Ontario’s Proposed Bill 5 Will Be Devastating to Indigenous Rights and Interests

Monday, May 12, 2025  |  Part 3

On April 17, 2025, the Government of Ontario introduced Bill 5, the dramatically-named Protect Ontario by Unleashing our Economy Act, 2025.[1] In this blog series, we will be sharing our insights on some key aspects of what Bill 5 may mean for First Nations in Ontario. We have included links for each post in this series below, and will update this list as additional blog posts become available:

1. Part 1: Bill 5: Risky Business in Ontario
2. Part 2: Five Things to Know About the Repeal of the Endangered Species Act and the Introduction of the Species Conservation Act
3. Part 3: Changes to Other Environmental and Regulatory Permitting Processes in Ontario
4. Part 4: How to Protect Aboriginal and Treaty Rights During Regulatory Uncertainty

Ontario Is Creating Rule-Free Zones For Businesses With No Legislative Oversight

Ontario is introducing the Special Economic Zones Act, 2025 (the “SEZA”) as part of Bill 5. This proposed bill, which is only three pages long, gives Ontario the unrestricted ability to create regulation-free zones where it can exempt any business or project from any provincial or municipal law or by-law. The proposed law also allows the government to choose its preferred proponents who will also be exempted from regulatory requirements within those zones. There are no limits on the size, location or identity of the areas and businesses who the government could choose to favour with this legislation.

The legislation will create its exemptions from laws, regulations and other rules which normally apply by allowing Ontario to designate certain areas as “special economic zones”.  Ontario could then allow for any “designated proponent” or “designated project” to be exempt from the application of any law or by-law. We have explained each step below:

Designate a Special Economic Zone (“SEZ”):

Ontario will be able to designate any area of Ontario as an SEZ. There are no limits related to the size of a SEZ, or where they may be located.[2] While Ontario says that it could be a smaller area with several “projects of critical or strategic importance” (such as mines), it has also cited the Ring of Fire, which is over 5000 square kilometres in size, as a potential candidate for a SEZ.[3]  

Designate a Trusted Proponent or Designated Project: 

Ontario will also be able to designate any person or any “class” of persons as a “Trusted Proponent” and any project as a “Designated Project” as long as they meet certain criteria that will be developed after the SEZA comes into-force.[4] Because the criteria is not included in the proposed law, it could include anything, or be so vague as to allow nearly anyone to qualify. Leaving the criteria out of the law also means that it can be changed at the whim of the government, to suit its political needs of the moment.

While Ontario has said that proponents will have to meet “high operating, safety and environmental standards” in some promotional documents, the SEZA does not include any criteria or safeguards related to who can be provided with this designation.[5]

The proposed legislation is so broad that there does not seem to be anything in the proposed legislation that would prevent the government from simply naming their friends as ‘Trusted Proponents’, or selecting high profile projects as ‘Designated Projects’, for no particular reason whatsoever. In the context of a government with a well–documented track record of helping its friends avoid rules and regulations designed to protect the public, this new power is particularly concerning.

Identify the rules that will not apply

Once Ontario designates an SEZ, Trusted Proponent, or Designated Project, the government will be able to exempt or alter the requirements of any provincial or municipal law or by-law, regulation, or other rule, for a trusted proponent or project within a SEZ. This includes requirements related to any permits, processes and approvals.[6]

The government may provide these exemptions on a company-by-company basis, or they may provide blanket exemptions for an entire area of land. The proposed law has no limits on how it can be used, who it can apply to, or what exemptions can be given. Among the serious concerns that Ontarians should have with SEZA is that it gives the Ontario government the power to bypass the legislature. The MPPs at Queen’s Park could pass a law imposing new environmental or rights-based protections, and SEZA would allow the government to exempt anyone it wanted from that law. It is noteworthy that when the Government of British Columbia proposed a similar law recently, they quickly changed course, after public opposition to the Government’s plan to hand itself such broad power.

Impacts on Aboriginal and Treaty rights

The SEZA is a dangerous piece of legislation which threatens to significantly impact Indigenous rights and interests. It grants Ontario virtually unlimited power to provide any proponent or business with the ability to conduct any activity it wants, in any area of the province the government chooses, without any regulatory oversight.

While Ontario has said that it will continue to meet its obligations related to the duty to consult and accommodate, the SEZA does not include any explicit oversight mechanisms or ways in which Indigenous Governments will be able to either participate in, or raise concerns about, decision-making under the SEZA. There is normally no need for statutes to explicitly include references to s.35 rights or the duty to consult, because the duty to consult exists, and will be triggered if Crown conduct might adversely affect s.35 rights, regardless of what a statute says.[7] However, Ontario’s promise to continue meeting its obligations to consult are likely empty promises, as the SEZA eliminates most, if not all, of the “crown conduct” which would normally trigger consultation. If there are no regulatory requirements, no permits that need to be issued or licenses to grant, then the conduct contemplated by the Crown, and by extension, the consultation owed to First Nations, will be significantly limited.

It is telling that the only example of a SEZ that has been given by Ontario so far is the Ring of Fire. This region, which is also known as Kawana ‘bi ‘kag by local First Nations,[8] covers approximately 5000 square kilometres of critical biospheres including boreal forests, peatlands and wetlands. It is also home to many different Species at Risk which local First Nations depend on for the exercise of their rights.[9]  

Much of the impetus for the SEZA appears to be the lengthy delays that the Government says have plagued several major proposed Ring of Fire developments. The development of new mines in this area has taken additional time due to the potentially devastating impact of any new project which is not carefully planned out, and its potential effects studied. Instead of trying to identify the actual causes of the problems – the reasons why these projects have taken a long time to get off the ground, the government’s solution appears to be to simply eliminate the regulatory requirements, and procedural and environmental safeguards, entirely.

 If SEZA passes in its current form, First Nations which want to ensure their rights and the environment are protected will need to maintain a watchful eye on their territory and be prepared to act swiftly, aggressively and proactively to ensure concerns about impacts to their rights are raised with Crown governments and proponents, and the necessary steps taken to protect those rights.

These changes unfairly reverse the onus onto First Nations. As many First Nations have noted, it should not be the responsibility of affected First Nations’ to facilitate and pay out of pocket for a profit-generating corporation to come into its territory and infringe its rights.[10] Yet if the SEZA moves forward, First Nations will likely have few other options to protect their rights.

Blocking legal challenges

In addition to the concerns described above, the proposed law also contains a series of ‘get out of jail free’ cards for the government, extinguishing a broad range of causes of action, and prohibiting anyone from bringing court proceedings about anything “directly or indirectly” related to “anything done or not done” under the law or its regulations.[11]  Unfortunately, the Ontario Court of Appeal has recently determined that this sort of broad clause insulating government from legal challenge does not violate the Constitution Act, 1867 or the Charter of Rights and Freedoms.[12]

While these extinguishment provisions exclude judicial review applications, and claims related to constitutional (including s.35) remedies, First Nations who tried to challenge actions taken by the government under SEZA would likely be much more limited than usual in terms of the types of remedies they could seek. While it will still be possible to launch a challenge based on a breach of Aboriginal and treaty rights, anything short of this standard, such as claims related to financial harm suffered by the First Nation due to irresponsible government action or a bypass of trespass or nuisance laws, may be barred. In addition, other interested groups – such as environmental groups and municipalities – will not have a way to challenge this legislation in court. It sets a very dangerous precedent which allows for the government to pass laws without worrying about the court system, except in very narrow circumstances, such as “judicial reviews” of certain actions taken under the bill. [13]

First Nations which want to take proactive steps to avoid these issues may consider steps such as:

• implementing Indigenous Guardians programs to monitor their traditional territory;
• developing positive and mutually respectful relationships with proponents, who understand that even if governments remove regulatory requirements, projects will still face obstacles if Indigenous interests are not respected;
• maintaining detailed and proactive records of efforts to raise rights-based concerns with government.

Ontario Can Now Exempt Developers From Archaeological Requirements

Ontario is significantly amending the Ontario Heritage Act (“OHA”) to give itself the power to exempt a proponent from requirements related to the protection of archaeological sites. It can do so when it believes that the exemption may help advance potential priorities such as “Transit, Housing, Health and Long-term Care or any other infrastructure. Additional “priorities” can also be prescribed by regulation.[14]

The list of “priorities” given above is extremely broad and gives Ontario the power to exempt any development project from requirements related to archaeology. This means that it can exempt a proponent from, along with other rules:

• Disturbing an archaeological site without a license (such as Indigenous hunting camps and villages)[15]; and
• Conducting an archaeological assessment under the OHA or any other act (except for the Funeral, Burial and Cremation Services Act).[16]
  • Note: Assessments are currently required when a project is taking place on a known archaeological site, or an area which has the potential to contain archaeological sites.

Ontario will also be able to create regulations which establish criteria for what is eligible for an exemption. It has been suggested that this power could be used to create criteria which makes sites such as Indian Residential School sites, burial grounds and significant archaeological sites not eligible for an exemption. However, this regulation-making power is voluntary, and Ontario is not required to create any such regulation under Bill 5.

Ontario has also given itself the same get out of jail free’ cards under this bill, extinguishing a broad range of causes of action, and prohibiting anyone from bringing court proceedings about anything “directly or indirectly” related to “anything done or not done” under the law or its regulations.[17]  While judicial reviews and claims for constitutional remedies are excluded, and a First Nation may still be able to launch a challenge based on infringements of their Aboriginal or treaty rights, anything short of this standard, such as claims related to financial harm suffered by the First Nation due to irresponsible government action related to an archaeological site or a bypass of trespass or nuisance laws, may be barred.

The amendments to the new regulation-making power significantly undermine archaeological protections in Ontario. It allows for Ontario to grant exemptions to any developer without oversight, which greatly increases the chances of a site of significance to Indigenous Governments getting disturbed.  

Ontario Is Creating A New “One Project, One Process” System For Mining

Ontario is also promising to create a new “streamlined approval process for mining”. Like many of the proposed amendments in Bill 5, the actual changes to the law are light on detail. Instead, the government has proposed to craft most of the new rules, processes or exemptions through regulation.

While more details are still needed, the Mining Act is being amended to create a new “Mine Authorization and Permitting Delivery Team” (“MAPDT”), which will be able to help proponents obtain authorizations more quickly and efficiently. Project leads would be assigned to designated projects, who would be able to help prepare an “integrated authorization and permitting plan” that allows for better coordinated permitting and consultation processes.  It will also set new service standards for how long a permit approval should take. However, these new timelines will not apply to consultation processes.[18]

It is possible that the new ‘one window’ approach to mine development may actually make engagement easier for First Nations facing potential mine development in their territory. In the past, First Nations have had to engage in multiple, often repetitive consultation processes with government departments that seemed to not speak to one another. This often results in consultation fatigue, accommodation gaps, and jurisdictional trade-offs, where none of the consulting agencies seemed to have jurisdiction to address a particular issue. By consolidating those processes in one place, and having a team dedicated to s.35 consultation,[19] First Nations may find consultation processes to be more effective and responsive because the Crown decision-makers will be able to take a broader ‘whole-of-project’ approach, instead of focusing on narrow issues.

The downside of this system is likely to be shorter decision-making timelines, which is likely to impact First Nations’ ability to collect the necessary information to engage in meaningful consultation.

Ontario Is Gutting Most Protections For Species At Risk

The Endangered Species Act (“ESA”) is a critical piece of legislation which provides protections for over 200 different species which are at risk of disappearing from Ontario (“Species at Risk”). This includes a number of birds, mammals, fish and plants and other species which are critical to the exercise of Aboriginal and treaty rights, including caribou and wolves. [20]

Ontario has stated that the permitting process under the ESA is “slow and complex, causing unnecessary delays and costs for housing, transit, and critical infrastructure”.  As a result, it plans to replace the ESA with the Species Conservation Act (“SCA”).[21]  Until regulations for the new SCA are developed, the ESA is being amended to remove many of the protections currently provided to Species at Risk and reflect the overall approach that will be brought-forward under the SCA. 

This new approach signals a move from Ontario to move away from working to protect Species at Risk, and instead accepting worsening diversity and environmental impacts as a necessary sacrifice for economic growth. As we have explained in Bill Five: Risky Business in Ontario, there are five key changes to know about Ontario’s amendments to how Species at Risk are protected:

1. The Purpose of the Amended ESA and SCA is to Balance Conservation with the Economy;
2. Ontario Can Override Independent Experts on What Species Are Protected;
3. What is Considered a “Habitat” is Being Weakened and Reduced;
4. Proponents Can Now Harass Species at Risk; and
5. A New Registration-Based Permitting System Will Reduce Consultation.

Comments Can Be Provided Until May 17, 2025

Ontario has also made postings related to Bill 5 to the Environmental Registry of Ontario (“ERO”). They are open for comments until May 17, 2025, and we highly encourage Indigenous Governments to provide submissions during this time. If you need assistance drafting these comments, OKT can provide assistance as necessary.

Links to ERO Postings:

1. Protect Ontario by Unleashing Our Economy Act, 2025.
2. Proposed interim changes to the Endangered Species Act, 2007 and a proposal for the Species Conservation Act, 2025
3. Proposed Amendments to the Ontario Heritage Act, Schedule 7 of the Protect Ontario by Unleashing our Economy Act, 2025
4. Special Economic Zones Act, 2025
5. Proposed amendments to the Mining Act 1990, Electricity Act 1998, and Ontario Energy Board Act 1998, to protect Ontario’s Economy and Build a More Prosperous Ontario

[1] Bill 5, Protect Ontario by Unleashing our Economy Act, 1st Sess, 44th Leg, Ontario, 2025.

[2] Bill 5, Protect Ontario by Unleashing our Economy Act, 1st Sess, 44th Leg, Ontario, 2025, Schedule 9, s 2.

[3] See: Environmental Registry of Ontario, “Proposed Amendments to the Ontario Heritage Act, Schedule 7 of the Protect Ontario by Unleashing our Economy Act, 2025.

[4] Bill 5, Protect Ontario by Unleashing our Economy Act, 1st Sess, 44th Leg, Ontario, 2025, Schedule 9, s 3.

[5] See: Environmental Registry of Ontario, “Proposed Amendments to the Ontario Heritage Act, Schedule 7 of the Protect Ontario by Unleashing our Economy Act, 2025”

[6] Bill 5, Protect Ontario by Unleashing our Economy Act, 1st Sess, 44th Leg, Ontario, 2025, Schedule 9, s 5.

[7] Ka’a’Gee Tu First Nation v. Canada (Attorney General), 2007 FC 763, at para 121.

[8] Government of Canada, “Regional Assessment in the Ring of Fire Area”.

[9] See: Government of Ontario, “Ontario’s Ring of Fire”.

[10] See: Saugeen First Nation and Chippewas of Nawash Unceded First Nation v. Ontario Minister of Natural Resources and Forestry and T & P Hayes Ltd., 2017 ONSC 3456, at paras 121 – 144.

[11] Bill 5, Protect Ontario by Unleashing our Economy Act, 1st Sess, 44th Leg, Ontario, 2025, Schedule 9, s 7 7(4) and 7(1)(c).

[12]  Ontario Place Protectors v. Ontario, 2025 ONCA 183 at para 45.

[13] See: Ontario Place Protectors v. Ontario, 2025 ONCA 183.

[14] Bill 5, Protect Ontario by Unleashing our Economy Act, 1st Sess, 44th Leg, Ontario, 2025, Schedule 7, s 4.

[15] See: Ontario Heritage Act, RSO 1990, c O.18, s 48(1).

[16] See: Environmental Registry of Ontario, “Proposed Amendments to the Ontario Heritage Act, Schedule 7 of the Protect Ontario by Unleashing our Economy Act, 2025”

[17] Bill 5, Protect Ontario by Unleashing our Economy Act, 1st Sess, 44th Leg, Ontario, 2025, Schedule 7, s 5.

[18] Environmental Registry of Ontario, “Proposed amendments to the Mining Act 1990, Electricity Act 1998, and Ontario Energy Board Act 1998, to protect Ontario’s Economy and Build a More Prosperous Ontario.”

[19] S. 153.0.1(5).

[20] Ministry of the Environment, Conservation and Parks, “How species at risk are protected”, 2025.

[21] Environmental Registry of Ontario, “Proposed interim changes to the Endangered Species Act, 2007 and a proposal for the Species Conservation Act, 2025”.