In the opinion of the minister: Ontarios draft rules to create special economic zones limit oversight

The Doug Ford government’s proposed rules for establishing “special economic zones” and who gets to operate within them hand enormous power to ministers, while dismissing First Nations’ calls to include language affirming Indigenous Rights. According to the draft regulations, released on Oct. 2, these zones would be areas where “trusted proponents” and “designated projects” are exempt from certain provincial and municipal permits, environmental assessments and other rules. Such zones were legislated earlier this year in the controversial Bill 5, or the Protect Ontario by Unleashing Our Economy Act. The government has presented the bill as its response to economic uncertainty created by U.S. President Donald Trump’s tariffs, though the province had floated a similar idea of “special building zones,” allowing the province to take over local decision-making power on certain projects, well before Trump’s election.  The government said other calls by Indigenous communities for stronger transparency and oversight measures to be built into the process for determining special economic zones and the projects within them is “unlikely to be included in further drafts of the regulation.” Justin Thompson, a lawyer with Olthuis Kleer Townshend LLP and a member of Nipissing First Nation, reviewed the draft regulations Thursday. He told The Narwhal the criteria for designating proponents and zones is “very open ended and lacks clarity about what will be done to continuously protect First Nations’ rights and interests,” including after projects had been designated. “First Nations are not simply another stakeholder for the province to consult — we are constitutional rights holders and are entitled to give free, prior and informed consent to projects impacting our rights, communities and territories,” Thompson said. According to the draft regulations, which group can be designated as a “trusted proponent,” and which projects can benefit from the law’s fast-tracking abilities, will be determined by “the opinion of the minister.” While in some cases, the rules outline a minimum list of things the minister has to consider when making decisions, it does not propose any sort of expert panel or arms-length body that would depoliticize the process.  For example, for a corporation to be selected as a “trusted proponent” that can be exempt from certain provincial or municipal rules, the draft regulations say it must have a “good record” of complying with legal, health and safety, environmental, labour, financial and other requirements. But it’s up to “the opinion of the minister” to determine if that record is good. These sweeping powers are being granted to a cabinet that has a history of skirting expert advice and favouring lobbyists or those who donate to the Progressive Conservative Party of Ontario. That was the pattern of behaviour found in the government’s decision to open the Greenbelt, expand municipal urban boundaries or turn Ontario Place into a luxury spa, and most recently in the way the government mismanaged its skills development fund. The Narwhal sent questions by email on Oct. 2 to the office of Economic Development, Job Creation and Trade Minister Vic Fedeli asking why the government was putting so much power in the hands of ministers and why it did not include references to Indigenous Rights in the draft regulations, among other things. Spokespeople for the office did not respond by publication time. Ontario Regional Chief Abram Benedict speaks in opposition to Ontario’s Bill 5 in June. The Ford government has faced criticism for its “disingenuous” consultations with First Nations over the bill, which began after the legislation was passed into law. Photo: Sid Naidu / The Narwhal Bill 5 also faced significant pushback and scrutiny for not doing enough to meaningfully consult and accommodate First Nations — a legal obligation for the Ontario government. Many nations would be significantly impacted by the increase in mining and development activity the government wants to see happen. Historically, First Nations have not reaped equitable financial or social rewards as industrial activity accelerated in their territories. The Ford government has said it consulted with First Nations over its plan for special economic zones. But these consultations have been “disingenuous,” according to one chief who attended a provincial government consultation in August, and said they were carried out on a “compressed timeline.” Many First Nations didn’t receive an invitation, and several Indigenous communities that would be most impacted by Bill 5 were coping with massive wildfires and evacuation orders when the meetings were occurring.  The new draft regulations for the special economic zones, released by the Ministry of Economic Development, Job Creation and Trade, reveal the government chose not to include significant First Nations feedback it received during those consultations. According to a consultation document released alongside the draft, that feedback included a request by First Nations to codify Indigenous Peoples’ rights in the regulations, including Treaty Rights, references to the United Nations Declaration on the Rights of Indigenous Peoples and free, prior and informed consent. None of those references wound up in the government’s draft regulations for special economic zones. In the consultation document, the government said it had chosen not to include this feedback in the current draft, and it was also “unlikely to be included in further drafts.” The ministry noted it is still “committed to acting in a manner consistent” with its constitutional obligations. “Engagement with First Nations should not be fast-tracked to achieve Ontario’s goals, and having draft regulations developed before the end of a fulsome consultation process with First Nations speaks for itself,” Thompson said. “The province is certainly not acting like they respect and want to ensure the protection of Aboriginal and Treaty Rights.” The draft regulations are posted on the Environmental Registry of Ontario for public feedback. The comment period is open until Nov. 16. Doug Ford government ignored First Nations requests for accountability and transparency measures for special economic zones The Ford government has spent much of its seven-year tenure in office attempting to expedite development. In doing so, time and again, it has been called out for failing to fulfill their legal duty to consult First Nations, who maintain governing authority over their treaty lands.  When it comes to special economic zones, the government noted in the consultation document that it included First Nations feedback on things like how potential environmental and health impacts can be studied, or how a proponent’s engagement with Indigenous communities should be considered. It also said the ministry was considering incorporating feedback for things like how to define whether businesses were Indigenous led. First Nations leaders made several recommendations intended to ensure government accountability and transparency are upheld as projects are expedited under the Ford government’s fast-tracking laws. Draft regulations released by the government this week ignored those recommendations. Photo: Sid Naidu / The Narwhal First Nations had also proposed a range of other policies that would hold the government accountable and require transparency — such as publishing a public registry of proposed projects, creating a process to appeal decisions on designating zones or proponents, creating monitoring procedures or putting a time limit on how long proponents can be considered “trusted” by the government. None of these suggestions were incorporated. For a public registry, the government’s consultation document said it was “considering other mechanisms.” For an appeals process, it said it would consider that “as part of subsequent work.” For monitoring and limits on “trusted” status, it said it would address that through other procedures or regulations. “The draft regulation is being provided as part of an ongoing consultation process to assist Indigenous communities and the public and to understand and provide informed comments on the proposals as they exist to date,” the consultation document reads. But Thomson said the regulation “does not make it clear what happens if a ‘trusted proponent’ fails to abide by their commitments and what avenues First Nations will have to raise concerns throughout a designated project.” “These are questions that Ontario still needs to answer,” he said. The regulations for special economic zones leaves the rationale for decisions up to Doug Ford’s ministers The draft regulations say special economic zones must be areas where current or future activities would be “economically significant or strategically important to the Ontario economy.” What deems an activity “important,” though, is up to Ford’s ministers. The shape of the special economic zone must be “no larger than necessary,” but this is also left to the opinion of Ford’s ministers. The minister will determine whether a group’s plan for engaging Indigenous communities is sufficient and whether there are people working on the project who have “a history of working successfully with Indigenous communities on projects in Canada.”  The draft regulations outline a set of points the minister has to “consider” when determining whether a project would have “significant long-term economic benefits for Ontario” — such as jobs, the economy, tax revenue, technology development or made-in-Ontario goods and services — but the minister also gets to add any other factor they want to this list when making their determination.  It’s a similar process when the “minister is of the opinion” the project benefits Ontario communities or when the “minister is of the opinion” the project would likely succeed: there is a set of points they need to consider, plus “such other factors as the minister considers appropriate.” The draft regulations include a statement that they are “intended to facilitate dialogue” and the ministry would consider more feedback before the final version. 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