When Law Becomes Weapon: Bill C‑5, Ontario Bill 5, and the Systemic Erasure of Rights
- Andrew Brant
- 2 minutes ago
- 5 min read
In recent months, the Canadian government and the Ontario legislature have each passed sweeping laws under the guise of economic recovery and public interest. Bill C‑5 (Canada) and Bill 5 (Ontario) may appear at first glance to be bureaucratic restructuring tools — but a deeper read shows they are textbook violations of Indigenous rights, Aboriginal title, and settler human rights.
These aren’t just policy missteps. These are legislative assaults designed to consolidate power, bypass accountability, and extinguish protections that many people — Indigenous and non-Indigenous — believe are legally guaranteed.
Bill C‑5: The Crown’s Shortcut Around Consent
Bill C‑5, passed in June 2025, introduces the so-called “Building Canada Act,” which gives Cabinet sweeping powers to approve infrastructure and resource projects deemed “in the national interest.” It enables fast-tracked development without meaningful Indigenous consultation or public accountability.
This law does not exist in a vacuum — it exists in direct violation of both Canadian and international legal standards.
Relevant case law:
Haida Nation v. British Columbia (2004): The Supreme Court ruled that the Crown has a duty to consult and accommodate Indigenous peoples where their rights may be affected, even before title is proven in court.
Mikisew Cree First Nation v. Canada (2005): The Crown cannot simply legislate over Indigenous lands or interests without meaningful consultation.
Tsilhqot’in Nation v. British Columbia (2014): The Court confirmed that Aboriginal title includes the right to decide how the land is used, not just the right to be consulted after decisions are made.
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which Canada has pledged to implement, requires free, prior, and informed consent (FPIC) — not consultation as a box-checking exercise.
Bill C‑5 ignores these standards entirely. It allows development projects to move forward without proper consultation, and even worse — it removes judicial oversight in some cases, silencing not just Indigenous Nations, but the general public.
Ontario Bill 5: “Unleashing the Economy” by Crippling the Law
Ontario’s Bill 5, ironically titled the Protecting Ontario by Unleashing the Economy Act, repeals dozens of environmental protections, overrides municipal and Indigenous jurisdiction, and limits access to legal recourse.
This includes rolling back:
The Endangered Species Act
Conservation authority powers
Environmental assessments
And access to courts to challenge Crown negligence
This bill effectively turns Ontario into a developer’s playground by neutering safeguards meant to protect water, land, and Indigenous governance.
Legal implications:
Delgamuukw v. British Columbia (1997): Aboriginal title is a collective, land-based right that includes decision-making over use. It cannot be extinguished unilaterally.
Sparrow v. The Queen (1990): Section 35 rights cannot be infringed without justification that respects the Crown’s fiduciary duty and must minimally impair the right.
R. v. Powley (2003): Recognized that off-reserve Indigenous rights are valid, especially where tied to traditional territory and practices.
Ontario’s Bill 5 undermines every part of this case law. It strips Indigenous peoples and concerned citizens of the ability to challenge violations in court — removing the legal checks that give Section 35 real meaning.
What’s Really Happening
Let’s be honest: these laws were never about “efficiency.”
They’re about removing resistance.
Both governments have used the rhetoric of “streamlining” and “economic recovery” to justify a rollback of hard-won legal protections.
But underneath that language is a very clear message:
“We will no longer tolerate your interference — not from the courts, not from the public, and not from Indigenous Nations.”
This is not about building back better.
It’s about building over opposition.
What These Laws Violate
1. Section 35 of the Constitution Act, 1982
Violated by: Bill C‑5 and Ontario Bill 5
Why: Both bills infringe on Aboriginal and treaty rights without justification, consultation, or minimal impairment, directly contradicting the intent and legal strength of Section 35 protections.
2. United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
Violated by: Bill C‑5
Why: The bill enables Cabinet to approve projects without free, prior, and informed consent (FPIC), which Canada has committed to through UNDRIP legislation.
3. Duty to Consult and Accommodate
Violated by: Bill C‑5 and Ontario Bill 5
Why: Established through Haida Nation and Mikisew Cree rulings, this duty is ignored or circumvented in both pieces of legislation. Projects can proceed without meaningful engagement with affected Indigenous Nations.
4. Aboriginal Title (Delgamuukw and Tsilhqot’in decisions)
Violated by: Ontario Bill 5
Why: These cases affirm that Indigenous Nations have decision-making power over their lands. Bill 5 strips local, environmental, and Indigenous decision-making authority and allows development without consent.
5. The Sparrow Test (from R v. Sparrow, 1990)
Violated by: Both
Why: Any law infringing on Section 35 rights must pass the Sparrow test: it must be justified, minimally impairing, and serve a compelling and substantial purpose in line with the Crown’s fiduciary duty. Neither bill meets this standard.
6. Rule of Law and Access to Justice (Charter principles)
Violated by: Ontario Bill 5
Why: The bill restricts access to courts, blocks environmental legal challenges, and removes mechanisms for accountability. This undermines democratic rights for both Indigenous and non-Indigenous peoples.
Where We Go From Here
Indigenous Nations have already begun preparing constitutional challenges.
Legal scholars are speaking out.
Environmental groups are forming coalitions.
But we must understand: this is not just legal. This is political.
These laws are designed to set precedent — to build a new normal where Section 35 becomes symbolic, not functional.
Our job now is to:
Educate our people and allies about their legal rights
Document every violation and case of harm
Assert Indigenous law and governance regardless of state recognition
Challenge these bills at every level — courts, media, and direct action
Because if we don’t, these won’t be isolated policies.
They’ll be templates.
The Crown may pass laws, but it cannot pass off injustice as neutrality.
We see what Bill C‑5 and Bill 5 really are:
Not governance.
Not recovery.
But strategic erasure, wrapped in legislative language.
We’ve fought this before.
We’re still here.
And we’re not moving.
Written by
Sha’tekayenton Andrew Brant
Dip. Kanyen’keha | B.Ed. | OCT
Kanyen’kehá:ka Turtle Clan
Kenhtè:ke (Tyendinaga Mohawk Territory)
Case Law & Legal Instruments – Source Links
Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73
– Landmark ruling establishing the Crown’s duty to consult and accommodate Indigenous peoples, even before title is proven.
Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69
– Reinforced that the Crown must consult Indigenous nations before making decisions that affect their rights, particularly on reserve-adjacent lands.
Tsilhqot’in Nation v. British Columbia, 2014 SCC 44
– Recognized Aboriginal title as including the right to decide how land is used; consent is required for development on title lands.
Delgamuukw v. British Columbia, [1997] 3 SCR 1010
– Confirmed oral histories as valid evidence in Aboriginal title claims; Crown must justify any infringement on title.
R v. Sparrow, [1990] 1 SCR 1075
– First major Section 35 case; created the “Sparrow test” to evaluate Crown infringement of Indigenous rights.
R v. Powley, 2003 SCC 43
– Recognized Métis rights under Section 35, including off-reserve rights and mobility connected to traditional practices.
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
– International legal standard affirming Indigenous peoples’ right to free, prior, and informed consent (FPIC) on matters affecting them.
Canada’s implementation via Bill C-15:
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