Ambiguities in National Interest Criteria Under Canadian Project Law

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The ongoing discussion surrounding the Building Canada Act has raised considerable concern among lawmakers and industry stakeholders due to the lack of clear criteria for defining a national interest. Although the government expedited the passage of the bill in June to streamline approval processes for major infrastructure projects, transparency regarding the conditions under which a project may be classified as serving the national interest remains elusive.

Members of Parliament (MPs) have expressed frustration, highlighting that the absence of a definitive framework leaves both investors and the public uncertain. The government’s hesitance to provide specific guidelines has prompted questions about accountability and predictability in project approvals.

Understanding the Building Canada Act

The Building Canada Act grants the federal government the authority to designate certain projects as being in the national interest, facilitating expedited review processes and possible exemptions from various environmental regulations. Nevertheless, the criteria for such a designation are vague, leading to calls from MPs for a more structured approach.

The call for clarity

A pivotal moment in the legislative process occurred when Conservative MP Shannon Stubbs advocated for an amendment during committee discussions. This amendment sought to compel the government to establish explicit criteria for qualifying national interest and to set a timeline for its release.

The amendment narrowly passed, reflecting the divided opinion among lawmakers, with the Liberal party opposing it.

In a report presented to the House of Commons on September 26, Dominic LeBlanc, President of the Privy Council, reaffirmed the government’s stance: there is currently no defined interpretation of national interest.

The report did not specify when, or if, this definition would be forthcoming, leaving many issues unresolved.

Impacts of the undefined criteria

The Building Canada Act identifies five factors that the government could consider when determining which projects receive fast-track treatment.

These factors include potential economic benefits to Canada, the advancement of Indigenous interests, and contributions to climate change objectives. However, the law does not mandate adherence to these factors, allowing for arbitrary decision-making.

Concerns from various parties

MP Xavier Barsalou-Duval from the Bloc Québécois, who supported the Conservative amendment, voiced concerns regarding the ambiguity in the law. He argued that the lack of a concrete definition for national interest could result in the misuse of the legislation, enabling the government to circumvent existing laws in Canada.

“What we wanted was binding criteria,” Barsalou-Duval stated, underscoring the need for a more structured legal framework to prevent abuse of power. This sentiment resonates with a broader apprehension among various political factions regarding the potential consequences of vague legislative language.

Government’s stance on national interest

In response to questions about their inaction on defining national interest, a spokesperson for the Privy Council Office clarified that the requirement to define this term is merely discretionary. This indicates that the government is not legally obligated to provide a definition beyond the five factors outlined in the act.

Moreover, if the government opted to refine the term after the specified window—15 days post-enactment—it would have needed to justify the delay. However, since the decision was made not to clarify further, the existing report meets legislative obligations.