TRNN Correspondent Dimitri Lascaris speaks to legal expert Paul Cavalluzzo, who says regulatory authority stems from the fact that tar sands production would have catastrophic effects on First Nations, national, and international communities
DIMITRI LASCARIS, TRNN: This is Dimitri Lascaris, reporting for the Real News from Paris, France, and the COP 21 Climate Conference of the United Nations. Joining me today is Paul Cavalluzzo. Paul is a senior partner at the leading Canadian public law firm of Cavalluzzo, McIntyre, Shilton, and Cornish. He specializes in, amongst other things, constitutional law, and has argued significant, important constitutional matters at all levels of court, including the Supreme Court of Canada. Thank you very much for joining us today, Paul. PAUL CAVALLUZZO: You’re welcome. LASCARIS: So Paul, I’d like to begin our discussion by telling you about a chance meeting that I had with the new minister of the environment for the Canadian government and her chief of cabinet. And as you know, the minister of the environment, her name is Catherine McKenna. And prior to becoming the minister of the environment she was a lawyer, a practitioner, first at the Bay Street law firm of Stikeman Elliott, subsequently in-house counsel at the Canadian Real Estate Association. And her chief of cabinet is a gentleman by the name of Marlo Raynolds, who at a prior time was the executive director of the Pembina Institute, an environmental think tank. So the background to this is that I attended a climate action in Ottawa several weeks ago which was called the Climate Welcome. And a number of activists sat in at the gates of 24 Sussex, the residence of the prime minister, with the hope that he or a senior member of his government, possibly the environment minister, would engage us in a discussion about two things. The first is a justice-based transition to a clean energy economy, and the second issue was whether or not the new government would freeze tar sands expansion. Because as you know, Paul, that’s a major source of CO2 emissions in Canada, and the science is telling us that we have to leave the majority of fossil fuel reserves in the ground in order to avoid dangerous warming in excess of two degrees Celsius. So during the four days that activists were camped out in front of the prime minister’s residence, no senior member of the government came. And we got no response to our two demands, the ones I just mentioned, including the demand for a tar sands freeze. However, on my way home and purely by chance, I ran into the environment minister and her chief in cabinet Marlo Raynolds, and engaged them in a discussion about the government’s, the new government’s policy, in relation to tar sands expansion. And I discovered, somewhat to my surprise, because I too am a lawyer and have some knowledge of constitutional law, that it appears to be the government’s position that it does not have jurisdiction under the constitution in Canada to freeze tar sands expansion. And I’ll tell you a little bit about the exchange that I had. Mr. Reynolds asked me, as a lawyer, he said to me, because you’re a lawyer I want to ask you, I’m curious how you see the federal government doing what you are suggesting, in other words freezing tar sands expansion, given provincial jurisdiction over resources. I then laid out some bases under the constitution, but not all under which the federal government could take that action. And his response, and I’m quoting him here, is, you are best to ask Premier Notley that question, given jurisdiction over resources. And of course he’s referring there to the premier of Alberta, Rachel Notley, Alberta being the province in which the tar sands are principally situated. And so what I’d like to talk to you, because of your extensive expertise in this area, is whether you are of the view, in your professional opinion, that the federal government does not have jurisdiction under the constitution to effect a tar sands freeze. CAVALLUZZO: Well, in my view, Dimitri, I think that you have been misled by that statement, that the federal government does not have jurisdiction over the tar sands. There are several provisions within our constitution which indicate to me that the federal government does have jurisdiction, particularly in light of the national implications which the tar sands have, not only for the people of Alberta, but for the people inside of Alberta, in Canada, and indeed internationally. And it would seem for me that because of the national and indeed international implications of production which goes on at the tar sands, that the federal government has jurisdiction over its authority in respect of peace, order, and good government, as well as other portions of Sec. 95, which grant legislative authority to parliament. For example, parliament has authority in respect of inland fisheries. Parliament has jurisdiction in respect of First Nation communities and reserves. And it seems pretty clear at this point in time that the production at the tar sands has very prejudicial implications for First Nations communities north of Fort McMurray, as well as the inland waters which seem to be, have been polluted, by the production at the tar sands, so that there are several areas under which the parliament of Canada could act. And indeed, you mentioned Premier Notley. Well, it’s quite ironic that in July of 2014 there was a study done by the University of Manitoba in respect of the impact of the tar sands on First Nations community north of Fort McMurray. And clearly the implications were very negative in terms of the increase in cancer rates, and other illnesses which were experienced by the First Nations community, and indeed at that point in time Premier Notley as an MLA, of course she was in opposition at that time with the NDP party, she immediately demanded for government intervention in respect of the production at the tar sands, because of the unbelievable and catastrophic implications it may have for particularly our First Nations communities. LASCARIS: And Paul, was that the federal government whose intervention she was calling for? CAVALLUZZO: Well, she just called for government intervention. And indeed, I would think that it would be federal government intervention, because when we’re looking at authority to deal with these kinds of national and international problems, we have to look at whether the federal government is the only government which can effectively regulate this particular matter. And it sees to me it’s quite clear at this point in time, particularly in light of our international commitments which we’re about to make as a result of the Paris conference, that it is only the federal government that can effectively deal with the tar sands. And it would seem to me that a moratorium should be called by the federal government to give such time that an extensive study can be done in order to realistically assess the implications of production there. LASCARIS: And as, as you know quite well, Paul, I believe it was during the government of the current prime minister’s father, Pierre Trudeau, that the Constitution Act was amended and a new section, 92A, was added to the constitution which, and I’m simplifying here, declares that the provinces have exclusive jurisdiction over non-renewable resources. Can you tell us a little bit without, you know, descending too much into the technicalities of the constitution for our audience, why that provision would not stand in the way of the federal government acting here to impose that moratorium that you spoke about? CAVALLUZZO: Well, when Sec. 92A was enacted in 1981 as part of a number of constitutional amendments, including the Charter of Rights, it was never intended to take away or usurp the authority of parliament to deal with national problems. Indeed, the background to Sec. 92A is that during the 1970s there was a great confrontation which occurred between the government of Alberta and the government of Canada because of Mr. Trudeau Sr. passed what was called a national energy program. And as a result of that it was viewed by the province of Alberta that the federal government was interfering with their jurisdiction over non-renewable resources. As a result of that, in order to give the provinces comfort, and in order to pass the other elements of the constitutional framework which was passed in 1981. Sec. 92A was passed, once again, to give the provinces comfort that they had jurisdiction over non-renewable resources. But at the same time, it expressly states that the authority of parliament to deal with national problems is not taken away as a result of the enactment of 92A. So what you find yourself in right now is probably the federal government is a little reluctant to act because they see what happened back in the 1970s with Mr. Trudeau Sr. in his National Energy Program. But it seems to me we are in a not much different historical moment. At this time we are dealing with a situation where the future of the earth is an issue. And it seems to me that the federal government should act in order to ensure that we deal with this national problem in an effective way. LASCARIS: And one would expect, would we not, that on a matter of such importance in particular, the government would have sought the advice of the Ministry of Justice, that has at its disposal many capable and knowledgeable constitutional lawyers. And if you agree with that, what advice do you think they would have received, the Trudeau government, from the Ministry of Justice? CAVALLUZZO: I would think they would have received the very same advice that I’ve just referred to you. That the federal government does have jurisdiction because the matter has reached a point of national and indeed international implication. And as a result of that, the federal government is the only effective means by which we can control this problem. LASCARIS: Well, thank you very much for joining us, Paul. And I hope we will have an opportunity to talk again about constitutional matters as they impact upon the climate crisis. CAVALLUZZO: Anytime, Dimitri, and thank you. LASCARIS: And this is Dimitri Lascaris for the Real News.