Introduction
Earlier this month, Canada tabled Bill C-5, An Act to enact the Free Trade and Labour Mobility in Canada Act and the Building Canada Act. The bill has passed its first reading and is well on its way to being passed into law. The federal government has said they want it passed by June 20, 2025.1 The speed at which the federal government is pushing this bill into law, despite very limited consultation on the draft bill and opposition from Indigenous groups and environmental leaders, forms a strong analogy to the bill itself. It is designed to fast-track approvals but doing so will very likely be at the expense of the duty to consult and environmental protections.2Bill C-5 marks a tremendous shift in federal policy. In recent years, the federal government has expanded the legal framework around Indigenous rights by passing legislative tools like the United Nations Declaration on the Rights of Indigenous Peoples Act ("UNDRIPA") and announced the UNDRIP Action Plan. The Impact Assessment Act improved how federal impact assessments consider section 35 rights and created new opportunities for Indigenous participation in federal assessments. Bill C-5 flips the federal policy by constraining and undermining Aboriginal and treaty rights, UNDRIPA, and the duty to consult to prioritize major projects.
The federal government has framed Bill C-5 as part of Canada's initiative to strengthen the economy during uncertain times.3 This reflects a broader legislative and policy trend that aims to expand Canada's autonomy, reduce reliance on the United States, and advance the federal government's goal of becoming an energy superpower. Bill C-5, like its provincial counterparts in Ontario and BC, seeks to expedite approval processes in the interest of getting more projects built in less time.
For a breakdown of Ontario and British Columbia's bills, please see JFK Law LLP blog post here (Ontario) and here (BC).
Whether Bill C-5 and its provincial counterparts will have the desired effect remains to be seen. It is a very real possibility that fast-tracked projects will attract direct action protests and legal challenges, which risk undoing any regulatory efficiency gained by the new bills. Further, expediting the regulatory process may lead to hastily approved projects that place the environment at greater risk.
Overview of Bill C-5
Bill C-5 introduces two new federal enactments:
- Free Trade and Labour Mobility in Canada: reduces federal barriers to interprovincial trade and labour mobility within Canada
- Building Canada Act: empowers the federal government to streamline the authorization process for projects that are considered "national interest projects"4
The primary focus of this blog post is on the Building Canada Act.
The Building Canada Act is focused on streamlining project approvals for certain projects. It does this in four key steps:
- identifying and listing a project as a "national interest project"
- deeming that all federal approvals for the national interest project have been made in favour of the project
- requiring the project proponent to take all measures necessary to fulfill those federal approval obligations and consult with Indigenous groups
- the Minister issuing an approval document that is deemed to include all required authorizations
The discretion to determine what is in the national interest vests with the Minister. The Act sets out several factors that may be considered, including:
- 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
- contribute to clean growth and to meeting Canada's objectives with respect to climate change
Before recommending a project to be included as a "national interest project" the Minister must consult with Indigenous Peoples and appropriate governments. There are no parameters outlining the process for consultation.
Most notably, the Building Canada Act grants the federal government enormous discretionary powers to deem projects in the "national interest."5 How these discretionary powers will be used remains unclear. However, there is potential to weaken the meaningfulness and thoroughness of consultation, and more alarmingly, completely remove the concept of consent from the equation. We will discuss this in more detail in the next two sections.
National Interest Projects and the Duty to Consult
The Building Canada Act could significantly impair the duty to consult, creating real risks and delays for the very projects that could be brought under the Act. The duty to consult arises when Aboriginal and treaty rights may be adversely affected by government decisions, including during project approval processes. The duty to consult is the primary mechanism by which the Crown, acting honourably, can preserve and protect Indigenous groups' constitutionally protected Aboriginal and treaty rights.
Firstly, the decision to designate a project as a "national interest project" is a critical decision that will, in essence, provide approval for a project to proceed. If the decision is made early in the regulatory process, the Minister and any impacted Indigenous groups (and even the proponent) will likely only have a loose understanding of the project and its potential impacts. We ask, how Indigenous peoples can be meaningfully consulted without a detailed project description and other important information necessary to understand potential impacts? And how can a Minister make a decision about the national interest without a thorough understanding of impacts to constitutionally protected Aboriginal or treaty rights and when, according to the scheme in the Building Canada Act, Canada will not have discharged the duty to consult? All of this is exacerbated by the fact that the factors in determining the national interest are vague and underdeveloped.
Secondly, consulting on a project that is already deemed approved removes potential outcomes of a consultation process (i.e., saying "no") that have traditionally been viewed as necessary to avoid consultation being reduced to a perfunctory opportunity to blow off steam. In our view, it will be hard, if not impossible, to align this approach to consultation with the requirements of the honour of the Crown and the purpose of the duty to consult, which includes advancing reconciliation. This "approve first, consult on a narrow set of options later" model of consultation is likely to have a chilling effect on consultation about mitigation and accommodation measures as the deemed approval of a project may reduce or eliminate the incentive for proponents to consult meaningfully.
The twenty years of jurisprudence since the Haida and Mikisew cases show clearly what happens when the duty to consult is truncated, curtailed and not meaningfully upheld: approvals can be overturned, projects can be delayed, Aboriginal and treaty rights can be negatively impacted, and reconciliation is undermined. The scheme set out in the Building Canada Act creates the building blocks for these unfortunate (and entirely avoidable) outcomes.
The Critical Role of Free, Prior, and Informed Consent
In 2021, UNDRIPA became law in Canada. It confirmed that Canada "must, in consultation and cooperation with Indigenous Peoples, take all measures necessary to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples ("Declaration"). The Declaration includes the concept of free, prior, and informed consent ("FPIC"), which has now been confirmed as law in Canada.6
Where does that fit into the Building Canada Act?
It is too early to tell conclusively, but we see significant warning signs. Incorporating genuine FPIC gateposts at multiple steps in the process set out in the Building Canada Act could go a long way to bring the vision of the Building Canada Act in alignment with the Declaration and the protection of Aboriginal and treaty rights. In the absence of clear and effective FPIC points and requirements to obtain Indigenous consent before key decisions can be made to advance projects, much will depend on how the federal government implements this new law (if the bill becomes law without major amendments at the committee stage), what weight it gives to Indigenous consultation and partnership, and how it will require proponents and federal decision-makers to obtain FPIC.
Slow is Smooth, Smooth is Fast
If enacted, the Building Canada Act could grant sweeping discretionary powers to the federal government to expedite projects, including in ways that circumvent federal environmental approval processes and other mechanisms designed to protect7 Indigenous Peoples and the environment. Fast-tracking certain national interest projects through important legislative safeguards may: (1) place Indigenous rights and the environment at risk; and (2) decrease understanding of impacts to Indigenous rights holders. Failing to properly account for Indigenous understanding, Indigenous rights, and the environment may exacerbate development timelines – through legal challenges, direct action, and environmental mishaps — rather than expedite them. The Building Canada Act is taking a "move fast and break things" approach (to borrow a phrase from David V. Wright and Martin Olszynski's ABlawg post (link)). A "slow is smooth, smooth is fast" approach may be wiser in this complex, contentious, and challenging environment.
As this bill becomes law we will continue to monitor the implications of this new legislative scheme for the implementation of FPIC, the duty to consult and Canada's impact assessment and environmental protection laws.
The authors extend their gratitude to Mark Gustafson for his valuable feedback on the final draft of this blog post.
Footnotes
1 Kyle Duggan, (June 12, 2025), "Liberals under fire for rushing bill through Parliament to speed up resource projects" The Canadian Press, online at Business Intelligence for B.C. < https://www.biv.com/news/liberals-under-fire-for-rushing-bill-through-parliament-to-speed-up-resource-projects-10800440>
2 Assembly of First Nations (June 10, 2025), "Statement from National Chief Regarding Building Canada Act: Enormous Responsibility Rests on MPs and Senators to Uphold the Honour of the Crown" online < Statement from National Chief Regarding Building Canada Act: Enormous Responsibility Rests on MPs and Senators to Uphold the Honour of the Crown – Assembly of First Nations>
3 News conference (June 6, 2025), "PM Carney outlines bill on nation-building projects & removal of trade barriers – June 6, 2025," cpac [June 6th News Conference] online <https://www.youtube.com/watch?v=EQy0aVGW9Vs>
4 BILL C-5, An Act to enact the Free Trade and Labour Mobility in Canada Act and the Building Canada Act, 1st Sess, 45th Parliament, 3 Charles III, 2025 [Bill C-5] (Introduction and first reading June 6, 2025, in House of Commons, at second reading in the House of Commons as of June 16, 2025) [Bill C-5, Building Canada Act]
5 Ibid. at s. 5(1)
6 Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII) at para 4; Kebaowek First Nation v Canadian Nuclear Laboratories, 2025 FC 319 (CanLII) [Kebaowek] at 124-177
7 Bill C-5, Building Canada Act, supra at note 3 at s. 22(a)
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