Saskatchewan First Act likely to face legal challenge if passed: expert

By Terry Davidson

Law360 Canada (November 4, 2022, 3:14 PM EDT) -- Ottawa would most certainly challenge Saskatchewan’s government were it to pass legislation that would give the province widespread control in the handling its natural resources, says a legal mind.

It was Nov. 1 that the province introduced the Saskatchewan First Act — “historic legislation” which, if passed, would allow the province “exclusive jurisdiction” over a number of environmental operations, including the exploration for non-renewable natural resources and the “development, conservation and management of non-renewable natural and forestry resources.”

It would also cover the operation of “sites and facilities” used for producing electrical energy, among other things.  

The proposed legislation would amend the Constitution of Saskatchewan “to clearly confirm [the province’s] sovereign autonomy and [assert its] exclusive legislative jurisdiction under the Constitution of Canada.”

In a news release, Saskatchewan Justice Minister and Attorney General Bronwyn Eyre said it “asserts that the constitutional doctrine of interjurisdictional immunity applies to exclusive provincial legislative jurisdiction the same way it applies to exclusive federal jurisdiction.”

It also notes the new legislation would create the Economic Impact Assessment Tribunal to report on “the economic repercussions of federal initiatives on provincial investment and Saskatchewan projects, businesses and people.”

When it comes to the environment, certain issues are shared between the federal government and the provinces.

In 2019 the province’s Appeal Court noted the complexity of this arrangement when it found Saskatchewan must abide by the federal carbon tax imposed by Ottawa on provinces lacking their own emissions tax.

As part of its decision, the court turned to Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, which found the issue of environment to be “a constitutionally abstruse matter which does not comfortably fit within the existing division of powers without considerable overlap and uncertainty.”

In 1997, the Supreme Court of Canada noted in R. v. Hydro-Québec, [1997] 3 S.C.R. 213 that “[t]he environment is not, as such, a subject matter of legislation under the Constitution Act, 1867. “Rather, it is a diffuse subject that cuts across many different areas of constitutional responsibility, some federal, some provincial. If a provision relating to the environment in pith and substance falls within the parameters of any power assigned to the body that enacted the legislation, then it is constitutionally valid.”

Martin Olszynski, University of Calgary

Martin Olszynski, University of Calgary

While unable to predict exactly how the federal government would respond to a passed Saskatchewan First Act, University of Calgary associate law professor Martin Olszynski said a legal challenge would be likely.  

“I’m hopeful that someone in Saskatchewan says … let’s challenge this. But, failing that, we would probably eventually see Ottawa saying enough is enough,” said Olszynski.

“They want to sort of shield their own lawmaking power from interference from the federal government, but they are doing it in a way that has never been sanctioned by the courts. They’ve asked the courts over the years — over decades, really — to recognize some form of interjurisdictional immunity for provincial undertakings, but the courts always rejected that notion.”

Olszynski went on to say it is “not up to politicians to determine the scope of their power under the Constitution.”

“That’s what the courts do. So, first they are trying to usurp the role of the courts in that way, but they also apply it in this ridiculously broad way.”

But Eyre says her government is in a solid legal position.

“We can’t guarantee that it won’t be challenged, but we’re confident of its propriety and that it falls within … the province’s power to amend,” Eyre told The Lawyer’s Daily. “We are amending the constitution through section 45 of the Constitution Act 1982 that provides that a provincial legislature can unilaterally amend its own constitution.

“We feel that it does take a stand for what constitutionally is known as interjurisdictional immunity … and really a stand against the federal government using paramountcy as a legal hammer that knocks down the province’s jurisdiction every time they conflict,” said Eyre.

She went on to state that “[t]he Bill does not challenge the assertion that there are areas of shared jurisdiction between federal and provincial governments.”

“It simply asserts that matters within exclusive provincial jurisdiction, such as the development of non-renewable natural resources, should be accorded the same constitutional protection from interference by the federal government that matters within exclusive federal jurisdiction, such as interprovincial pipelines, already have."

Should Ottawa bring forth a legal challenge, said Eyre, the province would present evidence of economic harm.

“I find the media very unwilling to … talk much about the economic harm, but the economic harm kind of [goes] with the intervention into provincial jurisdiction,” she said. “For example, we all know about the carbon tax.”

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