“It is already unthinkable that the Harper Conservatives would consider putting the interests of the United States before those of the Canadian citizens whose lives have been turned upside-down as a result of the FATCA”, said MP Elizabeth May, “but it is worse still that they would do so in violation of the Canadian Constitution.”

Mr. Hogg’s letter is dated December 12, 2012 and was submitted as part of the call for public comments as part of the ongoing negotiations. “To the extent that any implementing legislation adopts provisions similar to those found in the Model IGA, in my opinion, the legislation would violate s. 15 of the Charter,” he writes. “The source of this problem is the fact that the Model IGA requires financial institutions to treat people differently based on such innate characteristics as place of birth or citizenship.”

The Model IGA that is being proposed would compel Canadian financial institutions to disclose the private financial information of their clients to the IRS. This would be, in Mr. Hogg’s opinion, in clear violation of Section 15(1) of the Charter, which prohibits discrimination on the grounds of “national or ethnic origin”.

“Professor Hogg is Canada’s foremost constitutional expert, so this letter should provide some cause for hope to the one million Canadians, including hundreds of my constituents in Saanich-Gulf Islands, who have been threatened by this financial witch-hunt,” said Elizabeth May. “Yet in a political environment where the Harper Conservatives are willing to push through legislation that is likely unconstitutional, as raised last week in the House of Commons, I will continue to be vigilant on behalf of my constituents and all other Canadians caught up in this sorry mess.”

Note: The Green Party of Canada’s backgrounder on FATCA

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The issue is far more fundamental than erasing the word “environment” from the NWPA website. Like the Fisheries Act in C-38, dismantling the Navigable Waters Protection Act takes a hatchet to federal constitutional powers that have been foundational in environmental law for generations. And in both cases, the Conservative talking points are the same. “This act was never about the environment, it was about fisheries — not fish; it was about navigation — not waters.”

If I have heard it once, in C-38 and C-45 debates, I have heard it a hundred times — “This act was never designed to (fill in the blank — protect fishery habitat, protect free flowing rivers.)”

And that’s why I wanted to pull out my old Constitutional Law textbook. What was in the mind of the drafters of the British North America Act in 1867 is completely irrelevant to 21^st Century constitutional heads of power. The powers set in 1867 do not change, but their application moves with the times. Otherwise we should repeal all criminal laws that deal with internet crime. There is no way Sir John A. Macdonald was worried about cyber crime, so out it goes!

Here’s what my old law school text book, says, by Canada’s still leading Constitutional law expert, Prof. Peter Hogg:

“It is well established that the general language used to describe the classes of subjects (or heads of power) is not frozen in the sense in which it would have been understood in 1867. For example, the phrase “undertakings connecting the provinces with any other or others of the provinces,” (s. 92(10(a)) includes an interprovincial telephone system, although the telephone was unknown in 1867; the phrase “criminal law” (s. 91(27)) “is not confined to what was criminal by the law of England or any other province in 1867; the phrase “banking” (s. 91(15)) is not confined to “the extent and kind of business actually carried out by banks in Canada in 1867.” On the contrary, the words of the Act are to be given a “progressive interpretation”, so that they are continuously adapted to new conditions and new ideas.”

Often cited is this quote from Lord Sankey in 1930, “The B.N.A. Act planted in Canada a living tree capable of growth and expansion within its natural limits.” Again, the hatchet image comes to mind. Harper is cutting into the very essence of the Constitutional law powers over the environment.

So it is clear that whatever was intended in 1867, the Fisheries Act has been the primary tool for the protection of healthy eco-systems that support fish populations across Canada for decades and the NWPA has been the lynchpin in any effort to protect free flowing water ways, for navigation — including recreational navigation and access by canoeists and kayakers to the nations waterways — for fish, and for the health of the ecosystem.

And here’s another Constitutional reality — cutting into the federal authority does not give the provinces the authority to take over. It is the principle of “exclusiveness.” Again, here’s Peter Hogg: “… if either the Parliament or a Legislature fails to legislate to the full limit of its power this does not have the effect of augmenting the powers of any other level of government.”

So, with C-45 corrupting the NWPA to such a degree that something like 98 per cent of our waters within Canada (ie: excluding oceans) will no longer be covered under any federal navigation laws, who can ensure the right to move along our waterways? The answer in Constitutional terms is no level of government. No one.

The Conservative talking points say “Don’t worry. Rights to navigation are still covered by Common Law.” In the technical briefing, officials actually said that rights to navigation go back to ancient Rome. (So do Emperors and bread and circuses, but I digress).

So how does common law protection help a home owner on a brook who wants to be able to paddle to the river down from their home when someone proposes (or just builds) a dam or an obstruction? Under the pre-C-45 NWPA, the person building the obstruction is breaking the law. A permit was needed by the Minister of Transport to block that stream. The RCMP can be called. Canadians have a right to navigate waterways. Post C-45, unless the waterway is one of the 62 listed rivers or 97 listed lakes, the homeowner cannot call the RCMP. It is not clear the person building a dam is breaking the law until the homeowner goes to court to prove it. Common law cases are much harder to pursue than statutory or administrative reviews. Cold comfort indeed.

Ironically, the changes to the Fisheries Act in C-45, making it an offence to block two-thirds of the width of any river or stream with fishing gear or block the passage of fish with fishing gear was needed now that the impact of the NWPA is being wiped out on most waterways.

This is not streamlining. This is dismantling Constitutional heads of power entrusted solely to the federal level of government. Does Stephen Harper really think Canadians care nothing for our history? For our constitution?

Elizabeth May is the Member of Parliament for Saanich-Gulf Islands and Leader of the Green Party of Canada.
Originally published on iPolitics.ca.

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Has my friend considered that this act is actually unconstitutional in retreating from 98% of the responsibilities to ensure that Canadians have the right to navigate? This was enshrined as a federal head of power. How can the Conservatives unilaterally walk away from it, knowing that under the exclusivity principles of the constitutional law it would be illegal for another level of government to step in to fill the void?

Francis Scarpaleggia: Mr. Speaker, it is a very interesting point. There was an article in Le Devoir last week about how there are laws at the provincial level, for example in Quebec, to protect the interests of boaters and so on, but in fact constitutionally they do not have the same authority. It is disturbing when a government takes away rights for Canadians that were established at the very beginning of Confederation without having any kind of public debate, other than on a budget bill.

I think this is a problem. I will leave it up to those who are more knowledgeable about the law than I am to delve into this issue, but it obviously merits discussion.

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Constitutional law, as I recited from Professor Peter Hogg who is the leading expert, requires that we look at the Constitution not based on what people designed things for in the 1860s but as they evolve. As Lord Sankey wrote in a decision of the high court in 1930, the BNA Act is like a tree planted in Canada that grows and evolves. That means that the meaning of “navigation” and “navigable waters” have changed since 1867. For generations, they have always included that we protect free-flowing rivers in Canada.

When the federal government, through Bill C-45, retreats from this, it would be illegal for any other level of government to step in to protect rights of navigation on waterways throughout Canada. How do we square this circle of unconstitutionality?

Joyce Bateman: Mr. Speaker, I want to thank the member opposite for that question, but I also want to advise her that my remarks in the House of Commons today focused on what the Government of Canada is doing for families, for the financial industry sector and for businesses. That was the focus of my remarks.

I might add that my government is succeeding with a contribution of 820,000 net new jobs since July 2009 because we focus on what we are talking about. We are talking about creating jobs. We are talking about creating growth and we are talking about prosperity, not just for us right now, because that is so comfortable, but for the generations that are going to follow us. That is focus and that is why it is succeeding.

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Meanwhile, I have a constitutional law textbook here that points out that the idea of what the Navigable Waters Protection Act was intended to do in 1882 is entirely irrelevant and fanciful. Professor Peter Hogg writes that it is well established “that the general language used to describe the classes of subjects is not frozen in the sense in which it would have been understood in 1867”.

However, the Conservatives’ approach to Bill C-45, as with Bill C-38, is to slash back the evolution of our Constitution and to insist that if it were not in the minds of people in 1882, the idea that the Navigable Waters Protection Act should protect the environment more generally is somehow erroneous.

Jim Hillyer: Mr. Speaker, I do not quite understand the point or the question.

The member’s quote basically clarifies our position, that the Navigable Waters Protection Act has nothing to do with environmental protections. This is not a move against environmental protection; it is a move against useless regulations that neither protect the environment nor help the economy. That is all it is.

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The question that leads tonight’s adjournment proceedings was a question I put in June, before the House rose for the summer. Unfortunately, the response came from a minister whose areas of responsibility do not actually fall within the parameters of the question I asked. It means that this time the representative for the Minister of Transport is here. However, my question did not specifically relate to transport. It was a tangential issue.

My question was one of constitutional authorities. In particular, I put it to the Prime Minister that since he was well known in opposition as an individual who believed that the provinces should exert their jurisdictional authorities to the maximum to press back against heavy-handed federal intrusion into their areas of authority, I wondered if he had now changed his mind. Those of us in British Columbia felt very clearly that the Prime Minister was pushing a particular project on the people of British Columbia whether we liked it or not.

Just to make it clear to all present today, to refresh their memories, the question I put was the following:

Mr. Speaker, the Prime Minister for many years expressed concern as an Albertan about the heavy-handed intrusion of federal policy on the will of Albertans.

Right now, British Columbians oppose supertankers on the coastline, the Union of British Columbia Municipalities opposes supertankers and today’s polls show by a margin of three to one that British Columbians do not want oil tankers on their coastline. Will the Prime Minister run roughshod over the will of British Columbians for his pet project?

In that brief question I was alluding to something that is famously known as the firewall letter. This was back in January 2001, when our current Prime Minister was not serving in the House but had left a position as MP to become the executive director of the National Citizens Coalition. In that capacity, he co-signed a letter with University of Alberta professor Tom Flanagan; with Ted Morton, who was described in the letter as Alberta senator-elect; with the head of the Canadian Taxpayers Federation; and with other Albertans, particularly Ken Boessenkool, who is now an advisor to Christy Clark.

The irony is not lost on British Columbians. This famous letter was designed to do the following. The current Prime Minister wrote in 2001 about what could be done to extend provincial powers to “limit the extent to which an aggressive and hostile federal government can encroach upon legitimate provincial jurisdiction”.

Perhaps I will have better luck tonight. I will put my question again.

Has the current Prime Minister lost track of his previous concerns that provincial rights, privileges and powers, and particularly the will of the people of a province, should be respected and that in fact he should be guided on the matter of the Enbridge proposal and the supertankers, which British Columbians do not want, by the will of the people of British Columbia and not his own preference for expansion of bitumen production?

Pierre Poilievre: Mr. Speaker, I will begin by addressing the constitutional and jurisdictional questions that the member posed. I would point out the very obvious, that even the most strong believer in the principle of subsidiarity would accept that the federal government is responsible for regulating shipping and the associated industries. That is because ships cross borders. It is an international business and it would be impossible for it to be adequately regulated on a province-by-province basis.

The member mentioned oil tankers and the safety-related issues around them. The reality is that oil tankers have been moving safely into west coast waters since the 1930s. This, contrary to the member’s remarks, is nothing new. In fact, a total of 82 oil tankers arrived at Port Metro Vancouver in 2011. During the last five years there were 1,302 tankers that arrived at that same port. During that time period, nearly 200 oil and chemical tankers safely visited the ports of Prince Rupert and Kitimat. They follow international and Canadian requirements, including double hulling of ships, mandatory pilotage, regular inspections, and aerial surveillance. With double hull, the bottom and sides of the vessel have two complete layers of water-tight hull surface. Tankers that are not double hull are being gradually phased out. For large crude oil tankers, like the Exxon Valdez was, the phase-out date for single hull vessels was 2010, which means that all large crude oil tankers operating in our waters today are double hull.

In compulsory pilotage areas, the pilotage authorities require tanker operators to take on board a marine pilot with knowledge before entering a harbour or busy waterway. The department ship inspectors are on board and they inspect foreign vessels, including oil tankers, entering Canadian ports to ensure they comply with all of our rules. In 2011, there were 1,100 inspections carried out across Canada, 147 of them on oil tankers.

We also have the eye in the sky which watches tankers as they approach our shores. Transport Canada performs aerial surveillance over Canadian waters to detect pollution from ships. In 2010-11, crews observed more than 12,000 vessels, nearly one-third of which were over west coast waters. It is an effective prevention tool because potential polluters know that Canada is watching and we have the power to prosecute.

What I am about to say is very important, so I ask that the member listen carefully. The good news is that over the last 20 years there has not been a single major oil spill in Canadian waters. We will work to ensure that the next 20 years are as successful as the last.

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Back in January 2001, our future Prime Minister sent a letter to Premier Ralph Klein in which he called for Alberta to exercise its Constitutional provincial powers to “build firewalls around Alberta.”  The letter was co-signed by Harper’s mentor from the University of Alberta Tom Flanagan, Ted Morton (at the time described as Alberta Senator-elect), the head of the Canadian Taxpayers Federation and other Alberta luminaries, including Ken Boessenkool, (described in the letter as former advisor to “Stockwell Day, Treasurer of Alberta,” who is currently none other than Premier Christy Clark’s Chief of Staff.)  Stephen Harper, who claimed top spot in the list of signatories, was at the time President of the National Citizens’ Coalition.

The letter set out what the signatories believed to be Constitutionally allowed steps Alberta should take,  including: withdrawal from the Canada Pension Plan, ending the provincial contract with the RCMP,  a provincial take-over of health care decision-making, and collecting revenue for the province from income tax.  The aim of this bullish use of provincial powers was “to limit the extent to which an aggressive and hostile federal government can encroach on legitimate provincial jurisdiction.”   

What a difference a decade makes.  Now Stephen Harper is so confident of the right of the federal government to insist on an over-land pipeline to a tanker route through the most treacherous waters on earth that he committed to the project’s approval and completion before the provincial government had so much as uttered a word on the project’s acceptability.  (I leave it to Patrick Brown to set out the nature of Christy Clark’s rather belated demands, but at least she has asserted that British Columbia has something to say in the matter. I leave for another day that other Constitutional objection to the Enbridge project – the constitutionally protected inherent rights of First Nations.) 

NDP leader Adrian Dix has announced he has a high powered legal panel, led by the well respected lawyer Murray Rankin, reviewing the province’s legal options.  The ugly reality is that if Stephen Harper is prepared to push this through, he can.  The Constitution allows the federal government to over-ride provincial powers under Clause 10 of Section 92.  If the federal government declares the Enbridge project to be “for the general advantage of Canada,” provincial rights are trampled.

In a recent piece in the Ottawa Citizen, Stephen Maher recalled the last time a premier approached a prime minister with the idea of requesting provincial objections be squashed through the invocation of Clause 10 of Section 92.  In 1966, Newfoundland’s first premier, Joey Smallwood, had gone to Prime Minister Lester Pearson to ask for the federal muscle of Clause 10, section 92 to force Quebec to accept transmission lines across that province to bring electricity from the Churchill Falls project in Labrador to be sold to Canada and the US. Smallwood recalled later that Pearson had begged him not to make the request because, “if you ask me I’ll have to say yes, otherwise we would not really be a country.  But I am asking you not to ask me, because we will not be able to keep the towers up.”    Smallwood did not ask and suffered the impact of a lop-sided deal to sell power to Quebec ever since.

Stephen Harper has already hinted that he is prepared to use the federal over-ride power.  In a January 2012 interview he said, “What I think I’d make clear is that I believe selling our energy products to Asia is in the country’s national interest.”

In addition to the Constitution, the prime minister has a precedent of expropriation.  Back in 1999, the federal government expropriated the seabed under the Nanoose torpedo testing grounds when British Columbia decided to end the contract allowing testing.  In that case, the Expropriation Act was used.  225 square km of BC territory was expropriated to allow the military tests to continue.  That was a first, but would Stephen Harper get away with expropriating the whole territory required to build the Great Pipeline of China?

Commentators like Stephen Maher will say that so long as BC objects, no federal government will force the construction of pipelines over provincial lands, nor force ports to accept high risk supertankers for bitumen and diluent.  And it is true, that to force such a thing would tear at the heart of Confederation and do real damage to our sense of ourselves as a nation.  But that does not mean Stephen Harper won’t do it.  No previous Prime Minister was sufficiently reckless and ruthless as to shut down Parliament to avoid a confidence vote he knew he would lose.  The Prime Minister has promised Beijing this project will proceed.  He has declared that those who oppose the project are “radicals.”  

Has Stephen Harper abandoned the idea that provinces have rights?  Is he prepared to ride roughshod over the wishes of the vast majority of British Columbians?  Has he reversed himself or is it merely the case that provinces only have rights when they seek to promote fossil fuel expansionism, never to manage such development?

Perhaps it is time for Mr. Harper’s former colleague, Mr. Boessenkool, to brief Premier Clark on how to build a firewall.  And maybe he could remind the Prime Minister of how he once urged provinces to resist and object “to an aggressive and hostile federal government … encroach(ing) on legitimate provincial jurisdiction.”

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“As with all Canadians, the month of June begins with Canada’s Aboriginal communities wondering about the future of their natural surroundings, their healthcare, and their democracy,” said May.  “The National Chief of the Assembly of First Nations Shawn A-in-chut Atleo has denounced Bill C-38 as a disrespectful assault on First Nations’ constitutionally enshrined rights.

“The curtailing of consultation with First Nations in the Environmental Assessment process, gutting the Fisheries Act, decreased monitoring of pulp mill and mine effluent, opening up oil and gas exploration in a fragile section of the Arctic, and, of course, the proposed Northern Gateway pipeline-and-tanker scheme are just a few examples of how the Harper Conservatives are recklessly imperilling Canada’s original citizens.”

Aboriginal Affairs will see cuts of $26 million this year, $60 million in 2013, and $165 million in 2014.  Although the budget promised $275 million for education, at least 100 reserve schools are unsafe and in need of renovation – so this is a token gesture at best. 

The government has also committed $165 million a year for two years to build or renovate water and wastewater infrastructure, but this is inadequate.  There are only 12 water quality stations for Canada’s 3,000 First Nations communities, and just one federal monitoring station operating downstream from the oil sands, which concentrates on pulp mill pollution.

The First Nations Statistical Institute has had its funding cut.  It has been a central location for first-nations communities to access and store data securely and confidentially. 

Health Canada has cut all funding for the National Aboriginal Health Organization (NAHO) which will close on June 30 after 12 years. NAHO’s mandate was to advocate for and address the health needs of First Nations, Métis, and Inuit. 

“Cuts to Aboriginal services and support systems come at a time when the suicide rate is eleven times the national rate among the Inuit and seven times higher among the Aboriginal community,” May pointed out. “One in four First Nations children lives in poverty on- and off-reserve in remote and urban areas.”

Even the Special UN Rapporteur on the Right to Food Olivier De Schutter was shocked after travelling to remote Aboriginal communities in Manitoba and Alberta and commented on the “very desperate conditions and people who are in extremely dire straits.”

“Nationally and internationally, Canada’s treatment of Aboriginal communities is a scandal,” said May.

“Canada signed the UN Declaration on the Rights of Indigenous Peoples last year in June.  However, that commitment to uphold rights has yielded nothing in terms of results from this government for most of 2011 and 2012,” said Lorraine Rekmans, Aboriginal Affairs Critic for the Green Party of Canada.  “The shockingly desperate condition of the people of Attawapiskat last winter was brought to light even after Canada made promises to build a future in which Aboriginal families and communities are healthy, safe, self-sufficient, and prosperous within Canada.

“National Aboriginal History month is an opportunity for us to learn from the past and take lessons for a better future by shifting Canada’s relationship with First Nations, Inuit, and Métis peoples to a positive track.  This reflection of the past is a sad look at the racist and colonial policies of yesterday, but it should also be a time for us to hope Canada will stand by its promises to make things right.”

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Hon. Irwin Cotler: Mr. Speaker, in the ordinary conduct of business, the Minister of Justice would have had to refer this matter to the constitutional experts within the Department of Justice. He would have asked them whether the suspect provisions that I have mentioned, or any others, comport with the Charter of Rights and Freedoms. I have full respect for those officials in the Department of Justice. I have my doubts as to whether that question was even put to the officials. If it had been put to them, he would have received the response that those provisions were invalid.

I would ask the minister to refer those matters to his officials and at least suspend the application of Bill C-10 with respect to those provisions that are constitutionally suspect until that advice can be tabled before this Parliament.

If the bill goes ahead, we are going to see a series of constitutional challenges with respect to those constitutionally suspect provisions. This could have been avoided if the Minister of Justice had exercised due diligence. We are going to see additional constitutional challenges at an additional cost to the taxpayer, all undermining the integrity of our process.

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Since we first debated Bill C-10 in the House, we have now had a court ruling from the Ontario Superior Court in the case of R. v. Smickle. In that case, a judge of the Superior Court of Ontario made it very clear that the concerns of many members of opposition parties on this matter are not misplaced, in that the bill may well be unconstitutional. As such, I feel it is important, although novel, to rise on a point of–

The Acting Speaker: I thank the hon. member for Saanich–Gulf Islands for her intervention but I do not hear anything in there that is really a point of order. I think it is a matter of debate concerning the issue at hand.

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