Bill C-5 is not just bad policy, it’s a constitutional mess

Prime Minister Carney’s attempt to make good on his election promise to build one Canadian economy and get things built — Bill C-5 — has been written and rushed through Parliament at breakneck speed. And it shows. 

Aimed at streamlining interprovincial trade and fast-tracking major projects, Bill C-5 has been heavily criticized by Indigenous peoples, environmental groups and legal experts who warn it erodes foundational democratic principles and allows the government to circumvent environmental laws and run roughshod over Indigenous rights.

Of particular concern is Part 2, the Building Canada Act. If passed, it would apply to projects that the federal cabinet designates as being in the “national interest.” Designating the projects acts as their approval — in other words, projects will get the green light before they are reviewed. This approach flies in the face of over half a century of experience showing that governments make better decisions when they understand the consequences of those decisions ahead of time. 

The bill also consolidates regulatory power in the hands of one ‘super minister’ (likely to be Intergovernmental Affairs Minister Dominic LeBlanc, who tabled the Bill along with Minister of Transport and Internal Trade Chrystia Freeland). While that minister must consult ministers responsible for various project aspects and effects, he or she can ignore their advice. The super minister will also not need to comply with environmental legal standards and can, instead, authorize harms that would be otherwise unacceptable under Canadian law, because the Bill “deems” all authorization requirements to have been met. 

Effectively, Bill C-5 creates two classes of projects: regular projects which have to go through legal checks and balances, and “national interest” projects to which the rules won’t apply. 

Canada’s legal system — indeed, our democracy — is premised on the principle that everyone is equal under the law. Bill C-5 undermines that principle, along with others. For example, our democratic system relies on three independent but interrelated branches of government — the legislative, executive and judiciary. While the executive branch (cabinet) may propose laws, Parliament is ultimately responsible for passing them, and the judiciary ensures the lawfulness of those laws and their implementation. Separating the powers among the three branches ensures that power is not unduly concentrated in any one body. 

Bill C-5 throws that principle under the bus. It gives the federal cabinet regulatory power to exempt projects from environmental laws (known as so-called “Henry VIII” clauses). In Bill C-5, they effectively allow cabinet to amend laws by making regulations about when and to whom those laws apply. 

As Supreme Court Justice Côté warned in the Greenhouse Gas Pollution Pricing Act reference case, Henry VIII clauses grant cabinet “breathtaking” powers that may run afoul of the principle of parliamentary sovereignty. Notably, the Henry VIII provisions in Bill C-5 go far beyond what the clauses in the Greenhouse Gas Pollution Pricing Act do — under the Greenhouse Gas Pollution Pricing Act, cabinet can only make regulations amending that Act, whereas under Bill C-5, cabinet can make regulations amending any federal environmental law. 

More concerningly, Bill C-5 effectively gives Henry VIII powers to the super minister. Whereas the cabinet would have to pass regulations saying that a law or laws don’t apply to a project, the minister can simply ignore legal standards. Once cabinet orders a project of “national interest” under the Act, it no longer needs to obtain the customary authorizations and permits. Instead, the super minister will issue a document with conditions that stands in for authorizations and permits. As noted above, the bill “deems” that the document meets all requirements, under any enactment, that relate to the authorizations it replaces.

This “deeming” acts as legal doublespeak. For example, if a project affects an endangered species, normally the minister would have to be satisfied that it would not jeopardize the species’ survival and recovery before agreeing to it. Bill C-5 will “deem” that the project will not jeopardize the species, no matter its actual effects.

These issues are concerning, not just from an environmental perspective, but also on constitutional and democracy grounds. Department of Justice guidance warns against the kind of “deeming” provisions contained in Bill C-5, and the law invites lawsuits and protests. 

Indigenous rights-holders faced with the potential extinction of a species central to the exercise of their rights are unlikely to be satisfied by the explanation that Bill C-5 “deems” the species not to be harmed. Nor may the public be satisfied with having a handful of politicians declaring what is in the national interest solely on the basis of the self-interested claims of proponents. 

Yes, we need big, transformative investments in projects that benefit Canadians, projects like renewable energy, high-speed rail and an east-west electricity grid. We have proven tools for making efficient decisions about those projects in ways that are also rigorous, participatory and fair. Tools like independent review panels, which for decades have thoroughly assessed projects in under two years and led to better buy-in to decisions. Or regional assessments, like those for offshore wind in Nova Scotia and Newfoundland and Labrador, which will allow much more streamlined project reviews without compromising Indigenous engagement, public participation or science.   

Parliament passed Bill C-5 last Thursday. It sets a dangerous precedent for Canada, but the government can take measures to ensure that national interest projects are truly in the public interest, are carefully reviewed and have the consent of Indigenous peoples. 

As the recent report An Ounce of Prevention: How Strong Environmental Laws Contribute to a Prosperous and Resilient Canada shows, those outcomes are not a pipe dream. The environmental assessment of the Voisey's Bay nickel mine, conducted by a panel jointly appointed by Canada, Newfoundland and Labrador, the Labrador Inuit Association and the Innu Nation, took roughly two years and identified ways to ensure long-lasting benefits for communities. The mine still operates to this day. 

The Ekati Diamond Mine in the Northwest Territories underwent a two-year-long assessment that identified a number of community concerns, as well as ways to address them. Like Voisey’s Bay, the mine is still in operation. 

As these examples show, efficient, effective and fair decisions about major projects are possible. A stitch in time saves nine.    

Anna Johnston is a public interest environmental lawyer at West Coast Environmental Law, where her work focuses on climate, biodiversity, impact assessment and constitutional law.