Bill C-5, the One Canadian Economy Act, including the Building Canada Act, is already a fait accompli. The Conservatives are supporting the Liberal minority to ram it through the House of Commons with no meaningful deliberation and no significant amendments. It is slated to pass third reading by midnight on Friday, June 20, and be passed by the Senate by June 27, when the Senate rises for the summer. Many senators have been deferential when asked to amend the bill and return it to the Commons for reconsideration, so while some have expressed deep concerns about the bill, it is unlikely they will prevail in forcing it to be revised. As senator Paula Simons told Arno Kopecky, “Senators could technically stand in the way of this, but politically I don't think there's an appetite to do that.” So what does it mean – and what can be done about it?
Bill C-5 has two parts: the Free Trade and Labour Mobility in Canada Act and the Building Canada Act. Part 1, the Free Trade and Labour Mobility in Canada Act, also called the One Canadian Economy Act, has been strenuously criticized for undermining federal health and labour safeguards and regional economic development measures by implementing mutual recognition of standards and requirements. But it’s Part 2, the Building Canada Act, that has attracted full-throated opposition from Indigenous peoples’ and environmental advocates alike, for overriding requirements for Indigenous consultation and consent and – astonishingly – allowing the government to override or amend any existing laws or regulations, giving Cabinet and individual ministers enormous discretionary powers, without any defined criteria or conditions, and without any democratic process or oversight. Ecojustice characterises this as challenging basic principles of the rule of law.
The Building Canada Act would identify and fast-track projects of “national interest” and pre-approve them, pre-judging Indigenous consent, and giving Cabinet and the designated minister the power to bypass or short-circuit essential legal and regulatory safeguards, including environmental assessments but extending to a huge range of laws.
As summarized by Professor Mark Winfield,
The Building Canada Act…is intended to accelerate approvals for projects that are classified by the federal cabinet as being in the “national interest.” Once a project is designated, a range of federal approvals would be “deemed to be in favour of permitting the project to be carried out.” (Part II, s.6(1)). The specific approvals referenced in the legislation include those that might be made under the Impact Assessment Act… and a range of other environmental, water, energy, and transportation-related legislation and regulations (Schedule 2).
In the place of these approvals, a single designated minister under the Act would issue a single “document” providing the necessary federal authorization, and outlining any federal conditions, on a project (s.7(1)).
The Assembly of First Nations (AFN) National Chief Cindy Woodhouse Nepinak has warned that if the ‘national interest’ “is focused exclusively on accessing natural resources, First Ministers need to rethink and broaden their perspective. Canada needs to start with fast-tracking the basics like clean water, quality housing, modern schools, all-season roads and community infrastructure.”
A number of amendments did get squeezed through the House of Commons Transport Committee early in the morning of June 19. They mostly seem to require decisions and documentation to be published, presumably intended to foster an illusion of transparency and accountability, since the decisions will have already have been made. Some of the amendments are more meaningful, for example, listing the existing laws that can NOT be modified by ministerial fiat – including the Indian Act and the Trade Unions Act, but not including, among others, the Impact Assessment Act, the Fisheries Act, the Species at Risk Act, the Nuclear Safety and Control Act, the Canadian Energy Regulator Act or the Canadian Environmental Protection Act).
There is also an amendment to ensure there is a process that “allows for the active and meaningful participation of the affected Indigenous peoples” before the minister issues conditions for a project to be approved. Given that the projects are considered pre-approved, it is clear that there cannot be meaningful consultation and accommodation as required by the Canadian Constitution – much less free, prior, and informed consent as required by the UN Declaration on the Rights of Indigenous Peoples.
What is really going on?
It’s impossible to know what Prime Minister Carney and his crew are really thinking. Provincial governments and industry lobbies have been very vocal in promoting a range of megaprojects, including a lot of mining and fossil fuel projects, including Ontario’s mythical Ring of Fire metal deposits, that run directly counter to Canada’s climate and biodiversity commitments. Many of those projects depend on private investment that is not in evidence – but if broader market conditions do not favour those projects, pre-approving them will do little to make them materialize.
Is it more a question of inspiring confidence more broadly, trying to demonstrate to Canadians and the world that Mark Carney’s Canada can compete with President Trump’s USA in a deregulation race to the bottom – but with a steady hand and a common Liberal-Conservative policy platform? Does it matter less if the actual projects are built, as long as there is a public (and investor) perception that Canada is a competitive but stable jurisdiction?
Or is this more closely tied to Mr. Carney’s “elbows down” attempts to reestablish Canada’s favoured relationship with the US following the G7 meeting and efforts to reset Canada-US trade, by showing Mr. Trump that he can have Canada’s “critical minerals” without actually making Canada the 51st state?
At the same time, as Indigenous groups and environmental advocates have clearly signalled, attempts to bypass requirements for Indigenous consent and environmental protection will meet with strenuous protest and vigorous legal action. Designated projects will not get built faster, but slower – much slower – than if they proceeded according to existing laws, regulations, and processes in good faith. The government is well aware of this.
The best case scenario would be if the government, despite having given itself such astonishing powers, proceeds only to designate and approve projects without bypassing Indigenous jurisdiction, environmental regulations, or workers’ rights and protections. Such projects could get built more quickly, but there will likely be relatively few of them.
The worst case scenario is that the government is actually betting on conflict. The previous Liberal government showed itself quite willing to use brutal force on Indigenous peoples defending their land from destructive projects imposed without their consent, and the national interest designation would provide a formal (if arbitrary) justification for using criminalization and violence.
Whatever the government’s true intentions, no government can be allowed to concentrate executive power and bypass democratic processes and established laws and regulations in this fashion. The Senate must send Bill C-5 back to the House of Commons so that part 2, the Building Canada Act, can be deleted before the bill is passed, and a properly constructed Act can be brought before the next sitting of Parliament.
And regardless of that outcome, Indigenous authorities, grassroots groups, communities, civil society organisations, and local governments – all of us – need to make it clear to governments, federal or provincial, that arbitrary measures that bypass hard-won protections and ignore fundamental Indigenous and democratic rights will simply not be tolerated.