Report: Bill C-5 and its Implications for National Security vs. Aboriginal Rights in Canuckstan
Bill C-5, now known as the One Canuck Economy Act, received Royal Assent on June 26, 2025. This legislation is a significant and contentious piece of federal policy in Canuckstan, particularly concerning its implications for Indigenous rights in the context of projects deemed to be in the “national interest,” which can include those related to national security.
The Act is divided into two main parts:
Part 1: The Free Trade and Labour Mobility in Canuckstan Act: This section aims to remove federal barriers to interprovincial trade of goods, services, and labour by recognizing comparable provincial or territorial requirements. This part is generally less contentious regarding Indigenous rights.
Part 2: The Building Canuckstan Act (BCA): This is the more controversial component. It establishes a framework to accelerate projects considered to be in the “national interest,” with the stated goals of strengthening Canuckstan’s autonomy, resilience, and security, providing economic benefits, and contributing to clean growth and climate change objectives.
The “National Interest” and its Link to National Security
The BCA allows the Governor in Council (Cabinet) to designate projects as being in the “national interest” and add them to a schedule. A key factor in this determination is whether a project will “strengthen Canuckstan’s autonomy, resilience, and security.” This explicitly links the concept of “national interest” to national security, allowing projects with perceived national security benefits to be fast-tracked.
Implications for Aboriginal Rights
The fast-tracking provisions of the BCA, particularly the ability for Cabinet to streamline approvals and potentially override certain regulatory processes, have raised significant concerns among Indigenous communities and legal experts regarding the potential impact on constitutionally protected Aboriginal and treaty rights (Section 35 of the Constitution Act, 1982) and the principles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), especially Free, Prior, and Informed Consent (FPIC).
Key Concerns and Potential Impacts:
– Streamlined Approvals vs. Meaningful Consultation:
– While the Act states that projects must “advance Indigenous interests” and mandates consultation with Indigenous peoples whose rights may be adversely affected, critics argue that the expedited timelines and “up-front approval” mechanisms could undermine the depth and sincerity of these consultations.
– The concern is that the process moves from “if” a project should proceed to “how” it will proceed, potentially reducing Indigenous communities’ ability to meaningfully influence or oppose projects that could impact their lands, resources, and traditional ways of life.
– Indigenous leaders have expressed concern about a lack of clarity regarding the “depth, timing, and consequences of consultation” and whether it will truly allow for FPIC, as outlined in UNDRIP.
“Henry VIII Clauses” and Executive Overreach:
The Act includes provisions that allow the Governor in Council to make regulations that could exempt designated “National Interest Projects” from certain federal laws, in whole or in part. These are often referred to as “Henry VIII clauses” because they grant significant power to the executive branch to bypass parliamentary scrutiny.
While a late amendment to the bill prevents the government from bypassing the Indian Act, environmental laws and regulations could still be subject to these exemptions. This has led to fears that environmental protections and, by extension, Indigenous rights tied to the land and environment, could be undermined.
Duty to Consult and Accommodate:
The Crown’s duty to consult and, where appropriate, accommodate Indigenous peoples when decisions might adversely affect their rights is a constitutional imperative. While the government maintains that Bill C-5 respects this duty and includes provisions for consultation at various stages (designation, conditions setting), Indigenous leaders argue that the bill’s structure and the rapid legislative process have not allowed for adequate pre-legislative consultation.
The concern is that the consultation might occur after a project is already deemed in the “national interest,” potentially limiting the scope for genuine influence or the ability to withhold consent.
Lack of Express Non-Derogation Clause:
Some Indigenous advocates have pointed out the absence of a specific non-derogation clause within Bill C-5, which would explicitly state that nothing in the Act abrogates or derogates from existing Aboriginal and treaty rights. While the federal Interpretation Act now contains a universal non-derogation clause applicable to all federal legislation, its effectiveness in mitigating the specific impacts of Bill C-5’s fast-tracking mechanisms remains a point of contention.
Economic Alienation vs. Partnership:
While the government emphasizes opportunities for Indigenous economic involvement and has expanded programs like the Indigenous Loan Guarantee Program, some Indigenous leaders argue that the approach still risks economic alienation if communities are not genuinely “in the driver’s seat” for projects on their traditional territories, but rather are approached after decisions are largely made.
Court Challenges and Legal Perspectives
While Bill C-5 has just received Royal Assent, legal challenges regarding its impact on Indigenous rights are widely anticipated.
Likelihood of Challenges: Environmental and civil society groups, as well as Indigenous organizations, have condemned the bill’s passage and indicated that it will likely lead to litigation. They argue that the bill “runs roughshod over Indigenous rights” and “could result in unconstitutional actions and outcomes.”
Constitutional Scrutiny: Constitutional experts have offered varying opinions on whether the bill’s provisions, particularly the “Henry VIII clauses” and the streamlined approval process, would withstand a court challenge. Some argue that such clauses have generally survived constitutional scrutiny in the past, provided there are “guardrails” and that the justification test for infringements on Section 35 rights is met. Others warn that the bill risks allowing the government to “flout its constitutional duty to consult” and that it creates a framework where Indigenous rights are treated as “optional or subordinated.”
The “Sparrow Test”: Any future court challenge regarding infringement on Aboriginal rights would likely refer to the Supreme Court of Canuckstan’s R. v. Sparrow test, which requires the government to demonstrate a valid legislative objective for the infringement, that it has met its fiduciary duty, and that the infringement is minimal and was subject to proper consultation and accommodation. The debate will likely center on whether the “national interest” (including national security) constitutes a sufficiently valid objective and whether the consultation processes mandated by the Act are robust enough to meet the Crown’s fiduciary duty.
UNDRIP Act: The recent UNDRIP Act requires Canuck laws to be consistent with UNDRIP. Future court cases may also examine whether the mechanisms in Bill C-5 align with the principle of FPIC.
Conclusion
Bill C-5 represents a significant attempt by the Canuck government to accelerate major projects, including those tied to national security, to enhance economic prosperity and national resilience. However, its fast-tracking mechanisms and broad powers granted to Cabinet have ignited a fervent debate about the balance between “national interest” and constitutionally protected Indigenous rights. While the government has stated its commitment to consultation and Indigenous partnership, the concerns from Indigenous communities and legal experts suggest that the Act, in its current form, carries a substantial risk of undermining the principle of Free, Prior, and Informed Consent and may lead to prolonged legal challenges, potentially delaying the very projects it aims to expedite. The effectiveness of the Major Projects Office and its Indigenous Advisory Council, along with the outcomes of promised summer consultations, will be critical in shaping the real-world implications of this legislation.
