The Ford government has announced a plan to use its proposed "special economic zones" bill to create "Indigenous-led economic zones," after it consults with Indigenous partners over the summer.
It comes after sustained criticism from Indigenous leaders, as well as threats of court challenges and a resurgence of the protests and blockades of the Idle No More movement, should the government pass the bill unchanged.
The premier's office alerted media to the plan Wednesday morning, just as the parliamentary committee studying Bill 5 began the process of debating and voting on amendments to the Protect Ontario by Unleashing our Economy Act.
"As the next step in developing mutually beneficial nation-building projects that will unlock prosperity and critical infrastructure in Indigenous communities, our government will work throughout the summer in consultation with Indigenous partners to develop regulations to create new Indigenous-led economic zones as part of Bill 5," said Hannah Jensen, press secretary for Premier Doug Ford's office. "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."
Jensen also announced the government will propose an amendment to the special economic zones bill to recognize Aboriginal and treaty rights. With a Progressive Conservative majority on the committee, all of the government amendments are likely to pass.
This recognition would be in the body of the bill, separate from additional similar language in the preamble of the omnibus legislation that the government previously proposed. Indigenous leaders had said the change wasn't enough to ease their concerns, noting that it is not binding.
Bill 5 would give the provincial cabinet the power to designate an area a “special economic zone,” and then exempt selected proponents and projects from requirements under any provincial law or regulation, including bylaws of municipalities and local boards, that would otherwise apply.
Federal laws, like the Criminal Code and Charter, and treaty rights, cannot be waived, however.
The bill also proposes to speed up approvals for mining projects through a “one-window” approach, ends an environmental assessment for a controversial dump expansion in Dresden, Ont., and empowers cabinet to exempt projects from archeological assessment requirements, which Indigenous leaders have warned puts sacred sites at risk.
As of early Wednesday evening, the NDP was staging a filibuster to attempt to force the committee studying Bill 5 to consider amendments to it on an additional day. There are just five more scheduled sitting days before MPPs' months-long summer break from sitting is supposed to begin. The Ford government could schedule more, however.
The move to create "Indigenous-led economic zones" caught at least some leaders unaware. Asked which First Nations had requested the change, per the premier’s office’s statement, Indigenous Affairs Minister Greg Rickford identified the grand chief of the Anishinabek Nation and “a variety of different communities.”
Anishinabek Nation Grand Council Chief Linda Debassige told The Trillium that she did not request an addition of a category of Indigenous-led special economic zone, did not have a mandate to do so, and was not aware of the government’s current plans.
She noted, however, that her organization had advocated for its nations to have a “significant role” in the creation of special economic zones and any associated regulations, and the designations made under the law.
”First Nations cannot rely on ‘trust,’ accountability has only worked for us,” the Anishinabek Nation’s submission had said, she noted.
Ogamakan Michael Sugarhead of Nibinamik First Nation also spoke with The Trilium about the government’s announcement, along with the Nation’s lawyer, Zachary Davis.
They both said the government must provide more information about the proposal.
“We need our members to thoroughly understand this process and what they're giving up as their treaty rights, if they’re being trampled on,” said Sugarhead.
Davis said the government’s decision to consult First Nations on Indigenous-led special economic zones could be a positive development.
“But we don't know what that means in the law right now,” he added. “That's just a string of words. It doesn't have any content attached to it.”
The purpose of the government’s proposed special economic zones is that, within them, provincial and local laws and regulations can be waived — and if that is true of the Indigenous-led version, there could be “an opportunity” there for First Nations, said Davis.
“If the government is willing to fill the void with respect for Indigenous laws, and with agreements with Indigenous communities that would establish a process that really would lead to free, prior and informed consent about development, then maybe Indigenous economic zones are the way to go,” he said.
“One big issue that we're facing right now is that the government has not proceeded with this bill so far in a way that was co-operative or consultative, and so leaves a lot of doubt as to what their true intentions with Indigenous-led economic zones actually are.”
One example of existing law that could be voided is the parts of the Mining Act that allow free entry for the staking of claims without consultation, which many First Nations oppose, but which the government has so far staunchly defended.
Sugarhead said that his First Nation is interested in benefits from developments that could help the community, which has poor services, as long as it protects the land, which he described as “one of the last pristine places in North America.”
Sugarhead also offered a final word to lawmakers: “Our land is not for sale.”
NGOs’ concerns remain unaddressed
The government’s amendments to the bill do not address concerns expressed by non-governmental organizations about its effect on the environment and the rule of law in Ontario, said Phil Pothen, legal counsel with Environmental Defence.
“None of the amendments even purport to change the fact that Bill 5 would give the premier and the cabinet unfettered authoritarian power to exempt every friend or business they choose from every provincial law they choose in every part of the province they choose for any reason,” said Pothen, referring to the powers that the section of the bill concerning special economic zones would confer.
The Canadian Civil Liberties Association expressed similar concern. It said this section of the bill “invites the cabinet to establish 'lawless zones' without meaningful democratic oversight,” warning that it “could be used to suppress rights around unpaid labour, the right to refuse unsafe work, and protections against child labour.”
“This alarming move enables the provincial executive to circumvent the legislature's role and to unilaterally abandon existing legal safeguards that protect the people of Ontario, including Indigenous people and other vulnerable communities such as workers and people living in poverty,” the CCLA wrote in a written submission to the committee.
“Giving the cabinet and the minister such extraordinary powers should be the democratic exception, not the norm. This type of power should only be introduced and invoked in the most exceptional circumstances such as wars and pandemics. Even then, the exercise of these powers should be subject to stringent checks and balances. Schedule 9 fails on all counts. The CCLA urges members of provincial parliament to vote against setting this dangerous precedent in law.”
Pothen also said the amendments do not change his organization’s concerns about the government’s overhaul of protections for endangered species, and that the bill will “repeal all meaningful protections” for them.
