Senate prepares to pass controversial Bill C-5

Prime Minister Mark Carney’s controversial Bill C-5 is all but guaranteed to become law, but politicians have one last opportunity to make changes to the bill.

Over the next three days, senators will make speeches about the bill — which removes barriers to internal trade and grants cabinet the ability to override most environmental laws to approve major projects — and propose amendments. Barring any unusual happenings, Canadians can expect the bill to become law by Friday at the latest. 

Carney’s decision to rush the bill through the House of Commons drew the ire of the Bloc Québécois, NDP and Green Party, but the Conservatives’ support allowed Carney to force it through the House before summer vacation. Some senators are unhappy with the speed, too. 

“If you're gonna have a chamber of sober second thought, … it probably makes more sense to let us actually do our job of sober second thought rather than paint us into a corner this way, where we have really been denied the opportunity to carry out our parliamentary obligations,” Sen. Paula Simons told Canada’s National Observer in a phone interview. 

Sen. Paul Prosper previously told Canada’s National Observer the expedited process “doesn't seem to align with the seriousness of this piece of legislation.” 

Due to the truncated timeline, the Senate won’t get to study the bill in committee. Instead, an unusual “committee of the whole” took place last week where all senators sat in the chamber and questioned federal ministers and other witnesses. 

But the bill has changed since that session. Late Wednesday night, opposition MPs introduced a series of changes to place some limits on the extraordinary powers Bill C-5 would give cabinet. In a marathon committee meeting, the Bloc Québécois and Conservatives worked together to increase transparency and reporting requirements in the bill and prevent the government from overriding more than a dozen laws, including the Indian Act, Criminal Code and Canada Labour Code, to name a few. 

However, cabinet can still override important environmental statutes, including the Fisheries Act, Species at Risk Act, Canadian Navigable Waters Act, Canadian Environmental Protection Act, Migratory Birds Convention Act and Impact Assessment Act. The same goes for regulations, including wildlife area regulations, marine mammal regulations, two migratory birds regulations as well as port and mining effluent regulations. 

But senators won’t be able to question witnesses about the changes or study them in any depth.

On Wednesday at 2 p.m., the Senate will read Bill C-5 for a second time, start debate and begin to deal with any proposed amendments. If an amendment is made, the bill must go back to the House, which ended its session for the summer and won’t resume until fall. The Senate is holding unusual hours this week in order to dispense with Bill C-5 before it rises for the summer recess on June 27. Senators will resume debate Thursday morning at 9 a.m., instead of the usual 1:30 p.m. start. 

Simons said the amendments made last week have made the bill “more palatable” and the Conservatives’ support suggests, generally speaking, the Senate is unlikely to delay the legislation.

“When the government and opposition agree to something, it develops more momentum,” Simons said. “I think there are a lot of senators who are unhappy but I think there's also a feeling that this is a new government with a mandate, with very wide support in the House — and that at the end of the day, it is not the Senate's job to oppose legislation just because we don't care for it.”

The Senate has a right and responsibility to call out and defeat legislation that is “prima facie unconstitutional” and Simons isn’t convinced Bill C-5 meets that bar. But Indigenous leaders have raised countless concerns about how the proposed legislation will trample on Section 35 constitutional rights and treaty rights. The Assembly of First Nations, Treaty 8 First Nations of Alberta, Assembly of Manitoba Chiefs, Chiefs of Ontario and other Indigenous groups all objected to the bill and the lack of consultation when the government was drafting it.

On June 16, Sen. Prosper said he plans to put forward a Senate amendment to slow down C-5 in “hopes that more rational minds prevail in terms of consulting with Indigenous groups.” That amendment has not yet been introduced and it’s not clear if he still intends to introduce it. 

The proposed legislation would have consultation with Indigenous Peoples occur before a project is designated for fast-tracking. Then, with that conditional approval, the necessary environmental or impact assessments would take place to figure out how to minimize the impact and impose conditions on the project. 

“At the end of the day, we state our concerns, those concerns become part of the public and legal record,” Simons said. “Testimony at committee of the whole can be used in court to bolster an argument. So, we still have a function.”

She said there’s nothing senators hate more than being called “a rubber stamp.”

“So, when you narrow our capacity to do that work, it makes us feel like we're not giving Canadians value, value for money, I guess.” 

Nine environmental organizations are calling on the Senate to pass amendments that curtail cabinet’s ability to override laws and regulations.

“We support responsible national interest projects,” Theresa McClenaghan, executive director and counsel at the Canadian Environmental Law Association, said in a press release. “But those projects must be carried out under a legal framework that is environmentally sound, democratically legitimate, and constitutionally robust. Bill C-5, as currently written, fails on all three counts.”

If the Senate doesn’t do a fulsome study and amend the proposed legislation, projects will “face more opposition and legal challenges, rather than finding an expedited route to approval.”  

— With files from Arno Kopecky

Natasha Bulowski / Local Journalism Initiative / Canada’s National Observer