Don’t threaten resource rights

Opinion

Hey there, time traveller!
This article was published 14/04/2023 (909 days ago), so information in it may no longer be current.

Canada has long been recognized as an “unquiet country,” and our politics as “restless, disturbed, agitated.”

A big reason for this is because Canada — unlike the United Kingdom, from which we inherited most of our political institutions — is a federation. For as long as the country has existed, there has been often-intense conflict between the federal and provincial governments over both powers and jurisdictions.

So federal Justice Minister David Lametti threw a match into an ancient powder keg last week when he suggested he is open to revoking provincial jurisdiction over natural resources from the provinces of Manitoba, Saskatchewan and Alberta.

While answering questions at a meeting of Assembly of First Nations chiefs in Ottawa, Lametti expressed openness to addressing the Natural Resources Transfer agreements, which saw responsibility for natural resources switched from the federal to the prairie governments in 1930.

“I obviously can’t pronounce on that right now,” Lametti said, “but I do commit to looking at that.” He mischeviously added, “It won’t be uncontroversial is the only thing I would say with a bit of a smile.”

On cue, the premiers of the three Prairie provinces lined up to condemn Lametti’s remarks, noting the possibility of re-addressing the provinces’ jurisdiction over natural resources represents a serious threat to the economies of the Prairie provinces and the treasuries of the provincial governments.

Because of the 1930 transfer of jurisdiction, these governments have developed and benefited from Manitoba’s hydro-electric power resources, Saskatchewan’s potash and uranium reserves, and Alberta’s oilsands developments.

The crucial thing here is the little tempest Lametti has provoked is likely pointless, because there is nothing the federal government can unilaterally do about the transfers. Agreements between the federal and provincial governments can, in many cases, be abandoned unilaterally by one level or the other. But the agreements in question are not ordinary agreements.

Some history is in order.

At Confederation in 1867, the original provinces of Canada kept responsibility for both Crown lands and natural resources. This was also the case for British Columbia and Prince Edward Island when they joined in 1871 and 1873, respectively.

But this was not the case for the Prairie provinces when they joined Confederation. In contrast to the other provinces, the Prairies got a comparably raw deal, with jurisdiction over natural resources retained by the federal government, in part to help fund development of the Prairies in the years following their joining Confederation.

As you might expect, this generated some tension within these provinces, especially given that other Canadian provinces were seen to have received a far better deal. Residents of the Prairies resented the perception that the federal government seemed to view them as colonies rather than actual provinces.

This changed in 1930 with the three agreements that transferred control over Crown lands and natural-resources rights to the provinces of Manitoba, Saskatchewan and Alberta. The three Natural Resources Transfers acts were passed by the federal government and each of the provincial governments.

Finally, and crucially, the British Parliament passed the British North America Act, 1930, which had the effect of entrenching the agreements in Canada’s Constitution. This was then renamed the Constitution Act, 1930, in 1982 when the Canadian Constitution was finally patriated.

Entrenchment of the agreements in the Canadian Constitution is the crucial relevant fact in the current dispute. Entrenching responsibility for natural resources means the federal government cannot simply end the agreements or unilaterally make changes on its own. The whole point of entrenching things — placing them in the Constitution — is to ensure those things are difficult to change, and therefore are kept outside the reach of politicians of the day, including the current justice minister.

Lametti is a law professor and must surely know all this. But this raises the question: why did he broach the possibility of re-addressing the transfer agreements?

It is possible Lametti was simply trying to placate Indigenous leaders, many of whom believe the 1930 agreements lack legitimacy because they did not sufficiently meet the federal and provincial governments’ treaty obligations.

Lametti may also think there is little political cost to picking a fight with the governments of the Prairie provinces, all of which are run by conservative premiers. There may be some truth to this, as Alberta’s Danielle Smith and Saskatchewan’s Scott Moe have been quite belligerent toward the federal government.

But, in contrast, Manitoba Premier Heather Stefanson has tried to strike a comparatively conciliatory tone in her dealings with the federal government. Despite this, Lametti’s comments called for the strongest possible rebuke from Manitoba’s government, so Stefanson joined with Smith and Moe to issue a sharply-worded joint press release in response

Canadian federalism has enough problems without federal ministers thoughtlessly tossing verbal bombs at the provinces from Ottawa.

Royce Koop is a professor of political studies at the University of Manitoba and academic director of the Centre for Social Science Research and Policy.