BC’s Bill 15 (Infrastructure Projects Act) equips government with unprecedented authority to delegate regulatory certification to privately hired Qualified Professionals (QPs). Under regulations yet to be finalized, these professionals are to sign off on permits—a role traditionally held by regulators. First Nations in British Columbia have voiced deep concerns. Bill 15 presents many problems for Indigenous peoples in British Columbia, only one of which is that this model opens the door to regulated professional “capture”, where industry-aligned professionals and therefore industry itself will shape regulatory decisions.
Supporters of professional reliance might argue that permit delays cost both taxpayers and developers. QPs may bring specialized expertise and operate more efficiently than overburdened government departments. Being licensed and bound by rigorous professional ethics, QPs are required to act in the public interest, and their engagement is a trustworthy means of speeding up approvals .
The theory seems likely, however, to break down under real-world pressures. In resource projects, professionals are contracted—and paid—by industry proponents, creating a strong incentive to produce favorable outcomes for industry, or else lose future business. As proponents may typically choose their QPs, they have an incentive to pick one that is known to be more “business-friendly” than not. QPs may rarely represent Indigenous interests and lack familiarity with Indigenous knowledge systems and legal standards like UNDRIP or FPIC. QPs will not be lawyers or cultural experts, and may be ill-equipped to assess consent obligations or consultation adequacy. QPs may also be ill-positioned, in comparison to government regulators, to assess the cumulative impacts of multiple projects.
BC will consult on regulations governing QPs, but one cannot but doubt that this can fix the problems with the model. Rules would need to mandate true impartiality, e.g., by requiring that QPs have a history of working with Indigenous Peoples as well as industry, a restriction on any conflicting business or financial interests, and competence in UNDRIP implementation and FPIC processes. A workable system would need clear transparency about a QP’s past work and impose requirements to ensure that QPs are not beholden to their industry clients – a seemingly intractable problem for a model that presumes against professionals employed solely by the government or a regulator.
In other words, overcoming professional capture in resource matters might not just be hard, but impossible. Without strong safeguards, legal proceedings may come to target not only government conduct, but individual QPs whose certifications are deemed inadequate or biased. If regulators and Cabinet continue to depend on industry-funded professionals absent further safeguards for public and Indigenous interests, fast-tracked project approvals might lead to less efficiency and more friction and litigation.
Bill 15 exposes a deep-rooted issue in the very concept of professional reliance: the “neutrality” of QPs hired by industry is difficult, if not impossible. Without significant structural changes, such as independent remuneration, Indigenous competency, and public review, the promise of efficient regulation risks is really a promise of regulatory capture and increased legal conflict.
Lisa C. Fong, KC and Michael Ng