‘Ass Backwards’: Canada’s New Legal Posture Post-Bill C-5

From opposite ends of the room, the Liberals and Conservatives seemed jovial as they closed out a lightning-fast session in Parliament.

There was one thing left to do: vote on the government’s omnibus fast-tracking law, Bill C-5, which, among other powers, includes a clause named after Henry VIII, who liked to rule by decree.

“It’s a strange thing to find myself more shocked now than at things that the Harper government tried,” said Green MP Elizabeth May, moments before her audio was cut off for the vote to begin, sending the approved bill to the Senate for its final debate.

The law allows government to scrap almost any federal law or regulation standing in a chosen project’s way, and to pre-approve projects without any review or consent from First Nations. And once those decisions are made, they are final.

Cresting on a wave of Conservative and Liberal support, Bill C-5 pushed against fierce opposition from First Nations, the NDP, Bloc Québécois, Greens and environmental groups who say the law contravenes hard-won gains on Indigenous rights and environmental protection.

For many familiar with B.C. politics, it also sounded remarkably familiar. Last month, the province’s NDP government pushed through fast-tracking bills 14 and 15. The new laws don’t allow pre-approval of projects as Bill C-5 does, but they empower the province to remove almost any rules or other regulations from a project’s path, including most parts of an environmental assessment.

A week later, Ontario’s own fast-track bill became law, creating “special economic zones” where provincial rules don’t apply. In each instance, governments used special orders to limit debate, forcing their bills to a vote.

The trio of fast-track laws have been pitched as a salvo against U.S. President Donald Trump’s tariffs and roiling economic uncertainty, though some have also noted their resemblance to Trump’s own deregulatory spree.

“It is really astonishing how quickly this bill has been drafted and then how quickly it is going through Parliament,” said West Coast Environmental Law staff lawyer Anna Johnston.

“They’re talking about reinventing the decision-making and regulatory processes for major projects.”

But the new law is also a welcome sign for members of the Business Council of Canada who want to invest, said Goldy Hyder, the council’s president and chief executive officer, in the Senate on Wednesday.

“They would like to do it in democracies, and they would like to do it in Canada, but capital doesn’t have that requirement. Capital goes where it grows, and so as they look at Bill C-5, they see directionality, and they see good intentions and goodwill.”

How does Bill C-5 work?

Canada’s Bill C-5 introduces two new acts, one focused on removing interprovincial trade barriers, and the second, the Building Canada Act, to fast-track chosen projects.

Under that act, a minister will have the power to determine a project “in the national interest” without any prior review.

Once that decision is made, the project is considered pre-approved. The findings of any review that follows, potentially including an impact assessment, can’t undo the approval.

“The purpose of this bill is to have the review come after the decision, which is of course ass backwards,” said Johnston.

The law goes further: beyond being pre-approved, chosen projects can erase their impacts on paper. For example, if a mining project normally would have broken the Species at Risk Act by causing a group of caribou to go extinct, national-interest status means the government could instead decree that the Species at Risk Act is being followed.

Finally, the law bestows the government a “Henry VIII” clause allowing it to remove almost any federal rule or regulation that might impede a project going through.

“The breadth of this clause is enormous,” said Ecojustice climate program director Charlie Hatt in an interview with The Tyee.

Because of the regulatory-free status it bestows, Hatt has called the national-interest designation a “golden ticket” under Bill C-5.

What projects can receive such protection? There are no clear guardrails. The law lists a few vaguely defined potential goals, including that they “strengthen Canada’s autonomy, resilience and security.” On Friday, the government added new amendments to the law ensuring the proponent hasn’t violated conflict-of-interest laws and that relevant government workers recuse themselves in cases of conflict.

One still-unnamed minister in a forthcoming major projects office will be responsible for selecting which projects will fall under the law. The office will “have a dangerous amount of power,” said Merle Alexander, a Hereditary Chief of the Kitasoo Xai’xais First Nation and a lawyer practising Indigenous resource law.

Johnston said decisions made under the law will likely be immune to judicial review.

But legal challenges based on C-5’s treatment of Indigenous rights are likely, said NDP MP Leah Gazan in the House on Friday.

“Bill C-5 has the very real potential to lead us all to the courts,” she said. “We’re not building a strong economy,” she said. “We’re building cases for the Supreme Court of Canada.”

Bill C-5 does not commit to getting First Nations’ consent to fast-track projects in their territory, despite adding amendments Friday to require such consent from provinces.

Instead, the law requires the government only to consult with First Nations affected. Alexander said most nations’ ability to assert meaningful jurisdiction will be severely curtailed.

“You're pushing up against this highly empowered government decision where you're going to have minimal or nominal effect on it, no matter what you bring to bear,” he said.

The law also removes instances where the government would need to consult with First Nations — for example, issuing a Fisheries Act permit.

“If you eliminate that assessment and you start eliminating a lot of permitting, you're just taking away consultation opportunities,” said Alexander.

The government gave Indigenous rights holders just seven days to review and respond to Bill C-5, said MP for Vancouver East Jenny Kwan in an interview with The Tyee. “That is absolutely disgusting,” she said. “It is not in any stretch of the imagination meaningful consultation.”

How will C-5 affect what happens in provinces?

Inked into the Constitution, Canada’s governing responsibilities include anything interprovincial — think transmission or pipelines — but also particularly large projects like mines and LNG plants. The federal government also governs waterways and fish habitat. In places like B.C., its laws are the only ones governing species at risk, and it has legal responsibilities to First Nations, including through laws like the Indian Act.

Federal laws have acted as an important safeguard before, said Alexander, including in 2014 when the government rejected Taseko Mines’ plan to turn the Tŝilhqot’in First Nation’s sacred lake into a tailings pond despite B.C.’s willingness to approve it.

Provincial fast-track laws like B.C.’s bills 14 and 15 could compound C-5’s risks, said Alexander. “They could create a harmonized streamlined process,” he said, which would eliminate all impact and environmental assessments, or EAs, and all environmental regulations.

“Sometimes the provincial EA is the check, the check and balance, and sometimes it's the federal check and balance,” said Alexander. “The check and balance is gone if it’s not done right.”

Although recent amendments added language to the bill requiring provincial consent before deeming projects in the “national interest,” that doesn’t include federally regulated projects like a bitumen pipeline to B.C.’s north coast, which could follow a route similar to the one mapped for the scuppered Enbridge pipeline. Prime Minister Mark Carney has signalled interest in the project, despite B.C. Premier David Eby’s historic resistance, though Eby said Sunday he would consider the pipeline if it was privately owned and funded.

New alliances

On Friday the government accepted a slate of amendments to Bill C-5 proposed by its transport committee late last Wednesday, including rules requiring greater transparency on which projects are chosen, and which regulations they get to flout.

The committee also added a 30-day comment period to allow the public to weigh in before a project is deemed in the “national interest.”

Those rules “might help ensure guardrails around the exercises of these powers,” said Johnston, but she remains concerned that the law’s biggest powers, including the ability to pre-approve projects, remain unchanged.

The bill will now go to the Senate for further amendments and a vote. If passed as expected, the law will be in place for five years, after which it will receive an independent review to decide whether it should be reinstated.

“I think Mr. Carney should think twice about giving this kind of wide political discretion to potentially a different government and a different prime minister,” said the Greens’ May in a recent interview with the Hill Times.

“I’m not thrilled to have any government or any prime minister have unfettered discretion at this level.”

After the final vote was called on Friday evening, Carney walked across the floor, smiling, and shook Conservative MP Andrew Scheer’s hand.