By Anna Johnston Bydarius Snieckus
Bill C-5 throws that principle under the bus. It gives the federal cabinet regulatory power to exempt projects from environmental laws (known as so-called 鈥淗enry VIII鈥 clauses). In Bill C-5, they effectively allow cabinet to amend laws by making regulations about when and to whom those laws apply.
As Supreme Court Justice C么t茅 warned in the Greenhouse Gas Pollution Pricing Act reference case, Henry VIII clauses grant cabinet 鈥渂reathtaking鈥 powers that may run afoul of the principle of parliamentary sovereignty. Notably, the Henry VIII provisions in Bill C-5 go far beyond what the clauses in the Greenhouse Gas Pollution Pricing Act do 鈥 under the Greenhouse Gas Pollution Pricing Act, cabinet can only make regulations amending that Act, whereas under Bill C-5, cabinet can make regulations amending any federal environmental law.
More concerningly, Bill C-5 effectively gives Henry VIII powers to the super minister. Whereas the cabinet would have to pass regulations saying that a law or laws don鈥檛 apply to a project, the minister can simply ignore legal standards. Once cabinet orders a project of 鈥渘ational interest鈥 under the Act, it no longer needs to obtain the customary authorizations and permits. Instead, the super minister will issue a document with conditions that stands in for authorizations and permits. As noted above, the bill 鈥渄eems鈥 that the document meets all requirements, under any enactment, that relate to the authorizations it replaces.
This 鈥渄eeming鈥 acts as legal doublespeak. For example, if a project affects an endangered species, normally the minister would have to be satisfied that it would not jeopardize the species鈥 survival and recovery before agreeing to it. Bill C-5 will 鈥渄eem鈥 that the project will not jeopardize the species, no matter its actual effects.
These issues are concerning, not just from an environmental perspective, but also on constitutional and democracy grounds. Department of Justice guidance warns against the kind of 鈥渄eeming鈥 provisions contained in Bill C-5, and the law invites lawsuits and protests.
Indigenous rights-holders faced with the potential extinction of a species central to the exercise of their rights are unlikely to be satisfied by the explanation that Bill C-5 鈥渄eems鈥 the species not to be harmed. Nor may the public be satisfied with having a handful of politicians declaring what is in the national interest solely on the basis of the self-interested claims of proponents.
Yes, we need big, transformative investments in projects that benefit Canadians, projects like renewable energy, high-speed rail and an east-west electricity grid. We have proven tools for making efficient decisions about those projects in ways that are also rigorous, participatory and fair. Tools like independent review panels, which for decades have thoroughly assessed projects in under two years and led to better buy-in to decisions. Or regional assessments, like those for offshore wind in Nova Scotia and Newfoundland and Labrador, which will allow much more streamlined project reviews without compromising Indigenous engagement, public participation or science.
Parliament passed Bill C-5 last Thursday. It sets a dangerous precedent for Canada, but the government can take measures to ensure that national interest projects are truly in the public interest, are carefully reviewed and have the consent of Indigenous peoples.
As the recent report An Ounce of Prevention: How Strong Environmental Laws Contribute to a Prosperous and Resilient Canada shows, those outcomes are not a pipe dream. The environmental assessment of the Voisey’s Bay nickel mine, conducted by a panel jointly appointed by Canada, Newfoundland and Labrador, the Labrador Inuit Association and the Innu Nation, took roughly two years and identified ways to ensure long-lasting benefits for communities. The mine still operates to this day.
The Ekati Diamond Mine in the Northwest Territories underwent a two-year-long assessment that identified a number of community concerns, as well as ways to address them. Like Voisey鈥檚 Bay, the mine is still in operation.
As these examples show, efficient, effective and fair decisions about major projects are possible. A stitch in time saves nine.
Anna Johnston is a public interest environmental lawyer at West Coast Environmental Law, where her work focuses on climate, biodiversity, impact assessment and constitutional law.