It is a great pleasure to have the opportunity to comment on Rowland Harrison K.C.’s thoughtful reflection on his career as a regulator. I do so from a different vantage point: I am an economist, not a lawyer, and most of my career has been spent not as a regulator, but in the policy world, both at the Privy Council Office, where I was involved in the changes to the Canadian Environmental Assessment Act^[1] (“CEAA”) in 2012, and as Deputy Minister of Fisheries and Oceans, where I was around for the 2019 changes to the Fisheries Act^[2] and the new Impact Assessment Act^[3] (“IAA”).

In his article, Mr. Harrison concludes that the recent calls to “simplify regulation”— reflected in the Carney government’s Bill C-5, the One Canadian Economy Act^[4] (which enacts the Free Trade and Labour Mobility in Canada Act and the Building Canada Act) — are nothing new, and in many ways the Carney government is taking a similar approach to the Harper government and will face many of the same challenges. He gives three examples of where this is likely to be true.

The first is the idea of a single federal window for proponents. As Mr. Harrison notes, the Harper government set up the Major Projects Management Office (“MPMO”) in 2007 precisely to provide that single window. However, the establishment of this office (which was ultimately eliminated when the IAA came in to being) did not obviate the regulatory role of the Department of Fisheries and Oceans (“DFO”), Environment and Climate Change Canada (“ECCC”), Transport Canada (“TC”) and several other agencies and departments. At the end of the day, companies still had to deal with the relevant Departments for permitting, often a lengthy process.

Bill C-5 attempts to deal with this multiplicity of decision makers by subordinating all federal decision making for projects that are deemed in the national interest to Cabinet, which would then make an early decision on a project.

This provides Mr. Harrison with his second example. Centralizing all decision-making power to Cabinet has a parallel to the decision of the Harper government to take away the National Energy Board’s (“NEB”) power to not approve a project. He notes that this decision ultimately did nothing to hasten the Northern Gateway project, which, as it turned out, the NEB would have approved anyway. Instead, the erosion of the NEB’s independent decision-making power made it easier for the it made it easier for the Trudeau government to do away with the NEB altogether and replace it with the Canadian Energy Regulator which, unlike the NEB, was not responsible for environmental assessments.

The third example is the attempt to establish deadlines for project decisions, so that proponents can be assured that the process will not drag on, costing them time and money. While not made explicit in Bill C-5, Prime Minister Carney has committed to a two-year timeline for project approvals. However, deadlines for project approval are nothing new: the 2012 changes to the NEB Act prescribed a timeline of 18 months, which did not prevent the Trans Mountain Pipeline Expansion (“TMX”) from taking more than five years to be approved. Indeed, the Trudeau government’s IAA also had statutory deadlines. The reality is that statutory deadlines do not deal with one of the main sources of delay, which is legal challenges to projects on environmental or indigenous rights grounds. Furthermore, proponents themselves may end up needing more time and so ask for the process to be paused.

Thus a convincing case can be made that many of the underlying problems have not changed in the last two decades. Indeed, I would argue that in many ways the challenges that the Carney government faces are greater than those faced by Prime Minister Harper, given the evolving environment since the election of the Trudeau government in 2015.

• The Trudeau government’s emphasis on reconciliation, and in particular the incorporation of the United Nations Declaration on the Rights of Indigenous Peoples^[5] (“UNDRIP”) into law, means that many Indigenous communities now expect to have an overall veto over development.
• Many environmental non-government organizations (“ENGOs”) now oppose projects based not only on the direct environmental impacts of a project, but also on the impact on green house gases (“GHGs”). The Trudeau government’s IAA reflected this approach by including GHGs as a criterion for project approval.
• Two provinces, B.C. and Quebec, vociferously opposed pipelines crossing their jurisdictions, with B.C. launching a legal challenge to TMX, and Quebec seeking to subject the EnergyEast pipeline to its own environmental assessment process, despite the federal government having clear federal jurisdiction over interprovincial transportation infrastructure. The Carney government has gone further than the Trudeau government in this regard, with the Prime Minister stating that provinces would need to agree to any pipeline crossing into “their” territory^[6].
• Other changes, including the ban on tanker traffic on the West coast north of Vancouver Island and regulatory initiatives to curtail fossil fuel production, such as the oil and gas emissions cap, all make it more difficult to fill new oil and gas pipelines even if they were to be approved and built.

Given these obstacles, as well as the challenges faced by the Harper government, will Bill C-5 provide a firm basis for moving forward on major energy projects in Canada, particularly pipelines?

I tend to agree with Mr. Harrison that centralizing authorities and decision making, and imposing timetables, are unlikely to be a successful as the government would wish, as they do not really grapple with the fundamental causes of the Canada’s slow, cumbersome and unpredictable project approval process, which includes the following:

Lack of a transparent and timely Indigenous consultation process

• While the Bill makes numerous references to the rights of Indigenous people, it does not lay out a clear consultation process that will provide a fair hearing to Indigenous communities, which makes it likely that aggrieved communities will be able to successfully challenge decisions, as happened with the Trans Mountain pipeline^[7].

Onerous federal environmental requirements

• Bill C-5 attempts to circumvent numerous pieces of federal legislation, such as the Species at Risk Act^[8] (“SARA”), the Fisheries Act^[9] (“FA”) and the Migratory Birds Act^[10] (“MBA”). The provisions of these laws have been blamed for lengthening timelines for approval and construction, both because they require extensive study of project impacts, but also because they can lead to onerous requirements on proponents (the Northern Gateway pipeline had 209 conditions and TMX had 159). Bill C-5 essentially has Cabinet make the project approval upfront, based on “any factor that the Governor in Council considers relevant,” (section. 5(6)), and that approval supersedes the requirements of other relevant legislation.
• However, the Cabinet decision will still be reviewable by the courts on a reasonableness standard, and it is an open question as to whether the courts will insist on the same kind of information about environmental impacts to be placed before decision makers as would be required under SARA, FA, MBA etc.
• Furthermore, Bill C-5 is clear (section. 6(2)) that proponents must still meet any conditions that are set by the government. These conditions would also be subject to a judicial review on a reasonableness test, and without specific criteria laid out in the legislation, the courts may well look to existing legislation to assess the reasonableness of the conditions. The risk is that the government would be obligated to impose dozens of conditions that proponents might find expensive to meet.

Confusion about Federal and Provincial roles

• As noted above, several provinces have challenged the federal government’s right to approve interprovincial projects, and the Carney government now seems to have given provinces a veto over projects that pass their boundaries. In fairness to the provinces, the federal government has not hesitated to interfere in areas of provincial responsibility, most notably through the IAA, where the Supreme Court of Canada^[11] struck down provisions that were judged to be entirely within the competence of the provinces. Another example is SARA, which numerous provincial governments have criticized for intruding on provincial jurisdiction when applied outside of federal lands, and to species other than fish or migratory birds for which the federal government has clear responsibility.

Confusion about government and business roles

• Ideally, governments should do what they do best, which is to regulate in the national interest, with clear rules of the road that provide certainty and predictability for businesses to do what they do best, which is to choose, design and execute projects that make economic sense.
• However, Bill C-5 blurs these lines: while it provides maximum discretion for the government to label a project as being in the national interest, it does not guarantee that outcome, no matter what criteria a project might meet, and so potential proponents are left in the dark about what will actually qualify.

What then is the way forward? In his closing paragraph, Mr. Harrison concludes by hoping that “all interested parties will contribute constructively to addressing the challenges in Canada’s current regulatory process.” I am not sure that this will happen to the extent necessary to make a significant change to the regulatory environment for major energy projects in Canada. As we saw with TMX, many ENGOs, Indigenous nations and even provinces can remain implacably opposed to a project despite attempts to accommodate legitimate concerns.

Rather, I would argue that the government needs to address the fundamental problems with our environmental assessment system that are outlined above. Achieving this will require:

1. A clear protocol on Indigenous consultation that lays out a clear process and reasonable timelines. This protocol should of course be consulted on with Indigenous nations, following which the government should refer the protocol to the SCC so that proponents can be confident that they can meet their consultation obligations with fear of a successful lawsuit;
2. Root and branch reform of Federal environment legislation, particularly the IAA and SARA, to eliminate intrusion by the federal government in provincial areas of competence;
3. Explicit assertion of the federal government’s paramountcy in areas of clear federal competence, particularly interprovincial pipelines;
4. Clear criteria for proponents as to what kinds of projects that the federal government would find acceptable.

While Bill C-5 is clearly ambitious and well-intentioned, I suspect that the more fundamental reforms described above will be required if Canada is indeed to see the investment in its energy infrastructure that will be so necessary to our economic success as a nation in the coming years. 

• * Tim Sargent is the Director of Domestic Policy and Senior Fellow at the Macdonald-Laurier Institute in Ottawa. With 28 years in the Canadian Federal government, he held senior roles, including Deputy Minister positions. Tim has a Ph.D. in Economics from UBC, an M.A. from Western University, and a B.A. from the University of Manchester. Originally from the UK, he now lives in Ottawa.

  ¹ Canadian Environmental Assessment Act, SC 2012, c 19 s 52.

• ² Fisheries Act, RSC 1985, c F-14.

• ³ Impact Assessment Act, SC 2019, c 28 s 1.

• ⁴ Bill C-5, An Act to enact the Free Trade and Labour Mobility in Canada Act and the Building Canada Act, One Canadian Economy Act, 1^st Sess, 44^th Parl, 2025.

• ⁵ United Nations Declaration on the Rights of Indigenous Peoples, OHCHR, 33^rd Sess, UN Doc A/RES/61/295 (2007).

• ⁶ Carson Jerema, “Carson Jerema: Carney ignores his own constitutional power to approve pipelines” (last modified 9 Jun 2025), online: <nationalpost.com/opinion/carson-jerema-carney-ignores-his-own-constitutional-power-to-approve-pipelines>.

• ⁷ Tsleil-Waututh Nation v Canada (Attorney General), 2018 CanLII 153.

• ⁸ Species at Risk Act, SC 2002, c 29.

• ⁹ Fisheries Act, RCS 1985, c F-14.

• ¹⁰ Migratory Birds Convention Act, SC 1994, c 22.

• ¹¹ Reference re Impact Assessment Act, 2023 SCC 23.