Trusting democracy by amending federal Bill C-5

Today we talk about the democratic principles at stake when Parliament reviews Bill C-5. On Wednesday we will explore possible amendments.

This image is from the House of Commons’ welcome page. It’s Sunday, June 15, as the calendar on the table before the Speaker’s chair indicates. Nobody in the chamber today. The question is: do we want a democracy where the MPs of the House of Commons vote away their own relevance in Bill C-5 and act as if their chamber is indeed an empty vessel when it comes to having any say in momentous nation-building project decisions to come?

Introduction and reminder: the risks of Bill C-5

Last Monday, we alerted readers to serious risks with the “Building Canada Act” that is part of the federal government’s just-introduced Bill C-5: see “Ford’s Bill 5 and Carney’s Bill C-5, two peas in a pod?” which creates a framework for greenlighting major “nation-building projects.” The commitment to undertake big building projects and significantly to speed up the approval process is commendable. But the risks to democracy, the environment, the rule of law and Indigenous rights posed by the bill are, in our view, too great even in the face of the crisis.

Today we remind readers of the risks Bill C-5 poses to democratic values, values that must and can be accommodated even as the government rightly seeks to speed up the approval process for major projects. On Wednesday, we will set out specific ways in which we believe the proposed legislation might be amended.

Bill C-5’s problems: Sharing the views of Ecojustice and the Chiefs of Ontario

In our last post on Bill C-5, we directed readers to a legal analysis done by Ecojustice. Here’s a follow up summary of their concerns by Charlie Hatt and called “Carney government needs to go back to the drawing board on fast-tracking Bill C-5’s Building Canada Act.” Hatt’s piece is short (so a quick and easy read, if you click on the link), but we quote much of it so that you can be better situated to weigh the risks the bill poses.

…This new law would provide the federal cabinet with sweeping new powers to designate “national interest” projects and give their proponents a golden ticket: guaranteed federal approval, subject to conditions “TBD”, and the ability to exempt major projects from Canada’s most important federal environmental laws, and even health and safety laws.

Normally these review and permitting laws work like check points for proposed projects as they move from concept to construction. When properly implemented, they make sure we know what impacts on health and environment a project might have before those impacts start to be felt. And where those impacts would breach certain standards, federal decision-makers are empowered (sometimes required) to say “no”.

The “golden ticket” system — what’s at stake?

The Carney government’s golden tickets would act like the ultimate free pass for national interest projects. Projects would be conditionally approved upfront before any review. What’s more, in the compressed project review period that follows, every determination, finding or opinion that the federal government has to make under applicable review and permitting laws is “deemed” by law to go in favour of approving the project — like having a rule that every card you pull from the deck is deemed to be an ace. While conditions may ultimately be attached to the golden ticket, the conditions need not be as protective as otherwise required by law. In practice this means that national interest projects keep their golden tickets even if review shows they would have impacts that would otherwise breach federal laws. For example, a project could be authorized even if it would cause an extinction by killing the last remaining member of a species. Nor does the BCA require a transparent public process with objective criteria for any decisions on conditions – lobbyists rejoice!

Risks to environment and public safety

Well, you might say this sounds questionable, but I guess it’s alright if they pick good projects, right? That is a big “if”….

In truth, the BCA gives federal cabinet the power to designate any project as “national interest” based on “any factor”. Even if you agree with this government’s pet projects, what about the next government’s, or the one after? Parliament should not enact laws on the “trust us” principle.

The Henry VIII clause — sidestepping parliamentary oversight

But it gets worse because the bill actually uses the “trust us” principle again to give the federal cabinet a gigantic “Henry the VIII clause” — so named for the English king who preferred ruling by royal decree than by laws debated and voted on by Parliament. Federal cabinet has power under the BCA to order that any of the key federal laws scheduled do not apply to national interest projects, and to add whatever other laws to the schedule as they please. In effect, the federal cabinet will have the power to decide whether and how federal law applies to its handpicked national interest projects —without any further sign-off from Parliament. Just imagine the potential for political horse-trading and closed-door lobbying.

And what about Indigenous rights?

On top of all of this, the bill’s text does not give any real assurance that Indigenous peoples’ rights will be respected. What will happen if Indigenous peoples do not provide their free, prior and informed consent before a project is designated as “national interest”? The bill does not say. Can meaningful consultation even occur within the golden ticket system? The bill gives no details.

…

Following on from the last paragraph of the Ecojustice piece, consider now this press release two days ago from the Chiefs of Ontario (“Chiefs of Ontario issue urgent warning on Bill C-5, the One Canadian Economy Act, and will rally on Parliament Hill,” June 14). We reproduce the first few paragraphs:

The Chiefs of Ontario have issued a clear and urgent response to Bill C-5, the federal government’s proposed One Canadian Economy Act. Following an emergency meeting today, the Chiefs of Ontario Leadership Council passed a resolution strongly opposing both the content of the bill and the undemocratic process being used to rush it through Parliament without meaningful consultation or study.

The federal government has blocked First Nations in Ontario from speaking in committee. So they’ll have to face them on the Hill. First Nations will rally on Tuesday, June 17 at 12:30 p.m

Bill C-5 proposes sweeping new powers that would allow the federal government to fast-track major infrastructure projects. Under the legislation, a single federal minister would be authorized to approve projects, override regulatory protections, and bypass environmental and social safeguards, all without returning to Parliament for further approval.

First Nations Leadership reject this model and are calling for any engagement process to be distinctions based and rooted in the recognition of rights, jurisdiction, and the free, prior, and informed consent of First Nations.

…

How to think about the bill

Democracy is more than the act of electing our House of Commons every few years and it’s more than what a majority of MPs vote yes to. And, in Canada, democracy includes Indigenous rights. A robust Canadian democracy includes a number of principles of particular significance in considering C-5:

• One of Parliament’s ongoing functions — beyond simply studying bills and voting yea or nay to them — is to hold the executive accountable for what it does to give effect to laws. This includes the scrutiny of public accounts, the response to Auditor-General reports on government performance, and scrutinizing a variety of executive law-making acts.

• Transparency and timely, accessible public knowledge of what the executive is doing and has done is crucial for accountability. Essential to robust democracy is that both parliamentarians and citizens have the information they need to assess the government and make informed choices.

• It is crucial that governments give reasons to explain what they have chosen to do. Administrative law in Canada, as articulated by the courts, has come to impose a duty on executive decision-makers to give meaningful reasons when exercising the variety of kinds of discretion that statutes can put in the hands of Ministers (on their own or by delegated decisions on their behalf by civil servants). Similar principles apply when government seeks to justify a statute they have tabled.

• A special feature of Canadian law is the obligation to seek the free and informed consent of Indigenous Peoples prior to state action affecting their rights. The federal United Nations Declaration on the Rights of Indigenous Peoples Act created obligations to cooperate and consult with Indigenous Peoples’ representatives in order to obtain free and informed consent prior to the adoption both of legislation (like Bill C-5) and of executive action flowing from the legislation – especially action related to environmental and other impacts of resource-related projects involving Indigenous territories.

Parliamentary processes that involve written reporting and oral testimony by the executive in hearings before committees can do much to respect all of the above principles. At its best, reason-giving and transparency in such processes generate better collective outcomes. We of course recognize the desire to avoid political delay tactics or grandstanding but full transparency at a time of heightened national attention can discipline the parties to respect urgency and avoid political gamesmanship.

Parliament can write into the bill parliamentary-scrutiny procedures tailored to the challenges of designing and approving major nation-building projects as well as to the need to ensure accountability. These procedures can be tailored to balance the desire to avoid unreasonable delay with the need for meaningful scrutiny.

And Parliament also has general control of its own procedures and can make changes as it wishes to the manner it scrutinizes legislation and executive acts – which can include finding effective and appropriate ways to build in free, prior and informed consent (FPIC) of Indigenous peoples both to the study of Bill C-5 and to the provisions of the statute.

On Wednesday, we will be exploring possible amendments consistent with the above principles. Amendments must be cognizant of urgency but must also respect the roles of Parliament and Indigenous Peoples in scrutinizing the bill and in how the bill structures scrutiny of the discretionary powers the bill gives to the executive once it is enacted.

If we are to accord to the Liberal government of PM Carney the level of trust that it is demanding of Parliament — and us — with respect to Bill C-5, there must be a two-way street. This government must trust our democracy far more than it is currently willing to do.

Till Wednesday.

(For information about the Pledge for Canada / Engagement pour le Canada, see the “About” page of the Pledge’s publication: here.)