Prime Minister Mark Carney, right, signs a pipeline memorandum of understanding with Alberta Premier Danielle Smith in Calgary on Thursday.Jeff McIntosh/The Canadian Press
Terri-Lynn Williams-Davidson, K.C., and Elizabeth Bulbrook are lawyers at White Raven Law.
When Prime Minister Mark Carney and Alberta Premier Danielle Smith stood together last week to lay the groundwork for a new oil pipeline, they framed it as a bold step in Ottawa’s push to fast‑track infrastructure and major projects.
Behind the announcement lies a deeper story: one of environmental standards being sidelined, provincial opposition ignored and Indigenous rights placed at risk.
B.C. Premier David Eby has already voiced his opposition. And for First Nations whose lands and waters are directly in the path of such developments, there is serious risk of rolling back hard-won rights and opening lands and waters to decisions taken without Indigenous consent.
Such risk is widespread. For long, proponents have said it’s difficult, if not impossible, to build new pipelines in Canada. Now, Mr. Carney welcomes a new pipeline so boldly and nakedly because the government has new powers that make it easier.
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Mr. Carney’s Bill C-5 creates exceptional regimes for projects labelled “nationally significant,” concentrating sweeping decision-making authority in cabinet and compressing or bypassing normal environmental and regulatory review. And ironically, for all of Mr Eby’s opposition to a new pipeline, his province has a version of Bill C-5, too, Bill 15.
Last week’s pipeline announcement, and the backlash it triggered among certain Indigenous groups, should be taken as a sign of more trouble to come, for Mr. Carney and Co. can do much worse than just one oil duct.
The governments’ new laws mean pipelines, LNG facilities, ports, subsea cables, highways and other large-scale developments can be fast-tracked on a political timeline rather than through a substantive process grounded in reconciliation and aligned with Canada’s United Nations Declaration on the Rights of Indigenous Peoples Act.
Both bills pay lip service to Indigenous consultation, but they stop short of protecting consent or meaningful participation. Consultation is treated as a procedural box to tick rather than a substantive duty to reconcile and accommodate, as clarified by the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests).
The stakes are particularly high for coastal and marine territories. Canadian courts have yet to recognize Aboriginal title to marine and ocean territories, leaving questions of Indigenous jurisdiction over these waters unresolved and increasingly contested. For many coastal Indigenous First Nations, including the Haida Nation, the marine environment is not separate from that of the land. It is integral to Indigenous governance, economy, identity and legal orders.
Legislation that empowers the federal cabinet to approve offshore terminals, shipping corridors, subsea cables, offshore wind installations or deep-sea mining operations without requiring Indigenous consent creates a jurisdictional vacuum the government is poised to exploit.
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The federal bill explicitly allows cabinet to advance projects despite unresolved Aboriginal title, territorial assertions or established Section 35 rights. The provincial counterpart, B.C.’s Bill 15, the Infrastructure Projects Streamlining Act, does the same in its own language. Neither law defines “national interest” or “provincially significant” with clarity, thereby enabling them to bypass or fast-track key regulatory steps.
Environmental assessments may be shortened or waived altogether. Consultation and accommodation with Indigenous peoples remain a legal requirement, in that the act requires “engagement with First Nations” as part of the streamlined process – but it does not guarantee consent or spell out what “engagement” means. Critics have pointed out that the risk is that compressed timelines will limit the opportunity for meaningful, good-faith dialogue with Indigenous groups.
Already, this fall, Mr. Carney announced that Canada will fast-track LNG export projects in B.C., invoking Bill C-5 as a vehicle to accelerate approvals. Though less contentious than an oil pipeline, this project has direct implications for Indigenous peoples along the coast of B.C., many of whom have unresolved assertions of title to marine territories that would be affected by LNG terminals, shipping corridors and associated infrastructure. For coastal First Nations, the risks include not only infringement of constitutionally protected rights, but also significant threats to marine ecosystems that sustain Indigenous economies, governance systems and cultural practices. Fast-tracking LNG without Indigenous consent illustrates how Bill C-5 may be used in practice to subordinate Indigenous title and rights to cabinet’s assessment of the “national interest.”
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There are now legislative mechanisms for Canada and B.C. to circumvent consultation, consent and the implementation of Aboriginal title and rights. Governments must think carefully about how they use such mechanisms. Governments at both levels must uphold their constitutional obligations to consult and accommodate Indigenous peoples in a manner that is meaningful, timely and consistent with the Crown’s duty to act honourably and the Crown’s fiduciary obligations.