Kate Kempton, who is preparing a suit, predicts this 'bridge too far' could also lead to protests
An offer by Premier Doug Ford to amend an omnibus bill that is currently before the Ontario Legislature can’t counteract the bill’s assault on Indigenous and First Nations rights, says a lawyer specializing in Indigenous rights and decolonization litigation.
“The Ford government has passed a number of omnibus bills that, in our view, have gutted protections for First Nations rights and environmental justice and environmental protection and democratic rights. Across the board, there have been dozens of changes like that, typically in omnibus bills. But this is the bridge too far, or the straw that’s breaking the camel’s back,” says Kate Kempton, senior counsel with Woodward & Company Lawyers.
The piece of proposed legislation is Bill 5, Protect Ontario by Unleashing our Economy Act, 2025, which introduces changes to The Electricity Act, the Endangered Species Act, the Environmental Assessment Act, the Environmental Protection Act, the Mining Act, the Ontario Energy Board Act, the Ontario Heritage Act, Rebuilding Ontario Place Act, and the Species Conservation Act, and enacts the Special Economic Zones Act, 2025, all in the name of kicking the province’s economy into high gear, nominally to counteract the trade war triggered by the US government’s imposition of tariffs.
Despite the bill's sweeping scope, its language lacks references to the province’s obligations to consult with First Nations and Indigenous stakeholders. That is expected to be addressed in an amendment today, as the CBC reports, the update will say “Regulations under this Act shall be made in a manner consistent with the recognition and affirmation of existing Aboriginal and treaty rights in section 35 of the Constitution Act, 1982, including the duty to consult."
“They’re proposing an amendment based on the objections of First Nations, saying things like, ‘we will consult you about regulations, including special economic zones and these laws won’t abrogate or derogate from the Aboriginal treaty rights of Indigenous peoples.’ Those clauses are meaningless if what you’re doing at the end of the day is a violation or there is nothing to consult about. It's like lipstick on a pig,” says Kempton.
While many parts of the bill concern her clients, Kempton identified the special economic zones as particularly troublesome.
The bill states, “The Lieutenant Governor in Council is authorized to make regulations designating special economic zones and the Minister is authorized to make regulations designating trusted proponents and projects.
“The Lieutenant Governor in Council is authorized to make regulations exempting a trusted proponent or designated project from requirements under an Act, regulation or other instrument under an Act, including by-laws of a municipality or local board, as those requirements would apply in a special economic zone. The Lieutenant Governor in Council is also authorized to make regulations modifying the application of provisions of an Act, regulation or other instrument under an Act, including by-laws of a municipality or local board, as those provisions would apply with respect to a trusted proponent or designated project in a special economic zone.”
As Kempton sees it, this would give the Ontario government power to greenlight projects (such as approving mines in the Ring of Fire) and override the will of Indigenous governments, all without requiring basic steps such as performing environmental assessments, issuing permits or even fulfilling the UNDRIP requirement to consult and obtain consent.
“This creation of special economic zones decided by ministers based on who their trusted economic business partners are is the most laughable form of oligarchy and totalitarianism I've heard for a long time,” says Kempton.
And it’s not just Kempton who expressed her objections to the bill. Indigenous leaders also held a rally at Queen’s Park, expressing serious concerns about the bill's detrimental effects on their rights.
Kempton, who is currently pursuing a lawsuit against the Ontario government on behalf of 10 Treaty 9 First Nations members, says that she is also crafting legal challenges in case the bill passes. She expects other responses beyond the filing of lawsuits to occur.
“I’m pretty sure there'll be protests, probably blockades – the Idle No More thing is going to come back, probably bigger than ever before because, as I said, this is the straw that broke the camel’s back. It’s like the line in the sand has been crossed. Whatever happens, it will not be smooth for the Ford government.”
As for her lawsuit, she says the Ontario government has put forward a motion to strike, which will be heard on December 18 and 19.
She isn’t surprised about that legal tactic, as the case is one that, if successful, would mark the “beginning of the end of colonialism.”
Kempton explained that the lawsuit focuses on the disparity between the content of the written treaty and the oral promises made for the Crown and the Indigenous People to co-govern the land. She wants to see that promise restored.
“It’s anti-democratic. It’s totalitarianist. It’s the executive deciding through a political-decision-making process, divorced from science and legal rights, what they’re going to do,” she says.
“We’ve reached the end of the line with the duty to consult and accommodate law. It’s just had its day. We’ve hit the glass ceiling, and it’s trapped us, and now we have to move out of that box and into co-jurisdiction—the right to decide.”
