The Ford government’s Bill 5, the Protect Ontario by Unleashing our Economy Act, has already attracted nearly unprecedented levels of attention for a bill at Queen’s Park, and little of it good. While environmentalists have raised particular alarm at the government’s moves to substantially narrow the scope of endangered species protections in one section of the bill, the part that has received the most attention is Schedule 9, which creates the Special Economic Zones Act. As we covered more than a month ago, SEZs could grant the government broad powers to ignore otherwise valid Ontario laws, fettered only by the Constitution itself.
Bill 5 has faced fierce opposition from environmental groups, Indigenous people, and not least the opposition parties at Queen’s Park, who filibustered a committee hearing earlier this week until midnight. Undaunted, the government has now invoked a time allocation motion to force the passage of Bill 5 before the end of next week.
Typical conservative blundering, utterly disrespecting the constitution and our parliamentary norms, I hear you say. But then, what are we to make of the reporting from the Globe and Mail earlier this week that Prime Minister Mark Carney is considering something awfully similar for any projects designated a national priority?
According to the Globe’s reporting, a new law being presented to premiers next week — and likely introduced to the House of Commons before long — would allow a single cabinet minister to modify or waive regulatory requirements for nationally-significant projects, adding for certainty that the instrument approving new projects “could allow for ‘less robust’ requirements for nation-building projects than would otherwise be permitted under environmental or other statutes.”
Implementation matters. Details matter. The people making the decisions matter. But if this isn’t a federal twin of Bill 5, it’s at least a cousin. Like Ford’s Bill 5, Carney’s cabinet is asking Parliament for the power to waive conditions that would otherwise be required by law, without amending or repealing the underlying laws themselves.
Some people will never be convinced that permitting reform isn’t a stalking horse for a broader attack on worker or environmental protections. I think the case of the CN Rail yard in Milton — a relatively mundane bit of logistics infrastructure which cleared its final Supreme Court hurdle this month a decade after the rail company first proposed it — suggests that there’s lots of areas for improvement.
The federal bill might not be introduced in the form the Globe and Mail has reported; it might be amended by opposition parties in the Commons; who knows what the Senate might do with it when they get their hands on it. But this tells us something important about Carney’s priorities, as well as his first stab at implementing them.
The fact that these two proposals look so similar isn’t an accident, and it’s not even necessarily nefarious: both Ontario and Canada face the same broad legal and regulatory context with a system of lengthy consultation processes that must precede decisions by ministers to approve or refuse permission. To repeat a longstanding maxim of mine: there’s only so many ways for governments to do things, and they tend to converge on the same small number of possible solutions. Carney and Ford both a) want to get important projects built and b) see the current regulatory environment as incompatible with that, so they want to get the regulations out of the way. There’s only so many ways to do that in our shared constitutional order, so it’s easy to see the two leaders end up in much the same place.
To those points, however, we could add c) neither Ford nor Carney seem to have a clear idea of what should actually replace the current set of regulations in Ontario or Canada. That much is implicit in their chosen solution: case-by-case exemptions to existing environmental and permitting rules are what you rely on when you don’t have a clear idea to replace those rules wholesale. And in fact, there’s a principled argument for special economic zones themselves embedded here: with SEZs the government can experiment with different rules in different places and see what works and doesn’t.
The problem for Ontario is that at this point, the Progressive Conservative government’s detractors are unlikely to give it the benefit of the doubt, or believe that they’re engaged in a good-faith search for alternative regulatory models. What’s true for Ontario is also true for the federal government: this kind of arrangement (generally onerous regulations that can be waived or modified at the discretion of individual ministers) is tailor-made for headline-grabbing corruption scandals.
There is an alternative in principle, at least, and it comes from what Ontario’s already gone through in its inconsistent approach to housing regulation. At the height of the Ford government’s use of ministerial zoning orders, Green leader Mike Schreiner argued not only that they were bad politics but also bad policy. In 2021 his party’s housing plan called for a more broadly permissive but still rules-based planning regime that didn’t rely on the benevolence of ministerial discretion to get homes built. Schreiner, of course, wasn’t calling for open season on farmlands or the Greenbelt, but for the types of homes we know can be built with gentler environmental impacts. To put it more succinctly, rules that allow the stuff we know we need more of, and that we can do safely.
That’s a harder principle to apply outside of housing, where power plants or mines (in Ontario) or ports or trade corridors (across Canada) are inevitably going to have a greater impact and, crucially, where there’s less agreement over what kinds of infrastructure we need. Electrical transmission lines and broadband internet? Uncontroversial, sure. Highways or oil and gas pipelines? That’s going to be a harder question.