Contributed by Robert Lyman © 2025. Robert Lyman’s bio can be read here.
The Carney Liberal government has put forward a motion to limit consideration of Bill C-5, which includes the Building Canada Act, to five days. This Act is intended to accelerate the regulatory review of “nation building projects”. This means that by June 20, 2025, the bill could be passed and sent to the Senate for approval. Normally, the process would see the bill go to committee and be scrutinized by parliament, something which could take a few months. But with this motion the discussion and scrutiny of the bill would be limited to five days. According to the government, without urgent action, Canada will be placed at risk.
NATIONAL POST: https://nationalpost.com/news/we-need-to-move-liberals-defend-plan-to-ram-through-major-projects-bill-before-canada-day
Maybe it’s time to take a deep breath and consider what the Building Canada Act would do in practice.
Let’s pretend that the Carney Liberal government succeeds in getting Parliament to pass the Building Canada Act right away. Let’s also pretend that you are the potential sponsor of a pipeline that would transport oil or natural gas from Alberta to a port on either the British Columbia or Manitoba (i.e. Hudson Bay) coast for onward transportation by marine vessel to foreign markets.
The passage of the legislation will authorize the federal government to designate a lead Minister who can recommend to Cabinet whether or not it should designate projects as being of national interest. The Minister will do this on the advice of an office (either an existing government department or agency or a new one) which also will serve as your source of information and point of contact. One key function of the office will be to serve as a single point of federal government regulatory review; it will be mandated to complete the regulatory review stage within 24 months.
In theory, this legislation will greatly shorten the amount of time required for regulatory review of a major pipeline (or other) project. The current timelines for regulatory review range from 43 to 104 months, with an average of 70 months[1]. So, in theory, designation as a project of national interest will reduce the time your projects spends in regulatory review, on average, by 46 months. Yippee!
Wait a minute, though. There are a few things that will not change.
Your company’s internal planning process for a major project can easily take 18 to 36 months. Before any meaningful project description is filed, a further 18 to 36 months can be required for analytical work, preliminary engineering and design and environmental field studies. By the time the initial filing of an application for a certificate is made, you may have spent up to five years or more investigating and analyzing the project. You also will have had to prepare a Consultation Paper to use with land owners, communities and indigenous groups. The Consultation Paper, in fact, will come near the end of a lengthy and expensive process.
The information in the Consultation Paper may lead to changes in the time allowed for internal “review” as the response to it may identify the need for supplemental information by the regulators or the interested parties; these may require increased analysis, disclosure or even change in project design or routing. That could add three to six months.
The present federal review process includes two parts, review under the Impact Assessment Act, often by a public panel, and review by the Canada Energy Regulator (CER).
The IAA panel’s terms of reference are established by the Minister of Environment and Climate Change. There are five phases in the IAA process: pre-planning; planning; impact statement; impact assessment; and decision-making. Almost all the projects that have been submitted to the IAA for review are still in the early phases and there is still no way to assess how long it will take for most projects to pass through all phases.[2] There are five factors to be considered, all of which relate to environmental effects or Indigenous rights; economic considerations are not taken into account. Based on the review of the public panel’s report, the Minister of the Environment and Climate Change may decide that a certificate should not be issued.
Source: https://cwf.ca/research/publications/report-federal-impact-assessment-act-under-review/
The CER is responsible to carry out a review of the project on the basis of 21 considerations, any one of which potentially cause it to recommend against certification[3]. After this review, the CER issues a report to the Governor in Council (i.e. the Cabinet) through the Minister of Natural Resources. Based on the Minister’s recommendation, the Cabinet makes a final decision on whether or not to issue a certificate. It is unclear how the IAA and CER processes will be changed or possibly amalgamated as a result of the Building Canada Act.
Before you think these are the only factors that may affect the time it will take to get a decision on your project, consider the following:
While the Carney government has insisted that passage of the Building Canada Act is urgent and must be done before Parliament rises for the summer of 2025, there will be many questions that the Opposition Parties will want to ask, and the Carney government is in a minority situation. Getting the legislation passed by both houses of Parliament could take up to six months.
After the legislation is passed, it will be necessary to approve the regulations that implement it. Ideally, these will be drafted while the Act is before Parliament, but it easily could take up to six months more.
The government has yet to designate a lead Minister and to decide whether the supporting office will be an existing department/agency or a new one. In either case, the new office will have to be staffed, including the appointment of managers, qualified experts and support staff. Recruitment can take several months.
Regardless of how the new office is staffed and the review processes it will follow, the federal government will have to meet the requirement of consulting with the affected indigenous groups. You will, too, especially if it takes time to settle on the “indigenous benefits agreements”. There may be several dozen groups along the proposed right of way, and attaining their consent may require extended negotiations.
Many environmental non-governmental organizations remain opposed to all pipeline construction. One of the tactics they commonly use is to have dozens, if not hundreds, of intervenors apply for “standing” before the regulatory body. The CER , unlike its predecessor National Energy Board, cannot deny standing on the grounds that those requesting it are not “directly and adversely affected”. Hearing all the intervenors may be very difficult within the 24 month timeframe, but refusing to hear them may expose the subsequent panel recommendations and Cabinet decision to court challenges.
Andrew Roman, a retired lawyer with extensive experience in this field, amplified this point in an email message to me:
“A lawyer from a firm representing only one of many intervenors could easily occupy 24 months by introducing extensive questioning of the applicant’s witnesses, his own intervenor evidence and arguments questioning the economic need for the project, its environmental impacts within and outside Canada, etc. In effect, creating a hearing of his own within the hearing by the agency. If there is any attempt to scope this or reduce the time granted they would go to court to allege a denial of natural justice, arguing that the time cut back prevented the agency from hearing relevant evidence. A hearing under the current IAA is likely to take 4-5 years as the supposed time limit will have to be repeatedly extended.”
The acceleration of the federal regulatory process does not necessarily obviate the need for provincial regulatory reviews or ensure that provincial governments will remove their policies that make a pipeline project not feasible (e.g. British Columbia’s refusal to permit pipelines that would require increased tanker traffic off its northern coast).
The actual construction of the pipeline can also take up to 24 months, or more if there are unanticipated problems along the right of way, interruptions that cause a building season to be missed, or a sharp escalation in costs.
After you have successfully navigated the permitting, consultation, and political approval stages, it is now typical to find oneself in a prolonged court case due to the intransigence of well-funded environmental groups. Worse, if a funded intervenor does not get what it wants from the hearing, it will apply for judicial review, appeal to the political level (Minister or Cabinet), or do both. The object would be to create uncertainty for the investors so that they will walk away from the project. That was well tested in the TransMountain Expansion project case and succeeded. It is highly likely to be used again.
Even if the eventual passage of the Building Canada Act takes a few months off the time required to take a new pipeline project from concept to completion and operation, the actual results, in terms of useful and operating infrastructure, are still many years away. This assumes that a project sponsor would be willing to risk more than a billion dollars in the hope that its project can survive the entire process. So, what’s the rush to ram this bill through parliament in 5 days without proper debate? What hidden land mines or boondoggles for taxpayers lie in wait for such quickly-drafted, barely-considered legislation??
Quote by Hans Rosling from his book “Factfulness”
[1] Kurtis Reed et.al, Timing of Canadian Project Approvals: A Survey of major Projects. Alberta Law Review Society. April 15, 2021
[2] Marla Orenstein, Federal Impact Assessment Act under Review: Measuring Projects and Timelines. Canada West Foundation, May 2023
[3] Alastair Lucas, A Guide to the Canada Energy Regulator. CIRL Occasional Paper #78, May 2022
Thanks for outlining the REAL timing that might be involved to get a pipeline built. Can we really blame companies who want to go ahead with a pipeline, take a look and say ” no thanks…we can invest in other countries”