Authors: James, Skye & Ally

New Provincial and Federal Legislation Is Aimed At “Nation-Building”

The recent enactment of major project “fast-tracking” legislation by Canada and Ontario poses a threat to Indigenous sovereignty, environmental protection and constitutionally protected section 35 treaty rights by transferring power from provincial and federal legislatures to their Cabinets.

Passed into law in June 2025, both the Federal One Canadian Economy Act (“OCEA”) and the provincial Protect Ontario by Unleashing our Economy Act (“POUEA”) encourage the fast-tracking of infrastructure projects without adequately safeguarding environmental protections or Indigenous Peoples’ right to self-determination.

Henry VIII Clauses Allow Cabinet To Bypass Parliament

These Acts grant significant authority to each jurisdiction's respective executive branches (namely Cabinet), allowing them to bypass or short-circuit environmental laws and mandated consultation processes. This extraordinary power, often referred to as a “Henry VIII clause,” allows the Cabinet to amend or repeal existing statutes by creating regulations behind closed doors instead of going through Parliament or the legislature to do so. The end result of these clauses is that provincial or federal Cabinets can strip away environmental protections without any real democratic oversight.

This new legislation is not Canada’s first attempt to invoke a Henry VIII clause. In 2018, critics pointed out that the Greenhouse Gas Pollution Pricing Act (“GGPPA”) contained a Henry VIII clause that “authorized the executive amendment of primary legislation.” However, unlike the Henry VIII clause in the GGPPA, which functioned to narrowly tailor the Act by allowing incremental adjustments to the pricing mechanism on an ongoing basis, the equivalent sections in the OCEA and the POUEA provide a much broader power to dismantle regulatory barriers that stand in the way of major project development.

Henry VIII Clauses are a Key Part of New “Nation-Building” Legislation

Several sections of the OCEA work together to effectively form a Henry VIII clause. The OCEA empowers the federal Cabinet to designate specific projects of national interest (PONIs). The Cabinet is granted the ability to select which federal laws the PONIs can be exempted from, with only a handful of exceptions. It also grants Cabinet the power to make regulations which exempt one or all PONIs from chosen federal laws listed in Schedule 2 of the Act. There are also minimal safeguards within the Act to check the powers it grants to Cabinet.

In Ontario, the powers granted to the executive are even more sweeping. The POUEA enacts the Special Economic Zones Act(“SEZA”), a concerning example of a Henry VIII clause which allows the provincial executive to circumvent the legislature’s role and to unilaterally abandon regulatory safeguards. The SEZA allows the Provincial Cabinet and the Minister of Economic Development, Job Creation and Trade to designate any area of the Province as a special economic zone, exempting certain “trusted proponents” and projects from compliance with any provincial or municipal law. No criteria or purpose requirements are specified for the creation of these designations, giving Provincial Cabinet and the Minister the broad power to dismantle regulatory barriers in a manner that some legal scholars argue represents an abdication of legislative powers by the legislative assembly.

Henry VIII Clauses May Be Used To Enable Risky Development

The contemplated use of the SEZA in the Ring of Fire (ROF) area of the Hudson’s Bay Lowlands presents an example of how Henry VIII clauses might function to sweep away regulatory and consultation processes necessary for responsible extractive development. The sole occupants of the ROF area are Anishinaabe and Anishini communities who have invested years advocating for involvement in decision-making regarding resource projects in their traditional territories. These efforts led to the ongoing Federal Regional Assessment (RA) of the ROF, conducted under the authority of the Impact Assessment Act.

The effectiveness of the RA in the ROF area could be undermined by the passage of the POUEA. The RA is set to conclude in mid-2027, with the objective of gathering information about the cumulative effects that mining and associated infrastructure projects could have on the interconnected ecology of the area. However, the amendments to the Mining Act and the likely creation of an SEZ in the ROF could approve initial mining-related activities that undermine the process of collecting pre-disturbance baseline data to understand the ecology of the region.

Is This How Canadians Want to Build Their Nation?

Should Canadians be alarmed about these radical new legislative powers? The use of Henry VIII clauses empower both the federal and provincial Cabinets to systematically dismantle the regulatory regimes necessary to protect the environment and Canada’s obligations to Indigenous peoples. In fact, Cabinet decisions about fast-tracking mining projects pose an immediate threat to the lands and interests of First Nations living in northern Ontario. Is this the kind of “nation-building” we need?