Don’t shoot the messenger.
Just because something may be the right move politically, it doesn’t mean it is defensible legally. That’s the bottom line message from the Canadian Constitution Foundation’s Derek From, who says the Alberta government doesn’t really have a leg to stand on in its trade dispute with British Columbia.
NDP Premier John Horgan has vowed to fight back against Alberta’s ban on B.C. wine and he has several avenues to do it.
LISTEN: Derek From with the Canadian Constitution Foundation comments on the trade war
There is Section 121 of the Constitution Act, which states: “All articles of the growth, produce, or manufacture of any one of the provinces shall, from and after the union, be admitted free into each of the other provinces.”
Or the Canadian Free Trade Agreement (the replacement for the earlier Agreement on Internal Trade) which has a dispute avoidance and resolution process under Chapter Ten that aims to resolve disputes in “a conciliatory, cooperative and harmonious manner”.
Finally, the New West Partnership (a special trade agreement with B.C., Alberta and Saskatchewan) also tries to mediate a resolution but a tribunal has the power to levy a fine up to $5 million if Alberta is found in violation, and force a change in policy.
Derek From believes there is little doubt Alberta will be found guilty. The problem we face is that British Columbia has only threatened to limit the amount of bitumen that can flow through the Kinder Morgan Trans Mountain Pipeline. They haven’t taken any action that would allow us to launch a counter challenge.
It’s as cynical a political move as it gets. They are able to claim innocence of wrongdoing because they haven’t done anything yet, but at the same time they can create massive investor uncertainty: “You just go ahead and invest $7.6 billion on behalf of your shareholders, Kinder Morgan. We’ll let you know if we’ll allow you to use it after it’s built.”
I take From’s point that the wine ban targets the wrong people. Those in the wine regions of interior B.C. voted Liberal, not New Democrat or Green. Many local mayors and business groups in the interior support the Trans Mountain expansion project.
However, the strategic brilliance of Rachel Notley’s wine ban was not that it punishes farmers, but that it got people talking about the dispute in Vancouver and Victoria. If the NDP-Green government is going to relent, it will be because they are facing pressure from voters in the seats they already hold, not the ones they are unlikely to win.
A listener, David, called in with what sounded to me like an elegant solution to both problems. If we are forced to change the policy on the wine ban, he said the government should “promote” one single person to be in charge of all B.C. wine ordering, and then give them a one-year leave of absence: “It’s not that we don’t want to order your wine BC, it’s just that there is no one around to place the orders.” Cheeky.
David’s second proposal would hit the Lower Mainland where it hurts. We’ve discussed how Trans Mountain is a unique pipeline that can transport both diluted bitumen and refined product. We’ve also talked about Vancouver’s pressing need for diesel and gasoline from the pipeline as it deals with the shortfall caused by the Burnaby refinery shut down.
David suggests that we only grant export permits for diluted bitumen through the pipeline. Not only would that put additional pressure on the supplies of diesel and gasoline and spike the price, it would also presumably force Horgan to make good on his threat not to allow more bitumen through the line.
Maybe Vancouverites need to pay $3 per litre at the pump to remind them that their economy still runs on fossil fuels.
If we need to escalate the trade war to get this pipeline built – whether trade law is on our side or not – I think Albertans are up for the fight.
Danielle Smith can be reached at danielle@770chqr.com
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