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| Nick Leeson |
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| Patrick McCaugherty |
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| Christa Croos |
Framed as an urgent response to U.S. trade pressure and economic instability, the Building Canada Act introduces what the government touts as a streamlined path for approving major resource and infrastructure projects. But behind this language of urgency and efficiency lies something more profound: a sweeping concentration of power.
Indeed, the Building Canada Act marks a decisive shift in how Canada greenlights such projects — transforming the project approvals landscape while eschewing environmental safeguards and Indigenous rights under the pretense of an ill-defined “national interest.”
Canada’s track record with expedited development offers cautionary lessons. Modern project approvals that adequately manage risks and meet legal requirements are often complicated and take time to execute properly. Historical failures show us that speed without rigour can invite disaster — legal, ecological and political.
‘Deemed approved’: The quiet transformation of federal project review
The main way that Bill C-5 aims to streamline federal approvals is by setting up a new system that says the quiet part out loud: for “national interest projects,” the default answer is “yes’” — unless proven otherwise.
Projects can be designated as “national interest projects” by the Governor in Council based on a broad and non-binding list of considerations, including Canada’s resilience, economic benefit or whether the project “advances the interests of Indigenous Peoples.” These are not mandatory criteria, and no formal thresholds need to be met.
Once designated, the Building Canada Act bypasses the usual permitting process by “deeming” all required federal authorizations — under laws like the Fisheries Act or Species at Risk Act — to be already issued. Instead of project proponents having to apply for multiple approvals, they receive a single, consolidated authorization document. While this document may include conditions, there is no legal requirement that those conditions address environmental protection or uphold Indigenous rights.
blueringmedia: ISTOCKPHOTO.COM
Crisis-wrapped deregulation: How Bill C-5 extends a cross-Canada trend
Sadly, the approach taken by the federal government in the Building Canada Act is far from novel or isolated in this moment. It follows almost identically — and just as problematically — the footsteps and legislative templates adopted recently by Ontario’s Bill 5 and British Columbia’s Bills 14 and 15. This growing federal-provincial consensus presents itself as a pragmatic crisis response, but it is, in reality, a structural pivot toward centralized discretion and regulatory bypass.
To be fair, the Building Canada Act includes some surface-level improvements over its provincial counterparts. For instance, unlike Ontario’s Bill 5, it lists a set of discretionary factors that may guide statutory decision-making and includes a formal requirement to consult Indigenous Peoples — though this is already a constitutional duty under s. 35. The Act’s designation powers are also time-limited to five years, positioning the law as a nominal emergency response rather than the indefinite override mechanism embedded in Ontario and B.C.’s legislative initiatives.
But these are distinctions of degree, not kind. In form and function, the Building Canada Act still shifts Canada’s project approval system away from rigorous, evidence-based review toward a default of central discretion. The language of urgency may be short-term — the impacts will not be.
With Crown governments sawing away at both ends of the tenuous suspension bridge that Indigenous rights stand on, those rights risk collapsing into a canyon of deregulation. Environmental and climate safeguards may follow. The result is a national trendline: deregulation dressed in crisis language, sidestepping the very jurisdictions and legal obligations governments are constitutionally bound to protect and respect.
Implementation is everything: Will C-5 make or break public trust?
The proof of this policy pudding will be in the eating. Will this Act be the pudding that feeds the hunger tariff monster while adequately protecting the health and well-being of those who live in Canada? That remains to be seen. Ultimately, the extent to which this Act reshapes how projects are approved will depend entirely on how it is implemented.
On that front, the Act grants broad discretion to the minister designated under s. 6, who is tasked with advancing national interest projects in consultation with ministers responsible for relevant federal authorizations. It falls to them to ensure that core elements of due process — typically undertaken before authorizations are granted — remain intact, and that the precautionary principle is strictly observed. That means pausing decisions for further study where significant risks or uncertainties exist, rather than moving forward rashly in the name of speed.
If the goal is to build at speed, the test will be whether that speed is matched with integrity. Will Bill C-5 become a turning point in Canada’s constitutional accountability — or another chapter in the story of fast-tracked failure?
Indigenous Peoples’ territories cannot be laboratories for crisis-driven law and policy
The Building Canada Act risks reverting to outdated practices — treating Indigenous Peoples’ territories as test sites for nation-building experiments. When it comes to “streamlining” major projects, this is not the time for governments to play with legislative beakers. The costs of failure — environmental degradation, rights violations and broken relationships — are simply too high.
While the Act postures to align with the minimum rights afforded Indigenous Peoples under the United Nations Declaration on the Rights of Indigenous Peoples, it fails to implement its core principle: free, prior and informed consent (FPIC). This omission is glaring given Canada’s existing commitment under the UN Declaration Act. Worse still, Bill C-5 offers no clear pathway for embedding FPIC into project approvals — not even a mechanism to assess when or how it should apply.
If the federal government is serious about building certainty and accelerating timelines, Indigenous consent must be foundational — not patched on after the fact or misconstrued with consultation. That means treating Indigenous governance as essential to public legitimacy, not as an obstacle to expediency.
Indigenous governments have long made clear what’s needed: come to us first. Not after routes are drawn or shovels are prepped. The most effective negotiations begin by building the framework together — defining the process, roles and expectations on a government-to-government basis from the start. On those terms, many First Nations are ready to be partners. What’s missing is not willingness — it’s inclusion.
During the election campaign, the Carney government rightly emphasized the need for intergovernmental consensus as a model for national resilience. That approach makes good sense — but it will fail if it excludes Indigenous governments who are the jurisdictional rights-holders with the deepest and most enduring relationship to the land.
Excluding Indigenous governments from meaningful decision-making not only weakens outcomes, it undermines the very unity needed to confront today’s global instability. When governments treat their relationships with Indigenous Peoples, and Indigenous territories themselves, as policy laboratories, it is taxpayers who ultimately bear the costs — through litigation, environmental remediation or stalled projects mired in mistrust.
Crown governments must abandon the illusion that speed and exclusion can coexist with long-term success. If they want to build fast, they must build together — with Indigenous governments at the table from day one, as co-developers of the path forward, not relegated to the sidelines. A future built without consent is not just unstable, it’s unsustainable. Any nation that builds without its First Peoples builds on borrowed land, borrowed time and broken trust.
Nick Leeson is senior counsel with Woodward LLP. His practice is based out of British Columbia, where he practises law for Woodward across Canada, representing Indigenous clients and interests from coast-to-coast-to-coast.
Patrick McCaugherty is an associate with Woodward LLP. His practice is based out of Ontario, where he practises law for Indigenous clients throughout the province.
Christa Croos is an associate for Woodward LLP. Her practice is based out of Ontario, where she represents clients in the Northwest Territories and in Ontario on matters related to lands, governance and natural resources.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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