Brian Zinchuk is editor and owner of Pipeline Online
Bronwyn Eyre, during her speech explaining the Saskatchewan First Act. Legislative Assembly of Saskatchewan
REGINA – Governments often make their top priority for a legislative session their first bill. This fall, it’s Bill 88, The Saskatchewan First Act, moved by Saskatchewan Minister of Justice and Attorney General Bronwyn Eyre.
This bill came about after the Saskatchewan Party government, along with the governments of several provinces across the country, lost their fight against the federal carbon tax in the Supreme Court. And the case for it was made in a recent white paper released by Premier Scott Moe called Drawing the Line: Defending Saskatchewan’s Economic Autonomy.”
But just what is it all about? Pipeline Online sat down with Eyre in her office on Nov. 2, the day after she introduced the bill, to explain its workings.
Wrecking ball
Eyre noted that the carbon tax loss at the Supreme Court of Canada was due to the federal government using the peace, order and good government argument. That raised the stakes, she said.
“Otherwise, it would have been more go a normal, if you like, case about jurisdiction, federal versus provincial,” she said.
Eyre noted that a recent ruling by the Alberta Court of Appeals said Bill C-69, the Impact Assessments Act, had “taken a wrecking ball” to provincial exclusive jurisdiction.
Sections 92 and 92a of the Constitution outline provincial jurisdiction. With the Saskatchewan First Act, the province has enumerated all the areas explicitly that are provincial jurisdiction, according to Eyre.
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Power and fertilizer
Asked if the biggest motivations behind the act were about Saskatchewan being able to keep its lights on in a manner it so choses, and farmers being allowed to keep using nitrogen fertilizer, Eyre said, “Absolutely.”
“Those are prime, but so is the continued ability of producers to produce energy in this province and not be subjected, for example, to caps or whimsical mandates, such as we’re seeing with methane.”
Section 3(3)d specifies that Saskatchewan will assert “exclusive jurisdiction” over the operation of sites and facilities in Saskatchewan for the generation and production of electrical energy; regulation of environmental standards and the regulation of greenhouse gas emissions and other emissions; and the source of fuel for electrical generation, including renewable and non-renewable resources.
In other words, the bill says we will decide for ourselves how we create power, what fuel sources it will use, and any greenhouse gas emissions regulations that will accompany it.
Federal regulations have already put Saskatchewan on a path to shut down its conventional coal-fired power plants by 2030, which will, in turn, shut down most, if not all, coal mining associated with it.
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“So let’s take let’s take the power thing first of all,” she said, noting the proposed Clean Electricity Standard, if adopted in its current form, would mean no fossil fueled power generation in this province by 2035.
According to SaskPower’s Where Your Power Comes From website, on any given day, coal and natural gas combined provide 65 to 84 per cent of the power in Saskatchewan. On Nov. 6, it was 77 per cent.
SaskPower’s generation, in megawatts, on Nov. 6, 2022. Grid scale wind, solar and hydro accounted for just 19 per cent of all power production that day. SaskPower
Eyre said, “That’s a federal policy which we hope will never see the light of day, but which is moving along. We will freeze in the dark. And we know that. Saskatoon (is) powered by the Queen Elizabeth, a natural gas-powered power station. The entire City of Saskatoon (would be) in huge trouble.”
“What would happen, on the clean electricity regulations, for example, we have asserted in our constitution, which is incredibly rare (and) incredibly bold, I would submit. We have simply have asserted explicitly in the Constitution that that autonomy really is exclusive jurisdiction over these enumerated areas. We have autonomy, and it’s exclusive over this list of areas, one of which is generation of and production of power.
“And so, what would happen is clean electricity regulations, for example, come in. And we say, ‘Hmm, not only is that a massive economic harm – just think about it – no fossil fuel generated power 2035. It’s also literally impossible to do it. It’s literally impossible to do it,’” Eyre emphasized.
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Enter the tribunals
The bill calls for the establishment of “Economic Assessment Tribunals.” Eyre explained, “So let’s take the clean electricity regulations to the economic tribunal. And let’s do a dollars and cents analysis of the harm. That’s its only remit: a quantification and a definition and an assessment of the economic harm of the clean electricity regulation. We provide our numbers. We asked the federal government to provide theirs. We asked power experts to provide theirs. We analyze what would happen if this were to (go ahead).
“And then we use that independent quantification potentially in a legal action at the Court of Appeal in a reference, or to obtain an interlocutory injunction, which is a very legal process. But one of the tests for an interlocutory injunction is ‘Is there irreparable harm?’
“And that’s why we feel the tribunal is so important as part of that chain.”
Exclusive jurisdiction
She explained that some might say Saskatchewan has exclusive jurisdiction over natural resources anyway, “but it’s continually under attack.”
“We have exclusive jurisdiction over natural resources, but federal government, you keep doing all of this stuff to us.”
She said they are going into the realm of clean electricity regulations and imposing the federal Clean Fuel Standard, as examples. Eyre pointed out that Clean Fuel Standard alone will result in $700 million in charges on diesel consumption and gas consumption and production in Saskatchewan per year. “No rebates, pure economic harm,” she said.
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Eyre pointed out that it’s a “ridiculous argument” that federal rebates will make up for the $111 billion of economic harm by 2035 identified by the Ministry of Finance in the recently released Drawing the Line white paper. That white paper identified nine federal initiatives in the name of climate change that will have a financial impact on Saskatchewan. The Clean Electricity Standard was not included in that nine. It would be the tenth.
She pointed out that half a billion dollars “is being held ransom by the federal government to SaskPower in carbon tax,” as an example.
Minister of Justice and Attorney General Bronwyn Eyre. Photo by Brian Zinchuk
Provincial veto? No, a federal veto already exists
Asked if the bill asserts some form of provincial veto on these federal initiatives, Eyre said, “It’s more that we can already do that, based on what’s already in the Constitution. Exclusive jurisdiction means something. It means exclusive jurisdiction. What’s increasingly happened is that provincial jurisdiction comes up against federal jurisdiction and where there’s overlap, often it’s veered into, ‘Oh, there’s federal paramountcy.’ That’s the veto. That’s what we’ve increasingly been seeing, that federal paramountcy means basically a legal hammer as a veto against provincial jurisdiction.
“What we’re saying is, if you have exclusive federal jurisdiction in certain areas, we have provincial jurisdiction in certain areas. You’ve acknowledged that, because the prime minister has said provinces can unilaterally actually amend their own constitutions for that, which applies to the province, such as exclusive jurisdiction.”
As an example, the federal government has regulated the end of conventional coal-fired power production by 2030. Asked how this could apply to coal, Eyre noted, “The federal mandate has been in place now long enough, that decisions have actually been made around operational, call it continuity, of some of those facilities.”
You can take our coal, but you can’t take our natural gas
She noted Saskatchewan has moved to accommodate and work with the federal mandate. She said the “line in the sand” will be new facilities, like the natural gas-fired power station currently under construction at Moose Jaw. It would run afoul of the proposed Clean Electricity Standard. “Clear economic harm,” Eyre said.
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Saskatchewan has moved to accommodate the federal mandate on coal-fired power production, moving to natural gas-fired power production and signalling an intention to build nuclear facilities. But natural gas is now jeopardized by the Clean Electricity Standard. “That is a clear violation of provincial jurisdiction,” she said.
With nuclear power years away, and no coal, without natural gas, Saskatchewan would go dark.
“We need to be smart. We need to say we’re not (shutting down all fossil fuel power) because here’s why: First of all, because we literally can’t power our province. So that has a major economic impact. But we’re actually going to get the impact defined, so that we can use that to buttress legal action under the Constitution.”
Nitrogen fertilizer
Similarly, the federal government has signaled its first moves to reduce the amount of nitrogen fertilizer emissions, again due to concerns about climate change. Will the province not allow a federal restriction on fertilizer usage?
Eyre said, “Once again, a clear violation of provincial jurisdiction.”
“Federally, they say, ‘Oh, it’s only voluntary.’ Have we not all seen that movie before?
“We are very, very concerned as a province that the federal government is coming for our ag sector next,” she said, her finger pounding the table.
“The economic harm of those mandates, we can say they’re voluntary now, will be extremely destructive to that sector.”
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Tribunals’ job
The economic impact tribunal, in that case, would be asked to define, quantify and assess how much economic harm would come from such a move by the federal government. “From there, we will we can say, ‘Not all not only is this an exclusive jurisdiction, which you are intervening in, but here’s the harm to us.’
“Courts, country, people of Saskatchewan, people of Canada – what federal government imposes these things on primarily one economic region particularly in the case of energy right and power production.”
Each tribunal would be made up of a chair, vice-chair and a group of applicable specialists. A tribunal on fertilizer usage would have different specialists than the Clean Fuel Standard, for instance.
Then what? To the courts
But what comes after the tribunal makes its findings?
Eyre said, “We make a decision as to what to do.”
She pointed out the importance of the tribunal’s findings being used as evidence in legal proceedings, at King’s Bench, a reference case to the Court of Appeal, or an obscure legal device known as an “interlocutory injunction.”
Eyre said such an injunction is very difficult to get. One of the tests is “irreparable harm.” And the tribunal’s role will have been to quantify that.
She noted if the lights have to go out in Saskatchewan due to federal initiatives, “if that’s not irreparable harm, then I don’t know what is.”
Eyre said pretending that somehow wind and solar power are going to do it, or miraculously there will be hydro power available from Manitoba, would lead to irreparable harm.
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One case at a time
With Drawing the Line outlining nine federal initiatives of concern, does that mean nine tribunals in short order?
“I think it’s going to be the proverbial case by case,” Eyre said. The
Asked if a Saskatchewan carbon exchange market was being looked at, Eyre said, “It is. There’s definitely work being done on that.”
But could the carbon tax, with its continual increases, go through this process? Eyre said, “Everything’s on the table.”
Why not just do it, without court?
When asked why the cabinet couldn’t just do an order-in-council instead of going to court, Eyre said the legal option would solidify the province’s argument on exclusive jurisdiction.
“I guess what we’re really saying, with this is it’s beyond debate. Exclusive jurisdiction means something.”
And if the province were to lose in court?
It’s difficult to speculate, she replied, adding this is not symbolic. “Courts will pay attention to the fact that we have, after all, amended our constitution to assert that exclusive jurisdiction, that it absolutely means something.”
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As a result, interjurisdictional immunity, which is in the bill, will have to be taken into account.
Eyre said it’s a signal to the courts, and to the federal government, “that we are willing to go to the wall every single time on economic impact.”
To those who would say that by not working with the federal government on climate change goals, Eyre pointed out Saskatchewan has worked out a federal equivalency on methane emissions reductions. Oil and gas production’s emissions have remained relatively flat for 20 years.
“You can’t impose economic harm on just one region, and you can’t not acknowledge their efforts to get there. We have signalled SMRs. We have signalled methane and done it. We are the cleanest potash producers. We’re uranium producers which will feed SMRs. Our oil and gas is the cleaners in the world,” she said.
In her speech moving the bill on Nov. 7, Eyre called upon the NDP to fast track the bill, calling upon them to grant leave to pass the bill through all its remaining stages.
She did not get it.
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