OTTAWA — Provisions in the federal government’s controversial Bill C-5 that would allow the executive branch to skirt laws in order to push forward major projects are likely to survive a court challenge, some constitutional experts say.
But others warn the proposed law would allow Ottawa to flout its constitutional duty to consult with First Nations under Section 35 of the Constitution.
The bill has become a magnet for criticism as the Liberal government moves to push it through the House of Commons by the end of this week.
The legislation would give the federal cabinet the ability to set aside various statutes to push forward approvals for a small number of major industrial products, such as mines, pipelines and ports, if the government deems them to be in the national interest.
Paul Daly, chair in administrative law and governance at University of Ottawa, said that while the provisions giving the executive more power are controversial, they’re likely to survive a court challenge.
“This bill probably is constitutional,” he said. “It is unlikely that a court would invalidate this as violating the Constitution.”
Sections 21 to 23 of the bill allow the executive branch to bypass existing rules and processes in 13 laws — including the Canadian Environmental Protection Act, the Indian Act and the Impact Assessment Law — through a regulatory process that does not need to be approved by Parliament.
These sections are what’s known in the legal community as “Henry VIII clauses” — a reference to a King who preferred to govern by decree rather than through Parliament.
Courts have not found these to be constitutionally invalid, Daly said, adding there are guardrails in the legislation. He said Charter rights and the duty to consult will continue to apply to the legislation.
“It’s similar in character to the carbon tax legislation from a few years ago, where the Supreme Court said the Henry VIII clause was constitutionally valid. And I suspect that a court, if this statute were challenged, would come to the same conclusion,” Daly said.
His faculty colleague Errol Mendes, another law professor and constitutional expert, also said by email that he thinks the clauses can be defended constitutionally.
But Anna Johnston, a staff lawyer at West Coast Environmental Law, said sections 22 and 23 and “very worrisome” because they could allow the federal cabinet to exempt a pipeline or some other project from the Species at Risk Act.
And she said she thinks it gives the federal government too much leeway on the Crown’s duty to consult with Indigenous peoples on decisions that affect them.
“If I were Canada’s lawyers, I would have advised them strenuously against this bill,” she said.
“That consultation has to be meaningful and I worry that, especially under the timelines that this government wants to make these decisions, that this bill is basically circumventing the government’s constitutionally required duty to consult.”
The bill aims to speed up the approval process for major projects so that cabinet can render a decision in two years at the most.
Prime Minister Mark Carney has said it takes too long to push major new projects through “arduous” approval processes.
“Canada is a country that used to build big things,” Carney said when the bill was introduced on June 6. “In recent decades, it has become too difficult to build new projects in this country.”
Bloc Québécois Leader Yves-François Blanchet said Friday that the legislation must be studied thoroughly since it can suspend various laws and regulations relating to language, First Nations rights, the environment and threatened species.
“The government seems to want to avoid scrutiny on the bill, which by itself is worrisome,” he said in English when speaking to reporters in the House of Commons foyer.
“How could we go forward with such a huge bill with huge consequences for Quebec and Canada without at least doing what we have been elected to do, which is studying, thoroughly, this bill in committee?”
Speaking on background at a technical briefing for journalists, federal officials said that while the government has no intention at this time to draft regulations that would bypass those laws, the legislation does give it a lot of flexibility.
NDP MPs Leah Gazan, Alexandre Boulerice and Lori Idlout wrote to government House leader Steven MacKinnon on Friday to formally request that the bill’s study be slowed down to provide for more debate in the House.
“Failure to uphold constitutional obligations and environmental standards at a time when we are experiencing a climate emergency will have the opposite effect of developing Canada’s economy and sovereignty, and will only lead to conflicts in the courts,” they wrote.
“In its current iteration, Bill C-5 violates Canada’s constitutional obligations under Section 35 of the Constitution Act of 1982 that recognizes and affirms Aboriginal treaty rights by giving the governor in council the ability to sidestep constitutional obligations.”
The bill is expected to undergo an unusually fast one-day study by the House transport committee Wednesday afternoon and evening. The government expects to pass the bill by the end of Friday.
The federal Conservatives have argued the bill does not go far enough.
Conservative Natural Resources critic Shannon Stubbs said in the House on Friday that the “anti-energy, anti-development” Liberals should repeal the “no-new-pipelines” Bill C-69, passed by the Justin Trudeau government.
She said the Impact Assessment Act it created heaped difficulties on energy sector projects and prevents them from going ahead.
This report by The Canadian Press was first published June 16, 2025.
Kyle Duggan, The Canadian Press
