Introduction/Overview
British Columbia's Bill 15, the Infrastructure Projects Act, has passed second reading, despite scrutiny and criticism from Indigenous leaders.
If passed, Bill 15 would empower the provincial government to expedite major infrastructure projects that it designates as "provincially significant." Projects favoured by the provincial government could be moved to the front of the line for provincial permitting and be excused from complying with various regulatory requirements, including aspects of the environmental assessment process. You can read more about the proposed law in our first blog post.
Bill 15, which would grant the government an unprecedented level of discretion to expedite infrastructure projects, could result in actions contrary to the provincial legislation, Declaration on the Rights of Indigenous Peoples Act (DRIPA), which was passed in 2019.1
DRIPA affirms the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and commits the provincial government to taking all measures necessary to align its laws with UNDRIP. 2
BC's Existing Commitments to Indigenous Peoples Affirmed in DRIPA
DRIPA affirms several important Indigenous rights and jurisdiction, including rights of self-determination, self-government, and land ownership and protection.3 It also provides that the provincial government must ensure its laws are consistent with UNDRIP.
British Columbia's own interim guidance on aligning provincial laws with UNDRIP requires consultation and cooperation with Indigenous peoples in the process of introducing new legislation.4 However, Indigenous peoples were not meaningfully consulted when Bill 15 was drafted.5
The BC NDP says the proposed law will require all projects to uphold the government's commitment to DRIPA.6 As currently drafted, Bill 15 explicitly prohibits the provincial government from waiving legal and regulatory requirements respecting engagement with Indigenous peoples, as defined in DRIPA.7
However, the Supreme Court of British Columbia in Gitxaala said that DRIPA does not implement UNDRIP into British Columbian law and that the requirement to align provincial laws with UNDRIP is non-justiciable.8 This means that Courts do not have a role in deciding whether provincial law is consistent with UNDRIP. The Court in Gitxaala also confirmed that DRIPA and UNDRIP are interpretive provisions for other legal requirements. The appeal of this decision was heard in early 2025 but we continue to wait for a decision.
Given that Indigenous communities cannot force the government to align its laws with UNDRIP, the BC NDP's promise to respect DRIPA provides little assurance that the government will uphold Indigenous rights.
Provincially Significant Projects
The government's attempt to secure wide authority to prioritize permitting processes, expedite environmental assessments, require regulators to expedite designated projects, and remove "constraints" is particularly concerning given the lack of clarity in Bill 15 about what constitutes a "provincially significant" project.
Though the term "provincially significant" is not defined, the Minister of Infrastructure has stated that projects would need to create significant economic, social or environmental benefits for people in BC.9 Criteria currently under consideration by the government include whether a project significantly contributes to public infrastructure, critical mineral supply, food or water security, energy security, human health and safety, trade diversification, access to markets, and post-disaster recovery.10
The government's interest in expediting projects to increase access to markets and to critical minerals downplays Indigenous rights and title-holders' claims, and priority access to such opportunities under the Constitution Act, 1982 and DRIPA.
Expedited Environmental Assessments
If the proposed law is passed, the Lieutenant Governor in Council would be empowered to expedite environmental assessment processes by setting the scope, methods, procedures, and timelines of assessments, by directing how assessments are conducted, and by prescribing "consensus-seeking opportunities in relation to participating Indigenous [N]ations."11
Expedited environmental assessments would be exempt from most aspects of the environmental assessment process, including:
- early engagement processes, which enable Indigenous Nations to voice concerns in the initial stages of a project so that the project may be modified or cancelled;12
- process planning, including the requirement to achieve consensus with participating Indigenous Nations on the environmental assessment process;13
- assessing the effects of a project on section 35 Indigenous Nations and rights;14
- assessing cumulative effects and effects on future generations;15
- carrying out alternative means assessments;16
- assessing consistency of the proposed project with existing Indigenous land use plans;17 and
- preparing an assessment report that seeks consensus with participating Indigenous Nations and takes public comments received into consideration.18
Once an environmental assessment certificate is issued, the Minister could direct regulators to approve designated projects under other permitting and licencing laws, subject to other reasonable conditions that the regulator considers appropriate.19 Project proponents could thus obtain authorizations like Licences of Occupation, Occupant Licences to Cut, and Mining Permits at the behest of the Minister of Infrastructure.
Broadly speaking, Bill 15 eliminates many Indigenous consultation requirements under the Environmental Assessment Act for projects favoured by the government. In addition to weakening statutory consultation requirements, as set out above, Bill 15 fails to address the risk that expedited projects could have adverse cumulative effects on Indigenous rights. Fast-tracking projects may encourage government actors to examine the impacts of proposed projects on Indigenous peoples in a narrow context, without proper attention to cumulative impacts (if at all).
By contrast, DRIPA affirms that governments shall consult and cooperate in good faith with Indigenous peoples, and obtain their Free, Prior, and Informed consent prior to approving projects that could affect Indigenous lands and resources.20 Expedited environmental assessments clearly fall short of this standard.
The BC NDP says that its proposed pathway to expedite environmental assessments "will be developed through consultation with First Nations and interest holders to meet consultation obligations."21 But the proposed legislation also suggests that projects approved at the behest of the Minister are final and binding and not subject to review or appeal under the provincial Environmental Assessment Act.22
British Columbia cannot preclude judicial review of government decisions that may breach the duty to consult and accommodate. The duty to consult is grounded in the honour of the Crown and requires that the Crown consult with, and possibly accommodate, Indigenous Nations with prima facie or recognized section 35 rights who may be adversely affected by a governmental decision.23 This duty "cannot be boxed in by legislation."24 Further, as explained by the Federal Court in Kebaowek, the duty to consult and accommodate has been enhanced by the adoption of UNDRIP into Canadian law, requiring "more" than section 35 common law obligations.25 The Crown must always uphold its constitutional obligations towards Indigenous peoples, even in the context of expedited processes and projects.
Implications
Bill 15 aims to fast-track projects with little regard for Indigenous rights and sovereignty. The only mention of Indigenous peoples in the Bill is a vague promise to respect DRIPA.
The Supreme Court of Canada has been clear that "[a] decision to authorize a project cannot be in the public interest if the Crown's duty to consult has not been met."26 UNDRIP serves as an important interpretive lens that, among other things, helps courts determine whether the Crown has fulfilled its obligations towards Indigenous peoples.27 If the provincial government authorizes or implements a project and breaches its duty to consult and accommodate in the process, then several remedies could be available.
Bill 15 risks contravening commitments BC has already made to implementing UNDRIP. As Bill 15 approaches its third reading, the BC NDP must honour its commitments under DRIPA and constitutional obligations towards Indigenous peoples.
Footnotes
1 Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44, s 3 [DRIPA].
2 DRIPA, supra note 1, s 3.
3 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2007) at arts 3, 4, 26, 19 [UNDRIP].
4 British Columbia, Declaration Act Secretariat, Interim Approach to Implementing the Requirements of Section 3 of the Declaration on the Rights of Indigenous Peoples Act (October 2022), online: declaration.gov.bc.ca/.
5 Union of British Columbia Indian Chiefs, "First Nations Leadership Council & Union of BC Municipalities call for withdrawal of Bill 15" (22 May 2025) online, www.ubcic.bc.ca.
6 British Columbia, "Infrastructure Projects Act: Technical Briefing" 1 at 13, online: news.gov.bc.ca [Technical Briefing].
7 Bill 15, Infrastructure Projects Act, 1st Sess, 43rd Parl, 2025, cl 20 (second reading 13 May 2025).
8 Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 at para 433.
9 Vaughn Palmer, "Far from cutting red tape, B.C. NDP fast-tracking law hands big overriding powers to cabinet" (6 May 2025), online: vancouversun.com.
10 Technical Briefing, supra note 6 at 22.
11 Bill 15, supra note 7, cl 34
12 Environmental Assessment Act, SBC 2018, c 51, ss 13-18.
13 Ibid, s 19(1).
14 Ibid, s 25(1).
15 Ibid, ss 25(2)(a), 25(2)(f).
16 Ibid, s 25(2)(i).
17 Ibid, ss 16(4)(a)(iv), 25(2)(g).
18 Ibid, ss 28(2)-(3).
19 Bill 15, supra note 7, cl 8(2).
20 DRIPA, supra note 1, Schedule 1 at art 32(2).
21 Technical Briefing, supra note 6 at 19.
22 Bill 15, supra note 7, cl 8(4).
23 Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at paras 16, 35.
24 Ka'a'Gee Tu First Nation v Canada (Attorney General), 2007 FC 763 at para 121.
25 Kebaowek First Nation v Canadian Nuclear Laboratories, 2025 FC 319 at paras 124-125 [Kebaowek].
26 Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41 at para 59.
27 Kebaowek, supra note 25 at para 76.
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