Sask sets up another stupid court scrap with the feds

Politics | Gregory Beatty

Probable infringement of inherent and treaty rights isn’t the Saskatchewan First Act’s only constitutional weak spot. The government’s attempt to shield the province’s “natural resources” from federal environmental oversight is also on shaky ground.

While the Sask. Party government is correct that, under s.92 of the BNA Act, natural resources do fall under provincial jurisdiction, it’s not as simple as that, says Peter Prebble of the Saskatchewan Environmental Society.

“The constitution is clear that the provinces have control over their natural resources and electricity generation. But the federal government shares control with the provinces over environmental regulation of those industries,” he says.

“What the Sask. First Act is trying to do is squeeze the federal government out of the scene as it pertains to oil and gas, coal, agriculture, forestry and electricity generation. The government denies this, but if you look at s.3 it very clearly says that,” says Prebble.

Paraphrased, s.3 states that Saskatchewan has exclusive jurisdiction over those areas for the purposes of, and I quote here, “the doctrine of interjurisdictional immunity.”

“Doctrine of interjurisdictional immunity” sounds like something out of a Nicolas Cage movie, but it’s an actual legal principle where one level of government can claim immunity from another’s laws that overstep their constitutional authority.

The government then proceeds to lay out just how extensive that control is through a raft of subsections that cover everything from who may be licensed in the industry and where and when exploration may take place to the conservation and management of non-renewable resources and any terms or conditions that might apply to their development.

You can admire the Sask. Party government’s ambition, I suppose. But should push come to court case it’s hard to see them winning.

Justice Minister Bronwyn Eyre has been the point person on this file. In news conferences, she’s grumped about “federal overreach” in areas such as the carbon tax, regulating methane emissions from oil and gas, zero emission vehicle mandate, methane reduction from landfills and the clean electricity regulations.

Pretty much the federal Liberal government’s entire climate change plan.

But as Prebble notes, it’s established law that Ottawa has shared jurisdiction over natural resources when it comes to environmental regulation.

That principle was confirmed by the Supreme Court as recently as 2019, when the court ruled in the carbon tax case that, because climate change extends beyond provincial borders, Ottawa had a right and responsibility to regulate and set a minimum pricing standard for greenhouse gas emissions.

Prebble also points to a 1997 Supreme Court ruling in a case where Hydro Quebec was charged with releasing deadly PCBs into the environment. The ruling upheld Ottawa’s right to regulate toxic substances under the Canadian Environmental Protection Act.

“Six major GHGs are listed as toxic substances under the act, including carbon dioxide, methane and nitrous oxide. Both those court rulings suggest, in my view, that the environmental provisions in the Sask. First Act are unconstitutional,” says Prebble.

In staking Saskatchewan’s claim to exclusive jurisdiction, Eyre has argued that the province doesn’t need federal oversight, pointing to steps the government has taken to reduce methane emissions from oil and gas.

“What they don’t acknowledge is that it was Ottawa that required them to do that when it introduced its own regulations in 2018,” says Prebble.

“Ottawa gave provinces the option of drafting their own regulations. Saskatchewan’s were slightly different, but achieved the same objective, so the province’s success in reducing methane emissions is really an example of how important it is for the federal and provincial government to have shared jurisdiction over the environment,” he says.

Right now, the Sask. Party government is talking tough. Witness Premier Scott Moe’s “come and get me” taunt about his government’s intention to ignore federal regulations on phasing out coal for electricity generation by 2030. With the late May re-election of Danielle Smith and the UCP in Alberta, Moe has a strong political ally in his fight with Ottawa. [see sidebar]

But legally, he and Smith remain on shaky ground.

“I think what they’re hoping for is that Pierre Poilievre and the federal Conservatives will be elected in 2025, and what their legislation does is become another roadblock in the way of the current federal government being able to implement its climate change plan,” says Prebble.

“And, of course, if Polievre is elected, that plan will go out the window,” he says. ■


A Constitutional Fever Dream

Alberta’s UCP passed a sovereignty act of its own in November 2022. The act supposedly gives Alberta the right to ignore any federal law or policy that “attacks” the province’s interests or constitutional jurisdiction.

But like the Sask. Party, the UCP’s legislative “eyes” are likely too big for its constitutional stomach.

That reality is at the core of the deliberations that led to Canada’s creation in 1867, says University of Alberta law professor Eric Adams.

While the principal negotiators — essentially, the provinces of Ontario, Quebec, Nova Scotia and New Brunswick — were keen to protect provincial rights, the two constitutional conferences they held in Quebec City and Charlottetown in 1864 took place against the backdrop of the American Civil War.

“The framers of the constitution were mindful that in the U.S. a powerful state structure had contributed to the dissolution of the American union,” says Adams. “They said Canada needed to be a more centralized federation to avoid the bloodshed they were seeing with the Civil War.”

We’re seeing similar drama play out in the U.S. today. The “Culture Wars” are at the heart of it, but climate change and the environment are a growing source of tension.

One issue that’s received media play lately is water in the parched southwest, where seven states are jostling over a dwindling share of the Colorado River. The upper states (Colorado, New Mexico, Utah, and Wyoming) would seem to have the upper hand as they have first crack at the water, but the lower states (Nevada, Arizona and California) have large and growing populations and huge economic clout.

The Biden administration has threatened to step in if the states don’t agree to drastic cuts. Given the deep political divisions in the country, is it that hard to envision a scenario where a water war might one day break out?

As climate change accelerates, the Canadian Prairies are also predicted to experience periods of prolonged drought. Right now, Alberta, Saskatchewan and Manitoba have an apportionment agreement with Canada that guarantees each province a share of the North and South Saskatchewan Rivers.

Suppose one day we do enter another dust bowl? Suppose also that Alberta, desperate to protect drought-stricken communities and industries, decides to flex its Alberta First muscle and grab a greater share of the two rivers before the water escapes the province.

Without a strong federal government to enforce the agreement, what would Saskatchewan do?

It’s a hypothetical, granted. But the question is worth considering, says Adams.

“There’s a famous quote in the Quebec succession case by the Attorney General of Saskatchewan that makes it into the judgment in 1998,” he says.

“The A-G said, ‘a thousand acts of accommodation are the fabric of a nation.’ If the borders between our provinces get higher, if our interests become more self-focussed, and if we give up on some pretty fundamental ideas about how we are all Canadian despite residing in different provinces, we will cease to be a well functioning and governed society,” says Adams.

“The politics of anger, and stoking resentment toward others as a political strategy is a dangerous game. If we fracture into small groups that are suspicious of each other, how do we live together and deal with issues as the pressure from climate change mounts?”