Remarks to CFUW Brantford, January 28, 2026
by Theresa McClenaghan, Executive Director and Counsel, Canadian Environmental Law Association
The Future of Environmental Law in Canada – Are we Looking Before we Leap with Major Projects?
Introduction
Thank you so much for inviting me to speak tonight. It’s not the first time I’ve spoken to many of you as your guest speaker; an another occasion many years ago, I spoke about my work on the Walkerton Inquiry and protection of drinking water in Ontario.
Tonight I’m going to focus mainly on one aspect of environmental law that we sometimes call the “look before you leap” law, otherwise known as environmental assessment or impact assessment, dealing with major economic projects in Canada that need federal approvals.
I’m going to focus on the federal version of that law it is at the centre of a good deal of current discussion in Canada and is a critical piece of how we move forward with big economic projects. It is also very topical, because the government of Canada is trying to move very quickly with economic recalibration and some current federal legislation is trying to address these goals. You might consider this talk tonight to be your background guide to reading the newspaper in Canada!
Where we are and how we got here
Like Steven Hawkings’ “A Briefer History of Time”, where he tried to give a Cole’s notes version of his opus “A Brief History of Time”, I will try to condense the complexity of Canada’s environmental assessment laws’ history in a few moments before we turn to what’s at stake today. For many, the detailed procedural rules, the mountains of paper, and the money and time spent on environmental assessments in Canada seem no more accessible that Hawkings’ mastery of space-time.
The official story began in 1984 when under Prime Minister Pierre Trudeau at the very end of his second mandate, the federal government issued a Guideline Order that we affectionately refer to as the EARPGO, requiring a review of the environmental effects of major projects or initiatives in Canada before federal authorities spent taxpayer money on them or granted federal approvals. The authority for this requirement was the Government Organization Act, 1979. This meant that things ranging from building a major power dam on the Oldman River in Alberta, to providing taxpayer support to mining projects in Latin America had to undergo a federal environmental assessment before they could proceed. Other early examples included uranium hexafluoride refining in Port Granby, eastern Arctic oil and gas drilling, the bridge from New Brunswick to PEI and the Alaska highway to name a few.
In a dispute about the applicability of that law to the Oldman dam in Alberta, a Supreme Court of Canada decision in 1992 found that the requirement for environmental assessment was a binding requirement under that Guideline Order, not optional. The government therefore passed a statute, the first legislated requirement for federal environmental assessment later that year, which took effect three years later, called the Canadian Environmental Assessment Act, or CEAA 1992. Little did any of us then know how much disputing in federal-provincial relations and across the aisles in federal politics would arise over the next thirty years, out of this apparently common sense requirement to “look before you leap!”
As I mentioned, we have often called this the “look before you leap” law, because the essential framework calls for evaluating what the impacts of a project will be on the surrounding physical and social environment, considering whether there is a need for that project, and looking at what the alternatives are for addressing the underlying need or carrying out the project. A the end of the day, after the reviewers, (whether government officials or appointed hearing panels) have considered all of the information, they issue a recommendation about whether the project will cause adverse impacts, and if so, then the federal government has to decide if those impacts are justified in the circumstances before the federal money or authorities proceed with a green light. And any project that is given a green light, either because it was found it that it would not cause adverse effects, or because they are justified, may still have a number of requirements imposed as a condition of proceeding ahead.
The tumultuous legislative history after the mid 1990s saw successive federal governments and their opponents tussling over CEAA 1992 and whether it is working or not, whether it is allowing for, or holding up major economic projects, and whether it is doing more good than harm. The legislation was repealed, and another version was passed under Prime Minister Harper in 2012, and in turn that version was repealed and a replacement was renamed and adopted under Prime Minister Justin Trudeau in 2019, called the Canadian Impact Assessment Act.
A Court reference as to the constitutional validity of this latest version of environmental assessment was launched in Alberta in 2019, in the Alberta Court of Appeal which found it to be unconstitutional in 2022. The provinces that argued against its constitutional validity were concerned that it allowed the federal environmental assessment and approval process too much control over issues that they felt were primarily provincial jurisdiction.
(On a side note, I would explain that a huge amount of litigious ink has been spilled over the interpretation of Canada’s Constitution Act, 1867, which purported to divide up all legislative authority in the dominion between the provinces on the one hand, and the federal government on the other. Notably no one had conceived of “the environment”, or even “health care” as topics at that time and so they are considered by the Courts to be shared between both sides, not to mention with Indigenous governments under the 1982 amendments.) While the Supreme Court of Canada repeatedly states in major environmental law challenges, that environmental protection issues, and the risks of climate change, are among the most significant and defining issues or our time and repeatedly holds that all levels of government in Canada have significant responsibility, this does not stop the court cases that arrive at the door steps of provincial Courts of Appeal on their way to the Supreme Court of Canada. )
In any case, the challenge to the 2019 version of the federal Impact Assessment Act had followed closely on the heels of another constitutional division of powers argument about the validity of the Greenhouse Gas Pollution Pricing Act that had been passed in 2018. In the hotly contested case challenging carbon pricing, the Supreme Court found that the federal government did have authority to act as it did and establish a price “backstop” for carbon, using the relatively rarely applied “national concern doctrine” because of the enormous risks of climate change and the fact that those issues transcend provincial and even national boundaries. Partly due to the narrow f inding of validity in the carbon pricing case on the national concern doctrine, Alberta launched another Reference in respect of the constitutional validity of the 2019 federal Impact Assessment Act. After making its way through appeal courts to reach the Supreme Court of Canada that Court stated that the federal role in impact assessment was valid in relation to “federal matters” … but expressed concern that the Act as drafted in 2019 and in particular through the provisions for designation of physical projects to be assessed under the Act could end up allowing for federal decision makers to go too far in stepping on provincial approval toes.
Accordingly the federal government revised the law yet again, with the current and most recent version being passed in 2024 by the Justin Trudeau-led minority government, and with the support of two of the opposition parties. Those changes essentially narrowed the federal law to focus on “significant effects within federal jurisdiction.” This newest version of environmental assessment law is still undergoing procedural adjustments to the rules about how federal environmental assessments will be carried out as we speak. However, it continues to apply to inter-provincial transportation and energy corridors, as well as to Indigenous matters and lands, department of national defence matters, nuclear matters, and all projects that might significantly affect fisheries, navigation, species at risk, and migratory birds, to name a few.
Where are we today?
The story of major projects and federal oversight took another twist last year, along with the surprising developments in Canadian politics and the election of the current minority government under Prime Minister Carney. One of the key issues of course, was and is, the basket of economic threats arising from the tariA war, and how best to respond to the 51st state rhetoric then being issued by the US president. On taking office, the current government under PM Carney very quickly passed Bill C5 , part of which was called the Building Canada Act. At the time, in June last summer, during the fast tracking of Bill C5, my organization CELA said
“CELA is not opposed to legislative attempts to create good green jobs or to facilitate the just transition to a sustainable low-carbon (or net-zero) future. However, CELA advocates the rule of law, fair and democratic processes, intergenerational equity, and the need for transparency and meaningful public and Indigenous participation in environmental decision-making.”
There was and continues be a good deal of controversy in relation to the Building Canada Act 2025, because it provides that processes and evaluations under a range of federal environmental laws could be deemed met, and approvals deemed to be given, for certain projects that might be named by cabinet under that Act. The laws that could be abridged in this way include the Impact Assessment Act, and a long list of other federal environmental laws like the Fisheries Act, the Canadian Navigable Waters Act, Species at Risk Act, Migratory Birds Convention Act, Canadian Environmental Protection Act, offshore drilling for oil and gas, marine mammals and so forth.
After the passage of this Bill, a huge uproar ensued last spring and summer 2025, with vociferous objections from Indigenous peoples, environmental organizations, and many other members of civil society and the general public.
In a long story short, the current status today is that many meetings have been held with Indigenous peoples, many assurances have been given, and to date no projects at all have been listed under Schedule 1 to the Canada Building Act as National Interest Projects.
So far, all of Canada’s existing environmental and energy legislation continues to apply to all major projects and the normal rules, processes, and usual expected conditions and requirements are being included in any approvals.
There have even been statements by Canada’s CEO of the newly re-established major projects office, Dawn Ferrell to the effect that she would consider it a failure in a way, if many projects did have to be listed under Bill C5; rather she sees her role as rather expediting how all of the departments work together with proponents of projects that are signaled as priorities by the federal government.
I Politics on Nov. 17, 2025 reported on her standing Committee comments, saying “Few projects are set to be designated of ‘national interest’ and obtain special authorizations under the Building Canada Act, according to the CEO of the Major Projects Office.” She told a House committee Monday she believes “over the course of time, one or two projects of national interest will be designated.””
Instead of official designation under the Building Canada Act, the way major projects are so far being signalled as priorities since last summer is by way of news announcements by the Prime Minister with lists of the favoured major projects “under consideration”. The first list of major projects “under consideration” issued by the Prime Minister’s office included a number of projects that were already well under way or had many of their approvals already; it seems that the main reason to name them was to signal federal support so as to encourage private sector involvement in financing, in some cases to provide explicit federal support, and to have any remaining approvals and processes on the federal side hastened by the relevant officials. Examples included the Liquid Natural Gas project at Kitimat in BC, the new nuclear project at Darlington in Ontario, two copper mines in Saskatchewan and BC, and an expansion of the container port at Montreal.
For these projects, most approvals were already in hand, environmental reviews conducted, and there was no need to exempt them from various federal environmental laws.
A second tranche of projects was revealed by the Prime Minister’s office in November 2025, including several more mines in support of a critical minerals strategy, a conservation corridor in northwest Canada, aspirations to be “an energy superpower”, and potential energy and transportation corridors. This is a different sort of list, whereby these projects are at much earlier stages. This list was titled “Second tranche of projects under consideration”. There were efforts to show some projects that could occur in all regions of the country, and to tie them together under economic and security themes. Again, the purpose seems to be to provide prioritization for federal funding of development and planning of these projects, or to provide support to the proponents, and to encourage speed and cooperation as the federal laws and assessments are undertaken.
In part I think that the vociferous outcry by Canadians last summer as well as the reality that the criteria that had been specified in Bill C5 for a project to qualify for inclusion in Schedule 1 (with the consequent avoidance of normal law and process for their approvals) are resulting in very few projects that could make the grade. For example, to be included under the Building Canada Act, one factor includes that a project is “has a high likelihood of successful execution” (which has been interpreted to require a proponent ready to take on financing and risk. Another factor under the Act is that it should advance the interests of Indigenous peoples; and further, the projects also have to contribute to clean growth and Canada’s climate change objectives as well as providing economic benefit, and strengthening Canada’s autonomy, resilience and security.
Before recommending a project for “deemed approval” of many of the otherwise applicable environmental laws, the Minister must have also consulted the province or territory in which the project is situated, as well as Indigenous peoples’ whose constitutional section 35 rights may be adversely affected.
Many of the projects in the second set of announcements are too early in their planning process to be ready for full green lights, such as the ALTO high speed rail proposal between Quebec and Ontario. Others don’t meet the criteria of having a private sector proponent to finance and complete them (such as the idea of another oil pipeline to tidewater in the west). Accordingly, they are being listed as notional priorities, but they are no-where near ready for actual project approvals at this time. Furthermore, by avoiding nomination on the actual Schedule of the Building Canada Act, but naming projects in press releases instead, the federal government can signal support, and advance projects in the queue for management by the major projects office and for federal budget funding.
For projects that may eventually be listed in the Building Canada Act, on the question of environmental approvals, Minister LeBlanc wrote to the Senate while the Bill was being considered there and stated:
“Environmental Oversight: Senators expressed concern that the accelerated approval process for national interest projects might compromise environmental protections. I assure you that the government remains committed to upholding rigorous environmental standards, and we will work closely with regulatory bodies to ensure that conditions attached to project authorizations are robust and science-based.”
While we would never agree that displacing the public consultation and input requirements of environmental approvals is justified, we must all remember this commitment in the event that this or a future government ever moves to use the startling environmental “deeming approvals” powers in the Building Canada Act. I want to also mention that the Building Canada Act dealing with major projects and “deemed approvals” has a sunset time frame and will expire in five years from passage of that Act, namely by June 2030.
Where does the story of environmental assessment in Canada leave us today? Where is federal environmental assessment law going from here?
One take-away from the events of the last year is that it has been dawning on many members of the public and government decision makers that despite a lot of rhetoric to the contrary, it is not our environmental law framework that has allowed for or prevented major projects from being constructed in Canada. Other factors that may be far more decisive are things like the economics of a project, market forces, its construction and operational costs, or the lack of social acceptability. An example of this was the proposal several years ago for an “Energy East” pipeline corridor that would have converted one of the existing natural gas pipelines across the country from western Canada to the east coast, to carry oil. The environmental review of that project had barely begun before it became obvious to the proponent that a combination of market conditions, cost to replace extensive sections of that line through muskeg in northern Ontario, and the abject refusal of the people of Quebec to accept that proposal dictated a lack of likely success. The project proponent abandoned that idea relatively early in the review.
On the other hand, when governments are the proponent, money is made available from the taxpayer, and there is political will to proceed, then environmental rules do not generally stop major projects such as the expansion of the existing Trans Mountain crude oil pipeline from Alberta to Burnaby, BC, or the significant federal financial support for the “Small Modular Reactors” new nuclear project at Darlington in Ontario. For private sector projects, the major determining factor is economic opportunity.
In the meantime, the Canadian Impact Assessment Act (2024 version) remains alive and well, and is currently being used for some major projects located in Ontario that are open right now for comments on their very first stages; you could even comment on them! One is a proposal for a deep geologic repository for high level used nuclear fuel waste in northwestern Ontario with comments due on the project description by Feb. 3. The other is a proposal for brand new nuclear construction of 10,000 MW at Wesleyville, between Port Hope and Cobourg Ontario along the north shore of Lake Ontario with comments due on the project description by Feb. 11. It’s important for the public to engage in these very significant project proposals to ensure that there will in fact be close scrutiny before they proceed.
Environmental law – Protection for our communities and values, or red tape?
The current state of environmental law is emblematic of a myth that has plagued Canada and its provinces for decades, whereby arguments are made that environmental assessment and other types of environmental approvals are “red tape”. This is an argument that has been accepted by governments of every political stripe and jurisdiction in Canada, despite lessons like the Walkerton Inquiry. And so long as Canadians accept this argument, the environmental laws continue to be marginalized and eroded.
The latest examples of this trend are occurring in both Ontario and Canada with the adoption of special rules that allow governments in their own discretion to avoid the application of environmental laws and public input because of their perception of important public interests, namely economic opportunities. This has been happening in Ontario under the adoption of bill 5 last year, which enacted the Special Economic Zones Act, which allows the government here in Ontario to avoid the application of laws applicable to water protection, species protection and much else, in areas they deem to be of “special economic interest.” This is the subject of a court challenge by 9 Ontario First Nations at present, such as the Attawapiskat First Nation. The Special Economic Zones Act is an extremely troubling example of avoiding the rule of law. Rule of law principles indicate that the law applies to all, fairly and without discrimination. With these types of exceptions, a variety of reasons, positive or negative, can result in an exemption decision by a Minister, tilting the playing field, avoiding the protection that should have been in place under that law, and taking away any opportunity for public input.
The very same problem arises under the Building Canada Act, bill C5, that I was discussing earlier. And another current Bill, Bill C15, one of the Budget Implementation Bills arising out of the most recent federal budget is before the Senate when they resume, with a provision to amend a law on the books called the Red Tape Reduction Act. It provides that federal ministers may exempt anyone from any law or regulation for up to three years in order to do tests or pilots including for the modification of a regulatory regime. These cases would not be subject to public input, and in fact such measures are only required to be made public after the entity is already exempted from the regulation.
The existing federal Red Tape Reduction Act itself is already very problematic, since it contains a “one in / one out” rule that any new regulation or requirement must be accompanied by the repeal or amendment of another one. The stated purpose is to reduce administrative burden on business, but this approach is patently nonsensical as it has nothing to do with meeting the purposes of the laws of Canada, an especially concerning point when it comes to protecting the environment, and public health and safety.
Similarly in Ontario, there is a Minister of Red Tape Reduction, and typically twice a year since 2018, some sort of “Red Tape Reduction” bill is introduced with the aim of further reducing requirements to comply with the laws on the books, or to streamline regulatory requirements. These examples fly in the face of the finding at the Walkerton Inquiry that a focus on “red tape reduction” was a direct cause of that tragedy. Nevertheless we see this pattern continuing both provincially and federally, and regardless of which political party is at the helm despite the lessons learned in the water tragedy.
What is the future of environmental law?
So back to the question tonight which is what is the future of environmental law? My answer is that it is up to you. It’s up to you and to all of us because this recurring theme whereby governments exempt projects and development from environmental law and public input only happens when the rhetoric that economic development is being prevented by environmental law continues to influence decision makers. It is so only when governments think that members of the public will not care about these laws that are being paused or overlooked in these “special” cases.
However, I urge you, and all of us, to consider that we learned from early industrial, that we cannot just pursue economic activity without thoroughly considering the potential environmental and health impacts, and providing measures to avoid harm. While we want good clean, safe jobs that contribute to the Canadian economy, my organization is representing communities who have been suffering for decades with intergenerational health impacts over the astoundingly horrific results of the release of mercury from pulp and paper plants in the 1960s and 70s to their watershed. Astoundingly, proposals keep arising that would see yet more mercury released into their watershed affecting the fish, their drinking water, and their grandchildren, and the community must constantly respond to these ideas. We thought, several decades ago, when some measures were put in place in the northwest of the province for that community, that we had solved the issue; we in modernity had moved ahead, and we no longer conducted our industrial activities in such unthinking ways. Plainly this is not the case.
Unfortunately, today a long list of environmental laws dealing with water pollution or air pollution that we adopted over the decades are being set aside, avoided, or diminished through a variety of techniques. These are all being justified on economic grounds, especially when the activities are far from wealthy or more powerful communities.
What each of us can do, is to be sure to let our own elected officials know, that for us, economic activity while enormously important, must be consistent with environmental protection for our kids, their kids, and our neighbours.
There are examples going on today all around us, from mining claims in northwest Ontario, to Ring of Fire proposals, from steel manufacturing in Hamilton, to petrochemical refining in the Sarnia area. In all of these cases, some members of our communities have been bearing the brunt of the negative impacts, while the rest of us enjoy the products and the economic prosperity. This can only be happening because we, as a society, are either turning a blind eye, putting up with the negative impacts, in the name of other interests, or even encouraging these compromises and injustices because we falsely think they are necessary for our country’s prosperity. There are laws being sidestepped or reformed wholesale by governments providing special rules for air pollution, or waste and recycling, species protection, or land use planning. The current turmoil in the world and with our US neighbours is giving cover for thinking that it doesn’t matter if people have to wait another twenty or fifty years before they get relief from a major source of air pollution in their community, such as Hamilton heard this week, despite having been promised that such a change was around the corner for the past decade.
My clinic was founded in 1970 and that was a time before we had a provincial Ministry of the Environment, pollution was widespread, Silent Spring had been published by Rachel Carson eight years earlier, and we did not yet fully understand what we were doing to our air, land and water with massive chemical emissions. Since then, we have stepped up collectively and established protections for the Great Lakes with binational agreements, put in place rules around cleaning up brownfields, banned the worst of the persistent toxic chemicals, adopted stringent drinking water protection for most people, and ended most types of blatant water pollution. We have seen the return of apex species like Eagles and Peregrine Falcons to our own Grand River watershed, improvements to agricultural practices, adoption of laws to protect species habitats, creation of the Green Belt, extension of a system of conservation authorities, and comprehensive land use planning that tries to ensure safe healthy communities. All of these laws need constant vigilance and protection by a community that makes it clear we care about them. We need to “look before we leap” and once we leap into new projects for economic development, we need to make sure that we are protecting the health of our environment and communities even as we pursue the economic activities that give us our prosperity with fair rules that apply to all.
Will you stand up for that system of environmental and community health protection? Does it matter to you? The answer to that question is the answer to what is the future of environmental law in Ontario and in Canada.
Blog: The Future of Environmental Law in Canada
Remarks to CFUW Brantford, January 28, 2026
by Theresa McClenaghan, Executive Director and Counsel, Canadian Environmental Law Association
The Future of Environmental Law in Canada – Are we Looking Before we Leap with Major Projects?
Introduction
Thank you so much for inviting me to speak tonight. It’s not the first time I’ve spoken to many of you as your guest speaker; an another occasion many years ago, I spoke about my work on the Walkerton Inquiry and protection of drinking water in Ontario.
Tonight I’m going to focus mainly on one aspect of environmental law that we sometimes call the “look before you leap” law, otherwise known as environmental assessment or impact assessment, dealing with major economic projects in Canada that need federal approvals.
I’m going to focus on the federal version of that law it is at the centre of a good deal of current discussion in Canada and is a critical piece of how we move forward with big economic projects. It is also very topical, because the government of Canada is trying to move very quickly with economic recalibration and some current federal legislation is trying to address these goals. You might consider this talk tonight to be your background guide to reading the newspaper in Canada!
Where we are and how we got here
Like Steven Hawkings’ “A Briefer History of Time”, where he tried to give a Cole’s notes version of his opus “A Brief History of Time”, I will try to condense the complexity of Canada’s environmental assessment laws’ history in a few moments before we turn to what’s at stake today. For many, the detailed procedural rules, the mountains of paper, and the money and time spent on environmental assessments in Canada seem no more accessible that Hawkings’ mastery of space-time.
The official story began in 1984 when under Prime Minister Pierre Trudeau at the very end of his second mandate, the federal government issued a Guideline Order that we affectionately refer to as the EARPGO, requiring a review of the environmental effects of major projects or initiatives in Canada before federal authorities spent taxpayer money on them or granted federal approvals. The authority for this requirement was the Government Organization Act, 1979. This meant that things ranging from building a major power dam on the Oldman River in Alberta, to providing taxpayer support to mining projects in Latin America had to undergo a federal environmental assessment before they could proceed. Other early examples included uranium hexafluoride refining in Port Granby, eastern Arctic oil and gas drilling, the bridge from New Brunswick to PEI and the Alaska highway to name a few.
In a dispute about the applicability of that law to the Oldman dam in Alberta, a Supreme Court of Canada decision in 1992 found that the requirement for environmental assessment was a binding requirement under that Guideline Order, not optional. The government therefore passed a statute, the first legislated requirement for federal environmental assessment later that year, which took effect three years later, called the Canadian Environmental Assessment Act, or CEAA 1992. Little did any of us then know how much disputing in federal-provincial relations and across the aisles in federal politics would arise over the next thirty years, out of this apparently common sense requirement to “look before you leap!”
As I mentioned, we have often called this the “look before you leap” law, because the essential framework calls for evaluating what the impacts of a project will be on the surrounding physical and social environment, considering whether there is a need for that project, and looking at what the alternatives are for addressing the underlying need or carrying out the project. A the end of the day, after the reviewers, (whether government officials or appointed hearing panels) have considered all of the information, they issue a recommendation about whether the project will cause adverse impacts, and if so, then the federal government has to decide if those impacts are justified in the circumstances before the federal money or authorities proceed with a green light. And any project that is given a green light, either because it was found it that it would not cause adverse effects, or because they are justified, may still have a number of requirements imposed as a condition of proceeding ahead.
The tumultuous legislative history after the mid 1990s saw successive federal governments and their opponents tussling over CEAA 1992 and whether it is working or not, whether it is allowing for, or holding up major economic projects, and whether it is doing more good than harm. The legislation was repealed, and another version was passed under Prime Minister Harper in 2012, and in turn that version was repealed and a replacement was renamed and adopted under Prime Minister Justin Trudeau in 2019, called the Canadian Impact Assessment Act.
A Court reference as to the constitutional validity of this latest version of environmental assessment was launched in Alberta in 2019, in the Alberta Court of Appeal which found it to be unconstitutional in 2022. The provinces that argued against its constitutional validity were concerned that it allowed the federal environmental assessment and approval process too much control over issues that they felt were primarily provincial jurisdiction.
(On a side note, I would explain that a huge amount of litigious ink has been spilled over the interpretation of Canada’s Constitution Act, 1867, which purported to divide up all legislative authority in the dominion between the provinces on the one hand, and the federal government on the other. Notably no one had conceived of “the environment”, or even “health care” as topics at that time and so they are considered by the Courts to be shared between both sides, not to mention with Indigenous governments under the 1982 amendments.) While the Supreme Court of Canada repeatedly states in major environmental law challenges, that environmental protection issues, and the risks of climate change, are among the most significant and defining issues or our time and repeatedly holds that all levels of government in Canada have significant responsibility, this does not stop the court cases that arrive at the door steps of provincial Courts of Appeal on their way to the Supreme Court of Canada. )
In any case, the challenge to the 2019 version of the federal Impact Assessment Act had followed closely on the heels of another constitutional division of powers argument about the validity of the Greenhouse Gas Pollution Pricing Act that had been passed in 2018. In the hotly contested case challenging carbon pricing, the Supreme Court found that the federal government did have authority to act as it did and establish a price “backstop” for carbon, using the relatively rarely applied “national concern doctrine” because of the enormous risks of climate change and the fact that those issues transcend provincial and even national boundaries. Partly due to the narrow f inding of validity in the carbon pricing case on the national concern doctrine, Alberta launched another Reference in respect of the constitutional validity of the 2019 federal Impact Assessment Act. After making its way through appeal courts to reach the Supreme Court of Canada that Court stated that the federal role in impact assessment was valid in relation to “federal matters” … but expressed concern that the Act as drafted in 2019 and in particular through the provisions for designation of physical projects to be assessed under the Act could end up allowing for federal decision makers to go too far in stepping on provincial approval toes.
Accordingly the federal government revised the law yet again, with the current and most recent version being passed in 2024 by the Justin Trudeau-led minority government, and with the support of two of the opposition parties. Those changes essentially narrowed the federal law to focus on “significant effects within federal jurisdiction.” This newest version of environmental assessment law is still undergoing procedural adjustments to the rules about how federal environmental assessments will be carried out as we speak. However, it continues to apply to inter-provincial transportation and energy corridors, as well as to Indigenous matters and lands, department of national defence matters, nuclear matters, and all projects that might significantly affect fisheries, navigation, species at risk, and migratory birds, to name a few.
Where are we today?
The story of major projects and federal oversight took another twist last year, along with the surprising developments in Canadian politics and the election of the current minority government under Prime Minister Carney. One of the key issues of course, was and is, the basket of economic threats arising from the tariA war, and how best to respond to the 51st state rhetoric then being issued by the US president. On taking office, the current government under PM Carney very quickly passed Bill C5 , part of which was called the Building Canada Act. At the time, in June last summer, during the fast tracking of Bill C5, my organization CELA said
“CELA is not opposed to legislative attempts to create good green jobs or to facilitate the just transition to a sustainable low-carbon (or net-zero) future. However, CELA advocates the rule of law, fair and democratic processes, intergenerational equity, and the need for transparency and meaningful public and Indigenous participation in environmental decision-making.”
There was and continues be a good deal of controversy in relation to the Building Canada Act 2025, because it provides that processes and evaluations under a range of federal environmental laws could be deemed met, and approvals deemed to be given, for certain projects that might be named by cabinet under that Act. The laws that could be abridged in this way include the Impact Assessment Act, and a long list of other federal environmental laws like the Fisheries Act, the Canadian Navigable Waters Act, Species at Risk Act, Migratory Birds Convention Act, Canadian Environmental Protection Act, offshore drilling for oil and gas, marine mammals and so forth.
After the passage of this Bill, a huge uproar ensued last spring and summer 2025, with vociferous objections from Indigenous peoples, environmental organizations, and many other members of civil society and the general public.
In a long story short, the current status today is that many meetings have been held with Indigenous peoples, many assurances have been given, and to date no projects at all have been listed under Schedule 1 to the Canada Building Act as National Interest Projects.
So far, all of Canada’s existing environmental and energy legislation continues to apply to all major projects and the normal rules, processes, and usual expected conditions and requirements are being included in any approvals.
There have even been statements by Canada’s CEO of the newly re-established major projects office, Dawn Ferrell to the effect that she would consider it a failure in a way, if many projects did have to be listed under Bill C5; rather she sees her role as rather expediting how all of the departments work together with proponents of projects that are signaled as priorities by the federal government.
I Politics on Nov. 17, 2025 reported on her standing Committee comments, saying “Few projects are set to be designated of ‘national interest’ and obtain special authorizations under the Building Canada Act, according to the CEO of the Major Projects Office.” She told a House committee Monday she believes “over the course of time, one or two projects of national interest will be designated.””
Instead of official designation under the Building Canada Act, the way major projects are so far being signalled as priorities since last summer is by way of news announcements by the Prime Minister with lists of the favoured major projects “under consideration”. The first list of major projects “under consideration” issued by the Prime Minister’s office included a number of projects that were already well under way or had many of their approvals already; it seems that the main reason to name them was to signal federal support so as to encourage private sector involvement in financing, in some cases to provide explicit federal support, and to have any remaining approvals and processes on the federal side hastened by the relevant officials. Examples included the Liquid Natural Gas project at Kitimat in BC, the new nuclear project at Darlington in Ontario, two copper mines in Saskatchewan and BC, and an expansion of the container port at Montreal.
For these projects, most approvals were already in hand, environmental reviews conducted, and there was no need to exempt them from various federal environmental laws.
A second tranche of projects was revealed by the Prime Minister’s office in November 2025, including several more mines in support of a critical minerals strategy, a conservation corridor in northwest Canada, aspirations to be “an energy superpower”, and potential energy and transportation corridors. This is a different sort of list, whereby these projects are at much earlier stages. This list was titled “Second tranche of projects under consideration”. There were efforts to show some projects that could occur in all regions of the country, and to tie them together under economic and security themes. Again, the purpose seems to be to provide prioritization for federal funding of development and planning of these projects, or to provide support to the proponents, and to encourage speed and cooperation as the federal laws and assessments are undertaken.
In part I think that the vociferous outcry by Canadians last summer as well as the reality that the criteria that had been specified in Bill C5 for a project to qualify for inclusion in Schedule 1 (with the consequent avoidance of normal law and process for their approvals) are resulting in very few projects that could make the grade. For example, to be included under the Building Canada Act, one factor includes that a project is “has a high likelihood of successful execution” (which has been interpreted to require a proponent ready to take on financing and risk. Another factor under the Act is that it should advance the interests of Indigenous peoples; and further, the projects also have to contribute to clean growth and Canada’s climate change objectives as well as providing economic benefit, and strengthening Canada’s autonomy, resilience and security.
Before recommending a project for “deemed approval” of many of the otherwise applicable environmental laws, the Minister must have also consulted the province or territory in which the project is situated, as well as Indigenous peoples’ whose constitutional section 35 rights may be adversely affected.
Many of the projects in the second set of announcements are too early in their planning process to be ready for full green lights, such as the ALTO high speed rail proposal between Quebec and Ontario. Others don’t meet the criteria of having a private sector proponent to finance and complete them (such as the idea of another oil pipeline to tidewater in the west). Accordingly, they are being listed as notional priorities, but they are no-where near ready for actual project approvals at this time. Furthermore, by avoiding nomination on the actual Schedule of the Building Canada Act, but naming projects in press releases instead, the federal government can signal support, and advance projects in the queue for management by the major projects office and for federal budget funding.
For projects that may eventually be listed in the Building Canada Act, on the question of environmental approvals, Minister LeBlanc wrote to the Senate while the Bill was being considered there and stated:
“Environmental Oversight: Senators expressed concern that the accelerated approval process for national interest projects might compromise environmental protections. I assure you that the government remains committed to upholding rigorous environmental standards, and we will work closely with regulatory bodies to ensure that conditions attached to project authorizations are robust and science-based.”
While we would never agree that displacing the public consultation and input requirements of environmental approvals is justified, we must all remember this commitment in the event that this or a future government ever moves to use the startling environmental “deeming approvals” powers in the Building Canada Act. I want to also mention that the Building Canada Act dealing with major projects and “deemed approvals” has a sunset time frame and will expire in five years from passage of that Act, namely by June 2030.
Where does the story of environmental assessment in Canada leave us today? Where is federal environmental assessment law going from here?
One take-away from the events of the last year is that it has been dawning on many members of the public and government decision makers that despite a lot of rhetoric to the contrary, it is not our environmental law framework that has allowed for or prevented major projects from being constructed in Canada. Other factors that may be far more decisive are things like the economics of a project, market forces, its construction and operational costs, or the lack of social acceptability. An example of this was the proposal several years ago for an “Energy East” pipeline corridor that would have converted one of the existing natural gas pipelines across the country from western Canada to the east coast, to carry oil. The environmental review of that project had barely begun before it became obvious to the proponent that a combination of market conditions, cost to replace extensive sections of that line through muskeg in northern Ontario, and the abject refusal of the people of Quebec to accept that proposal dictated a lack of likely success. The project proponent abandoned that idea relatively early in the review.
On the other hand, when governments are the proponent, money is made available from the taxpayer, and there is political will to proceed, then environmental rules do not generally stop major projects such as the expansion of the existing Trans Mountain crude oil pipeline from Alberta to Burnaby, BC, or the significant federal financial support for the “Small Modular Reactors” new nuclear project at Darlington in Ontario. For private sector projects, the major determining factor is economic opportunity.
In the meantime, the Canadian Impact Assessment Act (2024 version) remains alive and well, and is currently being used for some major projects located in Ontario that are open right now for comments on their very first stages; you could even comment on them! One is a proposal for a deep geologic repository for high level used nuclear fuel waste in northwestern Ontario with comments due on the project description by Feb. 3. The other is a proposal for brand new nuclear construction of 10,000 MW at Wesleyville, between Port Hope and Cobourg Ontario along the north shore of Lake Ontario with comments due on the project description by Feb. 11. It’s important for the public to engage in these very significant project proposals to ensure that there will in fact be close scrutiny before they proceed.
Environmental law – Protection for our communities and values, or red tape?
The current state of environmental law is emblematic of a myth that has plagued Canada and its provinces for decades, whereby arguments are made that environmental assessment and other types of environmental approvals are “red tape”. This is an argument that has been accepted by governments of every political stripe and jurisdiction in Canada, despite lessons like the Walkerton Inquiry. And so long as Canadians accept this argument, the environmental laws continue to be marginalized and eroded.
The latest examples of this trend are occurring in both Ontario and Canada with the adoption of special rules that allow governments in their own discretion to avoid the application of environmental laws and public input because of their perception of important public interests, namely economic opportunities. This has been happening in Ontario under the adoption of bill 5 last year, which enacted the Special Economic Zones Act, which allows the government here in Ontario to avoid the application of laws applicable to water protection, species protection and much else, in areas they deem to be of “special economic interest.” This is the subject of a court challenge by 9 Ontario First Nations at present, such as the Attawapiskat First Nation. The Special Economic Zones Act is an extremely troubling example of avoiding the rule of law. Rule of law principles indicate that the law applies to all, fairly and without discrimination. With these types of exceptions, a variety of reasons, positive or negative, can result in an exemption decision by a Minister, tilting the playing field, avoiding the protection that should have been in place under that law, and taking away any opportunity for public input.
The very same problem arises under the Building Canada Act, bill C5, that I was discussing earlier. And another current Bill, Bill C15, one of the Budget Implementation Bills arising out of the most recent federal budget is before the Senate when they resume, with a provision to amend a law on the books called the Red Tape Reduction Act. It provides that federal ministers may exempt anyone from any law or regulation for up to three years in order to do tests or pilots including for the modification of a regulatory regime. These cases would not be subject to public input, and in fact such measures are only required to be made public after the entity is already exempted from the regulation.
The existing federal Red Tape Reduction Act itself is already very problematic, since it contains a “one in / one out” rule that any new regulation or requirement must be accompanied by the repeal or amendment of another one. The stated purpose is to reduce administrative burden on business, but this approach is patently nonsensical as it has nothing to do with meeting the purposes of the laws of Canada, an especially concerning point when it comes to protecting the environment, and public health and safety.
Similarly in Ontario, there is a Minister of Red Tape Reduction, and typically twice a year since 2018, some sort of “Red Tape Reduction” bill is introduced with the aim of further reducing requirements to comply with the laws on the books, or to streamline regulatory requirements. These examples fly in the face of the finding at the Walkerton Inquiry that a focus on “red tape reduction” was a direct cause of that tragedy. Nevertheless we see this pattern continuing both provincially and federally, and regardless of which political party is at the helm despite the lessons learned in the water tragedy.
What is the future of environmental law?
So back to the question tonight which is what is the future of environmental law? My answer is that it is up to you. It’s up to you and to all of us because this recurring theme whereby governments exempt projects and development from environmental law and public input only happens when the rhetoric that economic development is being prevented by environmental law continues to influence decision makers. It is so only when governments think that members of the public will not care about these laws that are being paused or overlooked in these “special” cases.
However, I urge you, and all of us, to consider that we learned from early industrial, that we cannot just pursue economic activity without thoroughly considering the potential environmental and health impacts, and providing measures to avoid harm. While we want good clean, safe jobs that contribute to the Canadian economy, my organization is representing communities who have been suffering for decades with intergenerational health impacts over the astoundingly horrific results of the release of mercury from pulp and paper plants in the 1960s and 70s to their watershed. Astoundingly, proposals keep arising that would see yet more mercury released into their watershed affecting the fish, their drinking water, and their grandchildren, and the community must constantly respond to these ideas. We thought, several decades ago, when some measures were put in place in the northwest of the province for that community, that we had solved the issue; we in modernity had moved ahead, and we no longer conducted our industrial activities in such unthinking ways. Plainly this is not the case.
Unfortunately, today a long list of environmental laws dealing with water pollution or air pollution that we adopted over the decades are being set aside, avoided, or diminished through a variety of techniques. These are all being justified on economic grounds, especially when the activities are far from wealthy or more powerful communities.
What each of us can do, is to be sure to let our own elected officials know, that for us, economic activity while enormously important, must be consistent with environmental protection for our kids, their kids, and our neighbours.
There are examples going on today all around us, from mining claims in northwest Ontario, to Ring of Fire proposals, from steel manufacturing in Hamilton, to petrochemical refining in the Sarnia area. In all of these cases, some members of our communities have been bearing the brunt of the negative impacts, while the rest of us enjoy the products and the economic prosperity. This can only be happening because we, as a society, are either turning a blind eye, putting up with the negative impacts, in the name of other interests, or even encouraging these compromises and injustices because we falsely think they are necessary for our country’s prosperity. There are laws being sidestepped or reformed wholesale by governments providing special rules for air pollution, or waste and recycling, species protection, or land use planning. The current turmoil in the world and with our US neighbours is giving cover for thinking that it doesn’t matter if people have to wait another twenty or fifty years before they get relief from a major source of air pollution in their community, such as Hamilton heard this week, despite having been promised that such a change was around the corner for the past decade.
My clinic was founded in 1970 and that was a time before we had a provincial Ministry of the Environment, pollution was widespread, Silent Spring had been published by Rachel Carson eight years earlier, and we did not yet fully understand what we were doing to our air, land and water with massive chemical emissions. Since then, we have stepped up collectively and established protections for the Great Lakes with binational agreements, put in place rules around cleaning up brownfields, banned the worst of the persistent toxic chemicals, adopted stringent drinking water protection for most people, and ended most types of blatant water pollution. We have seen the return of apex species like Eagles and Peregrine Falcons to our own Grand River watershed, improvements to agricultural practices, adoption of laws to protect species habitats, creation of the Green Belt, extension of a system of conservation authorities, and comprehensive land use planning that tries to ensure safe healthy communities. All of these laws need constant vigilance and protection by a community that makes it clear we care about them. We need to “look before we leap” and once we leap into new projects for economic development, we need to make sure that we are protecting the health of our environment and communities even as we pursue the economic activities that give us our prosperity with fair rules that apply to all.
Will you stand up for that system of environmental and community health protection? Does it matter to you? The answer to that question is the answer to what is the future of environmental law in Ontario and in Canada.
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