Building Canada Act creates legal black holes

By Lethbridge Herald on August 8, 2025.

Jocelyn Stacey
Quoi Media

Newly elected Prime Minister Carney, along with several provincial premiers, have made the claim that conditions of “urgency,” “necessity” and “unprecedented crisis” justify initiating legislative grants of sweeping discretionary powers to the government to act in times of emergency.

U.S. threats to Canadian sovereignty and chaotic tariffs have been layered onto existing crises of economic insecurity, the housing crisis and the climate emergency — all of which have been harnessed by political leaders to rationalize exceptional treatment for priority infrastructure projects.

While these crises are real – and require government action and regional cooperation – we should be cautious not to cede the basic protections that the rule of law provides to communities and to our environment in our haste to “build, baby, build,” as the Prime Minister likes to put it.

In June, the House of Commons passed Bill C-5, which would enact the Building Canada Act. Following on the heels of controversial provincial legislation — BC’s Infrastructure Projects Act and Ontario’s Protect Ontario by Unleashing our Economy Act — Bill C-5 proposes to empower the federal Cabinet to “deem” certain projects in the national interest in order to exempt such projects from ordinary environmental and regulatory laws.

These statutes are attempts to create ‘legal black holes,’ which law professor, David Dyzenhaus and others, describe as attempts by the legislature to create pockets of power for government to make decisions based purely on political whims, without legal guardrails.

In a system of government committed to the rule of law, such attempts must be resisted. Consolidating government power in order to resolve one crisis may simply fling us into another.

The Building Canada Act is an attempt to eliminate due process for the environment and due diligence for project proponents. Typically, major development projects are subject to environmental laws that provide a framework for input from the public, local governments and scientific experts and facilitate consultation and cooperation with Indigenous Peoples. These are the laws that protect us from avoidable disasters and that require companies to monitor potential environmental harms over the lifespan of their projects.

Under this Bill, “national interest projects” will be exempt from these ordinary laws. Cabinet alone will decide which projects should be automatically exempt and a sole Minister will decide what requirements apply to these exceptional projects.

In a constitutional system governed by the rule of law, we expect Parliament to produce clear standards through the legislative process — not create a two-tier system under which the executive can declare at will who is or is not subject to the ordinary rules. Bill C-5 undermines this basic constitutional commitment to the rule of law.

To borrow from Aristotle, Bill C-5 represents not the rule of law, but “the rule of men.”

We may well be experiencing a world engulfed in crisis, but we should not allow our legislators to forfeit legal procedures and safeguards. Weakening environmental requirements and depriving communities of the opportunity to have a say in decisions that affect them diminishes us democratically and, historically, has led to catastrophic mistakes. We need not repeat the Walkerton drinking water tragedy or the Mount Polley mining disaster. Nor roll back the clock on efforts to seek and uphold Indigenous consent.

Bill C-5 consolidates more power in the hands of already powerful government and industry actors and strips from communities and the environment the most basic legal protections that everyone in a rule of law system deserves.

Building Canada requires a strong constitutional foundation. Moving forward with the Building Canada Act would render any “national interest projects” faulty from the start.

Jocelyn Stacey is an associate professor at the Peter A. Allard School of Law at the University of British Columbia. She is the author of The Constitution of the Environmental Emergency (Hart Publishing, 2018).

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