‘Going fast without going anywhere’

The Liberal government’s Bill C-5 was rushed through Parliament so that “nation-building” projects of national interest could be fast-tracked. But now that it’s law, it’s going to face a barrage of litigation. 

That’s how Merle Alexander, KC, sees things unfolding from here.

The principal Indigenous law partner with Miller Titerle in Victoria says the flurry of amendments to C-5 proposed in the Senate is a “direct recognition that they got a few problems with this bill.”

“It’s going to create a lot of work for lawyers,” he says.

“It is absolutely guaranteed that there will be litigation.”

He doubts promises of significant changes, as “amending at a later date is usually an empty promise.”

Using a Star Wars analogy, Alexander compares the Building Canada Act to a failed startup of Han Solo’s Millennium Falcon spaceship. Instead of instantly hitting lightspeed, the engines start, then sputter, “Bu-je-je-er-er …” he says, vocalizing the projected flameout.

He says the intent is that “we're going to go really fast,” but “it doesn’t go anywhere.”

During debate in the Senate, B.C. Senator Duncan Wilson said the legislation was being “rushed.”

“Sometimes you have to go slow to go fast,” he added.

But after passing in the House on June 20 with support from the Conservatives, the bill quickly passed unamended in the Senate and received Royal Assent on June 26. Prime Minister Carney wanted C-5 in force by Canada Day.

Conservative Senate leader Leo Housakos said that target was “very political,” but “a step in the right direction.”

Adoption of any of the proposed amendments, particularly those related to the Building Canada Act’s shortfalls in respecting Indigenous rights, would have returned C-5 to the Commons for final approval.

Among the objections raised by senators is the bill’s so-called Henry VIII sections, named for the British monarch who forced Parliament to grant him the power to rule by executive order, then known as royal decrees. 

Those sections would limit which laws apply to fast-track a project of national interest, with the goal of reducing delays. They allow the government to add or remove laws that apply under C-5 when considering projects. However, they also set out 16 laws that cannot be added, including the Indian Act, the Criminal Code and oversight by the auditor general.

Housakos noted he was willing “to bend red tape” on the environment to get those projects built.

There were proposed amendments from Senators Paul Prosper, a Mi’kmaw lawyer from Nova Scotia, Mary Jane McCallum, a Cree dentist and residential school survivor from Manitoba, and Yuen Pau Woo, an economist from British Columbia.

They sought to recognize that C-5 fails to clearly respect Indigenous rights as set out in Section 35 of the Charter, which states, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

The bill also lacks concrete provisions for free, prior and informed consent (FPIC) — a key principle of the United Nations Declaration on the Rights of Indigenous Peoples.

The proposed amendments were supported by Indigenous and non-Indigenous senators. Senator Marc Gold, the Liberal government’s representative in the Red Chamber, said these concerns would be addressed in a bill amending C-5.

“My word is my bond,” said Gold, who turned 75 on June 30 and retired from the Senate.

“I’m asking you to trust me one more time.”

Senator Prosper, defending his call to include in FPIC before a C-5 project of “national interest” is approved, recalled residential schools and other instances when the government asked Indigenous peoples to “trust us.”

“It’s all too familiar,” he said.

Assembly of First Nations National Chief Cindy Woodhouse Nepinak praised him for insisting FPIC be included.

“Despite Canada’s claim that free, prior and informed consent is at the heart of the bill, the reference remained absent in the bill,” says Woodhouse Nepinak, who has criticized the Liberals’ efforts to “ram” this legislation through.

“The government says, ‘just trust us.’ First Nations have as hard time trusting government. We won’t be fooled.”

She says that while some First Nations chiefs favour C-5, others are against it. However, 34 First Nations communities were battling forest fires in the short time before C-5 was adopted, and rights holders were turned away from committee hearings on the bill.

Alison Carstairs, vice-chair of the Canadian Bar Association’s (CBA) Aboriginal law section, was moved by the “very passionate” Indigenous-focused debate in the Senate, which supported points raised in the CBA’s brief she co-authored, calling for greater clarity and serious consultation with Indigenous peoples.

“I was crying,” says Carstairs, who is Métis on her mother’s side.

While she understands the concerns of “people who have been rejected over time,” she’s encouraged that C-5’s sunset clause means it will expire in five years.

“Everything was rejected and was accepted as well,” Carstairs says, referring to Senator Gold’s commitment that amendments to the bill will be “rigorous and comprehensive.”

After C-5 was adopted in the House of Commons, the prime minister announced a series of summits with First Nations, Inuit, and Métis starting July 17 in Ottawa. Rights holders, as the chiefs are known, will meet with Carney, his ministers, and senior civil servants for post-adoption consultations.

Carney has said FPIC “is the right thing to do” and promised an “Indigenous advisory council” on project selection so that “Indigenous communities participate fully in the national economy.”

“It’s about enabling long-term wealth and prosperity for Indigenous peoples, through full equity partnership,” he said.

Woodhouse Nepinak says the prime minister’s plans to meet with the chiefs are “a positive sign for the relationship,” but a one-day consultation is “not enough.” 

The AFN will hold a three-day virtual consultation with its members in September to formulate its legislative amendments.

Meanwhile in the courts, Alexander foresees lawsuits stemming from environmental and regulatory concerns, impacts on Indigenous peoples, their participation or lack thereof in projects, and how consultations are handled.

“The federal government is particularly horrible at fulfilling the duty to consult,” he says, noting that when Ottawa invested in the Trans Mountain Pipeline, the process was flawed. Consultations were ad hoc, at best.

“They haven't really invested much in it other than just this very specific project. It’s not as though there's a robust duty-to-consult team of negotiators ready to be deployed.”

Alexander says the government created consultation teams to deploy in Alberta and British Columbia because they needed that for Trans Mountain to be approved. 

He wonders if Justice Minister Sean Fraser’s suggestion that Indigenous peoples would have no veto over development projects, even though it was quickly withdrawn, may be a clue about Ottawa’s real intentions.

Alexander says the federal government could fulfill its duty to consult, preferring to obtain Indigenous consent.

However, if consent can’t be obtained, they may move ahead without it if it involves “a project (of national interest) that’s more important than Section 35.”