B.C.'s Proposed Tariff Response Risks Delaying, Not Streamlining, Natural Resource Project Approvals

• Published date: 26 March 2025
• Law Firm: Aird & Berlis LLP
• Author: Keith Brown

I. Introduction and Overview

On March 13, 2025, the British Columbia government tabled Bill 7 for first reading, which, if passed, would enact the Economic Stablization (Tariff Response) Act. As is clear from the name, Bill 7 represents part of the provincial government's proposed response to the existential economic and political issues precipitated by the Trump administration.

Bill 7 has four key operative parts:

• Part 1 establishes mechanisms to remove internal trade barriers with other provinces and territories;
• Part 2 provides for directives in relation to government procurement of goods and services;
• Part 3 allows for tolls, fees and charges to be imposed for the use of various "provincial undertakings" (this would enable, among other things, the government's recently announced plan to toll U.S. trucks travelling to Alaska); and
• Part 4 grants provincial cabinet a broad power to create exemptions, modifications or limitations on requirements set out in any other piece of provincial legislation, regulation, order, rule or other instrument currently on the books.

This article focuses on the legal effects of Part 4 as it relates to Aboriginal law issues.

As Attorney General Niki Sharma stated at first reading of Bill 7, the government's intent when it comes to Part 4 is to establish "fast, flexible regulation-making authorities to ensure we can quickly act and be responsive to the unpredictable and quickly evolving threats to our economy, our economic security and our sovereignty."

However, this initiative risks backfiring when it comes to engagement with First Nations on natural resource project approvals that could impact constitutionally protected Aboriginal rights. If cabinet uses its broad powers in Part 4 to attempt to limit consultation or otherwise marginalize First Nations from decision-making processes in the name of creating "efficiencies," the only result will be to create further delay, uncertainty and legal challenges.

Rather than taking that approach, the true path to creating efficiencies and certainty in this space is to bring First Nations into the process early, in a meaningful decision-making role that recognizes their inherent jurisdiction and authority over their territories.

Better still, rather than needing any new legislation, the province already has the tools to do so under the common law and pursuant to the commitments that are already on the books to implement the United Nations Declaration on the Rights of Indigenous Peoples.

Part II of this article: (i) provides an overview of the "Henry VIII" clause in Bill 7 and discusses general issues with such clauses; (ii) takes a critical look at the exceptions in Bill 7 aimed at limiting its effects on project approval processes and Aboriginal rights; and (iii) addresses the specific Aboriginal law issues that may arise from Bill 7.

Part III provides concluding thoughts on the government's proposed approach and suggestions for a more effective path forward.

II. Discussion

(i) Overview of Part 4 and General Issues With 'Henry VIII' Clauses

Part 4 establishes a far-reaching power for provincial cabinet to pass regulations that can make exemptions, modifications and other changes to any provision in any provincial "enactment," with certain exceptions related to natural resource projects and Indigenous engagement, which are addressed further below. They key clauses of Part 4 for purposes of this article are set out in an Appendix.

The only limitation on the Part 4 power is that it must be exercised for the purposes of: addressing challenges or anticipated challenges to B.C. "arising from the actions of a foreign jurisdiction," supporting interprovincial co-operation in reducing trade barriers within Canada, or "supporting the economy of British Columbia and Canada." It is difficult to imagine an initiative that could not plausibly be argued to fit within one of these purposes.

As noted, Part 4 allows for cabinet to modify any "enactment." "Enactment" is defined in s. 1 of the Interpretation Act to mean "an Act or a regulation or a portion of an Act or a regulation." In turn, "regulation" is defined broadly to mean subordinate instruments of basically any kind other than the orders of courts or tribunals resolving disputes:

"regulation" means a regulation, order, rule, form, tariff of costs or fees, proclamation, letters patent, commission, warrant, bylaw or other instrument enacted

(a) in execution of a power conferred under an Act, or

(b) by or under the authority of the Lieutenant Governor in Council,

but does not include an order of a court made in the course of an action or an order made by a public officer or administrative tribunal in a dispute between two or more persons;

The net effect is that Part 4 of Bill 7 empowers provincial cabinet to modify, exempt, limit etc., any aspect of any piece of legislation, regulation, bylaw and more.

This is known in legal terms as a "Henry VIII" clause - a provision that delegates to the executive (here, cabinet) the ability to modify legislative provisions. These powers can raise democratic concerns. That is because their main effect is to bypass entirely the ordinary democratic process of legislative amendment by the province's elected officials - hence being named for the 16^th-century English king "whose lust for power included the Statute of Proclamations...which elevated the King's proclamations to have the same legal force as Acts of Parliament."¹

The particular "Henry...