In recent comments, federal Justice Minister David Lametti suggested that he will be “looking at” the possibility of unilaterally rescinding the natural resources transfer agreements concluded with the Prairie provinces in the 1930s. This is a worrying development for the Canadian Constitution.
Lametti recently attended the Assembly of First Nations special chiefs assembly, where he was asked to rescind the agreements. His answer was to indicate that he would consider the matter, while noting that he could not pronounce on the issue immediately. He acknowledged, however, that “it won’t be uncontroversial.”
Saskatchewan Premier Scott Moe condemned these comments as “dangerous and divisive,” and observed that they are a “threat to the unity of our country.” This sentiment was echoed by Manitoba Premier Heather Stefanson, who suggested that this was “another example of divisive disregard for the Prairie provinces.” Alberta Premier Danielle Smith has also called out Lametti’s comments “in the strongest possible terms.”
Lametti, in response, skirted around the problem identified by the premiers and made clear that he did not “commit” the government to “reviewing areas of provincial jurisdiction, including that over natural resources.” The premiers have since released a joint statement calling on Prime Minister Justin Trudeau to clarify the federal government’s position.
The most charitable interpretation of Lametti’s comments at the special chiefs assembly is that he was placating his audience. As Lametti himself acknowledged in his response to the premiers, as an elected official, he is required to listen to the concerns raised by Canadians, including Indigenous peoples. One would expect nothing less.
But even this interpretation does not fully explain why he would consider the possibility of unilaterally rescinding these agreements, irrespective of whether he has made a commitment to that effect. It should be said clearly that any attempt to rescind them unilaterally would be unconstitutional.
Intergovernmental agreements are ubiquitous in federal political systems. Among the most common agreements, one can count those that transfer the administration of one order of government’s laws or programs to another.
The legal status of these agreements can sometimes be nebulous, but one thing is clear: despite some calls for a more nuanced approach to federalism, the Supreme Court of Canada has, to date, held that such agreements are subject to unconstrained unilateral abrogation. In other words, there is no obligation for various orders of government to co-operate with one another.
However, some intergovernmental agreements have been given constitutional status. This is the case with the natural resources transfer agreements concluded with Alberta, Manitoba and Saskatchewan, which were constitutionalized in 1930. The purpose of these agreements was to put these provinces “on an equal footing with the other Canadian provinces,” by transferring “control over land and natural resources.”
Since patriation, their constitutional status is protected by Section 52(2)(b) of the Constitution Act, 1982. In other words, these agreements, like other aspects of the Canadian Constitution, are subject to the formal amendment procedure. They cannot be rescinded or amended by the federal government acting unilaterally.
It is possible that Lametti’s comments are an attempt to respond, in some way, to recent developments in Alberta and Saskatchewan. Indeed, in making his comments “with a bit of a smile,” he appeared to take some pleasure in floating the possibility of rescinding these constitutional agreements.
To some extent, this is understandable and to be expected in a federal system like ours. Since our constitutional structure permits unco-operative conduct, the federal government is also at liberty to exercise its powers in this way, whether that is a wise decision or not.
But one would expect the federal government’s response to stay within the bounds of what is constitutionally permissible. Canadians are entitled to expect that all the orders of government will respect the Constitution and seek change through proper channels.
There is legitimate room for friction and disagreement in a federal system, but there are lines that should not be crossed if one is committed to the rule of law. In the end, it is the country and its unity that suffer from these unconstitutional manoeuvres.
National Post
Jesse Hartery is a lawyer and PhD candidate at Melbourne Law School. His research focuses on constitutional theory and comparative federalism.
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