Q&A with Ian Peach: Unpacking Carney's Controversial Bill C-5

In this Q&A, 2025 CCS Summer Student Areeba Ismail talks to Ian Peach — Consultation Manager for the Wolastoqey First Nation, former Dean of the UNB Law Faculty, and an expert in intergovernmental affairs — about the Carney government’s Bill C-5 (An Act to enact the Free Trade and Labour Mobility in Canada Act and the Building Canada Act). In particular, Areeba and Ian talk about the context and reasoning behind C-5, its potential impact on the rights of Indigenous peoples, and the role that UNDRIP may or may not play in challenging its excesses.

Q. Can you tell us about the background of Bill C-5, what it purports to do, and what you think it actually does?

A. There are a couple of backgrounds and the big one is the Canada-US relationship. There has been a sense with President Trump’s tariff assault strategy to increasingly promote Canadian goods and purchases and to create opportunities for the consumer to buy Canadian goods by having Canadian production. There’s also a domestic intergovernmental relations aspect to that. Under the Trudeau government, the federal government had been seen as interfering in the smooth operation of the country, and Prime Minister Mark Carney wanted to move past that. Basically, he wanted to get out of a conflict-ridden relationship with provinces and premiers.

But overall, the idea was to get the wheels of production moving again. The stated goal was to ensure Canada becomes a creator of critical resources, going back to what some might call a more traditional mode of being: “hewers of wood and drawers of water.” I think this bill encourages those activities. However, it does so by essentially declaring all activity to be good activity, whereas under the previous government, there was more of a discourse around critically evaluating those activities.

For example, having electric vehicles is probably better than having gasoline-powered vehicles. But that mode of power requires battery storage, and to make those batteries you have to extract minerals from the ground in places like New Brunswick. This means you are using fossil fuel vehicles to do the extraction, transport the goods, and power the processing of raw minerals. So creating those batteries may not actually be such an environmentally friendly idea.

Q. Have you seen the impacts of Bill C-5 in use?

A. To illustrate the changes that Bill C-5 has introduced, take the Sisson mine in New Brunswick. A little over a decade ago, there was a big fight about Sisson, which was a large deposit of titanium and molybdenum that was proposed to be mined through an open-pit mine. This was on lands to which the Wolastoqey (Maliseet) First Nations have a particular connection. The Sisson project became quite contentious and, given that Northcliff Resources never got the social license or economics to operate, the project fell apart.

Now the economics are back, and Northcliff Resources, in partnership with another company, is cranking things up again. After little to no contact with the Wolastoqey, the Sisson partnership suddenly announced they would start drilling at the end of the summer. This is despite an earlier agreement meant to establish a First Nations engagement process and archaeological monitoring process, which has not been meaningfully followed. This is clearly not a good process, but I think the takeaway is that Bill C-5 encourages exactly that kind of behavior from proponents in the mining industry.

Q. This Act gives the federal government broad discretion in defining and acting on what constitutes the national interest by overriding statutes that were previously challenged by provinces (e.g. The federal Impact Assessment Act). How much of this is about setting the Mark Carney government apart from the Justin Trudeau government and retroactively addressing provincial complaints? Why not just repeal the laws in question rather than override them?

A. I think this is absolutely about Prime Minister Carney wanting to create a friendly relationship with what we might call the difficult provincial governments (i.e. those that Justin Trudeau found challenging to work with). I think it also reflects Carney’s political orientation as being on the right-wing side of the Liberal Party. He doesn’t like having conflicts with these premiers, and he doesn’t like conflicts with business either. Part of it, though, is that the federal government wouldn’t want to be seen by those on the left of the Canadian political spectrum as repealing acts like the Impact Assessment Act. So, it’s less about democratic legitimacy and more about convenience. It’s certainly easier to create a hidden exemption through the deeming provision, bypassing the usual due process.

Q. The Act has been criticized for including a so-called “Henry VIII clause,” which allows Cabinet to override or bypass certain pieces of legislation to fast-track projects deemed to be in the national interest. What specific statutes could be overridden under this authority, and what is exempt? What are the implications for public accountability?

A. I think it really does undermine the rule of law and this is the core problem with this legislation in my mind. It creates a kind of absolutism. I’ve lived in New Brunswick for 15 years, and being a natural cynic, the idea of giving Dominic LeBlanc, in particular, absolute power frightens me. That’s essentially what the general deeming provision does: it can exempt a project deemed in the national interest from any federal legislation that establishes a process.

Even when legislation specifically mentions the Impact Assessment Act, the deeming provision effectively rewrites it. In other cases, like with the Canadian Nuclear Safety Commission (CNSC) or the Canadian Energy Regulator (CER), the legislation says the Governor in Council cannot authorize a project until consultation has occurred with CER or CNSC. Interestingly, though, this takes decision-making power away from those agencies.

You can imagine what those consultations would feel like to the senior officials at CER and CNSC when the government is effectively saying: “We have to do this, this is what the government wants so don't stand in the way.” It would take a very brave minister to push back and insist that the process be followed. Even then, it’s unclear whether disagreement within consultation could block approval, or whether the minister could simply report that consultation occurred and move the project forward through Cabinet anyway. Essentially, it raises serious questions about what that consultation really means for the Cabinet.

Q. The legislation says that it is committed to respecting rights 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 (UNDRIP). But we’ve seen an onslaught of opposition to the legislation from Indigenous peoples across the country, with some beginning litigation against the government. What exactly about the legislation undermines the commitments made in the preamble?

A. I think it was a failure of trust-building and reconciliation right from the start. As much as anything, it was the rushed announcement and introduction of the legislation that set entirely the wrong tone and made Indigenous peoples skeptical. As well, it is reasonable that a process that was explicitly announced as being designed to speed up approvals by reducing opportunities for comment raises suspicion. The federal government will have to prove that such suspicions are unwarranted and, so far, they have done nothing to do so.

Before the legislation was introduced, Indigenous organizations received a letter describing the legislation and were told that within two weeks, two named officials from the Privy Council Office (PCO) would be in touch to hear from them, to consult, but not “consult” in the constitutional duty sense.

So this consultation was supposed to happen before the legislation was introduced, but to my knowledge, those PCO officials never actually reached out to Indigenous peoples, certainly not the Wolastoqey here in New Brunswick. Then the legislation was introduced and pushed through with no serious effort to engage Indigenous peoples or address their concerns. This is not a good way to start a relationship and it’s no wonder that First Nations are cynical about it. Nothing has changed since.

The legislation seems to give Cabinet a free pass on consulting during the drafting process, which misunderstands the policy process. Even when the government attempts to consult, it’s often superficial. Take the June First Nations Summit, where 600 people were brought together ostensibly to discuss the legislation. By all accounts, it was not consultation — it wasn’t even close to a meaningful conversation. This is in stark contrast to the approach I had mentioned Cameco took in northern Saskatchewan, where nothing moves forward without genuine engagement and approval from Indigenous communities.

By bypassing substantive consultation and attempting to retroactively address concerns, this government is fostering deep and justified cynicism among Indigenous peoples. Litigation is already underway, and if the Crown’s justification is essentially, “it might be illegal, but challengers lack the resources to fight it,” then that speaks volumes about the lack of respect for both process and people.

Q. The Act also emphasizes environmental protection and respect for Indigenous rights. In legislation primarily aimed at facilitating interprovincial trade and economic prosperity, can those goals be meaningfully reconciled? Or are they inherently in tension with one another? 

A. Do I think this legislation achieves all the different objectives stated? No.

But I think it’s possible to do that and that is the fine art of democratic governance. You do it through early engagement. If you take your time and do it right at the front end, the process becomes a lot smoother later because, as the proponent, you understand your universe and can manage objections. That allows you to move forward without surprises down the road.

I spent many years in Saskatchewan, both in government and academia. One of the golden examples from the business community there was the Cameco Corporation, a large uranium company. Because 85% of the population in the Northern Administration District, where the uranium mines are, is Indigenous, Cameco knew they had to earn a social license to operate from the Indigenous peoples in the local communities. They built relationships, created opportunities for Indigenous-owned businesses to participate in the supply chain, invested in education for employees’ families, and made a conscious effort to hire Northerners and Indigenous employees.

Whenever they opened a new mine or undertook any project, they took the time to go into the community and explain what they wanted to do, why it was necessary, and where the opportunities lay. They invited feedback on what might be wrong with their plans and how they could move from their position to meet the community’s expectations. They did this through dialogue.

In fact, when I was directly involved in the process, there was one point where Cameco was opening a couple of new mines, and a CBC Fifth Estate crew came out to do a story, suggesting that the company was disregarding Indigenous rights and imposing harmful chemicals. They spent two days there and returned to Toronto empty-handed, because they couldn’t find anyone who saw a problem. The population of northern Saskatchewan, pretty much to a person, supported Cameco. They recognized that the company had spent time engaging with them, working to make the project work, and seriously considering environmental concerns.

Where’s the downside in that? Cameco did its work properly, and as a result, there was no story to report.

Q. How does the current duty to consult framework as made out in case law compare to the standard of Free, Prior, and Informed Consent (FPIC) under UNDRIP? And what's the legal status of FPIC now that UNDRIP has been given domestic legal recognition through the federal United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA)?

A. I think, ultimately, they will be very different beasts. Part of it is that UNDRIPA talks a good line but doesn’t actually do much. I see it as a delaying tactic, allowing the government to claim credit for implementing UNDRIP in Canada without actually doing so. The legislation says that an implementation plan must come first, and until that plan is completed, it’s not really part of enforceable Canadian law.

I have seen some lower court decisions referencing UNDRIP as context, especially in understanding the duty to consult in Canada and British Columbia. I’ve begun to view UNDRIP as a kind of “super” duty to consult. It creates additional procedural requirements for the government: more time, more effort, and, crucially, the need to show respect for what they are told. Consultation can no longer be just a token meeting to blow off steam before the government proceeds with its plans, as was often the case in the past.

This evolving process is moving toward a duty to give reasons, so those consulted can see that their input was genuinely considered. Once this principle arrives in the courts, I expect we will see the development of administrative law-style procedural rules to guide and temper the discretion that Indigenous peoples have in exercising their right to withhold consent. This will build and develop over time, fundamentally shifting the concept of consent and consultation in Canadian law.

Eventually, I hope, the concept of free, prior, and informed consent will be understood and accepted as including the right to withhold consent. If Indigenous peoples have the right to grant free, prior, and informed consent, they must also have the right to withhold it. I think it would ultimately amount to a veto power, but it would be a veto with requirements — like a duty to give reasons and a reasonableness standard. These are administrative law style standards. Consent, in this context, essentially carries the inverse of veto. We just have to understand and accept that as a society.

Q. Parliament has domesticated UNDRIP into Canadian law, and the Supreme Court has affirmed that it may be used to interpret pre-existing obligations. Despite this, the standard of FPIC has not meaningfully reshaped the existing duty to consult framework in Canadian law. Shouldn’t Parliament's intent carry some weight in constitutional interpretation, even if technically it doesn't bind courts’ reading of higher law?

A. I’m not sure that UNDRIP has really been incorporated into legislation like C-5. I am deeply cynical about the federal government, having spent many years as a territorial and provincial intergovernmental affairs official. To me, the UNDRIP Acts implemented by the federal and British Columbia governments seem largely like a rhetorical flourish. That said, they may ultimately get hoisted by their own petard, because as these cases move up the judicial chain, one hopes the courts (and ultimately the Supreme Court) will recognize clear signals in Canada, at the federal level and in British Columbia, and potentially in other provinces, that free, prior, and informed consent is part of our law.

Even if the Acts domesticating UNDRIP themselves aren’t perfectly clear, governments have signaled to society that they are prepared to abide by free, prior, and informed consent, and we are therefore prepared to hold them to that standard and make it legally binding. At that point, governments may panic, but that’s also when the conversation shifts — from trying to make the duty to consult as robust as possible to ensuring that consent isn’t misused. When we make that shift, we will be in a better place as a society.

The real dramatic moment that comes with the conceptual shift I described is that it leads the courts to recognize Indigenous peoples — and Indigenous societies — as governments. This means they must be treated like governments and held to administrative law type standards.

Q. One feature often overlooked is that FPIC applies to both legislative and executive decision-making. Given this, shouldn’t the federal government be consulting Indigenous nations before introducing legislation that directly affects them such as this?

A. In my view, that’s an easy question to answer: yes, they absolutely should have consulted Indigenous nations during the legislative process. Especially if they are taking UNDRIP principles seriously rather than using them as the worst sort of political rhetoric to foster citizen cynicism.

I think that would be remarkably transformative for legislative processes, in part, because it would relegate the 2018 Mikisew Cree decision to history as bad law. The decision basically said that cabinet ministers, in developing legislation, are acting as legislators rather than as the executive. I spent six years in the Policy and Planning Secretariat of the Saskatchewan Executive Council, so I know how policy becomes legislation. Policy proposals go through committees and cabinet reviews multiple times: first as a plain-language policy summary, then as draft legislation, and finally as the completed bill ready for introduction. Only at that moment — when a minister introduces a bill in the legislature, does the formal legislative process begin. Before that, everything is part of the executive policy development process. If this front-end process could and should be subject to the duty to consult, this makes the policy smarter and prevents problems later, and it should arguably be a constitutional obligation because these are executive functions.

Q. Bill C-5 essentially grants provinces a veto power over projects within their jurisdiction by requiring their consent. In contrast, Indigenous nations are offered only consultation, and it is not clear when or how that would take place. What does this say about the government's understanding of Indigenous sovereignty, and does it suggest a hierarchy of actors within Canadian lawmaking?

A. Absolutely and unequivocally. We had a moment in 1992, through the Charlottetown Accord, when we could have moved forward and formally integrated Indigenous nations into the federation. Yes, there were logistical complications such as questions about expanding the Senate or even creating a third house, but it could have recognized Indigenous nations as governments within the federation. What this legislation needs to remind everyone is that Indigenous nations are still not formally recognized by the colonial system of the Canadian federation as governments or as partners in the federation.

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Areeba Ismail is a JD student at the University of Alberta Faculty of Law and a summer student with the CCS.