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

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 VIII” clause in Bill 7 is especially broad in scope. Unlike recent Canadian examples (such as the federal Greenhouse Gas Pollution Pricing Act), the Part 4 power is not tailored to give this remarkable authority to cabinet only in relation to particular aspects of a specific piece of legislation. As noted, it allows cabinet to modify anything in the entire provincial statute book.

The constitutionality of “Henry VIII” clauses has never been squarely decided by the Supreme Court of Canada in the modern era. In References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (the “GHGPPA Reference”), a majority of a divided Supreme Court condoned the use of “Henry VIII” clauses in passing, based on case law from the early 20^th century, on the way to addressing more immediate division of powers issues in the case.^[2] However, dissenting judgments in the GHGPPA Reference seriously questioned the continued existence of “Henry VIII” clauses in the modern Canadian constitutional landscape, including on the grounds that:

• their ability to allow the executive to override legislation “directly violate[s] the principle of parliamentary sovereignty” and they “should be confined to the dustbin of history;”^[3]
• they “limit the availability of judicial review [of their use by the executive] by providing no meaningful limits against which a court could review,” in light of the very broad purposes for which they can be justified^[4] – such as, in the context of Bill 7, “supporting the economy of British Columbia and Canada;”
• they allow the executive to “act arbitrarily” by empowering it to “act contrary to the empowering statute, creating an authority without meaningfully enforceable limits and thus absolute discretion;”^[5] and
• in light of their broad scope, they create “potential for abuse or unconstitutional effects in the[ir] exercise.”^[6]

This article does not address the general legal or political issues of whether “Henry VIII” clauses should be included in legislation in the modern era, though this is no doubt a fundamental question from the viewpoint of democracy and the rule of law.

Instead, its focus is on the last caution from the Supreme Court in the list above – that “Henry VIII” clauses create “potential for abuse or unconstitutional effects,” depending on how they are exercised.

As described below, there is a serious risk of unconstitutional effects in the exercise of the Bill 7 “Henry VIII” clause as it relates to Aboriginal law issues.

            (ii)       Aboriginal Law Issues With the Part 4 ‘Henry VIII’ Clause

                        (a) The exceptions to the ‘Henry VIII’ clause are not as broad as they seem

There are two notable exceptions to the use of the Part 4 “Henry VIII” clause, both of which are relevant to Aboriginal law issues. After setting out the broad list of what the clause can do (create the various modifications to other legislation as described above), Bill 7 describes what it cannot do in clause 20(2):

(2) A regulation may not be made under subsection (1) in relation to the following:

(a) a requirement to obtain a licence, permit or other authorization for, or the assessment or consideration of the environmental effects of, a project relating to a natural resource;

(b) provisions of an enactment respecting engagement with Indigenous peoples, as defined in the Declaration on the Rights of Indigenous Peoples Act.

These exceptions may seem to address concerns that the “Henry VIII” clause will be used to trample over Aboriginal rights in the name of efficiency and streamlining permitting processes for natural resource projects.

However, they are not as broad as they seem at first blush. There are two core issues from an Aboriginal law perspective (setting aside for now other valid concerns such as the lack of definitions for “project,” “natural resource,” “engagement with Indigenous peoples,” and more):

• In relation to the first exception in s. 20(2)(a), although cabinet cannot remove the requirement to obtain a licence, permit, authorization or environmental assessment approval for a natural resource project, there is nothing in the wording of this exception that prevents cabinet from using the “Henry VIII” clause to drastically limit what is needed to obtain that licence, permit or authorization.
• The protection offered by s. 20(2)(b) is likely rather narrow. That is because outside of the most modern legislation, there are actually very few statutory or regulatory provisions “respecting engagement with Indigenous peoples.” Most such engagement is done pursuant to generally worded provisions developed long before Indigenous issues were in the mainstream of the public consciousness, read in light of the common law requirements of the duty to consult. Arguments will abound regarding whether such provisions can be characterized as “respecting engagement with Indigenous peoples.”

Notably, s. 20(2)(b) might not prevent provincial cabinet from using Bill 7 to roll back some of its commitments to implement the United Nations Declaration on the Rights of Indigenous Peoples, depending on how narrowly the term “engagement with Indigenous peoples” is interpreted.

For example, s. 8.1(3) of the Interpretation Act requires that “[e]very Act and regulation must be construed as being consistent with the Declaration.” This provision has not received much fanfare, but it is potent. The B.C. Supreme Court has already described what it means on a practical level: “if there are two (or more) possibly valid interpretations” of legislation, then decision-makers are required to construe that legislation “in a manner that is consistent with [the United Nations Declaration on the Rights of Indigenous Peoples] (i.e., that protects Indigenous rights).”^[7]

Is s. 8.1 of the Interpretation Act a provision “respecting engagement with Indigenous peoples” for purposes of Bill 7? If the province were to adopt a narrow reading of the Bill 7 exceptions to say that it is not, it will ultimately be up to the courts to decide the reasonableness of that interpretation if challenged on judicial review.

There are a multitude of other examples where this could be a live issue, including within the Declaration on the Rights of Indigenous Peoples Act itself. However, the remainder of this article will focus on the more immediate Aboriginal law issues in Bill 7 regarding the use of the “Henry VIII” clause to expediate natural resource project approval processes.

(b) Statutes and regulations cannot oust constitutional obligations owed to Indigenous Peoples

Returning to the “natural resource projects” exception, there is a fundamental issue that the province will have to contend with, no matter how aggressively it tries to “streamline” permitting or environmental assessment processes.

The issue is this: no matter how narrowly drafted, legislation, regulations and other “enactments” cannot lawfully oust constitutional obligations owing to Indigenous Peoples, including the duty to consult. In its “least technical definition,” the duty to consult is talking together to arrive at a mutual understanding of the core issues – potential impacts to rights and possible accommodations thereto^[8] – to ensure that the Crown does not “cavalierly run roughshod over Aboriginal interests where claims affecting those interests are being seriously pursued” but have not yet been resolved through negotiation or the courts.^[9]

The courts have already ruled that the Crown’s duty to consult is a constitutional requirement that exists “upstream” of the wording of any particular statutory provision.^[10]

In a situation where a provision is drafted so narrowly (or, here, narrowed under Bill 7) as to purportedly limit or avoid consultation in the name of expediting project approvals, the Supreme Court has held that “the Crown must take further measures to meet its duty. This might entail filling any gaps on a case-by-case basis or more systematically through legislative or regulatory amendments.”^[11] Put differently, narrowly drafted legislation that does not allow for adequate consultation is not the answer to the province’s policy concern – it would be “the source of the problem.”^[12]

Accordingly, using Bill 7 to narrow an “enactment” in such a way will immediately engage the province’s constitutional obligations to either: (i) amend the enactment to ensure adequate consultation can be achieved; or (ii) take steps on a case-by-case basis to properly consult, regardless of the narrow wording of the enactment.

If the province does neither of options (i) or (ii) and instead attempts to rely on a “streamlined” Bill 7 provision to limit consultation, in the words of the Supreme Court, any resultant decision “made on the basis of inadequate consultation will not be in compliance with the duty to consult, which is a constitutional imperative. Where challenged, it should be quashed on judicial review.”^[13]

However, judicial reviews of project approvals are not the only avenue that First Nations (and others) will have to push back against real or perceived excesses in cabinet’s uses of the “Henry VIII” clause in Bill 7. Though outside the immediate scope of this article, litigants could also bring court challenges on the following grounds:

Seeking judicial reviews of cabinet’s Bill 7 regulations themselves,^[14] including arguments that:

• cabinet has passed a regulation that does not come within one of the purposes of Part 4, though this could be an uphill battle in light of the broad wording of those purposes (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”); or
• cabinet has overreached by passing a Bill 7 regulation that violates one of the exceptions in s. 20(2) (summarized above, which prohibit Bill 7 regulations that would: limit requirements to obtain natural resource project permits or authorizations; or limit provisions of enactments respecting engagement with Indigenous Peoples).

Other Aboriginal law challenges to Bill 7 regulations or to Bill 7 itself, such as:

• on the basis of unjustified infringements to Aboriginal or treaty rights;^[15] or
• novel claims grounded in the honour of the Crown, including that the province has impermissibly attempted to walk back its commitments to implement the United Nations Declaration on the Rights of Indigenous Peoples.^[16]

Or, more general constitutional challenges about the overall permissibility of “Henry VIII” clauses in legislation, as described above based on the dissenting judgments in the GHGPPA Reference.

To be clear, there are very likely other available legal challenges to Bill 7, or regulations that cabinet passes pursuant to Bill 7, in light of the novel and heady constitutional questions that it raises. This article only scratches the surface in that regard from an Aboriginal law perspective.

III.     Conclusions

Cabinet will be creating far more problems, delays, inefficiencies and legal challenges than it solves if it attempts to use Bill 7 to marginalize First Nations participation in project approval processes.

And that, of course, would be the exact opposite of the intended purpose of Bill 7, in the words of Attorney General Sharma at first reading: 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.”

Rather than taking that approach, as noted at the outset, the true path to creating efficiencies, flexibility 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.

On this front, the province already has many of 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, including:

• continuing the work of the “braiding together of distinct legal traditions and sources of power that exist,” including through creative legislative, regulatory and agreement-based approaches to recognize and facilitate the implementation of Aboriginal rights;^[17]
• acting on the underused ability under the Declaration on the Rights of Indigenous Peoples Act to enter joint or consent-based decision-making agreements with Indigenous groups for project (and other) authorizations on their territories;
• in the more immediate term, taking seriously the processes available under the duty to consult at the deep end of the spectrum, including to provide “formal participation in the decision-making process” and the adoption of “dispute resolution procedures like mediation” in complex or difficult cases;^[18] and
• ensuring that existing and outdated statutory provisions are interpreted in conformity with the United Nations Declaration on the Rights of Indigenous Peoples (as required by the Interpretation Act) to bring First Nations meaningfully into decision-making processes in the short term, before longer-term agreements, treaties and legislative reform efforts are concluded.

Stepping back from the details, bringing First Nations meaningfully into the decision-making process – rather than marginalizing them in the name of fighting Trump tariffs – is the fundamentally just result.

The Crown’s assumption of jurisdiction over the territories of preexisting, sovereign Indigenous nations has been recognized by many, including by the B.C. Supreme Court, to be “simply a legal fiction to justify the de facto seizure and control of the land and resources formerly owned by the original inhabitants of what is now Canada.”^[19]

The purpose of initiatives aimed at reconciliation, implementing the United Nations Declaration on the Rights of Indigenous Peoples, and rights recognition, is to begin the generations-long work of starting to unwind and address this dynamic. There is a staggering amount of necessary reform that needs to be done to bring provincial law, policy and regulatory processes of all kinds into conformity with even the minimum legal standards of the Constitution and the United Nations Declaration on the Rights of Indigenous Peoples.

Viewed in this light, a large part of what has made provincial and federal project approval processes so brittle and uncertain is precisely that the necessary work to address the “legal fiction” has, in many key areas of decision-making (including in relation to natural resources), barely started. So now, provincial regulatory processes are on the back foot and under immense pressure as the country stares down an unprecedented challenge.

Doubling down on the “legal fiction” now will not help anyone – whether Crown governments, project proponents, the general public or First Nations – in the fight against the existential threat that Canada is now facing.

Aird & Berlis LLP’s Indigenous Practice Group includes First Nations, Métis and non-Indigenous lawyers with extensive experience in Aboriginal law. We also support Indigenous Peoples, nations and communities in advancing their own jurisdiction, law and legal orders (i.e., Indigenous law).

Appendix: Key Aspects of Part 4 of Bill 7

Purposes for which powers may be exercised

19 The Lieutenant Governor in Council may make a regulation under this Part for one or more of the following purposes:

(a) addressing challenges, or anticipated challenges, to British Columbia arising from the actions of a foreign jurisdiction;

(b) supporting interprovincial cooperation in reducing trade barriers within Canada;

(c) supporting the economy of British Columbia and Canada.

Modifying enactments and authorizations

20 (1) Subject to subsection (2), the Lieutenant Governor in Council may, by regulation, do one or more of the following:

(a) make an exemption from one or more requirements under an enactment;

(b) modify a requirement set under an enactment;

(c) establish limits on the application of an enactment;

(d) establish powers or duties that apply in place of or in addition to an enactment;

(e) establish terms and conditions in relation to anything done under paragraph (a), (b), (c) or (d);

(f) authorize issuers of licences, permits or other authorizations issued under enactments to modify, add or remove limits or conditions, or the term, of the licences, permits or other authorizations.

(2) A regulation may not be made under subsection (1) in relation to the following:

(a) a requirement to obtain a licence, permit or other authorization for, or the assessment or consideration of the environmental effects of, a project relating to a natural resource;

(b) provisions of an enactment respecting engagement with Indigenous peoples, as defined in the Declaration on the Rights of Indigenous Peoples Act.

        […]

Resolving conflicts between laws

24 This Part or a regulation made under this Part prevails if there is a conflict between

(a) a provision of this Part or of a regulation made under this Part, and

(b) another Part of this Act, another enactment or any material adopted by reference as defined in section 21.