Having read “Value(s),” the pre-electoral, philosophical musings of Prime Minister Carney, I was keen to read his first stab at legislating. I will cut to the chase. His ambiguous style of writing about values is reflected in his ambiguous style of writing about interprovincial trade and labour and large project promotion in Bill C-5, (An Act to enact the Free Trade and Labour Mobility in Canada Act and the Building Canada Act.) My prediction is that nothing will be changed by this legislation and that, perhaps, is by design. .The premiers of Alberta and Saskatchewan have gushed about Mr. Carney’s desire to change the nature of the national conversation to move projects along. I will refrain from speculating on what goes on between Mr. Carney’s ears, but Bill C-5 has the precise value of the paper on which it is written. I see no cause for either a mournful cry of ululation or the excited shriek of the vuvuzela. I believe that nothing will change and here is my thinking. Reasonable people may disagree.Bill C-5 is two Acts. The first is called the Free Trade and Labour Mobility in Canada Act and it is an attempt to create more fluid trade in goods and services and labour between Canadian provinces. It will do this by streamlining the areas in which federal legislation touches on interprovincial trade. That is a noble goal. Unfortunately, the legislation simply reinforces what the government currently does — it creates regulations and enforces compliance with those regulations. The Governor-in-Council (cabinet), on the recommendation of the Minister may change the regulations.Aside from the obvious conditional “may change the regulations”, one might think,“Doesn’t the Governor in Council already have this power?” How do regulations get written and adopted by Parliament today? As I understand it, it happens when ministries write regulations and their ministers get approval from cabinet and sometimes Parliament. Reading this section of the Act took me straight back to Mr. Carney’s “Value(s).” It is full of a great many words that hide an essential truth — nothing is changed by the many words..The more controversial part of the Bill is the Building Canada Act. Finally, Canada is going to get built! All praise Prime Minister Carney! Except nothing will get built.First a personal word on bills which create several pieces of legislation. Given that I lost my job due to the multifarious Bill C-69 whose Interim Provisions improperly separated me from my paycheck, I am always dubious about daisy-chaining legislation. There is a skill to writing understandable legislation which eludes the Canadian government. Instead, successive parliaments have opted for maximum obfuscation. Bill C-5 fits that pattern. .Now that I have assuaged my hurt feelings, what are the problems with the bill?Here is a portion from the Preamble to Part 2: Building Canada Act. The purpose of the bill is:"to urgently advance projects throughout Canada, including in the North, that are in the national interest, including projects that· foster the development of economic and trade corridors,· connect different parts of the country and get goods to market,· strengthen Canada’s ability to trade,· create good-paying, unionized jobs, and· enhance the development of Canada’s natural resources as well as its energy production and infrastructureand"Whereas the Government of Canada is committed to respecting the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982 and the rights set out in the United Nations Declaration on the Rights of Indigenous Peoples.".As a minor complaint, I am not a big fan of including “good-paying, unionized jobs” in legislation. What if the proponent can only offer “great-paying, non-unionized jobs?" Writing good legislation does not allow for the sloppy logic and language of opinion pieces such as the one you are currently reading. Words count and these might become important.One other nit is worth considering. I would propose a section 5 - 6.1( c) in which the government ministers, as well as project proponents, must declare conflicts of interest. Do we know anything about how the wealth of our prime minister is being managed? What about the share structures of the blind trusts of other ministers? Do they even have blind trusts, the contents of which have been transparently revealed to Parliament? What if a member of the Governor-in-Council has a public record of anti-development statements? Opinions can certainly be expressed but should that person be allowed to adjudicate Canada’s development? Maybe some of the decision makers should recuse themselves as well..But it is the reference to Section 35 of the Constitution Act, which deals with existing treaty rights for indigenous people, that makes me think this bill is dead on arrival. There are more than thirty years of Supreme Court rulings about Section 35 that have been completely ignored by Bill C-5. The issue addressed repeatedly by the Supreme Court was not the respecting of rights but the adequacy of consultation. The court rulings bore down insistently on the specific issue of consultation and consistently ignored the hand waving about respecting rights. (e.g. Chippewas, Delgamuukw, Haida, Tsleih Waututh, Clyde River etc.)Having spent five years of my life on such consultation, I am not sure how the government will square the concept of “urgently advancing” projects with that consultation. Consultation takes time because the answers to legitimate questions often don’t come until the final stages of the project design. This legislation, as written, is begging for another slap down from an appellate court. Unless, of course, Mr. Carney can successfully sell his vision to the nine esteemed justices of the Supreme Court. But to even suggest such a thing is to invite the umbrage of the Chief Justice.The problem is not unique to Mr. Carney but is built into the nature of project development. What project proponents want is the certainty of Governor-in-Council approval at the beginning of their project. This reduces the risk of spending tens and perhaps hundreds of millions of dollars on a project only to have the government pass legislation that destroys the project — like a tanker ban for example. Project proponents would like to receive, at the beginning of their project, something like,“We, the pooh-bahs of the Governor-in-Council approve this project subject to compliance with pertinent regulations and to incorporating into the design the legitimate suggestions and demands or mitigations of those interested parties who have been sufficiently and appropriately consulted. This Order-in-Council is irrevocable and cannot be changed by subsequent legislation without full and complete compensation of all expenditures prior to such legislation.”The project proponent will then address the detailed design of the project considering the desires and suggestions of those groups with whom they have legitimately consulted. .Sure. Good luck with that. The First Nations folks have spent a fortune in legal fees to get the government committed to deep consultation prior to project approval and now these decisions will be swept away by legislation that was conceived and passed in a few weeks? Again, it is an invitation to a major appeals court slap down. There is much more that can be said about this issue, but my conclusion to the matter is that Bill C-5 will not expedite project developments. Instead, there will be a lot of dust raised as governments fight over getting projects that will never be built put on a registry that means very little. And maybe that is the whole point of the legislation.Madam Premier, the clock is ticking and I don't think this legislation is going to get your pipeline or anything else built. And it doesn't do anything to address equalization. Just saying...
