By Jana Abu Deyah*
I am a law student at the Bora Laskin Faculty of Law, about to enter my second year, and LAND’s summer law student. From the standpoint of someone learning the law and observing how legislative decisions today affect the integrity of our legal system tomorrow, this think piece offers my reflections and commentary on Bill C-5, An Act to enact the Free Trade and Labour Mobility in Canada Act and the Building Canada Act.
As I read through Bill C-5, the bold declarations of Canada’s economic ambitions sprung out at me. However, it only took me a short time to look past the shiny surface of interprovincial trade freedom and expedited infrastructure pronouncements to see the question marks flooding the bill. Questions about federalism, environmental safeguards and how exactly Indigenous rights are respected when push comes to shove.
Part I of Bill C-5, the proposed Free Trade and Labour Mobility in Canada Act
At first blush, Bill C-5 may appear sensible on paper. The first half of the bill, Part 1 – the Free Trade and Labour Mobility in Canada Act – proposes to facilitate the smooth movement of goods, services and skilled workers across provincial borders by removing federal barriers. Having completed my first year of law school, I have gained enough of a foundation in our Constitution and division of powers to be alarmed at Bill C-5, and the big red federalism flags it raises. For instance, the Bill stipulates that if a good or service complies with provincial requirements, it is deemed to meet comparable federal standards (Part I and sections 8 & 9). This begs the question of who decides what “comparable” means? If a provincial standard is less protective of environmental and human health than the federal standard, for example, can the federal government still deem these standards comparable and allow for the less protective standard to prevail? According to the vague language in the Bill, it says a federal regulatory body can make that call, meaning a central authority can override local nuances.
Let me unpack why I find this provision – which gives the federal regulatory body the power to decide whether a provincial or territorial requirement is “comparable” to a federal requirement (Sections 8(3) and 9(3)) – so troubling. Why do provinces have tailored rules in the first place? To reflect the unique local economies, geographies and social contexts present in each province. It is the pinnacle of what we embrace as Canadians in a highly multicultural environment. Will this federal blanket approach flatten local protections in the name of “building Canada”? I am left feeling unassured on how conflicts will be resolved when federal and provincial entities disagree on what counts as “comparable” or even how these standards are assessed.
Part II of Bill C-5, the proposed Building Canada Act
The second half of Bill C-5 proposes to enact the Building Canada Act which labels projects as “in the national interest”. Once a project is on Schedule 1, it is in the fast lane where decisions, findings, and approvals required under other federal laws are automatically deemed favourable. Can it get any quicker? This is a display of aggressive shortcuts that easily guts the protective and rigorous nature of independent environmental assessments or safety reviews.
Throughout Bill C-5, it uses broad language about the Governor in Council’s power. Specifically, Part II allows the Governor to add or modify project conditions. In my eyes, this reduces transparency given that there could be a quiet adjustment to key terms that communities or Indigenous nations might otherwise challenge. In practice, I see it becoming very difficult for concerned stakeholders – like the public and Indigenous communities – to stop or reshape a damaging project once it is deemed in the “national interest”. Not to mention the very idea of vesting broad discretionary power into one executive body raises serious questions about accountability and checks and balances.
Throughout the preamble of the Building Canada Act, there are repeated pledges to upholding Indigenous rights recognized by Section 35 of the Constitution and the United Nations Declaration on the Rights of Indigenous Peoples (Lines 5, 30, 35). On the surface, this can appear as strong language committing the government to working in close partnership with Indigenous people.
But, as I read on, the word “how” came up too often. How will you protect Indigenous rights? The commitments in the preamble are not legally binding. The teeth of this Act are missing. There is no explicit veto power, no clear dispute resolution pathway, no clarity on what happens if a community opposes a national interest project that affects the land and their rights. Its generous immunity clause reduces accountability since acts done “in good faith” are immune from consequences.
The Way Forward
In order to put trust and belief in Bill C-5’s promises, any proposed legislation must be developed with the meaningful involvement of Indigenous communities, and outline clear standards, binding timelines and consequences for non-compliance. However, right now, it is only a repeat of the promise to respect rights without the safeguards to ensure it.
It is undeniable that Canada benefits from trade and integrated labour markets, but if shortcuts come at the expense of environmental diligence and meaningful Indigenous engagement, we are risking history repeating itself.
As a country, we need to strengthen – not dilute – the checks and balances that keep communities safe. Instead of consoling words in the preamble, it should transform those pledges to enforceable assurances.
For now, Bill C-5 asks Canadians to trust it too much and question it too little. If history taught me anything, it is that when national interest is at stake, rights that are left to the compassion of policy rather than legal responsibility come last.
Bill C-5 should be withdrawn.
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*Jana Abu Deyah (she/her) joins LAND as our 2025 summer law student. Jana is entering her second year of law school at the Bora Laskin Faculty of Law at Lakehead University in Thunder Bay. Her placement has been made possible thanks to the generous contribution by the Law Foundation of Ontario, who funds placements where students can gain legal experience in the fields of Indigenous and environmental law, and support access to justice issues.