Transport Committee on June 17th, 2025

[David Robitaille]

It's at risk of being declared invalid. It's up to the court to make a judgment on that point, but there are some risks, yes.

[Leslyn Lewis, Conservative, Haldimand—Norfolk, ON]

In your opinion, would a resource project like oil and gas extraction be in the national interest, as you spoke about, in proposed section 7?

[David Robitaille]

It's a political decision to be made. It's not up to me to decide whether an extraction project is in the national interest, but what I could say is that an extraction project is clearly within provincial jurisdiction under the Constitution.

[The Chair, Liberal, Peter Schiefke]

Thank you, Dr. Lewis.

Thank you, Mr. Robitaille.

It is now Ms. Nguyen's turn.

Ms. Nguyen, the floor is yours. You have five minutes, please.

[Chi Nguyen, Liberal, Spadina—Harbourfront, ON]

Thanks very much.

Thank you to the clerk for pulling this together with such quick speed.

Thank you to the three witnesses who have joined us today.

I want to ask Ms. Kokkinos my first question. Thanks for sharing your time and expertise with the committee today and for bringing your particular experience in energy, trade and public policy, as we examine this bill.

In part 2 of the building Canada act preamble, we reference rigorous environmental standards. As we're hearing feedback from constituents, I'd like to know this: What kinds of evaluation criteria might we put in place to ensure that the projects meaningfully align with our climate commitments?

[Yiota Kokkinos]

Thank you very much for the question. I'm not a regulatory expert, but any project that goes through the regulatory process, if I understand Bill C-5, is going to have to adhere to all our environmental regulations.

In terms of adhering to our climate change commitments, the types of projects that are selected are going to be very important. As Mr. Bradley mentioned, things like expanding our electricity grid and integrating renewables into the grid—technologies like SMRs or small modular reactors, nuclear—these are the types of projects that are going to help us reach our climate commitments.

[Chi Nguyen, Liberal, Spadina—Harbourfront, ON]

I'm now going to ask a question, following on that, of Mr. Bradley. We identified in the legislation that we want to be moving towards clean growth and climate objectives as part of the key criteria for the nation-building projects. Do you have any thoughts or further comment on how this is helping us accelerate the development of the clean energy infrastructure in Canada that we'd like to see?

[Francis Bradley]

As I noted before, the pathway from here to there is going to be one that will have more of an all-of-the-above approach. That is, again, what we're hoping to see when we see what projects are covered in schedule 1.

[Chi Nguyen, Liberal, Spadina—Harbourfront, ON]

Thanks. That's it for my questions.

[The Chair, Liberal, Peter Schiefke]

Thank you very much, Ms. Nguyen.

That concludes the first hour of testimony for today. I would like to thank our witnesses, Mr. Bradley, Ms. Kokkinos, and, of course, Mr. Robitaille. We appreciate your testimony.

We're going to suspend for five minutes in order to set up for the next round of witnesses. This meeting is suspended.

[The Chair, Liberal, Peter Schiefke]

I call this meeting back to order.

We'd like to begin this panel with a prayer given by Chief Ted Williams.

We appreciate your presence here today, sir. I'll turn the floor over to you to get us started.

[Chief Ted Williams, Chippewas of Rama First Nation]

Meegwetch.

I accept the responsibility and the honour of opening with a prayer.

Creator, we give thanks for this opportunity to be together as friends of this great land. We ask that you be with us, that you guide us and that you look after us so that we will look after the four-leggeds, the winged ones and the giigoonh who swim in our oceans, in our rivers and in our lakes. We ask that you be kind to each and every one. We come with respect and compassion as the first peoples of this land.

I want to say meegwetch in the four directions: Meegwetch. Meegwetch. Meegwetch. Meegwetch.

[The Chair, Liberal, Peter Schiefke]

Meegwetch, Chief Williams. It's greatly appreciated.

Colleagues, to begin the second round of questioning for today, I'd like to make a few comments for the benefit of our new witnesses.

Kindly wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mic, and please mute yourself when you're not speaking.

For those joining by Zoom, at the bottom of your screen, you can select the appropriate channel for the interpretation. You have the choice of the floor, English or French. For those in the room, you can use the earpiece and select the desired channel. This is a reminder that all comments should be addressed through the chair.

Colleagues, I'd now like to welcome our witnesses.

First, from the Assembly of First Nations, we have Cindy Woodhouse Nepinak, national chief. Welcome to you.

I'd also like to acknowledge the presence of numerous other chiefs representing first nation communities across the country. Thank you very much for your presence here today.

Second, from the Coalition of Concerned Manufacturers and Businesses of Canada, we have Catherine Swift, president, who's joining us by video conference. We're hoping to work out some of the audio and technical issues we're having, colleagues. Hopefully we can get those worked out. Until that time, we will not be posing any questions to Ms. Swift.

Third, as an individual, we have Maxime St-Hilaire, professor at the faculty of law at the Université de Sherbrooke. Welcome to you.

We'll begin with opening remarks. For that, it is my pleasure to turn the floor over to you, National Chief. You have five minutes.

[Cindy Woodhouse Nepinak, National Chief, Assembly of First Nations]

Chi meegwetch.

I want to welcome you, of course, and recognize that we're in Anishinabe Algonquin territory, whose lands we're on.

Chi meegwetch, Chief Ted, for your opening prayer.

I want to welcome all of the first nations people who are here sitting behind me. You know why they're here. They want to speak. They want to speak to each and every one of you. I think we can do better as a country together by doing so.

We want to talk about fast-tracking things in our country, and I wish we were here talking about the construction of modern schools for first nations children. We've been waiting a long time for the first nations infrastructure gap to close. You've seen the reports from the Conference Board of Canada on closing the infrastructure gap in this country and how progressive Canada can be by investing in first nations people. It would propel us. We're in the midst of a G7 meeting as we speak. Canada is ranked a little bit at the bottom of the G7 countries. If we invested in closing that infrastructure gap, we would propel ourselves to number one. I leave that with you.

I also wish we were here talking about fast-tracking clean water and quality housing for first nations people or fast-tracking all-season roads and reliable Internet access for our kids. But we're not, and that's a shame.

Yesterday, the Assembly of First Nations convened an emergency forum on Bill C-5. The forum was the first opportunity first nations leaders have had to get a technical analysis of this bill. We have heard from multiple chiefs across this country that this is not how we should be moving forward on this legislation. We all need more time and opportunity to speak to this legislation and get answers to our questions.

In the absence of a specific resolution mandate to speak to you on Bill C-5, as is the usual practice for the Assembly of First Nations, I speak to you today on an emergency basis, relying on the AFN charter's general assignment of the national chief as national spokesperson and without prejudice to the rights of any first nations rights holder, particularly these ones. Everybody from coast to coast has their own voice and their own way of doing things. We need to respect them.

Bill C-5 is one of the most significant federal bills that first nations have had to deal with in recent years. The powers in Bill C-5 are significant. They present substantial risk to many collective rights of first nations under our own laws, under the Constitution and under international law. Accordingly, the Crown has obligations of deep consultation and consent. Perhaps there is information that they haven't shared with us about that. For now, I point out that the United Nations declaration is replete with references to consultation being carried out “through their own representative institutions”. Individuals appointed by the government are not clearly representatives of indigenous peoples on matters of our treaty and inherent rights, title and jurisdiction.

In the May 27 Speech from the Throne, the Crown stated, “As Canada moves forward with nation-building projects, the Government will always be firmly guided by the principle of free, prior, and informed consent.” Despite this clear commitment communicated by the Sovereign himself, first nations rights holders and organizations have been given an unreasonably tiny window, both before and after tabling, and much less engagement in a substantive exchange of views. It seems very few rights holders will have a chance to speak directly to the executive or to parliamentarians before Parliament determines the fate and shape of this bill.

For those who do appear, how can any first nations rights holder or organization in five minutes even list the legal issues at stake, much less share analysis and conclusions about the key issues? This means the Crown is ignoring decades of judicial guidance on what deep consultation involves when first nations rights are placed at substantive risk. The Crown is ignoring its consent obligation under article 19 of the United Nations Declaration on the Rights of Indigenous Peoples.

In short, the honour of the Crown is not being upheld, friends. Deep consultation involves a two-way exchange of information sharing, accompanied by substantive dialogue. It is more than merely inviting first nations rights holders to speak for five minutes or to make written submissions from a distance. Consultation is not the Crown simply listening, going away and deciding on its own, without dialogue and without a back-and-forth, on the content and scope of first nations rights and corresponding Crown obligations under the Constitution, treaty and international law.

The Crown provided information on the exact details of this bill on only June 6, 2025, after providing a very limited outline on May 23. We were given seven days to respond.

As we sit here today, the world of 34 first nations is literally burning up because of human-induced climate change. There is no respite for those affected first nations, their chiefs and their councillors to provide input or to consult with the Crown on this bill, unless they can work the magic of getting on your witness list and preparing and delivering a submission to you while simultaneously protecting themselves during these evacuations that are happening across the country. They are expected to absorb the fallout of the new normal of June evacuations of entire communities and the desire of Canada to impose still more significant legislation without even a conversation, much less consent.

Article 19 of the United Nations declaration applies the legal standard of free, prior and informed consent to legislative initiatives before they are adopted. Free, prior and informed consent is laden with substantive meaning. It has a common-sense meaning that everyone understands. For example, a medical doctor is not free to operate merely because they have spoken to a patient about the need for an operation. They must literally obtain the patient's explicit consent. Too often, words applied to indigenous peoples' rights are taken to mean something different from their ordinary everyday meaning.

I would like to highlight some areas that can be improved in this bill.

First, proposed subsection 5(6) lists a number of factors that the Governor in Council may consider when designating a project as a national interest project. The five factors in proposed subsection 5(6) should be mandatory for any project to be designated as a national interest project.

Second, proposed paragraph 5(6)(d) should make the free, prior and informed consent of first nations mandatory when considering whether a project will advance the interests of indigenous peoples.

I'm sorry. I'm having some technical difficulties. Give me a moment.

[The Chair, Liberal, Peter Schiefke]

I want you to know, Chief, that we have not removed any of your time.

Feel free to take your time in delivering your remarks.

[Cindy Woodhouse Nepinak]

Thank you.

Second, proposed paragraph 5(6)(d) should make the free, prior and informed consent of first nations mandatory when considering whether a project will advance the interests of indigenous peoples.

Third, to limit the effect on first nations rights, there are several provisions that can be added or amended to protect first nations properly. Unfortunately, we haven't had the time to properly engage in the legislative drafting of this bill to ensure first nations rights are upheld.

Fourth, the Indian Act should not be unilaterally varied or exempted without the express consent of first nations. The Indian Act should be removed from schedule 2.

Finally, with regard to the indigenous advisory council, that the government keeps talking about this as if it's some kind of answer to its consultation obligation is quite puzzling. An advisory council of government appointees, even if they're first nations or indigenous, cannot constitute an entity with which the government can carry out consultation on behalf of first nations. The government should know better than to suggest that they think otherwise.

To close off, the right to self-determination of first nations is an established right. Canada has repeatedly acknowledged that in its policy and international statements, and by its statutory and unqualified embrace of the declaration in the United Nations declaration act. Free, prior and informed consent and first nations permanent sovereignty are part of the right to self-determination, which is also part of customary international law that is legally binding in Canada.

Regardless of the colonial mindset of the Indian Act, the one useful thing it does do is incorporate the requirements and protection of the Royal Proclamation of 1763. This treatment of the Indian Act cannot be imposed on us without violating the Royal Proclamation, as well as our section 35 rights and the United Nations declaration. Any legislation proposing or allowing such is not consistent with the Constitution or the United Nations Declaration on the Rights of Indigenous Peoples.

Chi meegwetch for listening to me today.

Thank you.

[The Chair, Liberal, Peter Schiefke]

Thank you very much, National Chief Woodhouse Nepinak, for your opening remarks.

Next, we'll turn the floor over to Mr. Maxime St-Hilaire.

Please go ahead. You have five minutes.

[Maxime St-Hilaire, Professor, Faculty of Law, Université de Sherbrooke, As an Individual]

Thank you.

My presentation will be broken down as follows: First, I will briefly share my interpretation of the bill. Then I will identify some of the bill's shortcomings, keeping in mind best practices from around the world. Lastly, I will touch on some amendments that I think would help.

I won't be able to discuss the amendments in detail, but I will explain the idea behind them.

In short, the bill under consideration, Bill C‑5, the building Canada act, gives the executive the power to largely circumvent ordinary federal legislation—whose purpose is to protect the common good or public interest—in order to carry out projects of its choosing. That means the executive can allow projects it selects to circumvent legislation that would normally apply. My point is that this bill grants an exemption power. General law is being disregarded. The bill provides for the use of exceptional measures and vests the executive with that exemption power in relation to general law. That is the first clue.

Furthermore, the bill contains a sunset provision. I'll talk more about it later, but what that unfortunately means is that the five-year limit applies not to all the powers provided for in the legislation, but perhaps to the main power, the government's power to deem a project to be in the national interest. There is a sunset provision. That is the second clue.

The third clue is the current process. The bill is being fast-tracked, under time allocation.

The bill provides for the use of emergency measures. It's an emergency bill. It is not a bill that provides for the use of federal emergency power as the power that the one central authority has to intervene in areas of provincial jurisdiction.

I had a chance to hear a bit of what my colleague Professor Robitaille said earlier. In my view, the current bill provides an exemption from federal legislation, but it does not explicitly provide for federal intervention in areas of provincial jurisdiction, as the federal emergency power does. Nevertheless, it does contemplate a number of emergency measures, since it is possible to disregard laws that normally seek to protect the public interest.

Countries governed by the modern democratic rule of law need to be able to respond to emergencies. That is true. It is also true that those decisions are up to the executive. Doing so usually comes with a political cost, but deciding whether a situation constitutes an emergency is an executive decision.

Canada's constitutional jurisprudence recognizes, as do many other countries, that an economic situation can constitute an emergency. That is true. Here, that has been the case since 1976.

That said, to my mind, emergency best practices in countries governed by the modern democratic rule of law are understood to mean that the use of emergency powers comes with rigorous parliamentary scrutiny. The idea is this. Certainly, a government needs to be able to respond to an emergency by invoking exceptional powers. Certainly, judicial oversight decreases in such a situation. Conversely, the notion that the emergency can remain within the confines of the law rests on the parliamentary oversight of the use of emergency powers.

For example, the federal Emergencies Act is a model in that regard. Had it been invoked during the last major emergency, the government could not have governed as long without Parliament.

That is the paradox: The use of emergency measures usually comes with robust parliamentary oversight. That is the idea behind the amendments that I wanted to recommend or that I would like to see proposed. A bit like Canada's Emergencies Act, this bill should stipulate, to begin with, that all exceptional powers being conferred upon the executive cannot be exercised for more than five years. I believe it should also stipulate that the powers cannot be exercised when Parliament is dissolved or prorogued.

Second, the use of emergency measures must be transparent. That means being more open about the fact that these are emergency measures. One of the problems modern liberal democracies have is allowing the emergency to go on and the exception to become the rule. The line tends to be blurred. Governments tend to blur the line between the rule and the exception.

In my eyes, this bill is being presented as an emergency that is unstated or hidden. It's normal for a government to think that there is an emergency. That is for elected officials to decide. A political debate needs to be had, but for that to happen, designating the situation as an emergency needs to be done transparently.

[The Chair, Liberal, Peter Schiefke]

I have to stop you there, Mr. St‑Hilaire. You are unfortunately out of time, but you will have an opportunity to say more when you answer questions.

[Maxime St-Hilaire]

Thank you, but I think I covered everything.

[The Chair, Liberal, Peter Schiefke]

Thank you, Mr. St‑Hilaire.

Now I'd like to turn the floor over to Ms. Swift.

We are going to test her sound during her opening remarks, and I'll look to my interpreters to make sure that the sound is good for them.

If it's not, unfortunately, Ms. Swift, we're going to have to ask you to submit your remarks by email and perhaps another brief, if you choose to do so.

With that, I'll turn the floor over to you, ma'am. You have five minutes.

I'm sorry. You're on mute. We're going to have to ask you to unmute and then restart, please. I'll make sure that you don't lose any of your time.

[Catherine Swift, President, Coalition of Concerned Manufacturers and Businesses of Canada]

I thought you would unmute me, given government control and all that.

Hello. My name is Catherine Swift. I'm the president of the Coalition of Concerned Manufacturers and Businesses of Canada. We're a not-for-profit business organization that advocates for—

[The Chair, Liberal, Peter Schiefke]

Ms. Swift, I offer my sincere apologies for having to cut you off one more time.

Can I ask you to lift the microphone a little bit closer to your mouth? We're having a bit of a hard time hearing.

[Catherine Swift]

I'm sorry. I'll repeat myself.

My name is Catherine Swift. I'm the president of the Coalition of Concerned Manufacturers and Businesses of Canada. We're a group of a lot of manufacturers—but not exclusively—and we are an advocacy organization that supports solid economic policy, relatively small government and good use of taxpayer dollars.

First of all, with regard to this bill, I know a lot of other people have said this, but I want to reinforce that the consultation period has been too brief. This is an enormously powerful bill and it needs more consideration than it's been given.

Basically, the second part of the bill gives the Liberals the ability to override a number of very important pieces of legislation that they put in place over the last decade or so. It seems a little ironic, I guess, that they suddenly want the power to override this very Liberal collection of legislation.

Here's what I think would be preferable if the legislation is in place. With things like the emissions cap on the oil and gas industry, the industrial carbon tax in particular, the tanker ban in northern B.C. and even proposed things such as a carbon border adjustment mechanism, which has been discussed, it would be better to remove them or not introduce them in the first place, rather than to give this power to override them. The main reason is that investors....

We know foreign and domestic investment has plummeted in Canada over the last decade because of bad policies that have discouraged investment and created uncertainty. Why not get rid of these pieces of legislation? If I were an investor, I'd be saying, “Okay, they have the power to override, yet all those legislative initiatives stay on the books.” Why not just get rid of them, if they're so problematic, and not just override them or give yourselves the power to override them occasionally?

Another issue is the potential for massive spending. We know infrastructure is hugely expensive. There has been a massive spending of tax dollars in the way this Liberal government spent money in the last decade on Liberal friends and cronies. There's also been the very visible incompetence of the federal bureaucracy to spend taxpayer dollars efficiently. There are a million examples of that, with ArriveCan being one of the most recent scandalous ones, but there are many examples, especially during the pandemic, of when money flowed like water and very little was often produced for it.

The wording of the bill is also too vague. Others have brought this up as well. Dominic LeBlanc is being given primacy in decision-making power. He's been a member of the Liberal government for the last decade and presumably supported the introduction of lots of the legislation this bill is intended to override. This does not inspire confidence among the business community.

You're rushing this through so quickly. The House is sitting for only a few weeks and then it's taking the summer off. The secretive nature of this gives people a great number of concerns. There were things in the past, like the green slush fund, the election interference issue and the WE fiasco. There are a whole lot of problems that this government...and many of the people elected today were members of that government. There's no trust, and rushing this through does not help the matter at all.

I think the five-year sunset period is too brief for a bill that permits enormous powers to any government, whoever it may happen to be. I think the bill should be split into two parts. The interprovincial trade stuff is a very different kettle of fish and something that's very much supported by the business community compared to the second part of the bill, which would change the powers of the government.

We are very supportive as an organization of getting on with projects that are going to help our economy enormously and get it out of the hole it's been in for the last decade—it's abysmal what's been happening with our economy in Canada—but also of boosting the standard of living for average Canadians. However, this shouldn't mean having to give any government the kind of poorly defined, loose powers that we see in Bill C-5.

Finally, we need pipelines. We need oil and gas pipelines in this country to develop our wealth of oil and gas resources. If there was one policy that this government could introduce which would have the fastest impact on boosting our economy and getting ourselves out of the doldrums we've been in for so long, it would be to build pipelines and export our natural gas—notably, liquid natural gas. The irony is that it would also help the world economy enormously as the less developed countries would be able to get off more polluting sources of energy.

Since the Liberal government seems to be in a big hurry, only sitting for three weeks during this period now and having very little consultation on such a great big bill, we need to prioritize the oil and gas sector if we really want something that will have an impact as quickly and as massively as possible, and not something like, say, an electricity grid corridor across the country that would greatly increase power to Canadians and would also be very difficult to achieve and have unreliable energy sources.

Thank you very much. I'm happy to answer any questions.

[The Chair, Liberal, Peter Schiefke]

Thank you very much, Ms. Swift, for your opening remarks.

We'll now begin with our....

Yes, Ms. Gazan, go ahead.