By Richard D. Lindgren
On June 6, 2025, the federal government tabled Bill C-5, which contains the proposed Building Canada Act (BCA). If enacted, the BCA establishes a fast-track approvals process for large-scale projects that are judged to be in the “national interest” of Canada.
The news release accompanying Bill C-5 suggests that the legislation will create “a stronger, more competitive, and more resilient Canadian economy.” According to a governmental backgrounder, Bill C-5 is intended to address “the imposition by the U.S. of tariffs on Canada” by advancing major nation-building projects, including those proposed or supported by provincial governments:
“At the First Ministers’ Meeting in Saskatoon, Saskatchewan, on June 2, First Ministers agreed on the urgency of building major projects that produce and connect clean and conventional energy, goods and services to markets across Canada and the globe. These include projects such as highways, railways, ports, airports, oil pipelines, critical minerals, mines, nuclear facilities, and electricity transmission systems (emphasis added).”
To achieve this goal, section 5 of the BCA empowers the federal government to add these types of environmentally significant undertakings to the Schedule 1 list of “nation-building” projects after considering the extent to which they can:
- strengthen Canada’s autonomy, resilience and security;
- provide economic or other benefits to Canada;
- have a high likelihood of successful execution;
- advance the interests of Indigenous Peoples; and
- contribute to clean growth and to Canada’s objectives with respect to climate change.
While there must be consultation with provinces, territories, and affected Indigenous communities, the BCA fails to expressly include any opportunities for public review/comment before a project is added to Schedule 1.
If included on Schedule 1, projects are essentially pre-approved under prescribed federal laws listed in Schedule 2 (e,g. Fisheries Act, Species at Risk Act, Canadian Navigable Waters Act, Canadian Environmental Protection Act, 1999, etc. ) via a “deemed authorization” under section 6 of the BCA. However, the federal backgrounder indicates that “proponents would still be required to provide the requisite information to federal agencies and departments, including the Impact Assessment Agency, and Indigenous consultation would be undertaken on appropriate mitigation and accommodation measures.”
Nevertheless, section 21 of the BCA allows the Cabinet to add new federal laws to Schedule 2 for pre-approval purposes. Similarly, section 22 of the BCA enables the Cabinet to exempt “one or more national interest projects” from any federal enactment that would otherwise be applicable to such projects. Alarmingly, section 23 even permits the Cabinet to exempt Schedule 1 projects from the provisions of the BCA itself.
CELA notes that federal statutes – such as the environmental laws currently listed in Schedule 2 of the BCA – exist for important public policy reasons (i.e. ensure public safety, international security, human and ecosystem health, etc.). Accordingly, these statutes should not be precluded by BCA regulations from applying to Schedule 1 projects for reasons of administrative convenience or political expediency. Moreover, the existence of the broad exempting powers in sections 22 to 23 appear to be inconsistent with the BCA preamble’s claim that “the Government of Canada is committed to upholding rigorous standards with respect to environmental protection.”
On this point, it is also clear that this environmental commitment is largely absent from the section 5(6) factors to be considered when adding national interest projects to Schedule 1. At the very least, this preamble commitment should be added to section 5(6) as follows: “Ensure that rigorous standards with respect to environmental protection will be upheld.”
CELA further notes that section 19 of the BCA ousts the application of the early planning phase and other key provisions of the federal Impact Assessment Act (IAA). This means that while some elements of the IAA’s information-gathering and decision-making may be applicable to certain national interest projects, the BCA’s “pre-approval” regime effectively eliminates the Cabinet’s option of refusing to approve risky undertakings that pose significant adverse environmental effects within federal jurisdiction (e.g. the Northern Gateway pipeline).
In our view, this retreat from fully applying the IAA to the largest, most expensive, and environmentally risky types of infrastructure development and industrial resource extraction is unacceptable from a public interest perspective. It is also ironic because the federal government has previously gone to the Supreme Court of Canada to defend its jurisdiction to enact the IAA (which was subsequently amended in 2024), but now Bill C-5 voluntarily waives or constrains this jurisdiction, at least in part, for Schedule 1 projects.
After a project is added to Schedule 1, federal officials or regulatory bodies rendering individual decisions pursuant to their respective legislative authority would inform the designated minister under the BCA, who would then issue a single document setting out terms and conditions governing project implementation. This consolidated document, once published under section 7 of the BCA, would constitute a permit, decision, or authorization under applicable federal statues.
After the introduction of Bill C-5, the Assembly of First Nations called an emergency meeting to review the legislation and its potential impacts on Indigenous communities. Similarly, non-governmental organizations – such as West Coast Environmental Law, Ecojustice, and Environmental Defence Canada — have raised serious concerns about the discretionary (if not ambiguous and anti-democratic) provisions in the BCA.
CELA concurs with such concerns and recommends that Bill C-5 should be withdrawn and carefully reconsidered with public and Indigenous input. Alternatively, if Bill C-5 proceeds through Parliament, then it must be amended to include important legal guardrails to ensure certainty, transparency, and accountability in decision-making under this unprecedented legislation.
For example, CELA recommends that Bill C-5 should be revised to:
- reframe, expand, and define the criteria or standards (not just “factors”) for determining if a project is in the national interest, including an objective evaluation of the project’s economic viability;
- clarify that “clean growth” includes renewable energy projects but not nuclear power or fossil fuel production facilities or infrastructure;
- recast “national interest” determinations as approval in principle for the projects rather than “deemed authorizations,” subject to the proponent’s compliance with, and implementation of, effective and enforceable conditions imposed under federal law;
- ensure meaningful public participation when deciding whether to add a project to Schedule 1, and during the federal approvals, licencing, and permitting processes which develop conditions for the national interest projects listed in Schedule 1;
- aside from mentioning the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) in the unenforceable preamble of Bill C-5, the legislation should firmly entrench the UNDRIP principle of “free, prior and informed consent” when Schedule 1 candidates are being considered by the minister and before they are conditionally approved under federal law;
- establish “use it or lose it” deadlines by which the “conditions document” expires or lapses if the project is not substantially commenced within the prescribed timeframe;
- require the minister to publicly conduct biannual reviews of Schedule 1 to determine if listed projects should be retained or removed;
- enable members of the public to formally request reviews of Schedule 1 or “conditions documents” where there has been a change in circumstances or new information is available; and
- include transitional provisions which specify that the BCA does not retroactively apply to designated projects that have already triggered the application of the Impact Assessment Act.
In the coming weeks, CELA will closely monitor Bill C-5 and file a detailed legal analysis of the BCA for the consideration of the House of Commons and Senate.
In conclusion, CELA is not opposed to legislative attempts to create good green jobs or to facilitate the just (and overdue) transition to a sustainable low-carbon (or net-zero) future that shifts society away from problematic energy sources (e.g. oil, gas, nuclear) and facilitates the continued growth of renewable energy sources. 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. This is why CELA is fundamentally opposed to the BCA in its current form.
Read CELA’s Action Alert on Bill C-5.
Blog: The Public Interest Need to Reconsider or Amend Bill C-5 (Building Canada Act)
By Richard D. Lindgren
On June 6, 2025, the federal government tabled Bill C-5, which contains the proposed Building Canada Act (BCA). If enacted, the BCA establishes a fast-track approvals process for large-scale projects that are judged to be in the “national interest” of Canada.
The news release accompanying Bill C-5 suggests that the legislation will create “a stronger, more competitive, and more resilient Canadian economy.” According to a governmental backgrounder, Bill C-5 is intended to address “the imposition by the U.S. of tariffs on Canada” by advancing major nation-building projects, including those proposed or supported by provincial governments:
“At the First Ministers’ Meeting in Saskatoon, Saskatchewan, on June 2, First Ministers agreed on the urgency of building major projects that produce and connect clean and conventional energy, goods and services to markets across Canada and the globe. These include projects such as highways, railways, ports, airports, oil pipelines, critical minerals, mines, nuclear facilities, and electricity transmission systems (emphasis added).”
To achieve this goal, section 5 of the BCA empowers the federal government to add these types of environmentally significant undertakings to the Schedule 1 list of “nation-building” projects after considering the extent to which they can:
While there must be consultation with provinces, territories, and affected Indigenous communities, the BCA fails to expressly include any opportunities for public review/comment before a project is added to Schedule 1.
If included on Schedule 1, projects are essentially pre-approved under prescribed federal laws listed in Schedule 2 (e,g. Fisheries Act, Species at Risk Act, Canadian Navigable Waters Act, Canadian Environmental Protection Act, 1999, etc. ) via a “deemed authorization” under section 6 of the BCA. However, the federal backgrounder indicates that “proponents would still be required to provide the requisite information to federal agencies and departments, including the Impact Assessment Agency, and Indigenous consultation would be undertaken on appropriate mitigation and accommodation measures.”
Nevertheless, section 21 of the BCA allows the Cabinet to add new federal laws to Schedule 2 for pre-approval purposes. Similarly, section 22 of the BCA enables the Cabinet to exempt “one or more national interest projects” from any federal enactment that would otherwise be applicable to such projects. Alarmingly, section 23 even permits the Cabinet to exempt Schedule 1 projects from the provisions of the BCA itself.
CELA notes that federal statutes – such as the environmental laws currently listed in Schedule 2 of the BCA – exist for important public policy reasons (i.e. ensure public safety, international security, human and ecosystem health, etc.). Accordingly, these statutes should not be precluded by BCA regulations from applying to Schedule 1 projects for reasons of administrative convenience or political expediency. Moreover, the existence of the broad exempting powers in sections 22 to 23 appear to be inconsistent with the BCA preamble’s claim that “the Government of Canada is committed to upholding rigorous standards with respect to environmental protection.”
On this point, it is also clear that this environmental commitment is largely absent from the section 5(6) factors to be considered when adding national interest projects to Schedule 1. At the very least, this preamble commitment should be added to section 5(6) as follows: “Ensure that rigorous standards with respect to environmental protection will be upheld.”
CELA further notes that section 19 of the BCA ousts the application of the early planning phase and other key provisions of the federal Impact Assessment Act (IAA). This means that while some elements of the IAA’s information-gathering and decision-making may be applicable to certain national interest projects, the BCA’s “pre-approval” regime effectively eliminates the Cabinet’s option of refusing to approve risky undertakings that pose significant adverse environmental effects within federal jurisdiction (e.g. the Northern Gateway pipeline).
In our view, this retreat from fully applying the IAA to the largest, most expensive, and environmentally risky types of infrastructure development and industrial resource extraction is unacceptable from a public interest perspective. It is also ironic because the federal government has previously gone to the Supreme Court of Canada to defend its jurisdiction to enact the IAA (which was subsequently amended in 2024), but now Bill C-5 voluntarily waives or constrains this jurisdiction, at least in part, for Schedule 1 projects.
After a project is added to Schedule 1, federal officials or regulatory bodies rendering individual decisions pursuant to their respective legislative authority would inform the designated minister under the BCA, who would then issue a single document setting out terms and conditions governing project implementation. This consolidated document, once published under section 7 of the BCA, would constitute a permit, decision, or authorization under applicable federal statues.
After the introduction of Bill C-5, the Assembly of First Nations called an emergency meeting to review the legislation and its potential impacts on Indigenous communities. Similarly, non-governmental organizations – such as West Coast Environmental Law, Ecojustice, and Environmental Defence Canada — have raised serious concerns about the discretionary (if not ambiguous and anti-democratic) provisions in the BCA.
CELA concurs with such concerns and recommends that Bill C-5 should be withdrawn and carefully reconsidered with public and Indigenous input. Alternatively, if Bill C-5 proceeds through Parliament, then it must be amended to include important legal guardrails to ensure certainty, transparency, and accountability in decision-making under this unprecedented legislation.
For example, CELA recommends that Bill C-5 should be revised to:
In the coming weeks, CELA will closely monitor Bill C-5 and file a detailed legal analysis of the BCA for the consideration of the House of Commons and Senate.
In conclusion, CELA is not opposed to legislative attempts to create good green jobs or to facilitate the just (and overdue) transition to a sustainable low-carbon (or net-zero) future that shifts society away from problematic energy sources (e.g. oil, gas, nuclear) and facilitates the continued growth of renewable energy sources. 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. This is why CELA is fundamentally opposed to the BCA in its current form.
Read CELA’s Action Alert on Bill C-5.
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