How the new Building Canada Act works

Background

On June 26, Bill C-5, the One Canadian Economy Act, received royal assent.¹ The One Canadian Economy Act introduces two pieces of legislation aimed at bolstering economic development in Canada. 

The first, the Free Trade and Labour Mobility in Canada Act, stipulates that goods or services that meet provincial or territorial requirements are considered to meet comparable federal requirements that pertain to the movement of those goods or services.² The legislation also allows holders of provincial credentials to practise certain occupations to obtain the corresponding federal credentials.³

The second, the Building Canada Act (the Act), streamlines the regulatory approval process for infrastructure projects of national importance. The update will focus on this piece of legislation. 

Classification of National Interest Projects

The Act allows the federal cabinet to, on the recommendation of the minister, classify certain infrastructure projects as being in the national interest,⁴ and place such projects on a list in Schedule 1 of the Act (the List). Before placing a project on the List, cabinet must:⁵

• publish the name and project description of the proposed project in the Canada Gazette for 30 days;
• consult with the government of any province or territory in which the project will be carried out, and obtain written consent from the government of any such province or territory whose exclusive jurisdiction the project may fall under; and
• consult with any Indigenous peoples recognized and affirmed under section 35 of the Constitution Act whose rights may be adversely affected.⁶

The Act includes a non-exhaustive list of factors the cabinet may consider when deciding whether to place a project on the List, namely whether the project will: ⁷

• strengthen Canada’s autonomy, resilience and security;
• provide economic benefits; 
• have a high likelihood of success; 
• advance the interests of Indigenous peoples; and 
• contribute to clean growth and Canada’s climate goals. 

Once a project is placed on the List, the project is deemed to be in the national interest (a National Interest Project) and to have every favorable determination, opinion, and finding it requires to be granted any applicable permit, licence, or approval (each an Authorization) required by certain prescribed acts and regulations set out in Schedule 2 of the Act needed to carry out the project.⁸ Notwithstanding, the proponent still must submit an application for each applicable Authorization to the appropriate agency, provide all required information, and pay any applicable fees.⁹

National Interest Project document

After a National Interest Project has been placed on the List, the minister must issue to the proponent a document (Document) that enumerates all the Authorizations that the project would normally require to proceed, with the Document acting as a substitute for each Authorization.¹⁰ Before the Document is issued, the minister must: ¹¹

• ensure the proponent has taken all measures normally required to obtain each Authorization specified in the Document;
• consult with the minister responsible for issuing each Authorization set out in the Document to identify any conditions that should be specified in the Document;
• undertake a national security review for all state-owned or foreign investments and ensure measures have been taken to protect national security interests; and 
• have consulted with any Indigenous groups who may be adversely affected by the project. 

For projects governed by the Nuclear Safety and Control Act and the Canadian Energy Regulator Act, the minister must obtain confirmation from each applicable regulatory body that the project will not compromise public safety.¹²

Impact Assessment Act

The Act allows proponents to streamline the approval process for projects that would fall under the purview of the Impact Assessment Act (IAA). The Act stipulates Sections 9 to 17 of the IAA (the IAA-specific Indigenous consultation, addressing of issues, the detailed project description), no longer apply to National Interest Projects.¹³ The overall effect is that an impact assessment for National Interest Projects designated under the IAA will proceed, albeit without the planning phase, and with any decisions under Section 60 or 62 of the IAA being deemed to be made in support of the project.¹⁴  As well, the timelines set out in section 18(1) of the IAA do not apply, per Section 19 of the Act.¹⁵

Ability to modify the application of applicable legislation 

The Act gives the cabinet powers to modify the applicability of legislation that may govern National Interest Projects. 

Section 21 allows the cabinet to alter the list of legislation in Schedule 2 to the Act, provided that certain acts, including the Criminal Code, the Access to Information Act, and the Indian Act, may not be added.¹⁶

Section 22 allows the cabinet, acting on the recommendation of the relevant minister for a given piece of legislation listed in Schedule 2, to vary or exempt a National Interest Project from the application of that legislation.¹⁷

Applicable timelines

There are limited timelines embedded within the Building Canada Act, as follows:

• Within 30 days after being placed on the List, details of a proposed project must be placed on the federal Major Projects Office’s registry; ¹⁸
• At least 30 days before a Document is issued to a proponent, the minister must make public: ¹⁹
  • all project conditions;
  • contents of studies and impact assessments regarding the project;
  • all recommendations received from federal agencies regarding the project;
  • a written document outlining reasons some of the recommendations may not have been accepted; and 
  • a description of the normal regulatory process that would have been followed had the project not been placed on the List;
• Within 60 days after a Document is issued, the minister must make public a report containing the results of Indigenous consultation mandated by Section 7(2)(c);²⁰ and
• Within five years of being issued the Document, proponents are required to start the project, or else the Document expires.²¹

The Act is silent on the timeline within which the minister must issue the Document for a project after it has been placed on the List. However, a policy goal of the Act is to shorten the approval process of national interest projects to two years.²²

The authors would like to thank Isaiah Martin, articling student, for his contribution to preparing this legal update.