the Supreme Court’s decision on the now-defunct carbon tax. Still, the sheer breadth of Ontario’s law might be too much for the court to swallow. University of Ottawa law professor Paul Daly has written Bill 5 is “constitutionally doubtful” and “arguably an abdication of legislative power, as the legislative assembly has entrusted the whole body of statute law (and regulations) in the province to the cabinet with nothing by way of procedural or substantive constraint.”
What comes next also isn’t certain. Normally, a legal challenge like this would proceed through a lower court, and then potentially an appeal before Ontario’s Court of Appeal, before heading to the Supreme Court. However, the federal cabinet can also refer a question like this directly to the Supreme Court of Canada if it wants a speedier, authoritative answer.
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