Contentious major projects bill falls under microscope as Liberals rush it through
OTTAWA – Provisions in the federal government's controversial Bill C-5 that would allow the executive branch to skirt laws in order to push forward major projects are likely to survive a court challenge, some constitutional experts say.
But others warn the proposed law would allow Ottawa to flout its constitutional duty to consult with First Nations under Section 35 of the Constitution.
The bill has become a magnet for criticism as the Liberal government moves to push it through the House of Commons by the end of this week.
The legislation would give the federal cabinet the ability to set aside various statutes to push forward approvals for a small number of major industrial products, such as mines, pipelines and ports, if the government deems them to be in the national interest.
Paul Daly, chair in administrative law and governance at University of Ottawa, said that while the provisions giving the executive more power are controversial, they're likely to survive a court challenge.
'This bill probably is constitutional,' he said. 'It is unlikely that a court would invalidate this as violating the Constitution.'
Sections 21 to 23 of the bill allow the executive branch to bypass existing rules and processes in 13 laws — including the Canadian Environmental Protection Act, the Indian Act and the Impact Assessment Law — through a regulatory process that does not need to be approved by Parliament.
These sections are what's known in the legal community as 'Henry VIII clauses' — a reference to a King who preferred to govern by decree rather than through Parliament.
Courts have not found these to be constitutionally invalid, Daly said, adding there are guardrails in the legislation. He said Charter rights and the duty to consult will continue to apply to the legislation.
'It's similar in character to the carbon tax legislation from a few years ago, where the Supreme Court said the Henry VIII clause was constitutionally valid. And I suspect that a court, if this statute were challenged, would come to the same conclusion,' Daly said.
His faculty colleague Errol Mendes, another law professor and constitutional expert, also said by email that he thinks the clauses can be defended constitutionally.
But Anna Johnston, a staff lawyer at West Coast Environmental Law, said sections 22 and 23 and 'very worrisome' because they could allow the federal cabinet to exempt a pipeline or some other project from the Species at Risk Act.
And she said she thinks it gives the federal government too much leeway on the Crown's duty to consult with Indigenous peoples on decisions that affect them.
'If I were Canada's lawyers, I would have advised them strenuously against this bill,' she said.
'That consultation has to be meaningful and I worry that, especially under the timelines that this government wants to make these decisions, that this bill is basically circumventing the government's constitutionally required duty to consult.'
The bill aims to speed up the approval process for major projects so that cabinet can render a decision in two years at the most.
Prime Minister Mark Carney has said it takes too long to push major new projects through 'arduous' approval processes.
'Canada is a country that used to build big things,' Carney said when the bill was introduced on June 6. 'In recent decades, it has become too difficult to build new projects in this country.'
Bloc Québécois Leader Yves-François Blanchet said Friday that the legislation must be studied thoroughly since it can suspend various laws and regulations relating to language, First Nations rights, the environment and threatened species.
'The government seems to want to avoid scrutiny on the bill, which by itself is worrisome,' he said in English when speaking to reporters in the House of Commons foyer.
'How could we go forward with such a huge bill with huge consequences for Quebec and Canada without at least doing what we have been elected to do, which is studying, thoroughly, this bill in committee?'
Speaking on background at a technical briefing for journalists, federal officials said that while the government has no intention at this time to draft regulations that would bypass those laws, the legislation does give it a lot of flexibility.
NDP MPs Leah Gazan, Alexandre Boulerice and Lori Idlout wrote to government House leader Steven MacKinnon on Friday to formally request that the bill's study be slowed down to provide for more debate in the House.
'Failure to uphold constitutional obligations and environmental standards at a time when we are experiencing a climate emergency will have the opposite effect of developing Canada's economy and sovereignty, and will only lead to conflicts in the courts,' they wrote.
'In its current iteration, Bill C-5 violates Canada's constitutional obligations under Section 35 of the Constitution Act of 1982 that recognizes and affirms Aboriginal treaty rights by giving the governor in council the ability to sidestep constitutional obligations.'
Monday Mornings
The latest local business news and a lookahead to the coming week.
The bill is expected to undergo an unusually fast one-day study by the House transport committee Wednesday afternoon and evening. The government expects to pass the bill by the end of Friday.
The federal Conservatives have argued the bill does not go far enough.
Conservative Natural Resources critic Shannon Stubbs said in the House on Friday that the 'anti-energy, anti-development' Liberals should repeal the 'no-new-pipelines' Bill C-69, passed by the Justin Trudeau government.
She said the Impact Assessment Act it created heaped difficulties on energy sector projects and prevents them from going ahead.
This report by The Canadian Press was first published June 16, 2025.
Hashtags
Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles
Toronto Star
36 minutes ago
- Toronto Star
Mark Carney promises to consult with Indigenous communities in choosing projects under controversial Bill C-5
OTTAWA — Facing concerns and warnings of Indigenous resistance against a key part of his governing agenda, Prime Minister Mark Carney acknowledged Friday that 'more fulsome conversations are needed' to choose the development projects his government wants to fast-track through controversial new legislation, Bill C-5. Speaking moments after the bill passed third reading in the House of Commons, Carney pledged to hold meetings in the coming weeks with First Nations, Inuit and Métis leaders and experts in a series of summits to 'launch the implementation of this legislation in the right way' in 'full partnership' with Indigenous communities.
CBC
2 hours ago
- CBC
Carney to hold meetings with Indigenous Peoples about major projects bill
Prime Minister Mark Carney says he plans to hold full-day summits with First Nations, Inuit and Métis leadership and experts this summer to make sure the government's major projects bill is implemented 'the right way.' The bill passed the House of Commons on Friday.
Globe and Mail
2 hours ago
- Globe and Mail
Federal review of access to information law ‘doesn't have credibility,' expert says
The federal government has launched an internal review of its access to information law, but one expert says the examination lacks legitimacy and falls short of the desires of transparency advocates. In a brief announcement on Friday, the government said it would be seeking feedback from stakeholders 'later in 2025.' During a press conference last week, a group of public interest advocacy organizations and access experts had called for an independent review of Ottawa's ailing access system. The group, which included academics, lawyers, journalists and activists, had drafted their own terms of reference for the examination. Matt Malone, a law professor at the University of Ottawa who spearheaded the call for an independent review, said the government 'has no incentive to engage in meaningful reform' and that the Treasury Board of Canada Secretariat, the department that oversees the administration of the federal access regime and is conducting the review, is in an 'inherent conflict of interest' since it is itself regulated by access law. 'It's the government completely retaining control,' Prof. Malone continued. 'You can already see from this moment exactly where this process is going. It's going to be a waste of government resources, and it's going to undermine public trust in the government, because they're going to engage in a process that doesn't have credibility from the get-go. Independent stakeholders have said clearly what credibility looks like in this context. The government has said through their actions: 'We're not going to listen to you.'' 'This is sad,' he said. Secret Canada: How transparent is your city? Audit of freedom of information requests finds vast differences By law, the Access to Information Act, which governs federal access requests, must be reviewed every five years. The last review was launched in 2020, lasted 2½ years – almost one year longer than its original deadline – and delivered no recommendations, drawing the ire of government transparency experts. At the time, Michael Wernick, who retired as the public service's top bureaucrat in 2019, called the government's final report 'tepid and incrementalist.' In an e-mailed statement, Treasury Board spokesperson Rola Salem said the government is responsible for evaluating federal access legislation, and that the department intends to 'undertake a more focused and expedited review.' During the 2025 federal election campaign, Liberal Leader Mark Carney pledged to review Ottawa's access regime. 'An objective review of that would serve Canadians well, regardless of the result of the election,' he said. Access laws – sometimes called freedom of information or right to information legislation – exist in countries around the world and throughout Canada at the federal, provincial, territorial and municipal level. They enshrine into law the principle that people have a right to know how their public institutions are being run and how tax dollars are being spent. These laws do this by allowing the public to make official requests for documents, which must then be disclosed – with limited exceptions. In 2023, a Globe and Mail investigation called Secret Canada looked at the state of Canada's access systems, including at the federal level. The Globe's reporting found that public institutions are routinely breaking access laws by violating statutory time limits, overusing redactions and claiming no records exist when they do. And they face few, if any, consequences for ignoring the precedents set by courts and information commissioners, the government-appointed watchdogs responsible for monitoring the system and mediating disputes.
