A Radical Departure: Remarks on Part II of Bill C-5 (the Building Canada Act)

Matter Commented On: Part II of Bill C-5 (the Building Canada Act)

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On Tuesday, June 17^th, 2025, I had the opportunity to appear before the Senate in the context of its study of Bill C-5, Part II of which contains the Building Canada Act. Professor David Wright and I provided an initial analysis of this part of Bill C-5 shortly after it was tabled. As is my regular practice, this post includes my prepared remarks, which expand on some of that earlier analysis. I have also included hyperlinks where useful. In our initial post, Professor Wright asked whether Bill C-5 will allow Canada to ‘move fast and make things’ or ‘move fast and break things’? While it is still too early to answer that question from a project review perspective (the prospects, however, appear increasingly dim), it is now clear that as drafted Bill C-5 breaks fundamental democratic norms, at the least, and that our democracy and the rule of law will be diminished for it.

Good afternoon, Senators,

My name is Martin Olszynski. I am an Associate Professor and the current Chair in Energy, Resources, and Sustainability at the University of Calgary Faculty of Law. Thank you for the opportunity to appear before you today.

Briefly by way of background, I have spent almost 20 years in the major project review space: as a lawyer for the Department of Fisheries and Oceans (DFO), as an academic, as a witness in panel hearings, and for the past 4 years as a member of the MINAC – the federal Minister of Environment’s Advisory Council on Impact Assessment.

I want to preface my remarks by saying that, like my colleagues here and most Canadians, I support the advancement of projects in the national interest and, further, would support a law that accelerates their review and enhances regulatory certainty while also upholding rigorous standards of environmental protection.

As drafted, however, the Building Canada Act won’t accomplish these important goals. First, it goes beyond accelerating processes towards negating existing environmental protections. Second, it circumvents the normal checks and balances that are the hallmarks of functioning democracies. Finally, all of this actually invites uncertainty and delay in the project review process.

I am going to skip over project listing, the looseness of which seems well understood, and focus on the other two main elements of the Act: section 7’s “deeming” provision and the so-called Henry VIII clauses, being sections 21, 22, and 23.

As I’ll explain, section 7’s deeming provision effectively ousts applicable federal environmental laws – and the Canadian judiciary’s role in upholding them – while the Henry VIII provisions represent a staggering intrusion on Parliament’s fundamental role in making, amending, and repealing laws. In both cases, the unquestionable winner is a barely constrained executive branch.

Beginning with section 7, once a national interest project is listed and the proponent has met any requirements that they would normally be required to meet (generally submitting information), the Minister will at some point issue a master authorization that will stand in place for all of the federal authorizations and permits that would otherwise have been required.

So far so good – there is no harm in consolidating the necessary authorizations and permits in one place. But here’s the kicker: subsection 7(3) “deems” that master authorization as meeting the requirements of all those other laws.

The use of the term “deem” is critical here. The federal Department of Justice’s website helpfully explains that “deeming” is used to create a legal fiction.

To understand why such a fiction is problematic, you have to appreciate that modern environmental laws are both outward and inward facing: they constrain individuals and corporations, yes, but those constraints are rarely absolute – they’re an opening bid. And it’s at that point, recognizing governments’ prior miserable track record on this front, that environmental laws seek to constrain the executive branch too.

For example, if a national interest project is going to impact fish habitat, then section 34.1 of Fisheries Act, RSC 1985, c F-14 requires DFO to consider several factors, including the potential for cumulative effects, before issuing an authorization. If a national interest project triggers the Impact Assessment Act, SC 2019, c 28 the Agency and the Minister are bound by section 6 to apply the precautionary principle and adhere to the principle of scientific integrity.

These constraints are essentially guideposts: they don’t dictate a particular outcome but help to guide decision-making – to varying degrees – towards sustainable development.

Subsection 7(3) steamrolls this part of the federal environmental regime. It creates the “legal fiction” that the designated Minister has complied with all these guideposts – even if they don’t. This is a blank check for the Executive branch, subject only to some consultation between Ministers.

And because it’s a legal fiction explicitly created by statute, the Canadian judiciary’s supervisory role is also negated – a role that has proven critical in securing at least some semblance of implementation of Canada’s environmental laws.

In other words, a section 7 authorization will be effectively immune from legal challenges, the only exception being those that have a constitutional dimension, such as a failure to adequately consult and accommodate Indigenous peoples. This is a radical departure from the status quo. There are ways to limit judicial intervention without eliminating it altogether.

And this brings me to sections 21, 22 and 23 – the Act’s Henry VIII clauses – pursuant to which Cabinet will have the authority to make regulations to not merely flesh out the provisions of this Act, as is the normal course, but to modify and even exempt the application of any law in the federal statute book.

This is a staggering power – even by today’s standards. I asked my research assistant to collect and compare the Henry VIII clauses in all such recent legislation – Alberta’s Bill 1 (Sovereignty Act), British Columbia’s Bill 7 (Economic Stabilization Act) and Bill 15 (Infrastructure Projects Act), and Ontario’s own Bill 5 (Special Economic Zones Act). Bill C-5 is only matched by Premier Ford’s legislation for its breadth. To their credit, both Premier Smith and Premier Eby scaled back their own versions in the face of public opposition. The Prime Minister should do the same.

This is not a partisan issue. Nor am I implying bad faith or malice. Rather, to paraphrase Yale historian and now Munk School Professor Timothy Snyder, history instructs that the separation of powers matters – fundamentally.

But if history and democratic norms are insufficient motivators, I’ll conclude with a very pragmatic argument. Instead of accelerating reviews, both section 7 and the Henry VIII clauses have the potential to bog down the review process, through the endless lobbying and (re)negotiation over standards that they so clearly invite. I saw it all the time while at DFO. Fisheries Act reviews would stall while proponents argued that the Act shouldn’t apply to their project. The new federal project office may well require a small army of bureaucrats to deal with such requests alone.

If speed and certainty are indeed the goal here, better to have proponents design their projects to established standards – standards that regulatory lawyers and Indigenous peoples already understand – than to try to reinvent the wheel on an ad hoc basis, and in a compressed time period at that.

Thank you. I look forward to answering any questions you may have, including how this bill might be improved.

Martin Z. Olszynski

I am grateful to Professor David Wright for his comments on an earlier draft of these remarks, and to Kaitlin Schaaf (JD Candidate 2027) for her research assistance in preparing them.

This post may be cited as: Martin Olszynski, “A Radical Departure: Remarks on Part II of Bill C-5 (the Building Canada Act)” (19 June 2025), online: ABlawg, http://ablawg.ca/wp-content/uploads/2018/07/Blog_MO_BillC-5PartII.pdf

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