Hon. Pierre J. Dalphond: Honourable senators, I would like to explain to you why I oppose this amendment and support the passage of Bill C-5 without amendment.

I want to talk specifically about Part 2 of the bill, which enacts the building Canada act, following my careful consideration of the concerns that were raised in the Senate in Committee of the Whole and in the speeches given by some of my colleagues.

This act seeks to give our country the tools it needs to deal with the challenges and upheaval caused by the tariff war being waged by the U.S. administration.

My speech will have three parts: the economic context surrounding Bill C-5 and the urgent need for special tools to respond to it, the concerns raised by environmental groups, and the concerns raised about the rights of Indigenous peoples.

Colleagues, the economic context surrounding Bill C-5 justifies its expedited adoption. In the six months since President Trump took office, Canada has faced a series of actual and proposed tariff measures, including a recent 50% tariff on aluminum and steel. Our trade relationship with our neighbour and still closest ally is undergoing a fundamental shift marked by growing unpredictability. As a result, we see declines in our exports to the U.S., layoffs around us and the cancellation or postponement of major projects.

According to a recent Bloomberg report, a recession has already begun in Canada. In these circumstances, our government must take bold actions to encourage projects that can reinforce Canada’s economy and create jobs. This is precisely what the building Canada act sets out to do by providing means to encourage and accelerate major nation-building projects that support the government’s ambitious but, I believe, entirely achievable goal of making Canada the G7’s strongest economy.

I now move to my second point, which is the various concerns raised by environmental groups. There is no doubt in my mind that unlocking Canada’s economic potential must go hand in hand with environmental stewardship. I also believe that Prime Minister Carney, who was, until recently, the United Nations Special Envoy on Climate Actions and Finance and was behind the United Nations’ Net-Zero Banking Alliance is the person best equipped to unlock our tremendous economic potential while respecting our environment.

Thus, I am not surprised to see in the preamble of the building Canada act the government’s commitment to upholding rigorous environmental protection standards, and in clause 4 a clear statement that environmental protection is one of the act’s purposes.

The act also states that in deciding whether to add the project to Schedule 1, the Governor-in-Council may consider the extent to which the project can contribute to clean growth and to meeting Canada’s climate change objectives, as we see in subclause 5(6).

In addition, certain provisions of the act provide for greater transparency that will encourage questions in the House, in the Senate and among the public about environmental issues and the ways the government has been dealing with them, such as the reasons for orders made under the act; a public registry; the content of authorizations issued to proponents of projects, including all their conditions; and the public release of all documents and information used to issue the authorization. This ongoing provision for transparency will encourage questions, including ones about the environment.

Furthermore, the act, as amended, prevents the government from adding projects to the list while Parliament is prorogued or dissolved. In other words, the government may exercise its special powers only if Parliament is in session and able to question its decisions and call meetings of parliamentary committees to review them.

Finally, clause 24 provides for ongoing review of the government’s use of the powers granted by the act to be guided by the common good of Canada, including the quality of the environment. This ongoing review will be made by a special joint committee of MPs and senators referred to in the Emergencies Act. Senator Harder was a member of the previous iteration of the committee. It must review the exercise of the government of its powers under the act and must report to both houses at least once every 180 days. This is an ongoing review process regarding whatever decisions will be made.

And, of course, any government decision may be challenged by a judicial review if it breaches the provisions of the act or is contrary to its purpose and goals or the Charter of Rights or any other applicable bills. Judicial reviews have been used effectively by environmental groups in the past.

I now move to the concerns raised by some Indigenous leaders, especially about the need to consult and to seek free, prior and informed consent. Incidentally, in reviewing the act, I noticed no fewer than 10 specific references to Indigenous rights and interests. Moreover, following an amendment adopted in the House of Commons last Friday, subclause 21(2) expressly restricts any sidestepping of the Indian Act.

It is also important to distinguish between three important steps that were confused in some of the speeches: first, the implementation phase of this act; second, the selection of the major projects, which would lead to an approval; and third, the carrying out of any approved projects.

On the first point, regarding implementation of this bill, I understand that the Prime Minister will hold separate meetings in July with First Nations, Inuit and Métis to discuss the framework to implement the act.

With regard to the second step, during an appearance before us, the Minister of Crown-Indigenous Relations said that the new office will include an Indigenous advisory council; thus, an Indigenous perspective will be part of the process for selecting projects.

In connection with the third step, the act makes clear that consultation with Indigenous peoples whose rights may be adversely affected by any specifically approved project is mandatory.

Moreover, colleagues, before any work can be carried out on the ground, the government and proponents must ensure that the rights enshrined in our Constitution, at section 35 of the Constitution Act, 1982, are fully respected. Statutory law, including this bill, cannot override the constitutional protections of section 35, which encompasses a duty to consult with Indigenous peoples.

To quote from the Department of Justice:

Where the Crown is contemplating undertaking conduct that could have an adverse impact on section 35 Aboriginal or treaty rights, the Crown has a duty to consult with the rights holding group . . . .

They continue, saying, “Both the Crown and Indigenous peoples are required to engage in consultation in good faith. . . .”

They continue:

The scope and content of the duty to consult vary with the circumstances and are proportionate to the preliminary assessment of the strength of the claim and the severity of the potential adverse impact on the right. . . .

This flows from the Supreme Court’s decisions in Haida and Mikisew.

Moreover, the effect of good-faith consultation may be to reveal a duty to accommodate, as affirmed by the Supreme Court in Haida. It also bears emphasis that section 35 cannot be infringed lightly. In fact, the Supreme Court has drawn significantly on section 1 jurisprudence in developing a high burden of evidence on the government to not comply with section 35. As summarized by the Department of Justice:

. . . in Sparrow, where the SCC set out a two-step process of analysis starting with whether the measure had a valid legislative objective. If yes, the inquiry proceeds to the second stage of inquiry, which is guided by the Crown’s fiduciary relationship with Indigenous peoples and the goals of reconciliation. At this stage of inquiry, the test must be adapted to the legal and factual context in which the infringement arose. While the considerations will vary with the circumstances, they might include whether there was as little infringement as possible, whether fair compensation was provided and whether the collective was consulted.

Simply put, section 35 provides Indigenous peoples with robust constitutional protections that Canada must uphold, including in its actions under the building Canada act.

Overall, I am confident that the executive will exercise its powers under the act in good faith and with respect for its obligations towards Indigenous peoples. If the executive oversteps, my experience as an appellate judge assures me that the courts will not hesitate to intervene.

In this regard, I wish to share with you a historic decision — many of you were not yet born when it was made — from my home province of Quebec, the Kanatewat decision, which was rendered prior to the Constitution Act, 1982, and the section 35 we know today. This was at the beginning of the 1970s. I was still a teenager.

In 1971, Quebec announced a vast hydroelectric project in northern Quebec. The proposed plan involved the creation of large reservoirs that would flood vast territories inhabited by the Cree and the Inuit, who brought proceedings for an injunction before the Superior Court of Québec.

On November 15, 1973, the Superior Court of Québec delivered a historic 183-page decision granting an interlocutory injunction that stopped the work that day.

While the decision was suspended within a week and later overturned on appeal, it brought about the negotiations that would lead to Canada’s first modern Indigenous land claim agreement and treaty, the James Bay and Northern Quebec Agreement.

Colleagues, our legal and social frameworks have come a long way in the 50 years since this judgment of the Superior Court of Québec. The rights of Indigenous peoples are now more explicitly recognized and robustly protected, including through section 35 and associated case law, as they rightfully should be. In the Canada of today, I trust the courts to stand firm and intervene if the government falls short on its obligations to Indigenous peoples.

In closing, honourable senators, we have before us a bill that confers a great deal of power on the executive branch, while also setting out clear requirements for transparency and democratic oversight. This bill aligns with the constitutional framework that protects Indigenous rights and the Charter rights of all Canadians.

In my opinion, this bill strikes a balance between our principles and the priorities at play. That is why I urge you to join me in voting against this amendment and in favour of the bill.

Thank you. Meegwetch.