Thread by @tim4hire

The Saskatchewan First Act is a doozy both in terms of what it purports to do (blatantly unconstitutional) and what it actually does (mostly, generate hot air).

(🧵) #skpoli #cdnpoli #Saskatchewan

1/

https://twitter.com/acoyne/status/1587779455962972160

Namely, the Act purports to amend the Constitution of Canada, namely the Saskatchewan Act and the Constitution Act, 1867. All well and good, except this can’t be done unilaterally.

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Since the amendments would only affect Saskatchewan, section 43 of the Constitution Act, 1982 applies. Under this provision, resolutions of both Houses of Parliament are required in addition to that of the Saskatchewan Legislative Assembly.

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Unlike the general amending formula which has been politically unusable since the Charlottetown Accord failed, section 43 amendments have been used from time to time, so the process is well understood. Some examples follow:

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For instance, both Quebec and Newfoundland and Labrador got rid of their denominational school systems using this method. It was also how that latter province became Newfoundland and Labrador instead of just Newfoundland.

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It was also recently used to amend the Saskatchewan Act to end a tax exemption for CP Rail. Curiously, @PremierScottMoe did not attempt to unilaterally amend the constitution for this change.

google.com/amp/s/www.cbc.…

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Aside from ignoring the constitutional amendment process, the Saskatchewan First Act creates a lot of hot air. The legal effect of its provisions, even if they are valid, are at best dubious.

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For instance, it “asserts” Saskatchewan “exclusive legislative jurisdiction” over certain matters, and that the “doctrine of interjurisdictional immunity” applies to those matters. It might as well “assert” that the Roughriders will win the Grey Cup.

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Provinces do have exclusive legislative jurisdiction over certain matters and there is a core to those powers that cannot be interfered with by federal legislation (this is interjurisdictional immunity). But asserting this doesn’t make it happen; it is already there (or not).

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Courts determine if federal legislation intrudes into an area of exclusive provincial jurisdiction and/or if interjurisdictional immunity exists. A province can (and will) argue (assert) it has exclusive jurisdiction, but it’s what the court says that matters.

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The most likely effect, therefore, of the assertions in the Saskatchewan First Act is that they will require the Province to advance those arguments in court.

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At best, this is what the litigators would have done anyway. At worst, it forces them to waste time and money on an argument that is destined to lose (e.g., if it repeats what was put forward in a previous case and was shot down).

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The Saskatchewan First Act would also create an Economic Impact Assessment Tribunal “for the purpose of conducting economic impact assessments in relation to federal initiatives.”

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This tribunal would have powers of a commission and could thus broadly consider and report on federal initiatives that the Saskatchewan Cabinet refers to it. Which sounds kind of meaningful until…

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You realize that all the Tribunal does is give a report. The Act doesn’t even pretend that the Tribunal can affect the federal initiative. It can’t order any remedies even if it feels a wrong was done.

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As is currently the case, the only ways to affect federal initiatives are to use the avenues that exist outside of the Saskatchewan First Act: the courts of law and those of public opinion.

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At best, the Tribunal will do some of the work that would either form part of the record or arguments that go before the court, or will be used by provincial politicians as they try to use public opinion and push for policy changes. At worst, it is a waste of time and money.

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As for the purported constitutional changes, it is primarily to declare that Saskatchewan “is and always has been” a province that depends on agriculture, non-renewable resources, forestry and electrical energy production.

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I expect that these industries will remain important to Saskatchewan for the foreseeable future, but I wonder at the idea of declaring, in the highest law of the land, that a province’s economy is fixed. Who knows what the future will bring?

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Must Saskatchewan always be a “has been” province? Could it not, perhaps, become a leader in some good or service that has yet to be invented? Should it not be looking forward, especially as many of these existing industries like agriculture become less labour intensive?

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I grant that @PremierScottMoe may think Saskatchewan’s “ability to control its non-renewable natural resources, its forestry resources and its electricity energy generation” is “critical” to its “future well-being and prosperity”. But is it really?

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But even if there are no creative entrepreneurs and innovators in Saskatchewan (and FTR, I think there are, even if the provincial government doesn’t), the province doesn’t have carte blanche over all it does. We share the same planet.

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The environment, in particular, is a shared responsibility. Greenhouse gases don’t just stay in the province that generated them, nor are the climate-related effects from them geographically contained. Sorry, @PremierScottMoe, but you don’t get to freely pollute my air.

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But the reality is that the Saskatchewan First Act won’t create a constitutional crisis. It will likely create provincial government bureaucracy and waste tax dollars. But it won’t change jurisdictional boundaries or affect anything the federal government does.

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Saskatchewan voters who think their province should not be a “has been” province, who think they can instead be part of a 21st century economy, should demand better than this performative nonsense that doesn’t even try to solve any problems.

/fin