A tale of two Bill 5s

We can respond to Trump's threats and build a strong and resilient economy without undermining our democratic values, environmental protections, and Indigenous rights.

Here’s my speech at second reading on Bill C-5 where I make the case for improving both the process and substance of the legislation.

Against the economic threat posed by President Trump, Canadian politicians have rightly renewed calls for building up our country. It is a nation building moment. A strong and resilient domestic economy is a priority. Of course, it should be.

And to that end, we should remove unreasonable barriers to economic growth.

If a rule doesn’t contribute to the public interest, or if its negative cost is disproportionate to any positive contribution, we should do away with it.

But that doesn’t mean we should pursue economic growth no matter the cost.

Depending on the project, there may be competing public interest considerations: biodiversity and habitat protection, Indigenous rights, climate change, long-term cost-effectiveness, democratic participation, and more.

Yet, under the guise of responding to the threat posed by Trump, we are sacrificing other important values. We aren’t thinking about unintended consequences. And we are actively undermining our parliamentary democracy.

Consider the case of two Bill 5s - Doug Ford’s Bill 5, and the federal government’s Bill C-5.

Doug Ford’s Bill 5

Ontario’s Bill 5 became law last week. It gutted habitat protection just to start, but it also enacted the Special Economic Zones Act to give the government unnecessarily and disproportionately unchecked power.

Effectively, the government can designate special economic zones and then exempt or alter any provincial or municipal law that would apply to a company or project within those zones.

Ecojustice rightly called it a “threat to democracy.”

Worse, the Ford government shut down democratic debate, curtailed committee scrutiny, and jammed the bill through the legislature.

Now, par for the course for Doug Ford maybe.

Mark Carney’s Bill C-5

But Ecojustice has also called the federal government’s Bill C-5 a “threat to democracy” and no Liberal government should welcome that accusation.

Worse, in Bill 5 déjà vu, this federal government is proposing to shut down democratic debate, curtail committee scrutiny, and jam the bill through the legislature.

It would all make Harper blush. Liberals would rightly scream if a federal Conservative government attempted the same.

Now, fairly, while they share similar goals and suffer some similar defects, the federal Bill C-5 isn’t exactly the same as Ford’s Bill 5.

Breaking down interprovincial trade barriers

Part I of the legislation - the Free Trade and Labour Mobility Act - usefully aims to harmonize federal and provincial rules where reasonably possible. The idea is to avoid duplicative regulation of goods, services, and labour where federal and provincial rules are comparable.

And yes, the devil is in the details of assessing what comparable means, but it’s a welcome move.

Streamlining national interest projects

The problems with Bill C-5 lie in Part II - the Building Canada Act.

Its purpose is clear: to get national interest projects built more quickly. So far so good.

The proposed law streamlines authorizations at the same time as it emphasizes the importance of climate action and Indigenous rights. A huge and positive distinction from Ford’s Bill 5. At no point does Ford’s Bill even mention climate change or the need to consult with affected Indigenous rights-holders.

But, despite its promise, the proposed Building Canada Act has two major faults: first, it gives the government unfettered discretion in designating national interest projects and, second, similar to Ford’s Bill 5, it gives the government unchecked power to exclude or alter any law that would otherwise apply to such a project.

The Minister of Natural Resources set the stage for Bill C-5 in a May 23 speech, calling for a “renewed spirit of building” by “reframing the national conversation. No more asking, ‘Why build?’ The real question is, ‘How do we get it done?’”

It would be wise of the government to take its own advice when it comes to Bill C-5. Rather than defending the why - the idea of the bill, we should refocus our attention on the how - how we pass it.

The need for thoughtful consideration of Bill C-5

In other words, we should improve the bill and respect democratic participation as we do so.

First, we should welcome greater parliamentary and civil society scrutiny.

The government’s proposed guillotine motion seeks to limit parliamentary debate at every stage of the bill. More concerning, it will jam all expert/public testimony and all committee scrutiny in less than 2 days, between 3:30 pm on Tuesday and midnight on Wednesday. For what?

Consider that Parliament isn’t currently scheduled to sit between June 20 and September 15. We are rushing legislation through Parliament under the auspices of an urgent threat, but we aren’t willing to put Parliament to work for an additional week to get things right?

The debate on amendments does not need to be rushed. We could easily extend committee hearings by an additional week, provide resources for the committee to sit every day, and engage in a more thoughtful process to hear from experts, improve the bill, and pass it through the House by Canada Day.

Beyond improving the process, we should also fix the substance of Bill C-5.

Factors to consider in identifying national interest projects

First, section 5 currently gives the government unfettered discretion to designate national interest projects. There is a list of specified factors at 5(6) that the government may consider, including “the interests of Indigenous peoples”, as well as “clean growth” and “meeting Canada’s objects with respect to climate change.”

As currently drafted, however, the government does not need to consider any or all of these factors.

We can and should change that.

We could either mandate the government to consider these public interest factors, or we could require that national interest projects not be inconsistent with them. Simply, parliament should be more prescriptive than including factors as mere examples.

Excessive authority to exclude the operation of any law

Second, section 22 would empower the government to exclude the operation of any law from a project it has deemed to be in the national interest.

Combined with the unfettered power to designate such projects, it effectively does away with Parliament.

An easy fix: remove this unnecessary and disproportionate power from the law. The government can always amend regulations as it sees fit, but it should return to the House of Commons if a law, duly passed by Parliament, is to be excluded or altered in any given situation.

If there is a rationale for excluding the operation of a particular law, we can move quickly if needed.

Other potential amendments

There are no doubt other possible opportunities to improve the law.

It may well make more sense to limit the unique process to the next 3 years, instead of the next 5, for example. Or, we could require that Ministerial advice with respect to conditional authorizations be made public.

Expert testimony will likely offer other good ideas, if we care to listen.

Conclusion and voting intentions

For my part, I will support Bill C-5 here at 2nd reading to send it to committee. Because it is time to build and good projects should be built more quickly.

I will vote against the government motion that would hinder the work of the parliamentary committee tasked with public hearings and improving the legislation.

And I will vote for Bill C-5 at further stages only if it is amended substantively.

We don’t make laws in this place for one government, one Prime Minister. The laws we pass are binding on all future governments. Even a time limited law like this one, establishes a precedent.

If passed as it is, Bill C-5 is a dangerous precedent that will enable Conservatives to gut environmental protections when they are in power next.

President Trump is a threat to our economy. Of that there is no doubt.

My constituents overwhelmingly voted for a government and leader ready to act, to respond to Trump forcefully and to build up our country thoughtfully.

But not at the expense of our democracy, environmental protections, and Indigenous rights.