Bill C-5 — One Canadian Economy Act

The Honourable Senator
Senate of Canada
Ottawa, ON K1A 0A4

Dear Senator:

Re: Bill C-5 — One Canadian Economy Act

We are writing on behalf of the Canadian Bar Association’s National Aboriginal Law Section and the National Environmental, Energy, and Resources Law Section (CBA Sections) to express concerns about Bill C-5, particularly Part 2, of the proposed One Canadian Economy Act and offer improvements. While the objective of facilitating infrastructure development and interprovincial trade is commendable, the Bill in its current form risks undermining constitutionally protected Aboriginal and treaty rights, and Canada’s commitments under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)¹.

The CBA is a national association of 40,000 lawyers, Québec notaries, law teachers and students, with a mandate to promote improvements in the law and the administration of justice. The Aboriginal Law Section examines issues, laws and national trends related to the law and the practice of Aboriginal law. The Environmental Law Section is comprised of legal practitioners and academics from across Canada with deep experience in environmental regulation, natural resources management, and energy law. Successfully advancing national interest projects—and maximizing Canada’s economic potential—requires meaningful collaboration, even where perspectives initially diverge.

The CBA typically seeks consensus among its members before making submissions, providing policy makers with unified and informed perspectives. Due to time constraints, consensus has not yet been reached on all points addressed in the Aboriginal Law considerations. Nevertheless, given the significance of the issues, we are sharing these preliminary views to assist the Senate and others. We welcome the opportunity to provide further input if needed.

1. Considerations from the Aboriginal Law Section

Deemed Approvals Circumvent Constitutionally Mandated Consultation

Clause 6 (1) of Bill C- 5 states:

"Every determination and finding that has to be made and every opinion that has to be formed in order for an authorization to be granted in respect of a national interest project [Schedule 1] is deemed to be made or formed, as the case may be, in favour of permitting the project to be carried out in whole or in part.”

This provision may override meaningful procedural safeguards, including those under the Impact Assessment Act², and Canadian Energy Regulator Act³,as well as legislative provisions listed in Schedule 2
of the Bill

However, Bill C-5 does not list any “national interest project” in Schedule 1. Projects are added to Schedule 1 by an order of the Governor in Council and, this power will only take effect if Bill C-5 comes into force. Such an amendment to the Schedule is subject to consultation with Indigenous peoples as to the adverse effect of the proposed project on their s. 35 rights (see subsection 5(7)).

Although not expressly required by subsection 5(1) of the Bill, any order issued under this provision should trigger the Crown’s constitutional duty to consult and accommodate Indigenous peoples potentially affected by the project. This duty arises independently of the consultation referenced in subsection 5(7), given both the nature of the decision and the potential impacts on Indigenous rights. The orders in subsections 5(1), 5(3) and 5(4) suggest such a duty, but subsection 5(7) could be more clearly drafted as a legislative recognition of a constitutional obligation (rather than the creation of a statutory one) which includes accommodation.

Where the Crown intends to exempt a project from the regular authorization process, it must undertake a robust consultation—and potentially accommodation—process before the project is added to Schedule 1 and a document is issued under subsection 7(1). Potentially affected Indigenous peoples must receive adequate information about the full impact of the proposed project on their section 35 rights, along with the time and resources necessary to engage meaningfully with the Crown, including with ministerial representatives who would otherwise participate in the standard review. The consultation must remain open to outcomes such as not listing the proposed project or imposing conditions that significantly alter it. A process that precludes such possibilities cannot be considered meaningful or conducted in good faith.

In its commitment to UNDRIP, the process to add a project to Schedule 1 or issue a document under subsection 7(1) must seek free, prior and informed consent of affected Indigenous peoples with respect to the proposed project before adding it to Schedule 1.

Any failure to satisfy fully the Crown’s constitutional duty to consult and accommodate may result in a successful challenge under section 35 of the Constitution Act, 1982, which provides:

"The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed."

The Supreme Court of Canada has consistently held that this includes a duty to consult and accommodate Indigenous peoples prior to decisions that may affect their rights (e.g., Haida Nation v. British Columbia (Minister of Forests)⁴.

Potential Conflict with UNDRIP and Absence of a Process towards Free, Prior and Informed Consent

Although the preamble of the Bill refers to the government's commitment to work with Indigenous peoples, the operative clauses lack any binding requirement for consultation seeking free, prior, and informed consent before a project being is approved. This is inconsistent with Canada’s legal obligations under the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA)⁵, which affirms:

“The Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration”
(s.5, UNDRIPA).

To this end, it seems minimally consistent with the above-cited federal legislative obligation to include reference to a consultation process seeking free, prior and informed consent of Indigenous peoples as provided for in UNDRIP:

“States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories…”
(UNDRIP, Article 32(2)).

Canada’s adoption of UNDRIPA requires reframing the Crown-Indigenous consultation framework to be consistent with the Canada’s international obligations under UNDRIP.⁶ As seen in other federal statutes,⁷ clear legislative language in this regard produces greater legal certainty.

Proposed Wording Amendment for Indigenous Consultation

The CBA Section recognizes the need for streamlined project approvals to support economic development and infrastructure investment. However, expediency must not come at the expense of Indigenous rights and sustainability. To that end, we propose the following amendment to Bill C-5:

Add new sub-section 5 (7.1):

"5(7.1) For greater certainty, orders made under subsections (1), (3) and (4) engage the Crown’s duty to consult and accommodate those Indigenous peoples in subsection (7) and its obligations under UNDRIPA and UNDRIP.”

This process must seek free, prior, and informed consent by providing early notice and engagement with affected Indigenous communities through their representative institutions, and meaningful efforts to identify and accommodate Indigenous interests prior to designation. The results of such consultation shall be summarized and made publicly available.

This language balances the need for timeliness with the constitutional requirement to respect and uphold Indigenous rights.

Legal Recourse and Environmental Carve-Outs

While judicial review is not explicitly barred, we recommend clarifying that this section does not limit remedies available under section 24 of the Charter, which addresses remedies for Charter rights violations, or applications pursuant to section 18.1 of the Federal Courts Act respecting judicial review of administrative decisions by federal entities.

Further, section 19 of the proposed Building Canada Act (BCA) requires that all national interest projects that are also “designated projects” under the Impact Assessment Act (IAA)) are automatically subject to impact assessment. However, the Bill proposes to eliminate the application of provisions under the IAAC related to the planning phase of impact assessment. For First Nations, Inuit and Métis, this could mean less time and fewer procedural steps to understand the proposed project and participate in decisions about how impact assessment will take place. It could also potentially undermine their ability to raise concerns or provide input early in the process.

It is incumbent on the federal government to provide clarity as to how assessment will be planned and what role Indigenous peoples will play in that planning and early engagement.

Unreasonably Expedited Legislative Process without Indigenous Co-Development

The exceptional powers the Bill purports to provide to Cabinet with the authority to circumvent regulatory processes for important, yet undefined “national interest” infrastructure projects that normally require careful deliberation and the benefit of expertise. Such a bill should have been co-developed with the First Nation, Inuit and Métis representative governing bodies. Additionally, legislators should have had the benefit of hearing from those Indigenous community rightsholders on the Bill as co-developed. The failure to provide First Nations, Métis and Inuit with sufficient time to meaningfully participate in the legislative process flies in the face of section 5 of the UNDRIPA which commits to work with Indigenous peoples to make federal laws consistent with UNDRIP.

Conclusion

Bill C-5 in its current form calls into question Canada’s constitutional and legislative obligations to Indigenous peoples, including those related to UNDRIP. We urge the Senate to amend the Bill to include:

• A mandatory sufficiently robust Indigenous consultation process before project designation consistent with the Crown’s duty to consult and accommodate within the framework of UNDRIP;
• Clear recognition of that section 35 consultation must include the possibility of accommodation as a precondition to deemed approvals;
• Meaningful safeguards for Indigenous stewardship; and
• In line with Canada’s commitments under UNDRIPA and the principle of reconciliation, submit the Bill to a longer legislative review process whereby First Nations, Inuit and Métis can meaningfully participate in the process, propose amendments that could strengthen the Bill and obtain concrete responses to their concerns.

2. Considerations from the Environmental Law Section

The Need for Regulatory Streamlining (No underlining for these subtitles)

We concur that regulatory streamlining is both necessary and overdue if Canada is to unlock the full potential of its natural resource and energy sectors in a timely, sustainable, and globally competitive manner. Inefficiencies and duplications within existing approval processes have contributed to uncertainty for proponents and delayed investment decisions. In this context, the proposed Building Canada Act (BCA) could represent a constructive step toward reducing unnecessary procedural burdens and clarifying timelines, provided that streamlining is carried out without sacrificing legal integrity, environmental safeguards, or the Crown’s constitutional obligations.

Clarity of National Interest Project (NIP) Priorities

The BCA clearly sets out the government’s priorities by identifying which "national interest" projects (NIPs) will be supported by streamlined processes. We have no objection to the proposed list of NIP priorities and recognizes the importance of supporting projects that align with national economic, security, and infrastructure objectives.

Concerns Regarding Pre-Approval and Project Readiness

Our Section notes, however, that the effective pre-approval of NIPs subject to the establishment of conditions rests on two critical assumptions:

• that mitigation measures are available and sufficient to ensure projects can proceed without inappropriate environmental effects; and
• that Indigenous consultation can follow such designation.

In practice, neither assumption is practicable unless projects are virtually "shovel ready" at the time of designation, with appropriate environmental baseline studies and meaningful community and Indigenous consultation (including accommodation) effectively completed. The BCA does not set clear expectations for these up-front obligations, which are critical for market certainty and the integrity of the process. Without these requirements, projects could be designated before they are ready, potentially risking both environmental protection and reconciliation objectives.

Lack of Direction for Ministerial Decision-Making

A further concern is the absence of clear direction for the responsible minister on how to assess and weigh the conditions proposed by various ministers responsible for federal permitting. The BCA provides broad discretion but no framework or criteria for balancing potentially competing regulatory, environmental, and Indigenous rights considerations. This lack of guidance perpetuates uncertainty and could undermine the purpose of the NIP designation.

Interaction with the Impact Assessment Act (IAA) and Provincial Coordination

The BCA fails to meaningfully engage with, or address IAA. While the Bill exempts designated NIPs from certain procedural components of the IAA including the early planning phase, public notice and comment, and cumulative effects analysis it is unclear what, if any, other aspects of the IAA would continue to apply. This leads to uncertainty and suggests that the government’s goal of expediting federal approvals within two years may not be achievable.

Additionally, while the government has indicated an intention to rely on provincial coordination (e.g., substitution) to achieve streamlining, the BCA includes no clear mechanism to ensure this occurs. Nor is there clarity on how the federal government will proceed in provinces that do not have a comparable environmental assessment process for example, Ontario, which does not require environmental assessments for mining projects.

Implications for Timely Project Approval

Without addressing the foregoing points, the CBA Section is concerned that the government will have limited ability to ensure that impact assessment and permitting processes are completed within the promised two-year period. The lack of clarity and direction risks perpetuating the very delays and uncertainties the BCA seeks to resolve.

The CBA’s Aboriginal Law and Environmental Sections remain available to assist the Senate in refining this legislation to uphold the rule of law, foster reconciliation, and support responsible development. We urge that the above issues are addressed to ensure the proposed Building Canada Act achieves its intended purpose enabling timely and sustainable infrastructure development while respecting Indigenous rights, environmental integrity, and constitutional obligations.

Yours truly,

(original letter signed by Julie Terrien for A.J. Carstairs and Chi Iliya-Ndule)

A.J. Carstairs
Vice Chair, CBA Aboriginal Law Section

Chi Iliya-Ndule
Chair, CBA Environmental, Energy, and Resources Law Section

End Notes