Environment Clash Predicted?

If only pollution were so kind as to understand the appropriate division of powers between the Federal and Provincial governments and to know when the boundary of Alberta had been reached. Sadly the reality is that the effects of most industrial development reaches beyond either territorial or jurisdictional boundaries -- fish gotta swim, pollution gotta drift.

Peter Lougheed spoke at the Canadian Bar Association conference in Calgary yesterday and made the headlines in the Globe today predicting an upcoming clash between the Federal government and Alberta over Canada's desire to protect the environment and Alberta's desire to develop the tar sands (article reproduced below). This is a very real conflict that is coming. However, it is not clear that it is likely to happen under the current regime in Ottawa given the apparent lack of appetite to push an agenda that either expands environmental protection or expands (or even protect) Federal jurisidction.

The fight when it does come will be interesting. There is very clear language in our Constitution that gives the Provinces control over the development of natural resources within their boundaries. By contrast the word 'environment' cannot be found and there is no clear Federal power to legislate in respect of environmental protection. Instead there is the overarching power on the part of the Federal government to make laws in respect of 'Peace, order and good government' supplemented by a range of particular powers over things such as fisheries, oceans, navigable waters, Indians (and their rights), inter-provincial undertakings and trade, and the criminal law.

Mr. Lougheed admits that the fight is uncertain but he clearly favours the Provinces in this matter saying:

Mr. Lougheed told reporters after his speech that it is far from sure which side of the conflict will win at the Supreme Court, particularly considering the Court's penchant for interfering in questions of government policy.

However, he said that, in his opinion, the BNA Act clearly guarantees provinces the “exclusive” right to decide how to develop, conserve and manage natural resources.

Mr. Lougheed is obviously hedging his bets in making this statement and he is wise to do so. First, the principal pieces of Federal environmental legislation (the Canadian Environmental Assessment Act, the Fisheries Act, the Species at Risk Act) are carefully written so as to apply only if one of the explicit Federal heads of powers is brought into play. Thus, if Mr. Stelmach can find a tar sands project that does not require the use of fish bearing rivers, lakes or other such fish habitat he is free to develop them without the Federal governmen meddling at all. Unfortunately, the tar sands require the use of about one tonne of water for each tonne of oil produced so such a project would require the development of presently unknown technology.

Second, note the use of the word 'exclusive' in Mr. Lougheed's quote and contrast it with my earlier post on the Supreme Court of Canada's recent federalism law. These recent decisions make it clear that the Supreme COurt of Canada prefers to allow Federal and Provincial laws to operate together, except for certain narrow core areas which will be protected. Despite the critisms that are directed toward the Supreme Court for being activist or policy driven this actually reflects a significnat backing out of the area of policy. Effectively they are saying we are going to reduce the area in which we have to referee between the Provinces and the Federal government and let these types of policy disputes get worked out in the court of polictics.

There is a long history in Canada of the Supreme Court of Canada holding that Federal environmental laws that are valid in their areas can limit activities carried out under equally valid Provincial laws. The fisheries example is the classic model: a person who pollutes a river while carrying out a provincially authorized logging operation can be convicted of destroying fish habitat under the federal Fisheries Act. This is old law dating back to the days when the Supreme Court of Canada was filled with crusty conservatives (as if it isn't now).

Finally, it is also worth considering the following quote from a realtively recent Supreme Court of Canada case upholding provincial powers in the area of environmental protection (this is the first paragraph from the Hudson v. Spraytech decision):

The context of this appeal includes the realization that our common future, that of every Canadian community, depends on a healthy environment. In the words of the Superior Court judge: “Twenty years ago, there was very little concern over the effect of chemicals such as pesticides on the population. Today, we are more conscious of what type of an environment we wish to live in, and what quality of life we wish to expose our children [to]” ((1993), 19 M.P.L.R. (2d) 224, at p. 230). This Court has recognized that “[e]veryone is aware that individually and collectively, we are responsible for preserving the natural environment . . . environmental protection [has] emerged as a fundamental value in Canadian society”: Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para. 55. See also Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 16-17.

Sounds like a matter of national importance to me ... doesn't it to you?

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Clash over oil sands inevitable: Lougheed
KIRK MAKIN

Globe and Mail Update

August 14, 2007 at 2:48 PM EDT

Calgary — A war is looming between Alberta and the federal government over pollution caused by oil sands development that will far surpass any previous federal-provincial battle in its political and economic stakes, former Alberta Premier Peter Lougheed predicted Tuesday.

Mr. Lougheed told a Canadian Bar Association convention that a ferocious constitutional clash is all but inevitable, pitting the federal right to protect the environment against the provincial right to develop natural resources.

Mr. Lougheed – who was at the epicentre of similar, historic conflicts in the 1980s involving the National Energy Plan and the repatriation of the Canada Constitution – said that the clash will be “10 times greater” than federal-provincial conflicts of the past.

“The issue is there front and centre, and coming to a head,” he said. “I think the issues we saw before – and I was involved in many of them – were important. I don't minimize them. But they aren't even close to the issue I have just described.”

He said that Alberta's desire to bypass toughened federal environmental laws will cause considerable dispute within the province itself, and will “cause significant stress to Canadian unity.

“The government of Alberta, with its acceleration of oil sands operations, will in my judgment be seen as the major villain in all of this in the eyes of the public across Canada,” he said.

A major source of greenhouse gas and water pollution, the tar sands project is expected to double in size within the next few years.

Mr. Lougheed predicted that the dispute will very likely go before the Supreme Court as a constitutional reference, forcing the Court to decide whether the British North America Act gives the province the right to develop its energy resources as it sees fits.

“My surmise is that we're into this constitutional legal conflict soon,” he said. “And my surmise is that – and this is strong stuff – national unity will be threatened if the court upholds federal environmental legislation and it causes major damage to the Alberta oil sands and our economy.”

Mr. Lougheed said he is convinced that public concern for the environmental is no passing fad and will only increase pressure future minority governments in Ottawa to apply strict pollution guidelines.

Ontario may face a less extreme version of the oil sands constitutional battle, since it will be under great pressure from the federal environmental laws with regard to its auto industry, he added.

Mr. Lougheed told reporters after his speech that it is far from sure which side of the conflict will win at the Supreme Court, particularly considering the Court's penchant for interfering in questions of government policy.

However, he said that, in his opinion, the BNA Act clearly guarantees provinces the “exclusive” right to decide how to develop, conserve and manage natural resources.

In his speech, Mr. Lougheed also:

- Criticized successive Alberta governments for allowing the province's Heritage Savings Stress Fund to “wither,” instead of steadily injecting more money into it. He said the fund should not contain more than $50-billion, not the $12-$13-billion it currently holds.

- Expressed his amazement that there have not been regular first ministers conference held, led by the federal government, to thrash out important political issues.

“I think there should be … an obligation on whoever the prime minister is to have a full-scale, televised first minister's conference each year. I think it is an embarrassment that that has been allowed to lapse.”

- Repeated a concern he first expressed last fall that tar sands development is proceeding in a haphazard way which threatens the environment. “But there is so much momentum there that it isn't going to be easy to slow the process,” he noted.