This paper is so bad, its obvious weaknesses should speak for itself. However, perhaps to save some readers the time and the pain, I will parse through a number of the errors made by @Gerard_Lucyshyn which ought to have resulted in this work never being released.
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https://twitter.com/FrontierCentre/status/1189573385468207104
First of all, the @FrontierCentre paper considers whether access to the sea (or tidewater as used in the paper) is a right, referencing international law. In particular, the paper wrongly cites the 1966 UN Conference on Transit Trade of Land-locked Countries.
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Canada is not a signatory to it, and thus none of the obligations contained in it apply to Canada. However, Canada *has* ratified the UN Convention on the Law of the Sea (UNCLOS). Part X of UNCLOS deals with the right of access of land-locked states to and from the sea.
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I have already covered at a high-level that the “freedom of access” guaranteed under UNCLOS is a highly qualified one and does not suggest that an independent AB and/or SK would have better access. See the embedded thread.
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https://twitter.com/tim4hire/status/1189246597898657795?s=21
This, however, applies only if AB and/or SK were to secede. International law does not apply when determining the rights of a sub-sovereign body vis-a-vis its sovereign parent. That question is wholly settled by domestic constitutional law.
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Interprovincial pipelines are, constitutionally, under federal jurisdiction. The federal government ultimately decides on whether or not to approve those pipelines if they are in the national interest.
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The interests of a province naturally play into a determination of what the national interest is, but there are times when they will not be perfectly aligned. In the case of pipelines to the BC coast, for example, the pipelines can provide clear economic benefit to AB.
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The benefits to BC, however, are, at best, less clear. There are environmental risks associated with pipeline construction and operation, and the economic returns to BC may be much lower than the risks to that province.
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It is precisely for these reasons that interprovincial pipelines *are* federal jurisdiction. Only the federal government can weigh the competing interests of the provinces and make a decision as to what is, or is not, in the overall interests of Canada.
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So, the problem is not that AB and SK lack coastal access. The problem is that the benefits and disadvantages associated with pipelines are not evenly shared across the country, which means that sometimes a project favoured by AB may not always be in the national interest.
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To get pipelines approved, then, proponents must show how the project would benefit Canada as a whole. Note that this can be done by taking steps to address some of the concerns of the pipeline (such as design/engineering/operational elements to reduce environmental risks).
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Even if AB had direct coastal access, it would need to show a national benefit. The intraprovincial pipeline can very well end up being within provincial jurisdiction, and so not need a federal approval. The export terminal is federal jurisdiction, though.
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There is then a discussion of riparian water rights. These rights are common law rights and can (and have often been) superseded by legislation. While some riparian rights have been preserved and codified by relevant provincial and federal laws, others have been abrogated.
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Riparian rights only accrue to property bordering a body of water (lake, river, etc). To suggest that AB or SK is disadvantaged because it lacks a border to sea water is bizarre. Most Canadians would fall in a worse boat (so to speak) as we don’t own any waterfront at all.
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The discussion of economic rights is equally bizarre. As noted by the author, the 1982 amendments to the Constitution Act, 1867 confirmed provincial control over the development of non-renewable resources within their borders. This largely settles the entire discussion.
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However, @Gerard_Lucyshyn then contradicts himself by first noting that interprovincial trade is federally regulated but then claiming that provincial approval is needed for AB or SK to access the sea. As noted in the above tweets, interprovincial pipelines are federal.
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There is also a long and possibly interesting historical discussion of the development of the provincial boundaries that exist today. All of them, except the formation of Nunavut (which is a particular and unique case), pre-date 1982. This is somewhat critical.
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The Constitution Act, 1982 set out, inter alia, how certain changes to the constitution of Canada could be amended. This includes any changes to the borders of a province. The relevant provision is section 43.
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It is absolutely clear that any change to the borders of the provinces along the lines proposed by the @FrontierCentre paper would require the consent of the legislatures of BC and MB in addition to that of both Houses of Parliament.
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Yet @Gerard_Lucyshyn completely ignores this point. There is absolutely NO mention of this requirement, much less why the provinces that would cede territory to AB and SK would agree, or how their opposition to such a proposal would be overcome.
This is beyond a fatal flaw.
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This is beyond a fatal flaw.
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