‘Impossible to uphold Indigenous rights’

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A bill promising a sweeping overhaul of Canada’s project approval process could also have serious implications for the Crown’s duty to consult with Indigenous people, legal experts say.

Bill C-39, the Building Canada Strong Act, was introduced by the federal government on September 21 and has now passed second reading. 

Federal Liberals have called the 243-page bill one of the most important economic pieces of legislation in a generation, as Canada shores itself up against the threat posed by the Trump administration south of the border. The bill aims to improve the efficiency of approvals for major projects, including by targeting a one-year timeline for decisions.

But critics say the legislation could also have a generational impact as one of the largest rollbacks of environmental protections in Canadian history.

It also contains changes that could undermine the Crown’s obligation to consult and accommodate under section 35 of the Constitution Act. 

“The language in Bill C-39 only talks about the minister's power,” says Kerrie Blaise, lawyer and founder of Legal Advocates for Nature’s Defence in Northern Ontario. 

“We have heard statements made in the House by MPs saying, ‘We'll uphold Indigenous rights.’ How? It will not be possible. There is nothing in this bill that signals that it is a priority or even part of it.”

Undermining trust

The legislation has a mammoth scope, amending 18 statutes and four regulations. It also introduces one new law while repealing another. 

Changes include: designating ‘regions of national interest’ (where projects are exempt from standard permits and authorizations); allowing for public reporting of approvals up to 30 days after the approval is issued, rather than before; and making assessments of nuclear projects, pipelines, transmission lines and offshore energy projects the sole purview of the regulator.

Blaise says the proposals raise concerns for the Ring of Fire, where a regional assessment has been underway since 2020 to gather data and understand the effects of past and future development. 

Under Bill C-39, the existence of regional assessments would allow projects to move forward more quickly, ‘weaponizing’ the consultation that was carried out under different auspices in places like the Ring of Fire, she says.

“People came out, shared their knowledge of … culturally significant sites, ecologically significant sites ... and all of that was shared in a way that was meant to be respected so we could conduct the regional assessment. For now, that to be turned on those individuals and those communities … undermines that trust.”

Allowing the government to notify communities of approvals under the act after the fact will also make it difficult for them to assess the impact on their rights. 

These amendments should be understood in light of the Building Canada Act, which 14 First Nations are already challenging, Blaise says.

“It is an attempt across the board to de-prioritize or just silence altogether the ability to know what's happening and the ability to have a say.”

Jeff Langlois, a Vancouver partner at JFK Law, an Aboriginal and constitutional law firm, says the legislation is part of a trajectory that goes back to 2019, when amendments to the Impact Assessment Act required officials to consider impacts to section 35 rights.

Taken together with Bill C-5 and reference cases such as an Alberta Court of Appeal decision from early October that found the Impact Assessment Act largely unconstitutional, he says it’s clear we’re now in “a very different process.”

“I think that will start to affect the substance of Indigenous nations’ involvement in one way or another, and I think ultimately have an impact on the substance of decisions that are produced.”

The act proposes a new consultation pathway by creating a Crown Consultation Hub within the Impact Assessment Agency to coordinate federal consultations with Indigenous peoples.

Langlois says the idea has potential, given that his clients experience consultation fatigue from interacting with multiple decision-makers who are unfamiliar with their histories and rights. However, he’s concerned the hub won’t be staffed by people with decision-making power. 

Further, he thinks the government may be seeking to ‘desrisk’ consultation with First Nations by having “somebody who is building a record [of consultation] instead of looking to actually resolve and reconcile competing interests that inevitably come up.

”The hub also won’t cover nuclear projects and pipelines, putting consultation onto agencies, such as the Canadian Nuclear Safety Commission, “that [are] not actually set up today to do any of that,” Langlois says.

What about UNDRIP?

One thing advocates have identified as notably absent from the legislation is the UN Declaration on the Rights of Indigenous Peoples, despite legislation requiring federal statutes to be consistent with UNDRIP.

Jameela Jeeroburkhan, a partner at Dionne Schulz in Montreal and chair of the CBA’s Aboriginal law section, says rushing through passage of the bill — with the government taking the unusual step of sending it to legislative committee — may itself violate the commitment to free, prior and informed consent.

“There's maybe a feeling that there's an economic motor driving a lot of this legislation and that it's not necessarily considering all the undertakings that the federal government’s made to Indigenous rights.”

Overall, she says the timelines introduced in the act raise questions for the quality of future consultation. Her clients already face short timelines for consultation. With the act’s 300-day limit to review assessments, permits, and authorizations, there’s more information that will need to be provided to Indigenous groups, with less time for them to review it.

Nonetheless, Jeeroburkhan says the duty to consult on impacts to section 35 rights is a constitutional duty that can’t be circumvented by legislation.

“Generally speaking, you don't put a time limit on a constitutional obligation.”

The federal government is aiming to secure royal assent for the bill by December. But experts fear that by moving quickly to avoid one set of threats, the government is introducing other risks — to the environment and to the relationship between Indigenous peoples and the government. 

“When these changes happen quickly, there can be a reaction of distrust that actually we're trying to avoid with the participation of Indigenous peoples in the process,” Jeeroburkhan says.