UPDATE: This story was written for the August issue of CIM Magazine. On July 15, a week after the issue went to print, nine First Nations in Ontario launched a constitutional challenge against the Ontario and federal major projects bills, claiming these laws allow development to be rammed through without proper consultation with Indigenous people. 

New pieces of legislation in Ontario, British Columbia and federally that seek to fast-track the approval and development of major infrastructure projects have drawn sustained backlash from Indigenous communities who say the acts would push forward these projects at the expense of their rights. 

British Columbia’s Infrastructure Projects Act, Ontario’s Protect Ontario by Unleashing our Economy Act and the federal Building Canada Act all seek to speed up the timelines for major projects to counter the economic impact of tariffs from the United States. All three governments rushed their bills through the legislative process. 

The federal legislation allows the government to designate major private projects in the national interest and exempt them from various federal laws and processes. B.C.’s allows for the designation of provincially significant projects that the infrastructure minister then has broad powers to expedite the permitting for, including potentially bypassing the traditional environmental assessment process in favour of an expedited assessment. Ontario’s would create “special economic zones” where select provincial laws do not apply.  

“I think the provinces have got legal guidance that this is the way you fast-track projects—you create these types of zones and you exempt national-interest projects from environmental and endangered species legislation, so therefore you don’t have red tape dogging these processes. I think it’s bad legal advice,” Sara Mainville, managing partner of JFK Law who works with First Nations and Inuit communities and who practises in Ontario and B.C., told CIM Magazine in an interview. Mainville is also the former chief of Couchiching First Nation in northern Ontario. 

Kate Kempton, a senior counsel at Woodward & Company Lawyers in Toronto and who is preparing an application to have Ontario’s legislation struck down, told CIM Magazine in an interview that moves by any government to bypass or shorten necessary assessments of major projects could result in “potentially catastrophic negative consequences” that future generations will pay for.  

“The laws that would apply [for exemption in special economic zones] would be environmental assessments, endangered species protections, archaeological assessment requirements—things that answer the question of what the impacts might be,” said Kempton of the Ontario legislation specifically. 

Fast-tracking conflict 

First Nations leaders are threatening protests, blockades and lawsuits, saying they weren’t sufficiently consulted on any of the bills, and that moves to rush major projects through violate their inherent and treaty rights. 

“The conditions for an Idle No More 2.0 uprising are being written into the law as we speak,”  Chief Lance Haymond of the Kebaowek First Nation in Quebec told the House of Commons transport committee studying the federal bill on June 18. 

B.C. First Nations leaders have called the province’s legislation a major step back in relations with Indigenous Peoples. Mainville compared it to the etch-a-sketch children’s toy. “They just shook their heads and forgot everything [they’ve learned] and came up with Bill 15, and it’s like how not to do development with First Nations.” 

An open letter to Premier David Eby by representatives of the Union of BC Indian Chiefs, BC Assembly of First Nations and First Nations Summit raised concerns that the government only plans to include language requiring the consent of First Nations whose territory a major project is on in regulation, rather than in the underlying legislation. “It will be much easier for future governments to change the regulatory requirements,” they wrote. 

In early June, 25 First Nations leaders descended on the Ontario legislature to protest the passing of that province’s bill, and warned that Ontario Premier Doug Ford’s plans to designate the Ring of Fire a special economic zone would be met with resistance. 

“The only way to avoid delays when it comes to extracting resources on our lands is to fully obtain our free, prior and informed consent,” Wayne Moonias, the former chief of Neskantaga First Nation, whose territory overlaps with the Ring of Fire region, told the committee studying the bill. Without consent, “all attempts to fast-track the Ring of Fire will fail.”  

In response to the outcry, Ford promised to include an amendment that clarified the province could not shirk its constitutional duty to consult. But to circumvent the Ontario Liberals’ attempt to stall the legislation by introducing thousands of amendments in committee, the government limited debate and passed the bill in the legislature, leaving out its own amendment. 

Paul Seaman, partner and national practice group leader for Indigenous law at Gowling WLG, wrote in a blog post that attempts to streamline regulations may risk clashing with the Crown’s constitutional duty to consult with Indigenous Peoples. 

“The stakes are pretty high. Some of these projects really need to happen, and in Canada there’s a bit of a graveyard of projects that have not been able to go ahead, sometimes in significant part because of Indigenous opposition or lack of buy-in, [and] the Crown not meeting its duty to consult, or trying to get around it,” Seaman said in an interview with CIM Magazine. 

He also pointed to a Federal Court ruling this year that suggests the incorporation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into Canadian law may add new complexity to the duty to consult. The ruling found that UNDRIP’s requirement for Indigenous Peoples’ “free, prior and informed consent” may modify the nature of the Crown’s duty. “When dealing with a federal decision or a federal project of some kind, might the higher or different standards under UNDRIP apply there?” he said. 

Industry reactions 

Business groups and industry players have largely been supportive of the legislative efforts, arguing it can often take longer to get major projects approved than to build them. 

“We are very interested and supportive when government looks to improve permitting timelines,” Michael Goehring, president and chief executive officer of the Mining Association of British Columbia, told CIM Magazine in an interview. “The industry can play a key role in securing the province’s economic future and prosperity when we face unprecedented uncertainty and volatility.” 

He pointed to the association’s 2025 economic impact study that found the 27 critical mineral, precious metal and steelmaking coal mining projects under development in B.C. could generate $90 billion in economic activity for the province purely in their construction and development phase. 

The British Columbia Chamber of Commerce has come out against the provincial legislation, arguing that it could create more uncertainty for project proponents and investors, and increase the risk of lawsuits against projects deemed provincially significant.  

“We disagree with the B.C. chamber’s assessment,” Goehring said. “Mines that will seek a designation are mines that are working closely with their First Nations partners, that’ve worked closely with any local communities…and have a very good sense that their project fits the designation criteria and has those strong relationships to be able to succeed.”  

B.C. has yet to set criteria around what projects can be designated provincially significant. Goehring said MABC believes mining projects vying for the designation should be at an advanced stage of development, supported by at least a prefeasibility or preliminary economic assessment, and developing one or more of the 34 critical minerals on Natural Resources Canada’s list, or steelmaking coal. He also said a designation should trigger “prompt and concerted engagement…to arrive at a consent-based partnership” with any affected First Nation.