SCHEDULE 5: MINING ACT While…

Across all schedules of Bill 5 – Protect Ontario by Unleashing Our Economy Act, 2025 – there is a notable and concerning absence of any explicit reference to consultation with First Nations. This does not reflect the Ontario Crown’s legal duty to consult and accommodate under Section 35 of the Constitution Act, nor does it align with the spirit of reconciliation.

SCHEDULE 5: MINING ACT
While much of the content of Schedule 5 appears to apply primarily to First Nations in northern Ontario, the implications for First Nations in the region remain significant. Premier Ford has explicitly stated that the Ring of Fire will be one of the first zones targeted for unlocking new mining development in the North . Regardless of the location, Ontario must consult with impacted First Nations.

Schedule 5 focuses on new mining projects and introduces the concept of a "project team" responsible for project development and approvals. The absence of a requirement that First Nations be included on these project teams — especially where projects occur on traditional or treaty lands — is a glaring oversight. There is no mention of how First Nations will be involved in the authorization process, nor any requirement for consultation.

SCHEDULE 6: ONTARIO ENERGY BOARD ACT
Schedule 6 introduces significant provincial powers and policy shifts concerning how procurement is directed and conducted by the Independent Electricity System Operator (IESO), Ontario Power Generation (OPG), and associated entities. Without clear provisions for First Nations consultation and protection, these changes could inadvertently undermine both First Nations rights and economic opportunities.

The following section presents recommendations designed to address these concerns:
Key issues:
1. Lack of Mandatory Consultation
2. Location-based Procurement Restrictions
3. Extinguishment of legal recourse for First Nations

Issue 1: Lack of Mandatory First Nations Consultation for Procurement
One of the core concerns raised in relation to Bill 5 is the absence of plain language requiring consultation with Indigenous communities when the IESO is directed to undertake energy procurement projects. This includes both the initial directives and the implementation of any resulting projects or activities. Without meaningful consultation, there is a significant risk that First Nations voices will be excluded from critical decisions that affect their lands, resources, and long-term development opportunities. Schedule 6 should be amended to include language that explicitly states all directives to the IESO for procurement—and any projects or activities that stem from such procurement—must be undertaken in consultation with impacted First Nations communities.

Issue 2: Extinguishment of Legal Recourse
Another major issue involves proposed legal protections for the Crown, IESO, OPG, and their subsidiaries. Like other sections of Bill 5, Schedule 6 could extinguish certain causes of recourse for First Nations—especially those related to failures in consultation. The legislation must be amended to prevent the extinguishment of causes of action against the Crown, IESO, OPG, and its subsidiaries, particularly in relation to any lack of First Nations consultation. Retaining the right to legal recourse is essential for upholding constitutional rights and maintaining transparency and fairness in public decision-making.

Issue 3: Location-Based Procurement Restrictions and Their Impact on First Nations
As stated under analysis of Schedule 1, location-based procurement restrictions introduced under the Act could restrict where goods and services must be sourced from. These provisions risk excluding First Nations businesses that operate outside the approved geographic zones. The Act must include a provision that prevents such procurement restrictions from limiting access to contracts and opportunities for First Nations suppliers and vendors. This language should make clear that regardless of location, qualified First Nations businesses remain eligible to participate fully in procurement processes. Such a step would promote First Nations economic inclusion and align with Ontario’s stated commitments to advancing reconciliation.