EDITOR’S NOTE: This article originally appeared on The Trillium, a Village Media website devoted exclusively to covering provincial politics at Queen’s Park.
Both Prime Minister Mark Carney and Ontario Premier Doug Ford are responding to the economic threat posed by Donald Trump with new laws that grant their cabinet ministers the power to exempt projects from the normal rule of law, allowing them to be built faster.
But Ontario’s law, legal experts say, is far broader and lacks the guardrails built into its federal counterpart, and, because of that, could be unconstitutional.
Paul Daly, an expert in administrative law and professor at the University of Ottawa, made that case in a recent article, arguing that, while the federal bill could be improved, it is “constitutionally permissible” and could, in his view, be beneficial if used well.
But not so with Ontario’s law.
“I think the danger with the Ontario legislation is that in the absence of any guardrails in terms of substantive or procedural constraints, like the purposes for which the powers can be exercised, or steps that have to be taken before using the powers,” he told The Trillium.
That, he argued, seems to be an unconstitutional "abdication" of the legislature’s power to cabinet.
Indigenous leaders and environmentalists have raised concerns about both bills, warning that using them to fast-track projects will breach the Crown’s duty to consult Indigenous rights holders and run roughshod over the environment.
Bill 5
The Ford government fast-tracked and passed Bill 5, the Protect Ontario by Unleashing our Economy Act, before the legislature rose for the summer earlier this month.
Part of the omnibus bill enacts the Special Economic Zones Act, which allows the cabinet to designate any area of the province as a special economic zone and designate trusted projects and project proponents within it. Then, the cabinet can waive or amend requirements of any provincial or local laws that would otherwise apply to them.
“This is an extraordinary power. In theory, the cabinet could specify vast areas — the City of Ottawa, the Greater Toronto Area, or for that matter the entire province — as special economic zones where any provision of law could be disapplied as to a proponent and/or a project,” wrote Daly.
“This is presumably not the intention behind the legislation … but the absence of any purpose clause equivalent to the one found in the federal legislation makes it difficult to divine and apply legislative intent to constrain the extremely broad powers granted,” he wrote.
Ford has said he intends to designate mining projects in the Ring of Fire and his promised tunnel under Highway 401.
Bill C-5
The federal Liberal government is currently trying to fast-track the passage of Bill C-5 before Parliament’s summer break.
This bill would grant the federal cabinet similar powers to designate projects in the national interest and waive federal regulatory requirements that pertain to them, but, unlike the Ontario bill, it outlines the purpose of the legislation and criteria for project selection, and includes a schedule of which federal laws it can be used to disapply.
It also requires a process for consultation with Indigenous peoples, regulatory bodies and provincial and territorial governments prior to designating a project.
Carney has been discussing with premiers about what nation-building projects the federal government should pursue.
His Majesty
Legislative provisions that delegate lawmaking power of the legislature to the cabinet — contained in both bills — are known as “Henry VIII” clauses.
“That's what we call it in legal circles, because of Henry VIII — the tyrannical king who decided that he didn't like parliamentary sovereignty, he was the sovereign and he could override Parliament at any time,” explained Josh Ginsberg, director of the Ecojustice Environmental Law Clinic, and an opponent of both bills.
The clauses are controversial in Canada but have been approved by the Supreme Court “when tailored to a purpose in the legislation that requires it,” he added.
While he would argue against using any kind of Henry VIII clause, he said the federal use of it is “at least a little more restrained than that in Ontario.”
“What we see in Ontario is the sweeping ability of the executive just to ignore laws for any reason at all, not for a specific purpose related to a particular legislative aim, but for any reason at all,” Ginsberg said.
Daly’s view that Ontario’s law risks being found to be unconstitutional stems from this.
“The limit on what a legislature can delegate is that it cannot abdicate its powers,” he said. “It can't hand over legislative authority without any guardrails to a minister or cabinet or any other body.”
He argues that with Bill 5, “there is a significant risk that the legislative assembly crossed the Rubicon and abdicated its powers.”
The Ontario law could be vulnerable to a constitutional challenge on that basis, he said, and its use of the legislation could prompt other legal challenges, depending on how the government proceeds.
If the government were to use the new power in a way that violates a Charter right, that could prompt a constitutional challenge. For instance, both Daly and Ginsberg agree with the warnings from organized labour groups that the bill could be used to disapply Ontario’s Employment Standards Act or Labour Relations Act, a claim the government has called "irresponsible and categorically false."
If the government were to use the Special Economic Zones power to waive employment standards or labour laws in a way that violated employees’ Charter right to safety and freedom of association, that could prompt a constitutional challenge, Daly said.
Another potential ground for legal challenges is Indigenous rights.
‘We will use the courts to slow down’
At a recent press conference in Ottawa, Chiefs of Ontario Regional Chief Abram Benedict criticized both the Ontario and federal governments for fast-tracking the passage of these bills without adequate consultation with Indigenous rights holders, and warned that the Chiefs of Ontario is planning legal action.
“The governments want to speed up processes,” he said. “They want to speed up development, but this is not how to do it. We will use the courts to slow down — to ensure that the rights holders are heard, that the government does what is right, and has the First Nation rights holders at the table from the beginning.”
Other Indigenous leaders have also mused about taking legal action and warned of mounting opposition “on the ground” to the two bills.
The Ford government tabled Bill 5 without providing notice to Indigenous communities, but has promised to consult throughout the summer. The Carney government gave some Indigenous leaders a few weeks’ notice and two weeks to comment on a description of the planned legislation before it was tabled, which they have widely slammed as inadequate.
Paul Seaman, a partner at Gowling WLG and national practice group leader in Indigenous law, recently wrote an article about the legal risks to governments that seek to streamline regulatory processes, warning that this could “paradoxically” lead to “more legal challenges and in turn undermine the stated goals of streamlining and achieving project certainty.”
If the governments “streamline” the regulatory process, they must find a way to fulfil the Indigenous consultation that would have taken place through the bypassed process, he said, as that obligation can’t be waived by legislation.
“It emanates from this constitutional principle that's called the Honour of the Crown that sits outside statutes,” he told The Trillium. “So you can amend statutes all you like, but you can't get rid of that constitutional imperative.”
Seaman argues that the trend toward having Indigenous equity in projects and having Indigenous groups become the proponents of projects may help the Crown streamline the approval process by better aligning the Crown’s constitutional obligations with Indigenous interests, and avoiding court challenges.
He noted that the Supreme Court put it this way: “True reconciliation is rarely, if ever, achieved in courtrooms.”
“No one benefits — not project proponents, not Indigenous peoples, and not non-Indigenous members of affected communities — when projects are prematurely approved only to be subjected to litigation,” the SCC said in a 2017 decision.
