Brian Zinchuk is editor and owner of Pipeline Online
Minister of Justice and Attorney General Bronwyn Eyre. Photo by Brian Zinchuk
REGINA – Thou shalt not use coal for power generation post-2030, the federal government hath said. And it’s moving to do the same with natural gas by 2035. It also wants to limit farmers’ fertilizer usage, all in the name of climate change policies.
On Nov. 1, the Province of Saskatchewan said, “To hell with that,” but in a more sophisticated, legal manner.
Saskatchewan threw down the gauntlet with the federal government on Nov. 1, introducing Bill No. 88, The Saskatchewan First Act. If implemented in its current form, the Act basically says Saskatchewan will make its own decisions and rules on environmental standards, particularly those applying to greenhouse gas emissions and power generation.
Saskatchewan First Act Bill 88 – in PDF form
And that bill says Saskatchewan will decide for itself the “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.”
This is in clear opposition to federal standards when it comes to coal-fired power generation, and the upcoming federal Clean Electricity Standard, which is currently being developed. That standard would not only cut off coal-fired power production, but also natural gas-fired power, too.
Boundary Dam Power Station. Photo by Brian Zinchuk
The discussion paper on it states in its definitions, “Net-zero electricity means Canada’s stated goal of having the electricity sector achieve, in effect, no emissions of greenhouse gases (GHG) by 2035, or emissions are offset by other actions that remove carbon from the atmosphere.” It adds, “In realizing this goal, it is expected that some low-emitting generation facilities may continue to operate past 2035. The emissions resulting from this operation would need to be balanced by removals in or attributed to the sector.”
The Clean Electricity Standard, if implemented, would effectively mean turning off the lights in Saskatchewan in 12 years. According daily postings on SaskPower’s Where Your Power Comes From webpage, on any particular day, coal and natural gas account for 65 to 84 per cent of Saskatchewan’s power generation, but usually it’s in the mid-70s. On Oct. 30, it was 73 per cent, with 2,167 of 2,992 megawatts coming from coal and natural gas. On Oct. 3, 84 per cent of SaskPower’s generation came from natural gas and coal – an even split between the two.
The earliest SaskPower currently thinks it could get a singular nuclear reactor online would be 2035.
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Fertilizer emissions
Additionally, The Saskatchewan First Act says Saskatchewan will take care of its own “regulation of fertilizer use in Saskatchewan, including application, production, quantities and emissions.”
This is in response to recent federal moves to reduce greenhouse gas emissions from nitrogen fertilizer, a crucial fertilizer for most crops. These acts have raised considerable alarm in the agricultural industry.
Allowing farmers to continue using nitrogen fertilizer without greenhouse gas emissions restrictions is a key part of the Saskatchewan First Act, introduced Nov. 1. Photo by Brian zinchuk
Drawing the Line
The Saskatchewan First Act stems from the white paper released by Premier Scott Moe on Oct. 11. It was entitled “Drawing the Line: “Defending Saskatchewan’s Economic Autonomy.” The white paper was a not-so-subtle shot across the bow from Moe’s Saskatchewan Party government to the Justin Trudeau-led federal Liberal government.
That white paper laid out the case that federal environmental policies, in the name of preventing anthropogenic (manmade) climate change, would effectively bankrupt this province and severely impact its principle industries and power production. In it, Saskatchewan makes the case that if nine federal initiatives related to climate change are implemented, it could cost Saskatchewan as much as $111 billion dollars by 2035. And that doesn’t even include the Clean Electricity Standard. Moe discussed the white paper in depth in this interview with Pipeline Online.
Eyre leads the charge
Saskatchewan Justice Minister and Attorney General Bronwyn Eyre is leading the file. She has a deep understanding of the energy issue, having just come off a four-year stint as Minister of Energy and Resources.
Eyre said on Nov. 1, “At its root, this bill asserts Saskatchewan’s exclusive—exclusive—jurisdiction over natural resources, which we must protect.
“Our natural resources are one of the major reasons why Saskatchewan is weathering the economic, recessionary storm being experienced elsewhere. But economic success, and strength, don’t just happen by accident. They happen when regulatory and royalty structures are strong, competitive and transparent. They happen when you pound the pavement, in Canada and around the world, telling Saskatchewan’s investment story.”
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She continued, “The economic success that Saskatchewan has achieved has been despite of federal policies that have done real economic harm—and risk doing much more.
Using the federal carbon tax as an example, she said Saskatchewan agricultural producers will be paying $28 million a year in carbon tax for grain drying alone by 2030. And the Clean Fuel Standard will have a $700 million per year impact on gasoline and diesel consumption.
Eyre said, “Businesses don’t get rebates. Those who don’t file taxes don’t get rebates. The federal government is withholding hundreds of millions from SaskPower in carbon tax–which it could use to invest in renewables and power security right here in Saskatchewan.
“And don’t forget: this past January, the federal Parliamentary Budget Officer found that the carbon tax has left at least 60 per cent of Canadian households financially burdened.”
She added, “This bill will create the framework to define, address and quantify economic harm. Because that harm is real. And is being perpetrated on just one region.
“We are tired of the condescension. Of the double standards. And, frankly, of the contempt.
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Saskatchewan’s dependency on agriculture and non-renewable resources
The implementation comes in the next part of the Act, which is an amendment to our province’s constitution, The Saskatchewan Act.
The amendments start by saying, “Saskatchewan has autonomy with respect to all of the matters falling under its exclusive legislative jurisdiction pursuant to the Constitution Act, 1867.”
It then states, “Saskatchewan is and always has been dependent on agriculture, and on the development of its non-renewable natural resources, forestry resources and electrical energy generation and production.”
Finally, the amendment says, “Saskatchewan’s ability to control the development of its non-renewable natural resources, its forestry resources and its electrical energy generation and production is critical to the future wellbeing and prosperity of Saskatchewan and its people.”
Identical wording would be added to the Constitution Act, 1867, which used to be known as the British North America Act before the repatriation of the Constitution in the 1980s.
Eyre said, “In terms of the constitutionality and legality of this bill, we are amending Saskatchewan’s constitution by virtue of Section 45 of the Constitution Act, 1982–which provides that a provincial legislature can unilaterally amend its own constitution.
“By that means, we are asserting our exclusive constitutional jurisdiction, enumerating our core provincial powers, and referring questions, for economic assessment, to an independent economic tribunal.
“This is not merely symbolic.
“Amending our constitution, as Quebec did, as the prime minister said it was within the powers of provinces to do, and enumerating our core provincial powers. in other words, only those that relate specifically to Saskatchewan, we believe will have real, practical, and legal effect and weight in the future,” Eyre said.
What we’re going to do about it
The Saskatchewan First Act would establish an “Economic Impact Assessment Tribunal” for the purpose of conducting economic assessments of federal initiatives. Those are defined as “a federal law or policy that may have an economic impact on a project, operation, activity, industry, business or resident in Saskatchewan.”
Cabinet could refer a federal initiative for assessment if, in its opinion “a federal initiative will cause economic harm to Saskatchewan.”
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In other words, Saskatchewan will take a hard look at federal initiatives that hurt this province, and do something about them, implying some form of provincial veto overriding those federal initiatives.
Eyre explained, “We feel that it is important to define these policies through the prism of economic harm. It’s about protecting our economy and our way of life while we work to solutions.
“All of our mandates and emissions in terms of provincially cutting emissions, that’s all still on the books of course. The point is though, that where there is direct infringement on our exclusive jurisdiction, we do feel that it’s important to formally now draw the line.”
According to Eyre, the tribunal will only be used on a case-by-case basis. Its reports will be available publicly.
No time wasted in response
Any referral would be served on the federal government within seven days, and should be considered by the tribunal as soon as practicable, but no later than 90 days. Its assessment would then be reported and recommended to the minister.
Those recommendations will deal with the nature of the economic impact of the federal initiative on projects, operations, activities, industries, businesses or residents in Saskatchewan. It will recommend the steps that may be taken to minimize the economic impact of the federal initiative here. It will also look into any other matter that should be brought to the attention of the Government of Saskatchewan as having unintended consequences on projects, operations, activities, industries, businesses or residents in Saskatchewan.
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Legal challenges?
The tribunal’s reports will be admissible as evidence in a legal proceeding – a key point as these matters are highly likely to end up in court with the federal government. The federal carbon tax, for instance, went all the way to the Supreme Court of Canada, where Saskatchewan and its allied provinces lost.
With regards to federal legal challenges of this move, Eyre said, “Reasserting our specific jurisdiction under the Constitution, legally, there is a weight to that. It is not merely symbolic.”
“There’s federal exclusive jurisdiction, and there’s also provincial. That’s part of being part of this wonderful, crazy patchwork that we call Canada.”
Mitch McAdam, the director of the constitutional law branch, said, “These amendments don’t purport to change the division of powers between the federal and provincial government. That’s still something that is up to the courts to determine.
“We feel we’re on solid constitutional footing with respect to both amendments.”
The tribunal will be able to draw on provincial resources and will have all the powers conferred on a commission by The Public Inquiries Act, 2013. It can also engage legal counsel, consultants and technical advisors as needed.
The Saskatchewan First Act contains clauses regarding immunity of the Crown in the right of Saskatchewan, as well as the ability to make regulations with regards to its implementation.
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It’s about economic harm
“This isn’t about fed-bashing for kicks,” Eyre said. “This is about quantifying, assessing and defining economic harm. It’s about our place in this federation.”
She noted, “Far from this bill being unpatriotic,’ as some have suggested, I would counter:
“It is not unpatriotic to ask for a fair deal?
“To rely on the strict interpretation of the division of powers under the constitution?
“And to ask that the federal government be an honorable partner.
“That, to me, defines being Canadian.
“We do not relish being here. But this is where we are.”
Eyre noted Quebec has dared to take certain powers which it has demanded constitutionally. “Today in Saskatchewan, we choose to dare to assert what is ours, under the constitution.”
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