Brian Zinchuk is editor and owner of Pipeline Online
Minister of Justice and Attorney General Bronwyn Eyre, on March 16, responding to questions about the Saskatchewan First Act. Legislative Assembly of Saskatchewan
REGINA – The Saskatchewan Party government passed The Saskatchewan First Act on March 16. Its stated intentions are to re-assert provincial jurisdiction on resources, greenhouse gas emissions on power production, and fertilizer usage for farmers.
The Act will establish an economic tribunal to determine the economic harm that federal policies, including with respect to greenhouse gas emissions, will have on Saskatchewan’s economy. And if they do find harm, the provincial cabinet can then choose to do something about it.
And while its short form title is “The Saskatchewan First Act,” its full name implies the action it means to take. And that name is “An Act to Assert Saskatchewan’s Exclusive Legislative Jurisdiction and to Confirm the Autonomy of Saskatchewan.”
Justice Minister and Attorney General Bronwyn Eyre was the minister charged with shepherding the bill through the legislature. Pipeline Online spoke to her on March 17, posing the fundamental question: What will you do next?
Eyre responded, “The next step is the establishment of the economic tribunal. The economic tribunal is a crucial part of The Saskatchewan First Act. It’s an independent tribunal, which will look at the economic harm and impact of federal policies. So, bottom line, its job, its sole job, is to put a dollar figure on the federal policy it is considering.”
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Eyre was referring to the nine federal policies aimed at greenhouse gas emissions reductions identified in the white paper released last October by Premier Scott Moe entitled, “Drawing the Line: Defending Saskatchewan’s Economic Autonomy.” That paper noted that if all those initiatives were implemented, the cost to Saskatchewan would be $111 billion by 2035. And that dollar figure doesn’t include the tenth initiative, the proposed Clean Electricity Standard, which calls for the end of fossil fuel power production by 2035. The vast majority of Saskatchewan’s current daily power production comes from natural gas and coal combined. Some days that figure is as high as 86 per cent. The just transition bill and EV regulations, among others, may also be considered.
Choosing what policy to fight first
Eyre said, “We’re still deciding and will now undertake to formalize what policy or policies will be submitted to the tribunal first; whether we do a number at once, whether we do one at a time, and of course, who will serve on the tribunal is also yet to be determined. So that discussion, and ultimately that decision, will be undertaken now that the Act is passed, along with who will make up the tribunal. A decision will be made as to which federal policies or regulations or legislation goes through the tribunal first, and in what order.”
As for a timeline, she said, “That work starts now, in terms of obviously the Act had to pass, and so the work starts now in terms of identifying the policies and then, of course, the makeup of the tribunal.
“In some cases. In terms of federal policies, there are some, as we know, which have been actually gazetted and are more or less formalized. For example, the federal fuel standard has been gazetted and IS set to come into place within 2023. So that is one where we actually know what’s in it, and it has been formally finalized by the federal government.
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“There are others equally harmful, which are somewhat to be determined. Clean electricity regulation is one we have yet to see the actual regulations. It’s been signaled, obviously, the no fossil fuel generated power by 2035. But what actually the regulations contain, in terms of timelines, finally, and in terms of actual stipulated regulations and what’s in them, we still have to see.
“So some of it depends on where some of federal policies are at. And I think of sustainable ag policies, the clean electricity regulations, the electric vehicle regulations, methane regulations. What the just transition bill will be is also still to be determined.
“There are some question marks in terms of some federal policies and in other cases, there are many fewer question marks. So, we have to now decide which policies go through the tribunal. And then the tribunal will make a determination of dollar figure on these policies, and then it’ll be up to the government, in terms of what we do with that information. Do we use dollar figure determination to take a reference case the Court of Appeal, for example? Do we use the dollar figure information to seek an interlocutory injunction? It’s a very high legal threshold but one of the tests for an interlocutory injunction is irreparable harm,” Eyre said.
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Do we shut off the lights?
The day before the Act passed, when it was being discussed in committee, 86 per cent of Saskatchewan’s power was coming from coal and natural gas, as wind was only contributing 29 megawatts out of a possible 617. It contributed one per cent of the power generated, despite being 11 per cent of the nameplate generation capacity. Asked about that, Eyre said, “It’s an existential threat. And so that’s absolutely right. And one of the things at committee I said is, ‘If that isn’t irreparable harm, or economic harm or social harm, I don’t know what is.’
“So to your question, what do we do about it? We’re trying to do everything we can. The Saskatchewan First Act amends our provincial constitution, which we can do, according to Section 45 of the Constitution Act 1982, to assert our exclusive jurisdiction over natural resources.
“Again, Prime Minister Trudeau admitted, acknowledged, in 2021 that provinces have the right to do that. Quebec did it. Again, Section 45 of the Constitution Act, 1982, says provinces can unilaterally amend their own constitution. That’s what we did. in it. We assert exclusive jurisdiction under 92 A of the Constitution. If you read 92 A, it’s pretty clear what we have exclusive jurisdiction over. That’s now in our provincial constitution. We felt it was important to assert and we also put in place the establishment through the act of the economic tribunal to analyze define, quantify economic harm, federal policies.”
Seeding west of Estevan, in 2016. Photo by Brian Zinchuk
Protecting fertilizer usage
One of the key points in the Act is “the regulation of fertilizer use in Saskatchewan, including application, production, quantities and emissions.” This came about over concerns the federal government may soon seek to limit the usage of nitrogen fertilizer, a crucial ingredient in agricultural production, to limit greenhouse gas emissions.
On fertilizer, Eyre said, “There is a cross referencing between federal powers and provincial powers over agriculture. There always has been. It’s a little bit unique, in that regard, in contrast to, for example, natural resources.
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“This is important, though. The day-to-day business of farming, and use of fertilizer, has always been within the provincial realm. And so that’s important, because when we look at the fertilizer mandates, and some of the things that the federal government has put forward in the discussion paper just before Christmas, the federal government. Minister (Marie-Claude) Bilbeau had repeatedly said, ‘Oh, it’s fine. It’s just going to be voluntary.’
“And then in this little line in the discussion paper before Christmas, suddenly it got a lot more prescriptive in language. And it suggested that certain practices COULD be prohibited. So that again, this came up at SARM, gets into are you overreaching into what has traditionally been the provincial realm – Use of fertilizer, day-to-day business of farming. So, it does have potential Sask First implications. And so it’s one of many things we’re looking at, in terms of what would go through the Sask First tribunal hopper, as it were.”
(Consultations on that discussion paper are ongoing. Click here to see it).
Dramatic reductions in fertilizer usage will undoubtably result in corresponding reductions in crop output, and therefore revenue to farmers and provincial government, in turn. It would also mean reduced food supply.
“There’s a very good example of economic harm,” Eyre said.
Asked if the province was hiring more lawyers to deal with the legal that will come of this, the justice minister replied they have enough in-house. “We don’t need to hire any more,” she said.
NDP Justice Critic Nicole Sarauer. Legislative Assembly of Saskatchewan
Reply to NDP criticism
Eyre took issue with NDP Justice Critic Nicole Saruer’s comments regarding the Act, saying, “Ms. Sarauer is wrong on the law.
“The head of the Constitutional Branch says the Sask First Act is constitutional. The federal government acknowledges it’s constitutional.
“The language, ‘exclusive jurisdiction’ has been in the Constitution for 40 years. It’s what 11 provinces and territories are fighting Bill-69 over this week.”
Eyre said of the NDP and the federal regulations the Saskatchewan First Act addresses, “They have no opinion on it—or the Clean Electricity regulations, federal fuel standard, a potential fertilizer ban. They don’t appear to have ever heard of them.”
“They claim to share concerns about intrusive, budget busting federal policies…So, what do they propose doing about them? What’s their position on them? Their only narrative is negativity. Or: “Don’t offend the Feds.”
Pipeline Online provides the in-depth coverage on energy issues in this province that no other media comes close to. However, with recent threats from Facebook to block news links, it’s important to follow Pipeline Online in other manners. The easiest is to check each morning at PipelineOnline.ca, with the top story posted at 7 a.m. Monday to Friday, and additional coverage throughout the day and weekend. But you can also follow on LinkedIn and Twitter. You can follow editor Brian Zinchuk online at LinkedIn as well (you’ll see more stories that way). Finally, you can subscribe to a weekly newsletter.
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