Mark Carney’s major projects have yet to face their ultimate challenge: the courts – The Globe and Mail Mark Carney’s major projects have yet to face their ultimate challenge: the courts – The Globe and Mail

With a new majority in the House of Commons, Prime Minster Mark Carney’s Liberal government should have an easier path to get its infrastructure projects off the ground. Nearly 300 projects have been submitted to the new Major Projects Office for consideration so far, and the government plans for the recently announced $25-billion sovereign wealth fund to help with financing. But the risk of getting stalled by years-long litigation looms over any potential projects.

In April, the Chiefs of Ontario, representing 133 First Nations across the province, filed a brief in the House of Commons arguing that the Building Canada Act, which established the Major Projects Office and allows the government to bypass normal legal requirements and fast-track a project if it meets certain criteria, was passed without meaningful consultation with First Nations.

The Supreme Court of Canada has recognized the government’s duty to consult as a constitutional obligation, and legal challenges on such grounds have delayed significant projects in the past, including the expansion of the Trans Mountain pipeline. That project was eventually approved after additional consultations.

“Unlike politics, majority rule doesn’t apply with the courts. Every First Nation or Indigenous group has the right to proper consultation,” Sander Duncanson, Co-Chair of Osler’s Regulatory, Indigenous and Environmental group, tells The Globe and Mail.

“And in court,” he adds, “challenges to national-resource and energy projects often take years to play out.”

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