This article was published by The Energy Mix on Dec. 3, 2025.
by Bob Weber
The year 1539 was a good one to be King of England.
Henry VIII, the reigning monarch, had a free hand on royal marriages, state religion, church property, and such. But those pesky Parliamentarians didn’t always move as quickly or as agreeably as he would have liked.
So he had his fixer Thomas Cromwell come up with the Statute of Proclamations, which gave Henry the power, exercised through decree, to alter any law, with those decrees having the same force as if Parliament had voted for them.
It was not popular with the commoners. The Act was repealed in 1547 and history’s verdict has been harsh. One 18th-century jurist said it “was calculated to introduce the most despotic tyranny,” and it is still considered the height of Henry’s will to power.
But legislation giving the whip hand to the executive branch of government, which scholars call King Henry the Eighth clauses, is still around. One such clause is prominent in the Carney government’s new Building Canada Act (BCA). It’s a major reason observers say the legislation marks a big shift in power to the prime minister and cabinet and away from the courts, Parliament—and the public.
“Cabinet, with cabinet secrecy, can pass a regulation that changes a law duly passed by Parliament,” Martin Olszynski, a University of Calgary resource law professor who testified before a Senate committee on the bill, told The Energy Mix in an interview. “That’s really radical.”
The Building Canada Act was hustled through Parliament last summer in less than a month. It was presented as a response to the perceived need to speed up environmental approvals for large industrial developments, responding in turn to the undoubted threats to the Canadian economy posed by the current United States government. Here, briefly, is how it works.
Project proponents who feel their idea is “nation-building” can apply to the Major Projects Office, a new agency created by the legislation. That office measures the proposal against five goals, including “whether a project will contribute to clean growth and addressing climate change,” according to the recent federal budget.
The office is to ensure both First Nations and provincial governments have been adequately consulted. It then makes a recommendation to the minister of internal trade. After 30 days to ensure the provinces and territories are onside, the minister can then declare the proposal a Project of National Interest, (PONI). Dawn Farrell, CEO of the Major Projects Office, told a House committee she hopes a decision on designation will take four or five months. The discussion will then change from whether to proceed, to how.
Who Wouldn’t Want a PONI?
Supporters say the legislation eliminates the need for companies to answer questions twice, once at an environmental assessment and again when they request permits from federal departments for specific actions—say, building a stream crossing.
“Half the job is getting through environmental assessment, getting your capital together, and announcing the project,” said Dave Nikolejsin, an adviser at the McCarthy Tétrault law firm and the former provincial deputy minister who oversaw natural gas development in British Columbia. “The other half, and sometimes the tougher half, is actually getting it built.”
Speaking on a podcast by the ARC Energy Research Institute, Nikolejsin said “What drives proponents crazy is they will go through massive expense and time to do a baseline study as part of an environmental assessment. Then they have to do it again when they turn to get their permits.”
A blog from the law firm Bennett Jones, which often represents fossil energy companies, made a similar point: “By cutting red tape and coordinating project approvals more efficiently, the MPO represents a significant effort by the federal government toward ensuring that Canadian infrastructure can be advanced to attract investors and boost the competitiveness of Canada’s project execution timing.”
Stacking the Deck
Well and good. Environmental groups and concerned citizens aren’t any keener than businesses to spend time and money in court or endless regulatory hearings. But observers suggest the Building Canada Act has stacked the deck, dealing aces to those in power and jokers to everyone else.
“Parliament has given cabinet really unprecedented power to exempt projects from environmental laws, in effect giving cabinet what are effectively law-making powers,” Anna Johnston, staff lawyer at West Coast Environmental Law, told The Mix.
Pierre-Alain Bujold of the Privy Council Office disputed this characterization in an email to The Mix. “Designation under the Act does not exempt projects from federal laws listed,” he wrote. “It provides upfront clarity and coordination, allowing projects to advance while maintaining protections for the environment and Indigenous rights, with reviews occurring simultaneously rather than consecutively”
“Once reviews are complete, the Minister responsible for the Act (the Minister of One Canadian Economy) issues a single, binding set of public conditions for the project, including mitigation measures.”
Still, questions begin with how PONIs are designated. Most projects won’t be.
Only a small minority of resource projects in Canada trigger a federal assessment. For those that might, Ottawa’s five criteria to determine which ones go through the magic gate are extremely broad. They ask if the project will improve Canada’s autonomy and security, if it will bring economic “or other” benefits, the likelihood of success, impact on First Nations, and environmental and climate effects. Opponents say they are so woolly that—except on the issue of First Nations rights—it would be extremely hard to challenge a project designation in court.
“The act was designed to give huge discretion to federal cabinet,” said Johnston. “It has such broad discretionary powers that I think the possibility of successful legal challenge would be difficult.”
An Environmental Assessment. Sort Of.
A designated PONI would still be subject to an environmental assessment. Sort of.
Before the Act, proponents were required to go through a six-month planning period before beginning their assessment. “That was an avenue for public input,” Johnston said. “That was where we were going to figure out what questions we were going to ask.”
Now, that’s gone, she said. “If you’re a PONI, you have to go through an impact assessment, but you start at the assessment phase, you don’t start at the planning phase.”
The planning period did sometimes spawn the kind of litigation that created crazy-making delays, but Olszynski told The Mix that dropping it shifts power significantly. “Removing that six-month planning period puts the responsibility for setting the terms of reference exclusively in the hands of the proponent.”
Government documents don’t address how reviews will be designed. They only stipulate they will occur. “Projects will continue to be subject to all regulatory review processes that would ordinarily apply to the project.”
The BCA hobbles environmental assessment and public involvement in other ways. Project proponents have been required by law to evaluate their proposals through certain lenses—consideration of cumulative effects, for example. Whether those lenses have been donned are often at the heart of legal disputes.
But PONI projects are “deemed” to have already met such requirements—even if we don’t know whether they have or not. And once something is deemed, it’s done, immune from judicial review.
“If we have any semblance of environmental law in this country, it’s because the courts have pushed that,” Olszynski said. “The fact they are being squeezed out of this space is not good.”
And if regulations are violated, thanks to our old friend King Henry, cabinet can simply alter them. “Cabinet can make a regulation exempting a project from any of the environmental laws,” said Johnston. Hearings may still be held, but the outcome is predetermined.
“It’s just a question of how, not whether,” said Olszynski.
Still, King Henry has his supporters. Nikolejsin sees the mechanism of deemed approval as “something huge (the BCA) has going for it.” As he sees it, that’s the scrubber which will scour away duplication and delay: “If you get through enough gates, whatever that’s going to look like, everything else is supposed to become about expediting things like permits.”
There are still some checks. Safety regulations from the Canadian Energy Regulator and the Canadian Nuclear Safety Commission aren’t subject to alteration. The BCA requires provincial consent for projects that concern exclusive provincial jurisdiction. And cabinet can remove a project’s PONI designation if, say, it’s deemed to ask for too much deeming.
Is This Legal?
You may ask yourself: is any of this legal? Well, maybe. Neither the Constitution nor common law guarantees public input into regulatory matters.
Or maybe not. Johnston said health and safety issues could provide grounds for constitutional challenges. As well, previous court rulings have found the government must consider all relevant information in regulatory decisions, something the BCA may inhibit.
“Even if the government went in and changed the regulations, that wouldn’t change the court rulings,” she said. “We’re in a legal grey area.”
The Quebec Environmental Law Centre is challenging the BCA in Quebec Superior Court. “The Act allows an excessive encroachment on provincial powers and delegates too much power to the federal government such that the population and the courts lose their ability to effectively control government decisions,” lawyer Marc Bishai told The Mix.
He said that while the BCA requires Ottawa to consult with provinces, that doesn’t mean provincial concerns will be heeded. “Consultation is one thing, but it can be set aside.” The Act also allows provinces to delegate powers to the federal government, something the Constitution forbids, he added.
Finally, he argues King Henry VIII has no place in a modern democracy. “By removing the levers that usually exist to control government decisions, this Act puts at risk the ability of courts to effectively verify whether those government decisions are legal,” he said. “That power of judicial review is protected by the Constitution. The ability of Parliament to reduce or set aside that role of the courts is limited.”
Of course, it’s early days for the BCA. So far, the government has only referred proposals to the Major Projects Office for PONI consideration, 11 of them at last count. As yet, there are no actual PONIs in the stable and no one knows what the process will actually look like. Farrell told the House committee that she expects no more than one or two projects will become PONIs. Still, she added that her office has received 500 applications and the Globe and Mail reported there are 32 projects on the potential list—a reminder that, with a law that hands such open-ended power to cabinet, anything could happen.
“How it’s going to be implemented fundamentally depends on who’s in power,” said Olszynski. “You could do radical things with this bill, if a government wanted to.”
Somewhere, King Henry is smiling.
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