Without safeguards, streamlined approvals will be legally vulnerable

I. Introduction

The Canadian Bar Association Sections (the CBA Sections) are pleased to comment on Bill C-39, the Building Canada Strong Act. We understand the Bill’s objective of a more efficient, coordinated and predictable federal approvals regime that strengthens Canada’s ability to compete. Our recommendations are not intended to add layers of process. They identify, at a minimum, safeguards needed so that streamlined approvals respect the Crown’s obligations to Indigenous peoples, the principles of administrative justice and the environmental protections that underpin sound project assessment. Approvals that are timely but legally vulnerable will not deliver the certainty the Bill seeks. Our submission addresses Indigenous rights and United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA), administrative law, alternative dispute resolution, environmental, energy and resources law, and construction and infrastructure.

Bill C-39 combines reform of federal project assessment with amendments to the Canada Labour Code, the Wage Earner Protection Program Act, transportation security clearances and marine safety powers. The CBA Sections appreciate the urgency the government attaches to these reforms. We are concerned, however, that combining substantially different and unrelated subject areas in a single bill limits the opportunity for meaningful scrutiny, debate and consultation, including within and amongst all stakeholders, on each part. CBA policy urges the government to limit this practice (Resolutions 25-03-A and 13-04-M). We encourage Parliament to ensure sufficient study of the provisions unrelated to project review.

II. Indigenous Peoples and the United Nations Declaration on the Rights of Indigenous Peoples Act

Bill C-39 proposes accelerated timelines and mechanisms that predetermine Crown decision-making in favour of approval, shift consultation to narrow mitigating exercises that cannot affect final outcomes, and risk rendering it practically impossible for the Crown to fulfill its constitutional and statutory obligations to Indigenous peoples.¹

The CBA Sections propose the following amendments to confirm that decision makers must act consistently with the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA) and that the Bill’s processes are intended to uphold Aboriginal and treaty rights recognized and affirmed by s. 35 of the Constitution Act, 1982.

A. UNDRIPA Consistency and Section 35 Non-Derogation

The Bill amends a long list of federal statutes and creates new powers to designate projects and regions, compress timelines, deem authorizations to be granted and set or remove conditions. It does not say how those powers relate to UNDRIPA, which commits the Government of Canada to taking all measures necessary, in consultation and cooperation with Indigenous peoples, to ensure that federal laws are consistent with the Declaration. Silence on this point invites inconsistent application across statutes and departments, and litigation to resolve it. A single general provision addresses the issue across every statute the Bill touches, rather than through piecemeal amendments to each one, and gives decision makers and proponents clear direction at the outset.

1. Proposed Amendment: Add the following general provision, s. 1.1, to the Building Canada Strong Act after clause 1 and before Division 1, so that it applies to each statute amended by the Building Canada Strong Act:

Consistency with UNDRIPA

(1) Every person or body exercising a power or performing a duty under a provision enacted or amended by this Act must do so in a manner consistent with the United Nations Declaration on the Rights of Indigenous Peoples Act.

(2) For greater certainty, subsection (1) applies to the exercise of powers and performance of duties concerning project or regional designations, assessment and authorisation timelines, deemed authorisations, and the imposition, amendment or removal of conditions.

B. Activities Before Final Authorization/Pre-Authorization

The duty to consult arises when the Crown contemplates conduct that may adversely affect Aboriginal or treaty rights; it does not wait for a final decision. Where the Bill allows activities to proceed before final project authorization, impacts on the exercise of rights can occur before consultation is complete. Once land is cleared, access is disrupted or habitat is altered, those effects may be irreversible, and later accommodation may no longer be meaningful. This amendment ensures that early-stage activities are assessed for their effect on rights and made subject to enforceable conditions where appropriate.

2. Proposed Amendment: Add the following s. 8.4(2) to the Building Canada Act under Part 1, Division 2, clause 103:

“For greater certainty, where an activity is permitted to proceed before final project authorization, the responsible authority shall consider whether the activity may materially and adversely affect the exercise of Aboriginal or treaty rights and, where appropriate, establish conditions to avoid or minimize those effects. Compliance with those conditions shall be a requirement of the authorization.”

C. Feasibility of Conditions

The Bill requires decision makers under five statutes to consider the technical, economic and practical feasibility of conditions before imposing them (for example, proposed s. 65.1 of the Canadian Energy Regulator Act). Feasibility is a legitimate consideration, but without clarification it could be read as permitting decision makers to omit or weaken conditions that protect s. 35 rights because of cost or convenience to the proponent. Constitutional obligations cannot be subordinated to feasibility. The amendment makes clear that feasibility does not dilute the Crown’s obligations, and that habitat credits or payments are not, on their own, mitigation or accommodation. The reasons requirement allows affected communities to see how their concerns were addressed and supports meaningful review, consistent with the Supreme Court of Canada’s recognition in Clyde River that written reasons will often be necessary where deep consultation is owed.

3. Proposed Amendment: Add the following new provision or new paragraph under Part 1: (a) Division 3, clause 125, s. 65.1 amending the Canadian Energy Regulator Act; (b) Division 4, clause 159, s. 9.01 amending the Canadian Navigable Waters Act; (c) Division 5, clause 167, s. 129.1 amending the Canadian Environmental Protection Act; 1999(d) Division 6, clause 177, s. 77.1 amending the Species at Risk Act; and (e) Part 1, Division 7, clause 183, s. 35.01 amending the Fisheries Act:

“For greater certainty, consideration of technical, economic and practical feasibility, and the acquisition or use of a habitat credit or payment of an amount in lieu of habitat measures, does not limit the Minister’s obligations under section 2.4 or the obligations of the Crown in respect of the rights recognized and affirmed by section 35 of the Constitution Act, 1982, and does not, by itself, constitute mitigation or accommodation of an adverse effect on those rights. Where a decision may adversely affect the exercise of a right recognized and affirmed by section 35, the Minister must provide reasons identifying how those adverse effects were considered and, where appropriate, mitigated or accommodated.”

D. Habitat Credits and Environmental Damages Fund Fees

The Bill expands the fish habitat bank regime to allow third parties to use habitat credits and authorizes regulations allowing proponents to pay a fee to offset adverse effects on fish and fish habitat, with the fees credited to the Environmental Damages Fund. These mechanisms are designed to offset habitat loss in general terms, potentially elsewhere in a service area. They are not directed at the particular Indigenous community whose fishing rights are affected, and a payment into a federal fund does not restore that community’s ability to exercise its rights where it has historically done so. The amendment prevents these tools from being treated as a substitute for consultation and accommodation and preserves the Minister’s existing duty under s. 2.4 of the Fisheries Act.

4. Proposed Amendment: Add the following s. 43.04 under Part 1, Division 7, clause 186 amending the Fisheries Act to govern habitat-credit use:

“For greater certainty, neither the use of habitat credits under section 42.03 nor payment of a fee under regulations made under subsection 43.31(1), credited to the Environmental Damages Fund under section 16.1,itself constitutes accommodation of an adverse effect on the exercise of Aboriginal or treaty rights recognized and affirmed by section 35 of the Constitution Act, 1982. Neither mechanism limits the Minister’s duty under section 2.4 or any other applicable Crown obligation to consult and, where appropriate, accommodate.”

E. Judicial Review Timelines

The Bill requires applications for leave to challenge Canada Energy Regulator reports, Cabinet orders and resulting certificates to be filed with the Federal Court of Appeal within 15 days. Indigenous communities affected by these decisions often need time to consult members, obtain direction from leadership, retain counsel and assemble a record, and may have limited capacity to do so. A rigid 15-day window risks foreclosing meritorious s. 35 claims for reasons unrelated to their merit. A discretionary power to extend time for special reasons preserves access to justice while leaving the Court able to protect the timeliness the Bill seeks.

5. Proposed Amendment: Add the following s. 188(2)(a.3) to Part 1, Division 3, clause 129(2), clause 188(2) of the Canadian Energy Regulator Act:

“For greater certainty, the Federal Court of Appeal may, for special reasons, extend the time for filing an application under subsection 188(2).”

III. Administrative Law Principles

The CBA Sections urge caution about Bill C-39’s impact on core administrative law principles. Replacing findings with deeming, shifting discretion from expert decision makers to Ministers and Cabinet, deferring fairness to yet-to-be-issued regulations, compressing the time available for interested parties to participate and removing a level of appeal all warrant further scrutiny. The Bill’s purpose of expediting approvals is clear, but the requirements of administrative justice must still be met. The CBA Sections raise five issues and recommendations.

A. Deemed Decisions

Decision-making is being replaced by deeming, centralizing power in the Minister’s satisfaction that project criteria are met. Once the Minister is “satisfied” that a project in a designated region meets the Schedule 3 criteria, every finding and opinion needed for every authorization is deemed made in its favour, and one ministerial document is deemed to be each authorization. Schedule 3 is currently empty, so its substance depends on Cabinet order, and the limit that the document may not issue “solely” on the deeming provision is undefined. This will make it difficult for a court to review decisions against the enabling statutes.

Recommendation

1. Amend s 8.3(3) to require reasons that address each enabling statute’s criteria and set minimum Schedule 3 content in the Act.

B. Concentration of Power in Ministers and Cabinet

Discretion is moving away from expert decision makers to Ministers and Cabinet, or between Ministers. The Minister of the Environment may grant authorizations that belong to other Ministers, who are only consulted; Cabinet may change which Minister decides by order; and pipelines of 300 km or more move to Cabinet on a 60-day clock. Decision-maker accountability, and expertise as a rationale for deference, become harder to trace and therefore to review. Ministerial discretion is also not subject to the public processes that administrative tribunals generally have in place, which reduces the opportunity for interested parties to be heard.

Recommendation:

2. Build in transparency by requiring publication of the consulted Minister’s view with the decision, notice (statutory or regulatory) when the decision maker changes, and publication of expert recommendations with the reasons.

C. Ministerial Directives

Ministerial instructions pose a significant challenge for contestability and procedural fairness. Ministers may bind the Canadian Energy Regulator’s (CER) Lead Commissioner on time limits, instructions and measures, direct the Canada Industrial Relations Board (CIRB) to take “any measure”, and Cabinet may issue policy directives to the Canadian Nuclear Safety Commission (CNSC). Experience in other areas, such as immigration, shows such instructions can limit notice, comment and contestability, and let decisions be shaped by off-the-record considerations. Binding directions also engage tribunal independence and fettering.

Recommendation:

3. Confine directives to timing and procedure rather than the outcome of a specific file, and ground substantive protections in the statute or regulations while keeping the flexibility directives provide.

D. Procedural Fairness and Meaningful Participation

Procedural fairness will presumably be addressed in yet-to-be-published regulations. However, several powers, including the suspension of security clearances, Canada Marine Act threat orders, information sharing and compressed timelines, have no procedural safeguards in the statute.

As for security clearances, section 206 of the Bill adds a new Part I.1 to the Canada Transportation Act giving the Minister significant discretion to grant, suspend or cancel security clearances required for transportation purposes. Decisions of this kind can have a far-reaching effect on an individual. The Bill leaves the process to regulations: proposed s 54.4(c) authorizes the Governor in Council to make regulations “respecting the process by which and the grounds on which security clearances may be granted, suspended or cancelled.” Where a Minister is given discretion this broad, those regulations must include procedural safeguards such as notice and the right to be heard.

For threat orders, section 250 of the Bill adds Part 3.1 to the Canada Marine Act. Under proposed s 102.1, the Minister may identify an “imminent and serious threat” and order a broad range of measures that can affect a variety of stakeholders. Unlike the security clearance regime, the amendment contains neither procedural safeguards nor a specific regulation-making power to create them.

Regarding meaningful participation, across the Bill, concentrating decision-making in Ministers, combined with accelerated timelines, risks becoming a barrier to meaningful participation. Compressed timelines, and the possibility that several assessments of a project may proceed at the same time, may stretch the resources of some stakeholders and limit their ability to participate meaningfully.

Recommendation:

4. Build minimum procedural fairness into the statute, not only regulation: notice, disclosure (adapted to security-sensitive contexts), a chance to respond, reasons and reconsideration. Where a Minister is given broad discretionary powers, as under proposed s 54.1 of the Canada Transportation Act and s 102.1 of the Canada Marine Act, the Bill should provide adequate safeguards in its text or through an express regulation-making power.

E. Review Moved to the Federal Court of Appeal (FCA)

Moving review of Cabinet orders designating national interest projects and regions to the FCA, including pending cases, will create challenges. Canada Energy Regulator decisions also need FCA leave, sought within 15 days. Today a Federal Court judgment is appealable to the FCA as of right and then to the Supreme Court with leave; Bill C-39 makes the FCA the only court reviewing as of right. The downstream effect on the Supreme Court and the FCA’s caseload, and the FCA’s role at first instance on large evidentiary records, need further attention.

Recommendation:

5. Justify moving pending applications to the FCA, and consider the impact on FCA rules, leave windows and evidence-heavy review.

IV. Alternative Dispute Principles

The CBA Sections support the Bill’s emphasis on efficient dispute resolution and its use of alternative mechanisms, rather than traditional court processes, in several key provisions. We recommend, however, that these mechanisms be accompanied by greater procedural clarity, assurances of neutrality, and consistency with established principles of arbitration and mediation. We recognize that the Bill may be drafted broadly by design, with details to follow in regulations, but we encourage Parliament to set out core procedural protections in the statute itself.

A. Canada Marine Act: Seaway Termination Arbitration (proposed ss. 95.1 to 95.8)

The Bill should clarify how the statutory arbitration agreement relates to the Commercial Arbitration Act it references, and how the deemed arbitration agreement in s. 95.6 accords with party autonomy. The Bill is silent on whether statutory arbitration displaces any dispute resolution or termination-compensation clause in the agreement referred to in s. 80(5), and on whether those contractual clauses continue to govern disputes unrelated to termination.

The tribunal’s jurisdiction should also be defined expressly. It should include authority to determine the validity or good faith of a termination, compensation, pre-termination performance issues and operating costs. Clear jurisdiction would reduce the risk of parallel proceedings in court and in arbitration.

The Bill should specify what triggers arbitration after the 180-day negotiation period, the time limit for commencing it, and the effect on limitation periods. It should also provide default rules on the number of arbitrators and how they are appointed, the seat, the language and the procedure. Without an administering institution or clear ad hoc rules, delay may undermine the Bill’s objective.

The mandatory factors in s. 95.4(2) should be reviewed to guard against any perception of pre-judgment or institutional imbalance. Finally, the Bill should clarify whether the Federal Court’s exclusive jurisdiction under s. 95.7 extends to the appointment of arbitrators, interim measures, set-aside applications and enforcement.

B. Canada Labour Code: Part 3, Division 1

Mediation confidentiality should be protected. The reporting requirements in proposed ss. 87.01 to 87.04, including disclosure of party positions and assessments of participation, should be narrowed and aligned with recognized standards of mediator ethics. The Bill should also establish transparent mediator qualifications, an independent appointment process and conflict-of-interest safeguards, supported by a roster where appropriate.

The phrase “binding method of resolving the issues” in ss. 80, 99(1)(b.1) and 107(2) should be defined, with default procedures, timelines and neutral appointment mechanisms prescribed for each available process. The nine-month period in s. 80 should be reconsidered, or measures added to prevent tactical delay before the Board directs a binding resolution process.

V. Environmental, Energy and Resources Law

A. Assessments Moved Out of the IAA: Equivalent Assessment Factors, Standards and Conditions

Bill C-39 makes the Canada Energy Regulator (CER) the sole assessor for pipelines, designated power lines and offshore renewable energy projects, eliminating any consideration of such projects under the Impact Assessment Act (IAA) regime.² The Canadian Nuclear Safety Commission (CNSC) has been made the sole assessor for nuclear projects, conducting its impact assessments under the proposed amended IAA.³

While the CBA Sections generally support the timelines, efficiencies and streamlining proposed in Bill C-39, these changes will only achieve their intended objective if Parliament ensures that the CER and CNSC have the capacity and resources necessary to conduct and implement robust impact assessments. The recommendations below are intended to support efficient project review processes while maintaining meaningful participation, robust environmental assessment and accountable decision-making.

1. Canadian Nuclear Safety Commission

Bill C-39 would make the CNSC the responsible authority for impact assessments of designated nuclear projects under the IAA, replacing the integrated review panel process. The proposed framework largely preserves the existing decision-making criteria under the current IAA. The CNSC would be required to identify adverse effects of a project and assess their significance. Conditions imposed following an assessment would become enforceable licence conditions and must include mitigation measures, follow-up programs and, where appropriate, an adaptive management plan (under the IAA).⁴

2. Canada Energy Regulator

The proposed framework for federally regulated energy projects, including designated power lines, pipelines, and offshore renewable projects, takes a different approach from the regimes proposed for the IAA and CNSC. While the CER would be required to consider many of the same factors examined in an impact assessment, including environmental effects, the test to be applied is that of present and future public convenience and necessity, rather than an assessment of whether adverse effects are significant and justified in the public interest.⁵

In addition, the assessment framework would not apply to all pipeline projects. Pipelines involving less than 40 km of new right-of-way would be exempt from assessment altogether. Pipelines with 40 km or more of new right of way can be exempted from assessment through an order of the Commission based on a public-interest determination, having regard to factors such as the project’s size, complexity and potential effects.⁶ Such a determination would be made in 180 days, rather than through the 300-day assessment process.⁷

Recommendations

6. The CBA Sections recommend that Parliament:
   1. ensure that the CER and CNSC have the capacity and resources necessary to conduct and implement robust impact assessments, so that the timelines and process efficiencies proposed in Bill C-39 can be achieved without compromising the quality of assessment;
   2. require that where assessment responsibilities are transferred from the IAA, Bill C-39 set out environmental and social assessment factors, substantive standards and decision-making criteria that are, at a minimum, equivalent to those that would apply under the IAA, such as whether the project would have a significant adverse effect on the environment, so that decisions rest on clear and reviewable standards.
   3. align the CER regime with the CNSC and IAA regimes by:
      1. requiring the identification of adverse effects, and an assessment of their significance as part of the approval process;
      2. providing effective tools to manage approved projects, including mitigation measures and adaptive management requirements; and
      3. ensure rigorous assessment criteria are applied to any exemptions of pipeline projects.

In Bill C-69, the CBA supported a single impact assessment authority drawing on the expertise of specialized regulators. We recommended that Agency members constitute a majority of any review panel that included specialized regulators, preserving consistency in the application of impact assessment standards. In Bill C-5, we raised concerns about the absence of clear criteria to guide ministerial decision-making.

Our current position builds on, rather than departs from, those earlier recommendations. While we accept that specialized regulators may serve as lead assessors, assessment standards, decision-making criteria and condition-setting authorities should accompany that responsibility to ensure consistency, transparency, and accountability across the federal assessment regime.

B. Regions of National Interest: Appropriate Conditions for “Pre-Approval” Zones

Bill C-39 would amend the existing Building Canada Act to allow Cabinet to designate Regions of National Interest.⁸ Once a region is designated, the findings needed for an eligible project’s federal permits would be deemed to have been made in its favour⁹, and a single consolidated authorization document would be issued¹⁰. Effects already covered by the regional assessment could not be revisited¹¹.

A designation would pre-approve eligible projects in the designated region¹². The CBA Sections have concerns about three aspects of the proposed regime:

• The five proposed national interest factors¹³ are the only factors expressly set out in the bill for designation decisions, but they are non-exhaustive and discretionary and do not require a finding on the significance of environmental effects.
• The process for designating regions has yet to be determined.
• It is unclear which types of projects would automatically qualify and be approved and what conditions would be imposed on each pre-approved project, regarding mitigating measures.

The CBA Sections support the use of regional assessment as a streamlining tool. However, streamlining must not come at the expense of meaningful participation, environmental protections, or accountable decision-making. Regional assessments must also establish a clear and predictable path identifying the conditions under which future projects may proceed.

Recommendations:

7. The CBA Sections recommend that Bill C-39 be amended to provide that a region may be designated only where:
   1. Substantive environmental protections, including environmental baseline studies, are in place before any project is pre-approved.
   2. The regional assessment requires minimum environmental requirements, including those respecting baseline data, cumulative effects, sensitive environmental features and species at risk.
   3. The regional assessment report applies consistent standards for evaluating effects and identifying appropriate measures to address them. The existing IAA provisions respecting significant adverse effects could serve as a model. In particular, the report should:
      1. set out the effects likely to be caused by eligible project types;
      2. identify which of these are adverse effects within federal jurisdiction and which are direct or incidental adverse effects, and the extent to which they are significant;
      3. set conditions to avoid or mitigate those effects; and
      4. include follow-up programs and, where appropriate, adaptive management plans.
   4. Clear development conditions specify the project types and effects permitted under the regional assessment and those that are prohibited.
   5. Clear triggers require a project-specific review, where a project is not expressly permitted under the regional assessment, its effects fall outside the assessed parameters, or material new information becomes available.
   6. The region is not expected to experience significant adverse effects within federal jurisdiction that cannot be mitigated. Where such effects are expected, projects in the region should remain subject to project-by-project assessment.

These recommendations are consistent with the CBA’s past positions. In its submissions on Bill C-69, the CBA supported the use of regional assessments to address cumulative effects.¹⁴ In its submissions on Bill C-5, the CBA cautioned against pre-approving projects before environmental baseline studies and consultation were complete.¹⁵ Bill C-39 should therefore facilitate regional assessment without allowing designation to substitute for the information, consultation and substantive protections required for sound project assessment.

C. Permitting Streamlining Must Preserve Environmental Standards and Integrity

Bill C-39 adds a technical, economic and practical feasibility test for permit conditions under the Canadian Energy Regulator Act¹⁶, Species at Risk Act¹⁷, the Fisheries Act¹⁸ and the Canadian Navigable Waters Act.¹⁹ It also creates a habitat credit system²⁰ and a fee-in-lieu mechanism under the Fisheries Act.²¹

The recommendations below are intended to support the efficient provision of permits, including a feasibility test as an appropriate factor to be considered in relation to environmental mitigation, while maintaining meaningful participation, robust environmental assessment and accountable decision-making.

Recommendations

8. The CBA Sections are open to market-based tools such as habitat credits and offsets²², provided the legislative regime establishes clear requirements and maintains rigorous environmental protections.
   1. Offsets and credits should be subject to verification requirements that preserve the protective purpose of each applicable statute.
   2. Credits used to offset harmful effects should protect habitat and species that are ecologically comparable to those affected by the project.

These recommendations are consistent with the CBA’s past positions. In its submissions on Bill C-5, the CBA emphasized that streamlining must not come at the expense of environmental safeguards.²³ In its submissions on Bill C-69, the CBA supported retaining the best available technologies and best environmental practices requirement and the existing wording respecting mitigation measures.²⁴ A habitat credit or offset regime should likewise promote efficiency without weakening substantive environmental standards or mitigation obligations.

VI. Construction & Infrastructure

The CBA Sections support the objectives underlying Bill C-39. From the perspective of project owners, contractors, subcontractors, suppliers, consultants, lenders, and other industry participants, the legislation is directionally correct and responds to longstanding concerns regarding delay, duplication, and uncertainty in federal approval processes. While the CBA Sections support streamlining and accelerated timelines, these processes must not undermine legal obligations, meaningful participation, environmental standards, or accountability.

The CBA Sections believe that three considerations should guide the implementation of the legislation:

1. Regulatory certainty;
2. Timely and legally supportable approvals; and
3. Reduction of regulatory duplication.

The success of the legislation will ultimately be judged by whether it is effectively implemented, creating a more predictable, efficient, and reliable approvals regime. From a construction perspective, certainty and predictability in regulatory decision-making are critical to facilitating project planning, financing, procurement, and delivery.

1. Regulatory Certainty

Regulatory certainty is often more important to project participants than speed alone. Major construction and infrastructure projects involve significant capital commitments, long planning horizons, and complex contractual relationships. Uncertainty regarding approval requirements, timelines, or outcomes can have substantial and often detrimental consequences for project viability and investment decisions.

The CBA Sections support reforms intended to provide greater clarity and predictability in federal decision-making. Approval processes should be transparent, coordinated, and sufficiently predictable to allow project participants to make informed business decisions, allocate risk appropriately, and proceed with confidence in the regulatory process.

2. Timely and Legally Supportable Approvals

The CBA Sections support efforts to improve the timeliness of federal approval processes, including through the structuring of review processes such that decisions are made by the responsible authority within one year of a proponent providing a comprehensive application and required information and studies.²⁵ Delays can increase project costs, affect financing arrangements, disrupt procurement strategies, and undermine investment confidence.

However, timely decision-making must not come at the expense of procedural fairness, meaningful consultation, or legal defensibility. Approvals that are vulnerable to challenge or subsequent delay do little to advance project certainty. The objective should be approvals that are not only timely, but also sufficiently robust to withstand scrutiny and provide stakeholders with confidence that projects can proceed.

3. Reduction of Regulatory Duplication

The construction industry has long experienced inefficiencies arising from overlapping regulatory requirements, multiple review processes, and duplicative assessments conducted by different authorities.

The CBA Sections support measures that improve coordination among regulators and reduce unnecessary duplication while maintaining appropriate Indigenous, environmental, and public-interest protections. The Sections support the consolidation of federal review processes proposed by Bill C-39 including through the concept of a “responsible authority”²⁶ and coordinated federal authorizations where multiple decision makers are engaged.²⁷ Streamlining should focus on improving administrative efficiency, promoting cooperation among decision makers, and reducing duplication to shorten timelines, lower costs, and improve certainty without diminishing the quality or integrity of the review process.

A. Effective implementation

Although the policy objectives underlying Bill C-39 are worthy of support, the true challenge lies not in the legislation itself but in its implementation.

Stakeholders have seen previous efforts aimed at streamlining project approvals. Accordingly, the value of these reforms will depend on whether they result in measurable improvements in practice. The promised efficiencies must materialize through demonstrable reductions in approval timelines, improved coordination among regulators, and increased certainty for all project participants. Greater certainty at the approvals stage facilitates more effective project planning, procurement, financing, contracting, and execution, while reducing the costs and risks associated with prolonged regulatory uncertainty.

Recommendation:

9. The CBA Sections recommend the Government of Canada monitor and publicly assess the effectiveness of the new regime through measurable performance indicators and regular reporting, including, for example publishing aggregate data on actual decision times.

VII. Conclusion

The CBA Sections support the objectives underlying Bill C-39 and the government’s efforts to improve the efficiency, predictability and timeliness of federal decision-making. At the same time, lasting success will depend on whether these reforms can be implemented while maintaining legal obligations, meaningful participation, environmental protections and accountable decision-making.

End Notes

¹ Examples include: the regional designation process in proposed Building Canada Act section 8.2 (clause 103), which enables automatic approvals for entire categories of projects; 15-day judicial review application deadlines in Canadian Energy Regulator Act subsection 188(2) (clause 129(2)), which places unreasonable timelines on Indigenous governments; feasibility requirements in the Canadian Navigable Waters Act s. 9.01 (clause 159-160), Species at Risk Act (clause 177), and Fisheries Act amendments (clause 183), which make it mandatory to consider feasibility of conditions without reference to the requirement to consider adverse effects on Aboriginal rights; and the addition of habitat credits and offset fees under Fisheries Act sections 42.03 and 43.31 (clauses 186 and 189), which risk improperly treating Aboriginal rights as fungible between places, seasons, and species.

² Bill C-39, s. 8(2) (amending the Impact Assessment Act (IAA), s 9(7)(c)), ss 36–38 (repealing IAA ss 43–47), ss 128, 146 (replacing the Canadian Energy Regulator Act (CERA), ss 182–186 and 262–263), cl 154 (repealing CERA s 299).

³ Bill C-39, ss 7, 14, 31 (adding IAA ss 8.3(a), 17.2 and 36.1), ss 36–37 (repealing IAA ss 43–46).

⁴ Bill C-39, s. 26(3) (adding IAA ss 28(3.3)–(3.5)), s. 51 (adding IAA s 65.1), s. 52 (amending IAA ss 67(1), (4)).

⁵ Bill C-39, s. 128 (proposing CERA ss 183(1)–(2), 186(1)–(2) and 186.1(2)), s. 146 (proposing CERA ss 262.1(1)–(2), 263.1(1)–(2) and 263.2(2)). For certain projects currently subject to the test under the IAA, under the proposed amendments only the CERA test would apply.

⁶ Bill C-39, s. 137(1) (amending CERA s 214(1)(a)), s. 119 (adding the definition of “new right of way” in CERA s 2).

⁷ Bill C-39, s. 137(1)–(3) (amending CERA ss 214(1), (4), (6)), s. 128 (proposing CERA ss 183(4)–(6)).

⁸ Bill C-39, s. 94, which modifies the long title of the BCA, adding reference to “regions of national interest”; s. 96(2), which adds the definition “region of national interest” (a region named in Schedule 3); and s. 103, which adds s. 8.2 to the BCA, allowing the Governor in Council, on the Minister’s recommendation, to add a region to Schedule 3 by order where it is of the opinion that the designation is in the national interest.

⁹ Bill C-39, s. 103, which adds s. 8.3(1) to the BCA, deeming every determination, finding and opinion required for an authorization to be made or formed in favour of a project of an eligible type that the Minister is satisfied meets the criteria in Schedule 3.

¹⁰ Bill C-39, s. 103, which adds s. 8.4 to the BCA, requiring the Minister to issue a document deemed to be each authorization specified in it (s. 8.4(1) and (4)), with conditions deemed to be imposed under the relevant enactment (s. 8.4(6)).

¹¹ Bill C-39, s. 107, which replaces s. 19 of the BCA and provides in new s. 19(2) that any impact assessment of such a project must not cover effects that the Minister is satisfied have already been the subject of a regional assessment referred to in s. 8.2(5)(a).

¹² Bill C-39, s. 103, which adds ss. 8.2 to 8.4 to the BCA, and s. 96(1), which extends the definition of “authorization” to projects of an eligible type within a region of national interest that meet the criteria in Schedule 3

¹³ Bill C-39, s. 103, which adds s. 8.2(6) to the BCA, allowing the Governor in Council to consider any relevant factor, including the extent to which eligible projects can (a) strengthen Canada’s autonomy, resilience and security, (b) provide economic or other benefits, (c) have a high likelihood of successful execution, (d) advance the interests of Indigenous peoples, and (e) contribute to clean growth and climate objectives.

¹⁴ CBA Submission, “Bill C-69 – Impact Assessment Act” (26 April 2018), online.

¹⁵ CBA Submission, “Bill C-5 – One Canadian Economy Act” (20 June 2020), online.

¹⁶ Bill C-39, s. 125, which adds s. 65.1 to the CERA, requiring the Commission to take into account the technical, economic and practical feasibility of conditions before including them in a document of authorization.

¹⁷ Bill C-39, s. 177, which adds s. 73.1 to SARA, for agreements and permits under s. 73(1).

¹⁸ Bill C-39, s. 183, which adds s. 35.01 to the Fisheries Act, for authorizations under ss. 34.4(2)(b) or 35(2)(b).

¹⁹ Bill C-39, s. 159, which adds s. 9.01 to the CNWA, for approvals under s. 7(6).

²⁰ Bill C-39, s. 185, which replaces s. 42.02(1)(a) of the Fisheries Act to establish a system for the creation, allocation, transfer, use, revocation, tracking and management of habitat credits, and s. 186, which adds s. 42.021 and replaces s. 42.03.

²¹ Bill C-39, s. 189, which adds s. 43.31(1)(b) authorizing regulations on when an authorized person may pay a fee to offset harmful effects on fish or fish habitat, and s. 179, which adds s. 16.1 crediting those fees to the Environmental Damages Fund.

²² Bill C-39, ss. 185–186 and 189, amending ss. 42.02(1)(a) and 42.03 and adding ss. 42.021 and 43.31 of the Fisheries Act.

²³ CBA Submission C-5, Supra note 17.

²⁴ CBA Submission C-69, Supra note 16.

²⁵ Cabinet Directive on getting projects built in Canada, September 21, 2026, cl 3; Bill C-39, An Act respecting certain measures to strengthen the economy, cl. 2, 29, 30, 32(2), and 50.

²⁶ Ibid. cl 3(3), 7.

²⁷ Supra note 27. cl 1.1.