A significant legislative shift is underway in both Ottawa and Queen’s Park, one that should command the attention of lawyers in environmental, Indigenous, and administrative law. Federal Bill C-5 and Ontario’s Bill 5 are united by a common objective to accelerate major projects in the name of national and provincial prosperity. However, the legal mechanisms they employ to achieve this speed are prompting serious questions about constitutional duties, procedural fairness, and the future of regulatory certainty.
The central strategy of both bills is the creation of fast-track lanes. This involves designating projects of “national interest” and establishing special economic zones for “trusted proponents.” Yet, the criteria for who qualifies as a trusted proponent remain notably ambiguous. This lack of clarity opens the door to potential challenges on the grounds of fairness and arbitrariness. Without transparent and objective standards, the selection process could be perceived as preferential, undermining confidence in the regulatory system.
Here, a key divergence emerges between the federal and provincial approaches. The federal regime under Bill C-5, while not without its flaws, incorporates more structured safeguards. It includes measures to address potential conflicts of interest within its fast-tracking framework, providing a degree of procedural rigor. In contrast, the Ontario regime lacks a comparable level of transparency in its trusted proponent model. This failure to build in clear, public-facing criteria fails to provide the confidence necessary for such a significant delegation of power. This core issue of executive empowerment is further complicated by its intersection with constitutional law. Both bills introduce “deemed approval” mechanisms, which create a direct friction with the Crown’s unqualified Duty to Consult. Consultation that occurs after a decision is effectively made is a legal fiction. This creates a significant litigation risk for proponents, as projects approved under a flawed process are vulnerable to judicial review.
The retreat from established environmental safeguards is equally profound. Both bills signal a move away from evidence-based environmental assessments towards a model with pre-determined outcomes. The delisting of species and the creation of a “registration-first” regime make it difficult for the public and First Nations to understand a project’s true impact. This erosion of transparency conflicts with the need for informed consultation and informed public opinion. For municipalities, these changes create a complex new dynamic. As local stewards, they must manage the implications of fast-tracked projects within their communities, often with reduced input. The changes will also directly impact how municipalities engage with Indigenous communities on shared resources, potentially straining carefully built relationships.
In essence, these bills are trading detailed regulatory criteria for broad ministerial discretion and replacing public participation with streamlined, top-down decision-making. The great paradox is that in seeking certainty and speed, these laws may achieve the opposite. The ambiguity around trusted proponents, the constitutional risks around consultation, and the reduced environmental transparency create a precarious legal landscape. For lawyers advising clients on either side of a project, the terrain has become more uncertain, demanding a careful and critical eye on this new era of project approvals.
Interested in learning more about the proposed changes to Canada’s regulatory landscape for major projects, mining, and critical infrastructure? Consider registering for this CPD webcast, Bill C-5 and Bill 5: Fast-Tracking Projects and Shifting Protections.
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