General Information

Carbon Pricing, Pipelines, and the Constitution: B.C., Saskatchewan Seek References

April 26, 2018 2:29pmET


Two provinces at odds with Ottawa over energy policy and the environment are asking for court references to bolster their constitutional positions.

British Columbia has asked its Court of Appeal to review the province’s ability to regulate the flow of heavy oil and the response to potential spills, as the debate continues over Kinder Morgan’s Trans Mountain expansion project between Alberta and the Pacific coast.

This comes one day after Saskatchewan announced a constitutional reference on the federal government’s carbon pricing plan.

Both disputes concern Canadian federalism and the powers of the federal government versus the provinces. Here are details on the two reference questions — and how a similar process plays out in Ottawa:

British Columbia

B.C.’s government wants the Court of Appeal to analyze proposed amendments to the Environmental Management Act and answer constitutional questions on provincial jurisdiction, potential conflict with federal law on pipelines and railways, and whether B.C. law applies to substances coming from another province.

The proposed regulations “would apply to pipelines transporting any quantity of liquid petroleum products, as well as rail or truck operations transporting more than 10,000 litres of liquid petroleum products.”

B.C. Premier John Horgan told reporters in Victoria today that his government has jurisdiction to protect the economy and environment in case of a bitumen spill.

Here are the formal questions being sent to the B.C. Court of Appeal:

Is it within the legislative authority of the Legislature of British Columbia to enact legislation substantially in the form set out in the attached Appendix?

If the answer to question 1 is yes, would the attached legislation be applicable to hazardous substances brought into British Columbia by means of interprovincial undertakings?

If the answers to questions 1 and 2 are yes, would existing federal legislation render all or part of the attached legislation inoperative?

British Columbia’s Constitutional Question Act allows the government to refer any matter to the Court of Appeal or to the Supreme Court for hearing and consideration.

Saskatchewan

The Saskatchewan government has asked for a constitutional reference on the federal plan to implement a price on carbon on provinces or territories without a plan in place by Jan. 1, 2019.

Here’s the question sent to that province’s Court of Appeal:

The Greenhouse Gas Pollution Pricing Act was introduced into Parliament on March 28, 2018 as Part 5 of Bill C-74. If enacted, will this Act be unconstitutional in whole or in part?

The federal government included the 217-page legislation in this spring’s budget implementation bill. Ottawa calls it a “backstop” to implement in provinces and territories that fails to meet certain benchmarks in the 2016 Pan-Canadian Framework on Clean Growth and Climate Change.

The requirements include:

  • carbon pricing in place by 2018 that addresses greenhouse gas emissions across a common set of sectors and sources (i.e. energy, transportation);
  • a system that uses either a carbon tax (as in British Columbia) starting at $10 per tonne and rising to $50 per tonne by 2022, or;
  • a cap-and-trade system (as in Ontario and Quebec) that matches or exceeds the federal government’s 2030 target for reduced emissions;
  • a five-year review and regular reporting requirements.

Included is this language to justify the pricing plan:

The absence of greenhouse gas emissions pricing in some provinces and a lack of stringency in some provincial greenhouse gas emissions pricing systems could contribute to significant deleterious effects on the environment, including its biological diversity, on human health and safety and on economic prosperity … it is necessary to create a federal greenhouse gas emissions pricing scheme to ensure that, taking provincial greenhouse gas emissions pricing systems into account, greenhouse gas emissions pricing applies broadly in Canada

But former Saskatchewan premier Brad Wall did not sign the 2016 framework. And now his successor, Scott Moe, argues the federal plan is “contrary to the principles of federalism”:

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As with B.C., the Saskatchewan Constitutional Questions Act gives the provincial government power to “refer any matter to the Court of Appeal for hearing and consideration.”

Federal References

Federal governments have used the Supreme Court of Canada for numerous constitutional references. The Supreme Court Act allows cabinet to refer questions on:

(a) the interpretation of the Constitution Acts;

(b) the constitutionality or interpretation of any federal or provincial legislation;

(c) the appellate jurisdiction respecting educational matters, by the Constitution Act, 1867, or by any other Act or law vested in the Governor in Council; or

(d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised.

A few historic examples from recent years:

2004

The Supreme Court advises the government that proposed same-sex marriage legislation would be constitutionally valid.

2014

The Supreme Court says Justice Marc Nadon is qualified but not eligible to sit among them, meaning the government needs to find a new representative from Quebec. The court also advised in a 6-1 decision that the government acted unconstitutionally in changing eligibility requirements without unanimous consent from the provinces.

2014

Fixed terms for senators and an election process for nominees will require constitutional negotiation with the provinces, according to a unanimous Supreme Court reference that limits Ottawa’s power to reform the Senate on its own. Abolishing the Senate outright, meanwhile, would require consent from all 10 provincial legislatures along with Parliament.

-Andrew Thomson

General Government

Press Conference by Secretary-General António Guterres at United Nations Headquarters

Following is a transcript of UN Secretary-General António Guterres’ press conference, held in New York today:Ladies and Gentlemen,Thank you very much for your presence.  It is very good to see all of you. and let me start by wishing you all a very…

General Government

Climate-Related Violence, Boko Haram Attacks Stand to Hamper Democratic Elections Across West Africa, Special Representative Tells Security Council

Despite progress in West Africa and the Sahel, particularly regarding democratic and peaceful political transitions, the security situation in the region remained a grave concern, the Security Council heard today in a briefing by the Special Representative of the Secretary‑General in the region.

Following a notable decline in Boko Haram attacks in the first half of 2017, there had been an uptick in the number of such incidents since September, with a peak of 143 civilian casualties in November, said Mohamed Ibn Chambas, who is also the Head of the United Nations Office for West Africa and the Sahel (UNOWAS), as he introduced the Secretary‑General’s report (document S/2017/1104).

Boko Haram’s use of children as suicide bombers had increased fivefold from 2016, reaching 135 such cases in 2017, he said.  Although 700 people abducted by Boko Haram had recently escaped captivity, the group continued to kidnap innocent people. “More than 2 million displaced persons are still desperately waiting for an end to the crisis in the Lake Chad Basin,” he stressed.

Further, the exponential spread of intercommunal and farmer‑herder conflicts, which had claimed hundreds of lives, was a “ticking time bomb”, he said, “which unattended, could escalate beyond the community level”.

Despite those worrying trends, the trajectory of successful democratic elections across West Africa continued, he said, pointing to the large number of people who had participated in peaceful 10 October and 26 December elections in Liberia.  “I applaud the Liberian people and their leaders for their recourse to exclusively legal means to settle all electoral‑related disputes,” he said, efforts that had strengthened democratic institutions.

Looking ahead, he said attention must be paid to upcoming elections in Sierra Leone and Guinea.  In Togo, opposition parties continued with street protests, while a lack of consensus on how to implement constitutional reforms could threaten legislative and local elections to be held later this year, he stressed.

Following his briefing, the representative of Côte d’Ivoire highlighted that the peaceful presidential elections and democratic transfer of power in Liberia had created hope that the country had “turned a corner” and ended decades of military and political crises.  The events there provided a good example to Africa and the West African region, in particular.

Nevertheless, while such progress was promising, he expressed concern about the prevalence of threats from terrorism and violent extremism, which were linked to transboundary organized crime, trafficking in migrants, drugs, weapons and human beings.  Those challenges were compounded by poverty and unemployment, particularly among the youth in areas where the State had difficulty carrying out its sovereign functions.

Equatorial Guinea’s delegate underscored that climate change was having a severe impact on the region, particularly on animal husbandry and agricultural production.  Desertification due to climate change had led farmers and ranchers to migrate, stoking further tensions, he emphasized.

Peru’s representative focused on preventative diplomacy, stressing that UNOWAS stood out for its capacity to prevent conflict, while its monitoring and early warning functions had helped to reduce tensions in a number of countries in the subregion.  That capacity should be strengthened and leveraged, he said, describing the Office as an appropriate platform to coordinate regional and subregional efforts.

Sweden’s delegate, meanwhile, stressed that adequate resources must be made available as UNOWAS was asked to do more, including in support of the transitions from peacekeeping to non‑mission settings in Liberia and Côte d’Ivoire.

Also speaking today were representatives of Bolivia, the Netherlands, Ethiopia and Kazakhstan.

The meeting began at 10:08 a.m. and ended at 11:11 a.m.

Briefing

MOHAMED IBN CHAMBAS, Special Representative of the Secretary‑General and Head of the United Nations Office for West Africa and the Sahel (UNOWAS), introduced the Secretary‑General’s report on that Office (document S/2017/1104), and said that despite progress in West Africa and the Sahel, notably regarding democratic and peaceful political transitions, the security situation was a grave concern.  Terrorists had launched a complex attack on United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) positions in Kidal, resulting in the death of one peacekeeper.  Three Malian soldiers had also recently lost their lives due to a landmine, while another had been killed by terrorists.  Those attacks, as well as others committed in the Mali‑Niger‑Burkina Faso tri‑border area, had been attributed to Al‑Qaida‑affiliated groups, and Islamic State in the Greater Sahara.

In Niger, he said an increasing number of security incidents had compelled the Government to dedicate 17 per cent of public expenditure in 2018 to the security sector, compared to 15 per cent in 2017, a move met by demonstrations in capital, given the expected detrimental effects on the delivery of social services.  Following a notable decline in Boko Haram attacks in the first half of 2017, there had been an uptick in the number of incidents since September, with a peak of 143 civilian casualties in November.  Boko Haram’s use of children as suicide bombers increased fivefold compared to 2016, reaching 135 such cases in 2017.  Although 700 people abducted by Boko Haram had recently escaped captivity, the group continued to kidnap innocent people, he said, adding:  “More than 2 million displaced persons are still desperately waiting for an end to the crisis in the Lake Chad Basin.”

In the Sahel, he said the Group of Five (G5) countries [Burkina Faso, Chad, Mali, Mauritania, Niger] had made significant progress in operationalizing their Joint Force, having established its military command structure and force headquarters, and conducted its first military operation with French troops in October 2017.  Consultations were ongoing to conclude a technical agreement among the United Nations, European Union and G5 Sahel States on the provision of operational and logistical support to the Joint Force through MINUSMA.  The past six months had also seen substantive progress in efforts to reinvigorate the United Nations Integrated Strategy for the Sahel.  A support plan for the Strategy would now be shared with national, regional and international partners to harmonize approaches and canvass for support to the Sahel.  However, the exponential spread of intercommunal and farmer‑herder conflicts, which had claimed hundreds of lives, was a concern.  “It is a ticking time bomb, which unattended, could escalate beyond the community level,” he warned.

At the December meeting of the Policy Committee of the West Africa Coast Initiative, member States had committed to reinforcing the fight against organized crime, he said, citing migration as among the most lucrative activities for criminal networks across West Africa and the Sahel.  The United Nations continued to pioneer the sustaining peace approach in the Gambia and Burkina Faso to ensure the consolidation of those young democracies, where more attention must be paid to security sector reform, national reconciliation and the justice sector.  Respect for human rights and the rule of law was the basis for advancing peace, security and development, he said, adding that the good relationship between Cameroon and Nigeria had increased prospects for completing demarcation of the border.

More broadly, the trajectory of successful democratic elections in West Africa continued, he said, pointing to the large number of people who had participated in the peaceful 10 October and 26 December elections in Liberia.  “I applaud the Liberian people and their leaders for their recourse to exclusively legal means to settle all electoral‑related disputes,” he said, efforts that had strengthened its democratic institutions.  Further attention must be paid to upcoming elections in Sierra Leone and Guinea, while in Togo, opposition parties continued with street protests.  The lack of consensus on how to implement constitutional reforms could threaten the holding of legislative and local elections this year.

Statements

BERNARD TANOH-BOUTCHOUE (Côte d’Ivoire) said progress in the area of political governance was promising.  Despite advances registered in West Africa, he expressed concern over the prevalence of threats from terrorism and violent extremism, citing proven links to transboundary organized crime, trafficking in migrants, drugs, weapons and human beings.  Those threats were compounded by poverty and unemployment, particularly among the young in areas where the State had difficulty carrying out its sovereign functions.  In the search for sustainable solutions, efforts must be pooled.  In Liberia, peaceful presidential elections and the democratic transfer of power had given rise to hope that the country had “turned a corner” and ended decades of military and political crises.  It had set a good example to Africa and the West African region in particular.  It was now up to the international community, as the United Nations Mission in Liberia (UNMIL) would soon leave, to support efforts of the Government and civil society to consolidate the benefits of the democratic transition.

OLOF SKOOG (Sweden) said UNOWAS continued to carry out various important functions, in particular through the use of its good offices.  It also played a critical role by contributing to strategic and integrated analysis of the opportunities, risks and challenges faced by national and local authorities in efforts to sustain peace.  On Liberia, he commended the country for its peaceful, transparent, free and fair election process, which had just concluded.  Adequate resources must be made available as UNOWAS was asked to do more, including in support of the transitions from peacekeeping to non‑mission settings in Liberia and Côte d’Ivoire.

GUSTAVO MEZA-CUADRA (Peru), noting that UNOWAS was a flexible mechanism which could be adapted, called it an appropriate platform for coordinating regional and subregional efforts to combat threats to peace and security in the region.  In the area of preventative diplomacy, it stood out for its capacity to prevent conflict, while its monitoring and early warning functions had helped to reduce tensions in a number of States in the subregion.  That capacity should be strengthened and leveraged.  In the promotion of institutional strengthening, its ability to create a joint vision meant it could play a large role in coordinating efforts with the African Union.  In the fight against violent extremism and terrorism, he cited the Office’s efficient efforts in countering the threat of Boko Haram.

SACHA SERGIO LLORENTTY SOLÍZ (Bolivia) said UNOWAS was essential, while highlighting the need for women to participate in political processes and peace and security.  He pointed to the high level of coordination that UNOWAS had sought with regional and subregional bodies, including the African Union, which had helped West Africa make significant progress in several areas.  In Liberia, he underscored the vital electoral process that had taken place in a peaceful and stable environment, calling those polls a clear demonstration that the processes of reconciliation were fundamental to strengthening the role of institutions in working to achieve peace.  He expressed concern about the complex security situation in a number of countries in the region, noting that the humanitarian situation was cause for alarm, with some 5 million displaced persons — 2 million of whom were in the Lake Chad Basin, and many of whom faced acute food insecurity.

LISE GREGOIRE VAN HAAREN (Netherlands) said the Council had been correct in setting conflict prevention as a priority for UNOWAS.  A year after a turbulent change of power, the Gambia was on the right track.  In Togo, the Special Representative had collaborated with the African Union and the Economic Community of West African States (ECOWAS) to encourage national stakeholders to engage in a much‑needed dialogue reform, while in Liberia, UNOWAS had played a key role towards peaceful elections.  Cross‑border cooperation was also important.  In the Lake Chad area, countries had established the Multinational Joint Task Force to tackle the challenge of Boko Haram.  However, that threat continued to loom large and the resource challenge was difficult to overcome.

ANATOLIO NDONG MBA (Equatorial Guinea) said the report drew attention to the humanitarian crisis in the region, which stemmed from the resurgence of Boko Haram attacks, resulting in more than 2.5 million displaced persons in the Lake Chad Basin and a severe food crisis impacting some 500,000.  It was essential that the international community decisively support the G5 Sahel and the Multinational Joint Task Force by providing them with the necessary means to combat the terrorism.  Climate change was also having a severe impact on the region, particularly on animal husbandry and agricultural production, causing serious tensions in some countries.  Desertification due to climate change had forced farmers and ranchers to migrate, stoking further tensions.  He welcomed the peaceful spirit of recent elections in West Africa, calling them a cornerstone of UNOWAS endeavours and urging the international community to support the current political situation in Guinea Bissau.

TEKEDA ALEMU (Ethiopia) expressed support for the continued role of the Special Representative and his good offices, underscoring the critical importance of collaboration among the United Nations, the African Union and ECOWAS.  Regarding political governance, he welcomed the conduct of peaceful elections in Liberia, which marked an important milestone in national efforts to build a sustainable democracy.  However, the country also had great need for international support.  Such democratic institutions were not built in a day; they must be underpinned by economic and social sectors.  Turning to security dynamics, he said it was clear the region faced challenges from violent extremism, drug trafficking and other transnational organized crime.

KAIRAT UMAROV (Kazakhstan), Security Council president for January, said in his national capacity that the Office’s work had become even more challenging with the closure of the United Nations Operation in Côte d’Ivoire (UNOCI) and UNMIL.  That was also true given the increasing threat of terrorism and violent extremism in West Africa and the Sahel, with their links to transnational organized crime.  He expressed deep concern over the food insecurity and forced displacement among civilians caused by terrorist activities.  Kazakhstan fully supported regional initiatives to address those threats through the G5‑Sahel Joint Force and the Multinational Joint Task Force, he said, commending international partners for mobilizing the financial support needed for those activities.