Thank you.

The bill enacting the Building Canada Act, which I'll be focusing on today, could significantly affect provincial jurisdictions and Canadian federalism. The Prime Minister publicly stated his desire for the bill to take into account provincial jurisdictions and needs.

However, in its current form, the bill fails to achieve this goal. The Building Canada Act isn't explicitly limited to works, projects or infrastructure under exclusive federal jurisdiction. The notion of national interest is broadly defined enough to include projects located entirely within one province.

For example, the preamble states that national interest projects include projects that:

strengthen Canada's ability to trade, enhance the development of Canada's natural resources as well as its energy production and infrastructure;

However, the development of natural resources and the strengthening of Canada's energy capacity largely involve projects that normally fall under provincial jurisdiction pursuant to subsections 92A(1) and 92(10) of the Constitution Act, 1867. The exploration, extraction and production of non‑renewable natural resources, forestry and hydroelectricity, along with the related environmental considerations, were allocated to the provinces by the constituent. At first glance, the preamble to the act seems to refer to both federal and provincial works, contrary to the constitutional division of powers.

In addition, the bill grants broad discretionary power to the Governor in Council to designate a national interest project. Under subclause 5(6), this designation may be made by order, on the recommendation of the minister, taking into account certain factors that are neither cumulative nor exhaustive. Although the bill provides for consultation with the provinces under subclause 5(7), it doesn't make the designation of national interest projects conditional on their consent. This leaves the door open for the federal government to impose unilateral decisions on the provinces in their own areas of jurisdiction.

In terms of the conditions that would be imposed on national interest projects, the bill doesn't include any obligation to consult the provinces. According to subclause 7(2), the minister responsible must consult the relevant federal ministers and the first nations concerned. It seems that, once the provinces have been consulted prior to the inclusion of a project on the schedule of national interest projects, the provinces are no longer involved in the development of the projects or in ensuring compliance with the conditions imposed on them. As a result, the projects seem to fall outside provincial control and, in particular, outside the application of provincial standards such as the standards set out in Quebec's Environment Quality Act and its equivalent in the other provinces.

Lastly, the bill often uses the phrase “national interest”. This could mean that Parliament considers the Building Canada Act a valid exercise of the national interest doctrine in constitutional law. However, in Canadian constitutional law, the national interest doctrine meets criteria that have been fairly well defined by the Supreme Court of Canada, even quite recently. Matters of significance to Canada as a whole, which clearly transcend provincial interests, may be of national interest. According to the Supreme Court, these matters must be specific and clearly distinguishable from matters of provincial jurisdiction and must have an impact that extends beyond provincial boundaries and the provinces' ability to take action for the long term. The Supreme Court of Canada set out and developed these criteria in its most recent carbon pricing reference.

The following matters have been recognized as matters of national interest: the establishment of national minimum standards for the stringent pricing of greenhouse gases; the pollution of the provinces' inland seas; the creation of the National Capital Commission's green belt; nuclear energy and aeronautics. These specific and distinct matters are intrinsically extra‑provincial in nature and impact. Broad and vague matters that constitute aggregates of provincial jurisdictions aren't of national interest. For example, the court ruled that inflation, the environment and greenhouse gases in general weren't of national interest.

As you can see, the national interest in the constitutional sense is quite specific and narrowly defined. It doesn't fall into the category of matters generally considered of national economic and commercial interest. Given all this, it's far from certain that the Building Canada Act would be deemed valid by the courts based on the national interest doctrine. Although it included a number of references to federal jurisdictions, the Impact Assessment Act was nonetheless deemed partially unconstitutional by the Supreme Court owing to its overly broad and imprecise scope and its encroachment on provincial jurisdictions.

By failing to explicitly state that its objectives are limited to projects under federal jurisdiction, Bill C‑5 faces a risk of being struck down.

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