Altair said:
I think things hinge on this pipeline. If the rule of law prevails, the pipeline is built, federal jurisdiction is respected and natural resources get to market while respecting the environment we all come out of this better. If it dies and a minority government in BC is allowed to challenge and defeat the federal government in their jurisdiction, giving the shaft to the energy exporting provinces, ya, alberta can be justified asking what good they get out of confederation. But that talk now is very premature. This is just the messy process in action.
Hmmm, I agree with you to a certain point- for example, that a majority of people in BC might support the pipeline. For example, Kelowna and the central Okanagon appear to be the summer capital region of Alberta, and many, many people who live in BC work in northern Alberta.
Since when does the majority matter for anything in this country anymore, especially when it comes to litigation and the rule of law where the good of the majority seems to be a bad, bad thing.
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Interestingly, (and I think this only by happenstance), at paragraphs 91 and 92 of the Comeau decision touch upon the federal and provincial division of powers, and the Court wrote:
[91] For the reasons that follow, we do not see these lines of authority to be in conflict. Properly understood, they represent a single, progressive understanding of the purpose and function of s. 121 in the broader constitutional scheme. This understanding is entirely consistent with our earlier conclusion that
s. 121 — understood through the lens of its text, its historical and legislative contexts and the principle of federalism —
is best conceived as preventing provinces from passing laws aimed at impeding trade by setting up barriers at boundaries, while allowing them to legislate to achieve goals within their jurisdiction even where such laws may incidentally limit the passage of goods over provincial borders.
[92] Gold Seal, decided in 1921, was the first case to interpret s. 121 of the Constitution Act, 1867. It concerned a federal statute that prohibited the importation of liquor into any dry province. The federal law was complementary to provincial prohibition laws, passed because
the provinces were not competent under the division of powers to regulate interprovincial trade — an early example of cooperative federalism. The Gold Seal liquor company argued that the trade barrier installed by the federal law violated s. 121. The Court’s discussion of s. 121 in Gold Seal was cursory. Duff and Mignault JJ., in the majority, each held that
the law at issue was not caught by s. 121 because it was not a tariff on goods crossing provincial borders. Mignault J. added that this was consistent with a similar provision in the United States Constitution addressing the same concerns: Gold Seal, at p. 470. Anglin J. agreed, but offered no analysis: Gold Seal, at p. 466.
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Arguably, Alberta is NOT proposing a tariff or a barrier on oil. It is the government of British Columbia that is seeking to impose a barrier by preventing the pipeline work which is in turn intruding on the concept of cooperative federalism- a federal responsibility which the court may have now forced Trudeau to live up to. This in turn is causing Alberta to propose a licensing scheme to protect local matters for the good of the province because if they do not, they may find themselves in the position of having to defend against an argument of not living up to its own constitutional responsibilities.