First Nations take Mark Carney, Doug Ford to court over ‘dishonourable and unconstitutional’ Bills C-5 & 5

“Absolute power corrupts absolutely,” lawyer Kate Kempton repeated as she declared nine First Nations are taking the Ontario and federal governments to court over recent legislation promoted as critical for the country’s economic growth.

The plaintiffs argue the new laws “severely threaten their rights to self-determine their ways of life on their homeland territories, the environment and fundamental human freedoms".

On July 16, chiefs from four of the nine First Nations and senior counsel Kate Kempton of Woodward and Company LLP announced a fast-tracked constitutional challenge against Ontario’s Bill 5, which passed on June 5, and key sections of the federal government’s Bill C-5, which received royal assent on Jun 26, arguing these laws grant provincial and federal cabinets sweeping, unchecked powers to override protections for the environment, human rights, and Indigenous consultation processes.

“What's about to happen is going to be very harmful,” a visibly shaken Apitipi Anicinapek Nation Chief, June Black, said during a press conference at Queen’s Park.

“It's probably the worst two Bills there's ever been. This is going to be complete destruction of the Earth in our territory.” 

Apitipi Anicinapek Nation Chief, June Black, emphasized that her community lives closely with the land, hunting, fishing and relying on a natural esker for drinking water. “I show a lot of emotion,” she said, her voice breaking, “because that’s what’s at risk.”

(Legislative Assembly of Ontario)

Black says there are already 40,000 active mining claims in her territory, with 225 new claim-staking notifications filed so far in 2025. She fears there will be “massive holes everywhere.”

Since the two controversial Bills received royal assent, the Ontario Ministry of Mines has received multiple exploration permit applications from gold mining company, STLLR Gold, for four sites east of Matheson. One, the Tower Gold – Golden Highway project, spans nearly 83 square kilometres and sits just 3.6 km from Apitipi Anicinapek, also bordering Beaverhouse First Nation and Taykwa Tagamou Nation.

The Golden Highway, named for the gold mines along its route, stretches from Timmins, Ontario along Highways 101, 11, and 66 through Northern Ontario into Quebec, where it continues as Route 117 to Val-d'Or via Rouyn-Noranda.

(Google Maps)

STLLR’S other nearby sites, the Garrison, Canyon and Collins Lake projects, range from under one to five square kilometres and are located within 6.5 km of Apitipi Anicinapek. All proposed activities include geophysical surveying, line cutting, mechanized drilling, and stripping.

According to Ontario’s Ministry of Mines, gold was the province’s most sought-after mineral in 2023, accounting for $599 million or 63 percent of total exploration spending. That year, Ontario produced 2.8 million troy ounces of gold, valued at $6.5 billion, representing 43 percent of the national total by value.

(Ontario Mining Association)

“When the water is gone and when everything's poisoned, what are we going to have? We need to work together. We need to support each other. We live in this country together, and the First Nations people have been here once again since time immemorial. We must work together…We're not against economic development. Yes, we need finances to survive in this world…but we also need the natural resources to survive,” Black said.

She also confirmed that, despite promises from the Doug Ford government to consult with First Nations over the summer, there has been no outreach “as of yet.”

Alderville First Nation Chief Taynar Simpson echoed her concerns, noting a lack of engagement at the provincial and federal levels. 

“I wouldn't say that there is, per se, on the large provincial framework or even the federal framework. We are dealing with individual proponents of industry who want to do business on our territory,” Simpson noted.

Alderville First Nation Chief Taynar Simpson says some companies have reassured his community that Bills 5 and C-5 won’t change their approach, and will do consultation and engagement “properly”.

(Legislative Assembly of Ontario)

“In a lot of ways, it's going to be up to those individual proponents, those individual corporations doing business on our territories, that are going to drive the indicators of how Bill 5 and Bill C-5 are going to be affecting us in future development.”

On July 17, Prime Minister Mark Carney met privately with First Nations leaders in Gatineau, Quebec, a meeting that had originally been scheduled for June. The session was closed to both the public and the media.

“I’m going to say a few words and then I’m going to listen. Listen for the day,” Carney said during his opening remarks at the two-day summit.

“Building Canada projects, projects in the national interest will build our national economy through Indigenous equity and full participation, equity and participation, and resource management. Projects built with Indigenous partners, with Indigenous communities. And one of the points is, the economic value of these projects will be shared with First Nations as partners,” Carney said.

He concluded by affirming that the government's commitment to a renewed relationship with Indigenous peoples is not merely symbolic or aspirational; it is grounded in legislation and embedded in Canadian law.

Carney made no effort to consult with First Nations ahead of his Liberal government speeding C-5 through Parliament.

After the meeting, Assembly of First Nations National Chief Cindy Woodhouse Nepinak called on the federal government to host a “similar meeting” in one year’s time.

“It is important Canada works with First Nations leadership from coast to coast to coast…Let’s close the First Nations’ infrastructure gap,” she said.

“You (PM Carney) said your government would have to match First Nations with financing certainty so projects can move through. Strong words require action. They require follow-up. We need to work together now to change the lives of First Nations children for the better,” Assembly of First Nations National Chief Cindy Woodhouse Nepinak said.

(AFN National Chief Cindy Woodhouse Nepinak/X) 

The federal government has opened the conversation but in Ontario, Ford has yet to show up to the table.

As a result, the coalition of nine First Nations in Ontario are asking the provincial Superior Court of Justice for an injunction to stop the implementation of both Bills, which they argue were designed to fast-track infrastructure projects without proper consultation from First Nations, Inuit and Métis leaders, environmental oversight, or respect for Indigenous sovereignty. 

If the court rules in their favour, it would mark the second injunction against the Ford government this year. In April, Ontario Superior Court Justice Paul Schabas granted an interlocutory injunction in Cycle Toronto v. Ontario (Attorney General), temporarily blocking the removal of bike lanes on three Toronto streets. That decision paused government action pending a final ruling on the legislation’s constitutionality.

Under Canadian law, legislation that may infringe upon the Charter of Rights and Freedoms can be challenged in court. Interlocutory injunctions can be granted to temporarily stop a government from acting on a contested law until its validity is determined.

In granting the injunction in In Cycle Toronto, Justice Schabas applied the three-part test established by the Supreme Court in RJR-MacDonald Inc. v. Canada (Attorney General): 

"First, is there a serious issue to be tried?

Second, is the applicant going to suffer irreparable harm if the injunction is not granted?

Third, which party would suffer the greater harm if the injunction were granted or refused?"

Kempton explained that their challenge rests on the argument that the laws are unconstitutional because they violate the Crown’s duty to act honorably, particularly in its dealings with Indigenous peoples, infringe on the Charter rights of Indigenous persons to equality and personal security, and undermine the constitutional mandate for reconciliation, which requires mutual determination and co-governance between First Nations and the Crown.

The Bills cause significant social, psychological, physical, and cultural harm and infringements on equality rights because the laws disproportionately affect Indigenous communities.

“We’ve been very clear to the Province of Ontario and to the central (federal) government that the honour of the Crown is not optional. The process they have used has not been conducive to reconciliation. I would classify the process Ontario and the federal government have used as very concerning for people who care about the democratic systems in this country in which we live,” Ontario Regional Chief Abram Benedict said during a webinar on Bill 5 hosted by Ontario Nature on July 9.

The coalition of First Nations seeks to repeal Bill 5 entirely and to have the federal government amend Sections 6 and 22 of Bill C-5, which they argue grant “absolute power” to the cabinet by allowing it to automatically approve project authorizations and exempt projects from laws and regulations under the Building Canada Act.

Kempton emphasized that Bill C-5 may have been a rushed, knee-jerk response to the Trump tariffs, prioritizing economic development “despite the cost,” but Bill 5 is fundamentally different.

“This Bill is about 209 pages long. There are sections in this Bill that have nothing to do with mining at all, unless there’s a mine site under Ontario Place. This reflects the mindset behind the Dresden landfill. It’s a goodie bag of the Premier’s wishes,” Ontario New Democratic Party MPP for Sudbury Jamie West said.

“This is a pretext to run roughshod over protections. The special economic zones the Premier is proposing would actually allow him to get away with the Greenbelt scandal, which is still under criminal investigation today. This is not a government that can be trusted. When the Premier pushed through this power grab, First Nations leaders were very clear: they will not let the government trample over their rights.” 

Ontario Green Party leader Mike Schreiner condemned the Ford government for ignoring calls from opposition parties, legal experts, and Indigenous leaders to scrap Bill 5 and instead “ramming it through the legislature”, a move he says has triggered “inevitable lawsuits” and must now be reversed in favour of genuine consultation and a rights-respecting approach to development. 

(Mike Schreiner/X)

Describing it as “dishonourable and unconstitutional through and through,” she pointed out that Bill 5 goes even further than the federal legislation by removing protections for endangered species and eliminating requirements for cultural heritage assessments.

“Let’s be clear: this wasn’t done in panic or haste as a reaction to the Trump tariffs. This has been the Ford government’s plan for seven years. The record is clear; the Ford government is simply using the Trump tariffs as the latest excuse to bulldoze, and I say that deliberately, over the environment, First Nations rights, and their very survival. Since taking office, Ford has targeted the Ring of Fire, the Greenbelt, and many other areas. This is just the latest in a series of attempts to hide the true motivations behind these actions.” 

Pointing to earlier examples during the COVID-19 pandemic, when the Progressive Conservative government used the crisis as a pretext to undermine fundamental constitutional protections by gutting the provincial Environmental Assessment Act, she warned: “We see it again here, so let’s not be fooled by what’s really happening”.

This isn’t the first time First Nations have taken the federal and provincial governments to court over these issues. 

In 2023, ten northern First Nations, including Attawapiskat, Apitipi Anicinapek, Aroland, Constance Lake, Eabametoong, Fort Albany, Ginoogaming, Kashechewan, Kitchenuhmaykoosib Inninuwug, and Neskantaga, launched a lawsuit against Ontario and Canada on claims that resource extraction has infringed on their Indigenous jurisdiction for over a century and violated promises made under Treaty 9.

“We are putting Ontario and Canada on notice. No more development — mining, forestry, hydro or any other similar activities without our consent,” Kitchenuhmaykoosib Inninuwug Chief Donny Morris said in a statement.

The case remains before the courts and is being led by the same lawyer, Kate Kempton.

She expressed confidence they will emerge victorious in this legal challenge, pointing to a 2018 Supreme Court ruling, the Mikisew Cree First Nation case, that, while limiting the duty to consult on legislation, left a crucial door open. 

The court stated that Crown governments don’t have an obligation to consult or accommodate First Nations when passing laws, but they still have a constitutional duty to act honourably toward Indigenous peoples. Although the ruling did not clearly define what “honourable conduct” means in legislative processes, it acknowledged the ongoing responsibility of the Crown.

The Supreme Court’s decision shows that “Canadian law has a lot to learn about what it means to be a colonizing force that needs to decolonize. But that very same case actually left the door open for us to bring this case,” Kempton said, noting that their case builds on this opening, emphasizing that all laws passed by Crown governments must meet constitutional requirements, including respect for Indigenous rights under the Charter.

Despite oral promises made to Indigenous peoples that they could continue using their lands as they always had, these assurances were never written into the treaties, and successive Canadian governments have failed to honour them. 

In 1927, an amendment to the Indian Act made it illegal for Indigenous people to hire lawyers or bring land claims without government permission, while also banning them from organizing in groups, effectively silencing their legal and political advocacy and forcing them to fight for their rights ever since.

Long buried in the archives and mislabeled for decades, the diary of Daniel G. MacMartin, Ontario’s treaty commissioner during the 1905 James Bay Treaty expedition, has resurfaced as a crucial piece of the Treaty 9 puzzle. His handwritten pages reveal that oral promises made to Indigenous leaders, assuring them they could continue using their lands as they always had, stood in stark contrast to the written treaty.

 (Queen’s University archives/Ontario Ministry of Public and Business Service Delivery)

“The problem is that the governments aren't coming and sitting down with us. They're not consulting with us like they're supposed to. So often they'll say, we'll consult with you after the fact. And that's not consultation…Free, prior, informed consent exist because these are our territories. The treaties never signed away the lands. They were not land surrenders. They were agreements to allow the newcomers to share the land with us. We are still the stewards of this land,” Alderville First Nation Chief Taynar Simpson concluded.

“Every Canadian should be upset with Bill 5 because it's destroying habitats. It's destroying species. It's allowing things to happen that just should not be allowed to happen.”

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