If there is one principle on which Canadians agree it is that their province owns the natural resources within its borders. If there was ever any doubt, it was settled with the adoption of the 1982 Constitution Act, which explicitly recognizes provincial control over non-renewable resources, forestry and electrical energy. Ottawa oversees only inland and coastal fisheries.
Hence, there can be no national-unity crisis over a subject that unites Canadians. Whether they live in Newfoundland, Quebec, Northern Ontario, British Columbia or points in between, Canadians believe it’s up to their provincial government, not Ottawa, to oversee resource development – from B.C. natural-gas fields and Quebec hydropower to Ontario’s Ring of Fire.
So, Prime Minister Justin Trudeau is wrong in insinuating that the six provincial and territorial premiers who this week wrote to him to express their opposition to Bill C-69 are “threatening our national unity if they don’t get their way.” The premiers simply warned that the country could be headed for a “constitutional crisis” unless Ottawa accepts critical amendments to C-69, which would overhaul the federal environmental assessment process for major projects.
“Bill C-69 upsets the balance struck by the constitutional division of powers by ignoring the exclusive provincial powers over projects relating to [non-renewable, forestry and electrical] resources,” wrote Alberta Premier Jason Kenney and his counterparts in Ontario, Saskatchewan, Manitoba, New Brunswick and the Northwest Territories. “The federal government must recognize the exclusive role provinces and territories have over the management of our natural-resource development or risk creating a constitutional crisis.”
A constitutional crisis need not lead to a national-unity crisis. The former involves a legal dispute over the federal-provincial division of powers; the latter is a more serious matter.
If C-69 splits the country, it is not along provincial lines. Even though Quebec Premier François Legault did not sign Mr. Kenney’s letter, his Coalition Avenir Québec government (as did the previous Liberal one it replaced) opposes C-69 as a federal power grab that would duplicate Quebec’s own environmental assessment process and stall the development of its resources.
With Quebec, that makes at least six provinces, representing about 80 per cent of Canada’s population, that oppose C-69. On this issue, at least, the provinces are more united than usual. Indeed, in a Wednesday speech in Montreal, Mr. Kenney said he was “optimistic Alberta will have a strong ally in the Quebec people and their government” if it challenges C-69 in court.
While many Canadians support the broad principles espoused in Bill C-69, especially those who oppose the construction of new oil pipelines and expansion of Alberta’s oil-sands industry, they might not be as enamoured with the legislation if they understood its implications. If adopted as is, C-69 would all but ensure endless gridlock by leaving it to the courts to sort out a host of concepts the bill fails to define or circumscribe.
“This is not simply an academic issue,” write Martha Hall Findlay and Marla Orenstein of the Canada West Foundation in a recent report on C-69. “If the legislation ‘bakes in’ elements that cause future decisions to founder, Canada faces years of unnecessary court challenges to iron out the issues – which will prevent important economic activity, which in turn will result in additional ‘fleeing’ of future investment from major projects in Canada.”
The public misconception about C-69 is that it is just about pipelines. In fact, there is almost no resource-development project, including the transmission lines needed to transport “green” hydropower to market, that C-69 does not cover. So, creating certainty about the environmental assessment process is critical for environmental as much as economic reasons.
Unfortunately, the federal Liberals, in their haste to appear virtuous, have introduced a series of progressive, but vague, concepts into the bill that will be seized on by opponents of resource development to frustrate an approval process Mr. Trudeau promised to simplify.
It has taken years to establish a workable framework for the Crown’s constitutional duty to consult Indigenous peoples regarding resource development on their traditional territories. But the preamble of Bill C-69 introduces a new wrinkle – specifically the federal government’s commitment to implementing the United Nations Declaration on the Rights of Indigenous Peoples. The Liberals themselves have no idea what UNDRIP entails, so how can they honestly expect any company to invest in a resource-development project amid such uncertainty?
And Mr. Trudeau wonders why the provinces are upset?