A. PURPOSE
The purpose of this Communique is to provide an overview of Bill C-5: An Act to enact the Free Trade and Labour Mobility in Canada Act and the Building Canada Act (“Bill C-5”) and to discuss how the rights of First Nations in what is now known as British Columbia (“B.C.”) may be impacted by it.
This Communique is not legal advice and is meant to serve as a starting point for further discussion.
B. BACKGROUND
On May 23, 2025, Canada sent a letter to First Nations and certain First Nation organizations to “consult and cooperate” on the development of Bill C-5, giving only seven days to respond. The text of Bill C-5 was not shared at that time, just a high-level summary of its proposed content. On June 6, 2025, Canada tabled Bill C-5. On June 20, 2025, Parliament passed Bill C-5. On June 26, 2025, the Senate passed Bill C-5. As of the date of this Communique, Bill C-5 is only awaiting Royal Assent from the Governor General and is expected to pass into law tonight.
C. DISCUSSION
1. Content of Bill C-5
Bill C-5 has two operative parts. Part 1, the Free Trade and Labour Mobility in Canada Act, establishes mechanisms to remove federal trade and labour mobility barriers and is not discussed in this Communique. Part 2, the Building Canada Act (“BCA”), establishes a process that would enable the streamlining of projects that are determined to be in the “national interest” (“National Interest Projects”). The BCA is intended to shift the federal review process from “whether” to build National Interest Projects to “how” to advance them.
The BCA is the focus of this Communique.
2. Content of the BCA
National Interest Projects will be listed in Schedule 1 of the BCA. The Governor in Council (“GIC”), on the recommendation of the Minister, may designate1, amend2, or delete3 National Interest Projects within/from that schedule. The GIC cannot delete a National Interest Project from Schedule 1 after a Conditions Document (discussed below) has been issued. In determining whether a project is a National Interest Project, the GIC may consider any factor that it considers relevant, including the extent to which the project:
- will strengthen Canada’s autonomy, resilience, and security;
- provides economic or other benefits to Canada;
- has a high likelihood of successful execution;
- advances Indigenous interests; and
- contributes to clean energy and meeting Canada’s climate change objectives.
The BCA provides that once a project is designated a National Interest Project, the Minister must issue a Conditions Document. The Conditions Document serves as a blanket authorization for all federal approvals and permits required and sets out any conditions related to authorizations that would have otherwise been provided under another enactment4. Prior to issuing a Conditions Document, or adding or amending any conditions, the Minister is required to consult with the ordinarily responsible minister(s) and with any Indigenous peoples whose rights may be adversely impacted.
If a National Interest Project is also a “designated project” within the meaning of the Impact Assessment Act5, the National Interest Project is deemed to require an impact assessment under that act, however, the National Interest Project will be exempted from the planning phases of the impact assessment process. The time limit for information gathering set out in section 18(1) the Impact Assessment Act will not apply to National Interest Projects.
The BCA will establish a Major Projects Office to provide oversight of National Interest Projects throughout the authorization process. The Major Projects Office will be responsible for, among other things, helping proponents as they proceed through the process, including consultations with Indigenous peoples and helping to ensure Indigenous equity opportunities and economic involvement as accommodation measures. The Major Projects Office will be supported by an Indigenous Advisory Office.6
Under section 22 of the BCA the GIC, on the recommendation of the Minister responsible for an enactment, may exempt one or more National Interest Projects from the provisions of that enactment or the regulations under that enactment or vary the application of any provision of that enactment. The GIC may make regulations exempting one or more National Interest Projects from the application of any provision of the BCA or vary the application of any provision of the BCA.
The BCA requires that the Minister consult with Indigenous peoples whose interests or rights may be adversely affected by a project before: designating the project as a National Interest Project, issuing a Conditions Document, or amending the conditions of a Conditions Document.
3. Concerns with Content and Processes Undertaken in Development of Bill C-5
The process that preceded Bill C-5’s introduction, and Bill C-5 itself (specifically, the BCA), do not align with the government of Canada’s commitments to implement the United Nations Declaration on the Rights of Indigenous Peoples (“UN Declaration”), or obligation to ensure the laws of Canada are consistent with the UN Declaration as required by section 5 of the United Nations Declaration on the Rights of Indigenous Peoples Act (“UN Declaration Act”).
The UN Declaration Act and the UN Declaration obligate the government of Canada to consult and cooperate with Indigenous peoples in good faith in order to obtain their free, prior, and informed consent before tabling proposed legislation that may impact their rights. This did not occur with Bill C-5.
The seven days given for First Nations and First Nations organizations to review and comment on what, at that time, was a high-level summary of Bill C-5’s proposed content, was entirely deficient, and did not even meet bare consultation requirements. Bill C-5 was effectively unilaterally developed by the government of Canada and First Nations were given no meaningful opportunity to engage on it or to influence its content prior to its introduction.
Further, shifting federal oversight from whether to build projects to how to best advance them suggests the processes established by the BCA could run roughshod over First Nations’ rights and jurisdiction by forcing through those projects deemed to be in the national interest, irrespective of their physical impact or decisions made by impacted First Nations about those projects.
The factors that may be considered in designating a project as being a National Interest Project are broad and heavily focused on economic advantages and Canada’s assertion of sovereignty. Although “Indigenous interests” and climate change objectives are included on the list of factors to be considered, they are listed secondary to the above and appear to not be mandatory. More significantly, the term “Indigenous interests” is not grounded in the UN Declaration, section 35, or related case law.
As it relates to Indigenous peoples, the shift toward use of interest-based language, rather than rights-based language, risks giving those making the decision significant latitude as to what constitutes an “Indigenous interest” as it is largely a subjective determination. This does not represent any sort of principled or structured framework for the exercise of discretion, let alone consistency with the UN Declaration, as is required to meet the government of Canada’s obligations to Indigenous peoples.
The “streamlined” federal approval and permitting process to be established by the BCA risks bypassing important regulatory and environmental review processes which serve as the processes by which the government of Canada has implemented its duty to consult and potentially accommodate Indigenous peoples in respect of anticipated impacts.
Bypassing these processes creates uncertainty as to how the government of Canada intends to uphold its constitutional obligations to Indigenous peoples and commitments and obligations under the UN Declaration Act and UN Declaration. While the BCA requires the Minister to consult with other federal ministers and impacted Indigenous peoples prior to issuing or amending a Conditions Document, it does not set out how this process is to occur or assure the process will be meaningful and consistent with the UN Declaration or section 35. There is also no minimum time specified in which meaningful and consistent with the UN Declaration or section 35. There is also no minimum time specified in which consultations are to occur.
Once a Conditions Document is issued, it serves as the blanket authorization for all federally required permits for the National Interest Project. The BCA sets out processes for amending or varying the conditions attached to a Conditions Document, however, there are no provisions that set out when and how a Conditions Document may be cancelled.
The BCA enables the GIC to pass regulations that would exempt one or more National Interest Projects from the provisions of an enactment or from the BCA itself, in whole or in part. This means that the GIC could pass regulations that would further exempt National Interest Projects from already limited oversight mechanisms, including environmental regulations and protections, and this regulation-making power is not expressly limited by any condition within the BCA. These provisions, also known as Henry VII clauses, limit the availability of judicial review by providing no meaningful limits against which a court could review.
While these provisions cannot oust the government of Canada’s constitutional obligations to consult with and potentially accommodate First Nations whose interests and rights may be adversely impacted, the broad powers conferred on the GIC under the BCA run the risk of unconstitutional effects through a whittled down duty to consult process, and by permitting the fast-tracking of major resource and infrastructure projects that will very likely have significant impacts on the ability of First Nations to exercise their inherent, constitutional, and human rights.
Aside from a commitment to the UN Declaration in the preamble, the BCA is otherwise silent on the UN Declaration and suggests the government of Canada has no intention of adhering to the principle of free, prior, and informed consent in the designation of National Interest Projects or in the implementation of the BCA. Further, the BCA does not leave space for the exercise of First Nations’ jurisdiction over National Interest Projects or offer any recognition of such jurisdiction.
D. NEXT STEPS
Bill C-5 was passed by Parliament by a Liberal and Conservative coalition on June 20, 2025, and was passed by the Senate on June 26, 2025. Bill C-5 will now go to the Governor General for Royal Assent and is expected to pass into law tonight. The FNLC continues to call on the government of Canada to withdraw Bill C-5 as currently drafted. UBCIC’s resolution opposing Bill C-5 is attached to this Communique as Appendix “B”, and FNS’ resolution opposing Bill C-5 is attached to this Communique as Appendix “C”. In addition, attached as Appendix “D” to this Communique is BCAFN’s June 17, 2025, submission to the Standing Committee on Transport, Infrastructure, and Communities, and attached as Appendix “E” to this Communique is UBCIC’s June 17, 2025, submission to the Senate.
The National AFN is organizing a virtual forum for Chiefs and Leaders on July 10th in advance of a National meeting on July 17, 2025.7 Additional information is forthcoming.
First Nations, First Nation aggregates, and First Nation coalitions may wish to consider taking the following next steps:
- Speak with their legal counsel to begin strategizing around potential legal responses to Bill C-5.
- Engage in internal discussions and discussions with like-minded First Nations, First Nation aggregates, and First Nation coalitions to begin strategizing around potential non-legal responses to Bill C-5.
- A template open letter is attached as Appendix “F” to this Communique for First Nations to consider adapting, sending to Prime Minister Mark Carney, and publishing publicly – press statements are also encouraged.
1 Building Canada Act, s. 5(1). Per s. 5(2), the GIC is not permitted to add any National Interesy Projects 5 years after the date of this section coming into force.
2 Building Canada Act, s. 5(3).
3 Building Canada Act, s. 5(4).
4 “enactment” means an Act of Parliament listed in column 1 of Part 1 of Schedule 2 of the BCA or a regulation listed in column 1 of Part 2 of that Schedule. All enactments currently included in Schedule 2 of the BCA are listed
in Appendix “A” to this Communique.
5 Impact Assessment Act, SC 2019, c 28, s 1.
7 See: https://afn.ca/events/amended-bill-c5/
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