Coalition of 133 First Nations planning legal challenge of Ford’s Bill 197

August 28th 2020

The Ford government is poised to face a second court battle over its controversial COVID-19 economic recovery bill, this time from a group representing 133 First Nations in Ontario.

The government did not consult the public before passing Bill 197, an omnibus piece of legislation that included a contentious rewrite of environmental assessment rules, last month. The province pushed the bill forward despite a warning from auditor general Bonnie Lysyk, who said the government’s failure to consult the public on environmental changes would be “not compliant” with Ontario’s Environmental Bill of Rights.

In a virtual meeting on Aug. 20, Chiefs of Ontario — an organization representing the leadership of 133 First Nations in the province — voted in favour of filing a lawsuit. In a forthcoming application for judicial review, Chiefs of Ontario plans to ask a judge to rule that the Ford’s government passage of the bill was illegal.

“To us, (Bill 197 is) a slap in the face,” said Anishinabek Nation Grand Council Chief Glen Hare, who was present at the meeting. (The Anishinabek Nation advocates politically for 33 First Nations communities.)

“They just feel they can do whatever they want,” he added, referring to the government.

Bill 197 altered 20 pieces of legislation. Premier Doug Ford has said it’s aimed at kick-starting Ontario’s economy after COVID-19 led to widespread shutdowns.

A coalition of environmental groups has already filed a suit against the province over Bill 197, asking a judge to find that the passage of the law was illegal due to the clash with the Environmental Bill of Rights. But the planned challenge by Chiefs of Ontario is likely to take a different angle, as it also centres on treaty rights and the province’s duty to consult First Nations.

Chiefs of Ontario was not able to provide a copy of the full resolution voted on at the meeting by publication time. It wasn’t immediately clear what the organization’s timeline might be for filing the suit.

The office of Ontario Environment Minister Jeff Yurek redirected questions to the environment, conservation and parks ministry. In a statement, ministry spokesperson Gary Wheeler said the government hasn’t yet seen a copy of the resolution or any court filings from Chiefs of Ontario.

“At this point, it would be premature to comment,” he said.

Wheeler also said the rewrite of environmental assessments doesn’t mean any immediate changes ⁠— though the government passed its broad overhaul of environmental assessments, it’s still writing regulations to outline how its new streamlined process will work. The ministry is committed to working with Indigenous communities on that, Wheeler said.

“We take the duty to consult seriously, and we are committed to consulting with Indigenous communities prior to making any decisions,” Wheeler said.

Hare said it often feels like the province views consultation as a box to tick rather than an opportunity to meaningfully engage.

“I don’t think it’s going to have any impact what I say,” Hare said. “Why call me now?”

Hare said Bill 197 is particularly concerning for nations near planned mining projects. They want the opportunity to have a say in how resources in their traditional territories are used and share the profits, he said, but changes to environmental assessments mean many types of projects will likely be able to avoid a full review.

“We’re affected by it big time,” Hare said of the bill. “It affects our lives, it tries to ruin us.”

For weeks, a growing number of First Nations in Ontario have said they’re considering legal challenges to the bill.

The Fort Albany and Attawapiskat First Nations sounded alarms in late July. Then, Mushkegowuk Council — which represents Fort Albany, Attawapiskat and five other nations near James Bay ⁠— wrote an open letter to Ford saying the premier didn’t respect treaty rights when he passed the bill without consultation.

At the Aug. 20 meeting, nations across the province supported the push for a legal challenge to Bill 197, Mushkegowuk Grand Chief Jonathan Solomon said in a phone interview Wednesday. Mounting the effort together allows them to pool resources in a way that wouldn’t be possible for individuals.

“It’s important that we communicate in regards to what the next steps are,” Solomon said.

Hare said the way First Nations have collaborated with the province during COVID-19 should show officials how effective the governments can be when they work together. The pandemic has also showed how fast legislators can move to effect change when they try hard enough, he added.

“Let’s keep going this way after COVID,” he said.

“Nothing’s written in stone. If they want to change (Bill 197), they can change it really quick. So why can’t they pull it, and we can work together?”

[Top photo: Ontario Premier Doug Ford (left) and Environment Minister Jeff Yurek, pictured in 2018. A growing number of First Nations are speaking out about Ford's Bill 197, which the premier said was aimed at helping Ontario's economy. File photo by Alex Tétreault]