Saskatchewan Introduces Legislation to Assert Provincial Jurisdiction Over Natural Resources

Saskatchewan's provincial flag flies on a flag pole in Ottawa on July 6, 2020. (The Canadian Press/Adrian Wyld)

Saskatchewan is asserting provincial jurisdiction over its natural resources with the introduction of the “Saskatchewan First Act,” which the province says will fend off “intrusive federal policies.”

“This historic legislation will help protect our economic growth and prosperity from intrusive federal policies that encroach upon our legislative sovereignty,” Bronwyn Eyre, Saskatchewan’s justice minister and attorney general, said in a Nov. 1 news release.

Introduced as Bill No. 88, the legislation amends the Constitution of Saskatchewan to confirm the province’s autonomy and exclusive legislative jurisdiction under the Constitution of Canada over areas including the following:

• Exploration of non-renewable natural resources;
• Develop, conserve, and manage non-renewable natural and forestry resources;
• Operation of sites and facilities for generating and producing electrical energy;
• Regulation of fertilizer use, including application, production, quantities, and emissions;
• Regulation of all industries and businesses falling within the exclusive jurisdiction of Saskatchewan.

“This legislation asserts that the constitutional doctrine of interjurisdictional immunity applies to exclusive provincial legislative jurisdiction the same way it applies to exclusive federal jurisdiction,” said Eyre.

“It is time to draw the line and assert our constitutional rights.”

The act also seeks to amend the Constitution of Saskatchewan to include the following:

• Saskatchewan has autonomy with matters falling under its exclusive legislative jurisdiction, pursuant to the Constitution Act, 1867.
• Saskatchewan depends on agriculture, development of non-renewable resources, forestry, and electrical energy generation and production.
• Production of the above is “critical to the well-being and prosperity of Saskatchewan and its people.”

The act says these amendments will also be added to the Constitution Act, 1867.

Impact Assessment Tribunal

The Saskatchewan First Act will also create an economic impact assessment tribunal to study the economic impacts of federal policies. The Lieutenant Governor in Council may refer a federal initiative to the tribunal when he or she believes the policy will cause economic harm to Saskatchewan.

The tribunal’s mandate runs counter to the federal Impact Assessment Act (IAA), which received royal assent in 2019.

The IAA, or Bill C-69, which has been dubbed the “no more pipelines” bill, allows Ottawa to evaluate the environmental impacts of intra-provincial pipelines and other energy development and veto certain projects if the government believes it will cause environmental changes.

Mitch McAdam, director of Saskatchewan’s constitutional law branch, said at a Nov. 1 press conference that the amendments introduced in the Saskatchewan First Act will help the province argue cases of jurisdiction in court when there is a conflict with the federal government.

“There is nothing in the amendments that say that the province can disregard federal laws or that federal laws will no longer apply in Saskatchewan,” McAdam said.

“What the law does is it recognizes that is the role of the courts, and the courts are the ultimate arbiters of where that dividing line is between federal and provincial jurisdiction.”

McAdam previously argued on behalf of the Saskatchewan government in court that the federal carbon tax was unconstitutional.

Eyre said at the press conference that federal policies can have a negative economic impact on the province, pointing to Bill C-69 as well as the Clean Electricity Standard—a key regulatory instrument that the Liberal government is proposing to achieve its net-zero emissions goal by 2035.

“This is about the province processing the impact of these regulations [and] legislation programs. We’ve known about these for a long period of time, for example, the clean electricity regulations that we hope will not be a reality—but if they are, will phase out fossil fuel generated power,” she said.

“We don’t have enough hydro to see as through that. We don’t have enough ability to transition that quickly.”

In his Oct. 26 throne speech, Lt.-Gov. Russell Mirastry said Saskatchewan will seek more independence over its natural resources. The province is set to intervene in the constitutional challenge of the federal IAA, if it moves to the Supreme Court of Canada.