The recently proposed Bill 5…

The recently proposed Bill 5, Protect Ontario by Unleashing our Economy Act, 2025 is a broad set of new legislation and changes to existing acts. On the surface, the bill puts forth the logic that in order to “protect” Ontario we need to “unleash” the provincial economy by removing protections governing some of the very things that make us Ontario: our heritage and our environment.

Instead of thoughtfully addressing the systemic issues at the root of the perceived barriers to development, the government instead seeks to empower itself to sidestep their own laws and regulations altogether. While doing so, the government indicates that persisting responsibilities, such as the Duty to Consult Indigenous Nations will only become better. There are two significant flaws in this approach.

The first flaw is that most major requirements have been created for a reason. Removing the requirement does not also remove the problem they were meant to resolve. Take, for example, the requirement for archaeological assessments proposed to be subject to new exemption powers. Before the requirements to conduct archaeological assessments were enmeshed into development legislation, heritage sites, including Indigenous ancestral resting places, were regularly disturbed. This disregard for Indigenous heritage contributed to events such as the Ipperwash Crisis and the standoff in Caledonia. The response to these crises was to make archaeological assessments more common and to expand the involvement of Indigenous Nations in the process of managing their heritage. Exemptions under these circumstances will only introduce more risk to development as proponents have far less certainty that they won't become part of the next confrontation over disrespected Ancestors and irrevocably lost heritage.

But wait, the government says the Duty to Consult will be taken seriously, so perhaps Indigenous Nations simply have to raise concerns about potential impacts to their heritage, among a myriad of other potential issues and impacts, to have the government resolve them. This brings us to the second flaw. Despite the rhetoric about respecting the Duty to Consult, Bill 5 does include a single provision about the time and resources necessary for Indigenous Nations to build the necessary capacity to consult meaningfully. Indigenous Nations are already stretched thin responding to the current influx of consultation requests. These requests are part of the established requirements the government now seeks to exempt proponents from. In their place, the province would have Indigenous Nations serve as the sole stewards of the environment and heritage, relying on them to raise these issues as part of the Duty to Consult process when the Crown is considering these decisions. On the surface, that appears to be win for Indigenous sovereignty. However, there is no indication that the province is prepared to provide the necessary time and resources for Indigenous Nations to build the capacity necessary to serve in this new role. Case law about the Duty to Consult demonstrates that the financial burden of consultation cannot rest solely with Indigenous Nations. The province therefore must provide significant funding to all Indigenous Nations in Ontario if they are to assume the responsibilities of stewardship the government is looking to shed. The province must also allow Indigenous Nations the time to build these capacities before bombarding them with this new array of consultation requests which will be over and above the baseline consultation they will be still be responsible for.

All this is to say that Bill 5 acknowledges real shortcomings in the way government operates, but instead of grappling directly with these shortcomings, it seeks to sidestep the problems entirely. In doing so, Bill 5 risks reopening the doors to all of the issues that led to these requirements in the first place. More thoughtful legislation developed in consideration these roots problems and considerate of the necessary Indigenous capacity-building would be a far more effective tool.