Indigenous Peoples have weathered many political shifts, but two new pieces of infrastructure legislation, Bill C‑5 at the federal level and Bill 15 in British Columbia (“BC”), are raising serious concerns about the future of Indigenous rights and title and governance, particularly in relation to territorial oceans and waters.

These bills are more than bureaucratic streamlining tools. They represent a fundamental shift in how governments may attempt to sidestep the constitutionally protected title and rights of Indigenous Peoples in favour of what they define, often unilaterally, as the “national” or “provincial interest.” The terms “national interest” and “provincial interest” arise from the constitutional division of powers between Parliament and the provinces under the Constitution Act, 1867:

• Parliament legislates in matters of national concern (e.g., criminal law, fisheries, peace, order, and good government).
• Provinces legislate in areas of property and civil rights, local resources, and land management.

Historically, these “interests” were rooted in the Crown’s assertion of sovereignty and the belief that the federal or provincial government could regulate land and resources for the greater public good, often without Indigenous consent. In the context of Bill C-5 (federal) and Bill 15 (BC) the invocation of “national” or “provincial” interest functions as a constitutional justification for state action that may limit Indigenous or other constitutionally protected rights. However, these justifications must be re-examined in light of section 35 of the Constitution Act, 1982, the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), and modern case law recognizing Indigenous jurisdiction and self-determination.

Early charter litigation has influenced how courts assess limits on Aboriginal and treaty rights under section 35. In Delgamuukw v. British Columbia (1997), the Supreme Court extended the reasoning from earlier Aboriginal rights cases (R. v. Sparrow (1990) and R. v. Gladstone (1996)) to the context of Aboriginal title. The Delgamuukw justification test requires the Crown to show both a compelling and substantial legislative objective and consistency with the fiduciary relationship between the Crown and Indigenous peoples, including priority, deep consultation (and in some cases, consent), and fair compensation. Developed before UNDRIP, these tests reflect a time when that consent was required only after proof of Aboriginal title and rights. Indigenous scholars have advocated for a movement from the balancing of interests in Charter litigation, to one based on a jurisdictional model. This new legal paradigm for section 35 rights better aligns with UNDRIP and laws such as B.C.’s DRIPA (2019) and Canada’s UNDRIP Act (2021), shifting the standard toward free, prior and informed consent and shared decision-making and moving from unilateral “national” or “provincial interest” justifications to genuine co-governance and recognition of Indigenous jurisdiction.

Canada’s Bill C‑5: The Infrastructure Projects Act

Bill C‑5 introduces a new federal framework intended to fast-track “nationally significant” infrastructure projects. It centralizes decision-making power in the federal Cabinet, enabling it to override or expedite environmental assessments and regulatory processes for projects deemed in Canada’s “national interest,” including pipelines, LNG facilities, ports, highways, and other industrial or transportation infrastructure.

Although the bill requires consultation with Indigenous Peoples, it does not guarantee that such consultation will be meaningful or result in consent. In practice, this requirement risks reducing the duty to consult and accommodate, a constitutional obligation clarified by the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, to a procedural formality, rather than a substantive process grounded in reconciliation and honour of the Crown.

Crucially, Bill C‑5 empowers Cabinet to advance projects even where they intersect with unresolved Aboriginal title assertions or established section 35 rights. For Indigenous Peoples, this has profound implications, particularly with respect to Aboriginal title to waters, including oceans.

BC’s Bill 15: The Provincial Counterpart

BC’s Bill 15, the Infrastructure Projects Streamlining Act, received Royal Assent on 29-May-2025 and mirrors the federal initiative. It grants the provincial Cabinet wide discretion to designate certain infrastructure projects as “provincially significant,” thereby enabling them to bypass or fast-track key regulatory steps. Environmental assessments may be shortened or waived altogether. Consultation and accommodation with Indigenous Nations remain a legal requirement, in that the Act requires “engagement with First Nations” as part of the streamlined process—but it does not guarantee consent or spell out what “engagement” means. Critics have pointed out that the risk is that compressed timelines will limit the opportunity for meaningful, good-faith dialogue with Indigenous Nations.

The Stakes for Title to Territorial Waters

Indigenous title to oceans remains unresolved and is currently before the courts, including in respect of the Haida Nation. To date, Canadian courts have not recognized Aboriginal title to marine and ocean areas, leaving questions of Indigenous jurisdiction over these waters unresolved and increasingly contested.

For many coastal Indigenous nations, such as the Haida Nation, the marine environment is not separate from the land. It is integral to Indigenous governance, economy, identity, and legal orders. Canada’s continued failure to recognize Indigenous title to oceans creates a jurisdictional vacuum—one that legislation like Bill C‑5 threatens to exploit.

Under Bill C‑5, the federal Cabinet may approve offshore LNG terminals, subsea cable routes, marine shipping corridors, offshore wind installations, and deep-sea mining operations—without recognizing Indigenous jurisdiction or obtaining Indigenous consent. This is particularly troubling in the context of growing interest in coastal and offshore infrastructure development in Northern BC, especially in response to shifting global markets and international trade tensions.

The “National Interest” Exception: Arbitrary and Dangerous

Both Bill C‑5 and Bill 15 rely on the vague and subjective concept of the “national” or “provincial” interest to justify fast-tracking decisions. However, there are no clear legislative criteria to define what constitutes the national and provincial interests, particularly how those interests will be exercised post-UNDRIP in the face of Indigenous interests, including accommodation of Indigenous laws or governance systems, especially absent any formal mechanism to challenge or review these designations.

Some guidance for this reconciliation can be found in recent agreements and a court decision in respect of the Haida Nation. This unilateral approach is fundamentally incompatible with the principles of reconciliation, co-existence, and collaboration set out in Gaayhllxid • Gíihlagalgang the Rising Tide Agreement (“Rising Tide Agreement”) with BC and the Chiixuujin • Chaaw Kaawgaa Big Tide Agreement (“Big Tide Agreement”) with Canada. It also undermines Canada’s stated commitment to implementing the UNDRIP, including the requirement for free, prior, and informed consent in decisions affecting Indigenous lands and waters.

LNG fast-tracking announcement

In coastal BC, concerns regarding fast tracked projects are not hypothetical. In September 2025, Prime Minister Mark Carney announced that Canada will fast-track a new LNG export project in BC, invoking Bill C-5 as a vehicle to accelerate approvals. This project has direct implications for Indigenous Peoples along the coast of BC, many of whom have unresolved title claims to marine territories that would be impacted by LNG terminals, shipping corridors, and associated infrastructure. For coastal Nations, the risks include not only infringement of constitutionally protected rights, but also significant threats to marine ecosystems that sustain Indigenous economies, governance systems, and cultural practices. Fast-tracking LNG without Indigenous consent illustrates how Bill C-5 may be used in practice to subordinate Indigenous title and rights to Cabinet’s assessment of the “national interest.”

What Must Be Done?

Governments at both levels must uphold their constitutional obligations to consult and accommodate Indigenous Nations in a manner that is meaningful, timely, and consistent with the Crowns’ duty to act honourably and the Crowns’ fiduciary obligations.

The Supreme Court of Canada in the Tsilhqot’in case has held that the broad range of objectives that are “potentially capable of justifying an incursion on Aboriginal Title” must also have regard to furthering the goal of reconciliation and the Aboriginal perspective. Where Aboriginal Title is proven, such as in the case of the Haida Nation, the Crown must also ensure that the proposed government action is substantively consistent with the requirements of s. 35 of the Constitution Act, 1982, and the Crown’s fiduciary duties. In the context of the justification text (which includes the “national interest”), the Supreme Court infused into the justification test an obligation of proportionality (rationale connection, minimal impairment, proportionality) and the inherent limit arising from the Delgamuukw case, holding that “incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.”

An additional consideration in the justification test is the impact of climate change on Indigenous Peoples, in the context of the Supreme Court of Canada’s decision that “Climate change “is a threat of the highest order to the country, and indeed the world. … The undisputed existence of a threat to the future of humanity cannot be ignored.” The Supreme Court of Canada also recognized the serious impacts upon Indigenous Peoples: “Climate change has also had a particularly serious effect on Indigenous Peoples, threatening the ability of Indigenous communities in Canada to sustain themselves and maintain their traditional ways of life.”

Therefore, any project designated under Bill C‑5 or Bill 15 must undergo full and transparent scrutiny, especially those affecting Aboriginal title. Should Crown governments attempt to proceed with projects and development that they consider to be in the “national” or “provincial” interest without consent or meaningful engagement, litigation may be required to enforce the legal standards set by Canadian courts to protect Aboriginal title and rights. Such litigation risks overturning the projects and legislation for unjustifiably infringing Aboriginal title absent consent from Indigenous Peoples.

Final Thoughts

Bills C‑5 and 15 provide legislative mechanisms for Canada and BC to circumvent consultation, consent, and the implementation of Aboriginal title and rights—under the guise of the “national and provincial interest.” The tide is rising—legally, politically, and environmentally. While significant gains have been made with the recognition of Indigenous title to the land, Aboriginal title to marine areas of Indigenous Territories remains unsettled and increasingly at risk. For many Indigenous Nations, Aboriginal title to Indigenous territories remains unsettled and increasingly at risk. The recognition of Aboriginal title and rights, built through generations of legal victories and nation-to-nation agreements, cannot now be rolled back or overridden by Cabinet edicts in Ottawa or Victoria under the guise of infrastructure policy. Canada, BC and the courts have come too far in recognizing Aboriginal title and rights to turn back the tide now.