On June 6, the Carney government tabled Bill C-5, which includes the Building Canada Act. A more apt title would be the Anti-Democracy, Nation-Dividing Act. The Bill aims to grow the economy by fast-tracking yet-to-be revealed projects, but by sidelining scientific rigour and public oversight of those projects, it could put Canadians at risk while failing to address the immediate needs of Canadians whose employment and cost of living have been impacted by Trump’s tariffs. All while pitting Canadians against each other, fueling national dis-unity at a time when Canadians need to come together.
 

Proposed law to fast-track projects is an irresponsible renunciation of federal responsibility

Bill C-5 throws the precautionary principle and informed, democratic decision-making out the window. Particularly if used to fast-track fossil fuel projects, as some Premiers have advocated, it would turn Canada’s back on the urgency of the climate and nature crises, and the reality of escalating human and financial costs of climate change impacts we all face.  

It gives Cabinet broad regulatory power to exempt projects from environmental safeguards. It removes decision-making about so-called “national interest” projects from officials closest to the issues and instead consolidates regulatory authority under one ‘super minister.’ That minister has not yet been named, but it will likely be the Minister of Intergovernmental Affairs.  

Further, by effectively pre-approving projects, it circumvents the longstanding assessment and regulatory processes that projects must usually go through to ensure their safety and makes a mockery of the duty to consult Indigenous peoples and the obligation to secure their free, prior and informed consent.  

How would Bill C-5 work?

If passed, Bill C-5 would apply to projects that the federal Cabinet designates in a schedule to the Act. Designating the projects acts as their pre-approval – in other words, the projects will get the green light before they are put through any review. It will no longer be a question of whether a project happens, but how.  

Cabinet ministers – who are not experts at the complex engineering, scientific, and practical aspects of infrastructure projects – will decide whether a complex, large-scale project will be approved before government experts have looked at it and with no independent oversight. This “pre-approval” is something the Canadian Energy Pipeline Association asked for during the federal environmental assessment review in 2017.  

Once designated, the projects will no longer go through the usual regulatory approval processes to obtain the customary permits and authorizations required under laws like the Fisheries Act, Migratory Birds Convention Act and Canadian Navigable Waters Act. Instead, the ‘super minister’ will issue a “document” with conditions that the proponent will have to comply with, which will be deemed to be all of the authorizations that the project needs. Before issuing the document, the minister must consult with the relevant ministers responsible for issuing permits and authorizations, although the minister can ignore their advice.  

Indigenous rights-holders must also be consulted (by whom, the Bill does not say). There are no opportunities for public participation and none of the information, analysis or advice the minister considers must be made public. The minister does not even need to make a detailed project description available to the public, only the final conditions document.  

Perhaps most concerningly, Bill C-5 gives Cabinet the power to make regulations exempting designated projects from any requirements of any law, such as the Species at Risk Act, Fisheries Act and Canadian Environmental Protection Act. These laws exist to protect Canadians and the environmental values they care about and depend on, like fish, wildlife, land and water.  

For example, Cabinet could exempt a pipeline from a prohibition preventing it from harming an endangered species with no public participation or Indigenous engagement on the decision. Perhaps most concerningly, by giving these sweeping powers to Cabinet – the executive branch of government – Bill C-5 circumvents the usual Parliamentary debate and oversight. In other words, Cabinet will be able to do by regulation what usually must be done through Parliamentary vote.  

Bill C-5 triggered alarm bells by environmental experts (including us) and climate groups, and the Assembly of First Nations called an emergency meeting of its chiefs to discuss it.  

What projects will be fast-tracked?

We do not yet know what projects will be rammed through under the law – Prime Minister Mark Carney is currently negotiating the list with provincial and territorial governments. Bill C-5 states that when deciding which projects to fast-track, Cabinet can consider any factors that it considers relevant, including the extent to which projects can:

• Strengthen Canada’s autonomy, resilience and security,  
• Provide economic or other benefits to Canada,
• Have a high likelihood of successful execution,
• Advance the interests of Indigenous peoples, and
• Contribute to clean growth and to meeting Canada’s objectives with respect to climate change.

Projects that Prime Minister Carney said would probably qualify include:  

• The Grays Bay Road and Port project.
• The Pathways Alliance carbon capture project (which First Nations have asked undergo a federal impact assessment, a request that has not yet received a response).
• An oil pipeline to the northwest coast (it is unclear how an oil pipeline without a proponent would have a “high likelihood of successful execution”, be in the interest of the First Nations opposed to it, have “clean growth potential,” or comply with the north coast tanker ban. It should be noted that BC Premier David Eby pushed back on the idea of a north coast pipeline, and Prime Minister Carney has said he won’t force projects through provinces that don’t want them).
• Mining projects in northern Ontario’s Ring of Fire area (while mining stakes in the Ring of Fire abound, there are currently no actual projects proposed, and experts warn that opening up the region to development could release significant amounts of carbon pollution).

Key concerns  

The bill – not to mention some of the projects being considered for fast-tracking – is alarming for a number of reasons.

Lack of respect for Indigenous rights

Where to start? The “up front” approval process that Bill C-5 sets out is a regulatory absurdity. For one, federal assessment and regulatory approval processes exist so that authorities can get better informed about the risks and benefits of their decisions, and so that projects can be optimally designed to avoid adverse effects and deliver maximum benefits. Deciding to approve a project before reviewing it is like building a house and then asking an engineer if you got it right.

It is also difficult to imagine how this up-front decision could comply with the federal government’s duty to consult Indigenous rights holders, let alone obtain their free, prior and informed consent.

Indigenous nations have criticized the rush to pass Bill C-5 without adequate consultation and the plan to pre-approve projects without their consent, with some Indigenous leaders warning that fast-tracking development could lead to lawsuits or the kind of Indigenous grassroots uprising that occurred with the Idle No More movement, which emerged in 2012 out of the Haper government’s Bill C-38 and C-45 – omnibus bills that also served  to weaken environmental assessment and oversight as well as Indigenous consultation. Shortly after Bill C-5 was tabled, the Assembly of First Nations called an emergency meeting of its members to discuss the Bill.  

Lack of public and municipal engagement

There is also a decent chance that attempting to circumvent usual participation requirements could lead to public and local government opposition. The Union of BC Municipalities criticized BC’s Bill 15, the Infrastructure Projects Act, which is similarly aimed at fast-tracking certain designated projects. A high-speed rail line from Quebec City to southern Ontario has a lot of support, but no doubt local governments will want to weigh in on route, location of stops and other key details affecting them.  

And as we learned when the Harper government shredded Canada’s environmental safety net in an effort to build more pipelines, shutting the public out of decisions that affect them can force people to make their own venues for voicing their concern. After an onslaught of protests, rallies and acts of civil disobedience against the Trans Mountain pipeline (then called the Kinder Morgan pipeline), energy giant Kinder Morgan abandoned the project (the federal government bought the project, ultimately costing taxpayers $34.2 billion to build it).  

Not to mention the risk of environmental disasters due to rushed processes and inadequate oversight. Just look at the Mount Polley Mine tailings disaster of 2014, when the dam containing the mine’s wastewater failed, sending 25 billion litres of toxic waste into Quesnel Lake, wiping out a creek and costing B.C. taxpayers almost $40 million. Mount Polley was approved before BC or Canada had environmental assessment laws and a 2016 investigation by the BC Auditor General found flaws in the regulatory oversight of the mine.  

Lack of informed decision making

The fact that Parliament intends to give Cabinet powers to approve projects before reviewing them means that it will be basing decisions about whether major projects go ahead with very little information about their impacts, benefits, risks and uncertainties. In fact, it is possible – even likely – that decisions will be based solely on whatever information proponents share, whether or not that information is accurate or complete. Currently, government officials review project proposals, consult experts and rights-holders, and engage the public to identify concerns before making project decisions.  

Further, by consolidating all environmental decision making in the hands of one minister, the Bill could allow that all-powerful minister to ignore the concerns and findings of the expert departments responsible for protecting matters under their authority, like species at risk, fisheries and navigable waters.

Environmental impact assessment arose out of a growing understanding that ignoring the environmental effects of decisions can lead to catastrophic results. The Sydney Tar Ponds, one of Canada’s most toxic waste sites, was created by decades of failure to assess or adequately regulate a steel manufacturing plant. Uranium contamination near Elliot Lake, Ontario, accumulated over decades of un-assessed and poorly regulated uranium tailings disposal, putting residents’ health at risk.

Environmental impact assessment makes officials look before they leap into decisions that could harm Canadians and the environment. Bill C-5 will make decision makers leap before they look, begging the question: how could uninformed decisions be good for Canada?

A slippery slope

Bill C-5 is not the first attempt to erode environmental decision making in the interest of economic growth. As mentioned above, in 2012 the Harper government gutted Canada’s environmental laws through Bills s C-38 and C-45 at the request of the oil and gas industry in the name of getting resources to market.  

While the subsequent Trudeau government promised to “restore robust oversight and thorough environmental assessments of areas under federal jurisdiction,” its resulting Bill C-69 did not restore pre-2012 levels of oversight for the vast majority of projects and activities that affect areas of federal responsibility. The Impact Assessment Act, which came into force in 2019, follows the 2012 approach of only applying to a handful of “major” projects, with only one project triggering a federal assessment last year (the Bruce C nuclear project in Ontario).

Bill C-5 continues the tradition of de-regulation of the federal effects of projects and activities and the erosion of opportunities for communities to have a say in decisions that affect them. Granted, it contains a clause stipulating that Cabinet can only designate projects for fast-tracking for five years, but once the genie is out of the bottle, can we ever get it back in?  

Why we have environmental laws

We have environmental laws for a reason – to protect Canadians and the environment they rely on and enjoy. Key among these is environmental impact assessment, a “look before you leap” tool that has been used for a half century to make wiser decisions that avoid harms and enhance benefits to communities.  

Even projects that make sense in principle, like passenger rail or renewable energy, can be poorly designed or located in the wrong place. Consider the absurd case of the £100 “bat tunnel,” a structure to protect bats in the United Kingdom from a high-speed rail line that is being built through an ancient forest rather than simply re-routing the line around it.

Or consider the ill-conceived proposal to build a freeway through downtown Vancouver 60 years ago in order to link the suburbs to the downtown core, or the similar idea to have a freeway system snaking around and through Victoria in the name of urban renewal.

Building projects that do more harm than good is not nation-building. Neither is building projects in the wrong place or that pit provinces and communities against each other. Bill C-5 creates more uncertainty and risk at a time when Canadians need more certainty and stability. It should be sent back to the drawing board for a serious re-think, in consultation with Indigenous peoples and experts, not self-interested industries.

Click here to help stop Bill C-5, the Anti-Democracy, Nation-Dividing Act.