OK, maybe B.C. has a case against Alberta’s wine embargo … but so what?

Posted on February 21, 2018, 1:46 am
9 mins

PHOTOS: Well! Now we’re trampling out the vintage where the grapes of wrath are stored! (Photo: Asociación De Vecinos “virgen Coronada,” Creative Commons.) Below: Alberta Trade Minister Deron Bilous and his British Columbia counterpart, Bruce Ralston.

It certainly seems like British Columbia has a strong case against Alberta’s wine embargo before a Canada Free Trade Agreement panel as well as the courts. But does that mean anything?

When Canada’s provincial and federal trade ministers concluded the CFTA last year and decreed it would take effect on Canada Day, presumably they thought their efforts were largely symbolic, not much more than a reaffirmation of the strong interprovincial trade principles enshrined in the British North America Act.

The BNA Act, passed by the British Parliament in 1867, became an integral part of Canada’s new written Constitution in 1982. It is unequivocal in its instruction that “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.”

So it must have seemed as if there was not really that much to do in what was billed as an effort “to strengthen and modernize internal trade.”

Among the few examples of illiberal internal trade remaining, though, were interprovincial restrictions on booze, and the ministers vowed to fix that. The CFTA, they said in their April 7, 2017, press release, establishes “new processes to liberalize domestic trade in areas such as alcoholic beverages …”

The trade ministers and their staffs established an Alcoholic Beverages Working Group to come up with ways to improve Canada’s complicated inter-provincial booze trade – impacted by historical responses to the social costs of alcohol, international trade deals and longstanding exemptions – by Canada Day this year.

It sure sounds like that plan’s gone off the rails!

This part of the interprovincial free-trade aspiration seems to have been undone by the politically corrosive effect of diluted bitumen and the unhappiness of many British Columbians at the thought of the stuff flowing through their province in the Kinder Morgan Inc. Trans Mountain Pipeline from Alberta.

That led the NDP government in B.C. to promise it would somehow regulate the flow of dilbit to protect its environment. However, so far B.C. officials have only talked about that, and B.C. Premier John Horgan and Environment Minister George Heyman have sent different signals about when a dilbit ban might take effect.

Nevertheless, in response to “uncertainty” caused by that kind of talk, Alberta’s NDP Government swiftly declared en embargo on all wine from British Columbia, enforceable because it has a provincial monopoly on wholesaling and distributing alcoholic beverages through the Alberta Alcohol and Gaming Commission.

But since B.C. hasn’t actually enacted any policies the constitutionality of which can be tested in court, it’s hard to see how the Alberta wine boycott is anything but a clear violation of the Canadian Constitution, and most likely of the CFTA too, as it’s far from clear the agreement’s booze-marketing exceptions apply to an outright embargo.

Regardless, Alberta Trade Minister Deron Bilous’s response was that the wine boycott is “a reasonable response to an unreasonable attack on the Canadian economy.”

Perhaps so. But while it may be politically and practically justified, it’s pretty hard to make a case it’s legally justified, or constitutionally permitted.

“These actions are inconsistent with Alberta’s obligations under the CFTA, and we will protect our reputation and the interests of British Columbians,” B.C. Trade Minister Bruce Ralston stated confidently when announcing B.C.’s CFTA challenge.

He added that it’s B.C.’s view “this dispute engages questions that should be considered by every jurisdiction in the federation” – an assertion pretty hard to argue with.

The B.C. Government doesn’t have to win the case to win politically, of course – it just has to capture the moral high ground with local voters.

If no way is found to solve the problem and British Columbia wins its case before a CFTA panel, then Alberta will be fined $10 million.

Of course, given the size of the stakes purported to be in play, $10 million in a picayune sum, a fact Mr. Bilous has publicly noted.

Which means, for all practical purposes, that the CFTA has turned out to be a purely aspirational document, not worth the paper it’s written on.

The same can be said of the New West Partnership Trade Agreement, the Western provinces’ version of the same thing, which includes a provision for a maximum fine half the size of the CFTA’s.

So, one clear lesson of this standoff is that negotiating these agreements – which are designed to be not much more than corporate rights charters anyway – is not worth the time and money spent on the effort.

Ultimately, the constitutionality of Alberta’s wine embargo, B.C.’s still entirely theoretical environmental regulations, and any measures that province takes to counter Alberta’s boycott will all have to be resolved in the courts, which will take too long from everybody’s perspective.

Of course, if B.C. and Alberta can’t settle their irreconcilable differences, Ottawa has the constitutional power – even if it lacks the political will – to resolve the dispute in favour of one or the other. Not only can it ensure Peace, Order and Good Government, but another provision of the Constitution gives Ottawa jurisdiction over railways, roads, telegraphs “and other Works and Undertakings” that extend beyond provincial boundaries.

That, however, would require the Liberal Government of Prime Minister Justin Trudeau, which appears to be missing in action just now, to use its power.

If we complain about Mr. Trudeau’s lack of enthusiasm for this fight, though, we need to acknowledge the problem has its roots in the failed policies of the Harper Government.

As PM, Stephen Harper’s willingness to cut corners on the pipeline approval process resulted in the courts tossing out the approval of Enbridge Inc.’s Northern Gateway Pipeline in 2016, and contributed to the demise of TransCanada Corp.’s Energy East proposal last fall.

His refusal to participate in First Ministers’ meetings because he didn’t like talking to people who disagreed with him, moreover, set the stage for interprovincial chaos.

In the absence of a decisive move by Ottawa, the message to provinces is that, for now at least, they can act unconstitutionally as a negotiating technique without meaningful consequences.

Expect this lesson to be heard and understood all across the country, especially by provinces with big economies.

10 Comments to: OK, maybe B.C. has a case against Alberta’s wine embargo … but so what?

  1. Mark

    February 21st, 2018

    Politically I think a loss before the CFTA panel would not be a bad thing for Notley. It would continue the narrative of her being a ‘fighter’ for Alberta. I see little risk in this for her.

    Reply
  2. political ranger

    February 21st, 2018

    Since we’re going back to first principles, let’s go all the way.
    Governments, at least democratic governments, not least a constitutional parliamentary government like Canada’s are constituted specifically to thwart the power and influence of illegitimate authorities like kings and queens in the old days, other sovereigns and today, corporations – in favour of the citizenry.
    For far too long we citizens have been duped, by corporate propaganda, into believing that governments play a supporting role in corporate affairs while corporations struggle to be better ‘corporate citizens’. Let’s be clear; there is no such thing as a corporate citizen. A corporation is an entity that is quite specifically exempted from the most meaningful responsibilities of citizenry; namely, being responsible to the community for one’s own actions.
    A government ‘of the people, for the people’ is, if not quite the enemy, then at least a defender against and protector from corporate power. Something we have not seen in N. America and certainly not in Alberta, since the 1970’s. Ask the citizens of Rosebud whose interests the gov’t of Albaturda represent.
    This case brings to stark relief the corporate interests of a few foreign shareholders against the traditional interests of indigenous communities and the health and environmental interests of millions of citizens. If we don’t have a government for us, then it’s back to clubs and guns.

    Reply
    • David Climenhaga

      February 21st, 2018

      While I usually agree with much of what you say, Ranger, I have to disagree with your theory in the second sentence above. Constitutional governments are rarely, if ever, “constituted specifically to thwart the power and influence of illegitimate authorities like kings and queens …” Rather, I would suggest, they are constituted as a compromise to preserve the power of kings and queens, and their modern equivalents, while giving way to popular sentiment just enough to prevent the tumbrils from taking said monarchs to the public square for rough justice at the hands of the citizenry. Once the powerful are again secure, they and their successors will attempt to roll back constitutional reforms, and they will generally succeed. That the citizenry is often witless certainly helps this process. Witness the triumph of neoliberalism in the digital age. DJC

      Reply
      • political ranger

        February 21st, 2018

        pretty cynical David …
        The bourgeoisie of the Ancien Regime all agreed they were triumphantly on the right side until their heads came off.
        Some of our proudest eras in governance have been when leadership has overtly and aggressively stood up against tyranny and other illegitimate actors explicitly in favour of citizens. That these bright moments only burn for a short time is not a reason to celebrate their much duller successors.
        Trump is the aberration, not the acme.
        That we’ve had very poor government for such a long time is not a reason to continue to accept such; it is a good reason to demand better.

        Reply
      • pogo

        February 21st, 2018

        Well well. David Climenhaga lays down the ground on which he walks. Who knew there were scribes that would risk so much!

        Reply
      • February 21st, 2018

        “…a concession negotiated with tyranny to avoid rebellion.” Alas, I do agree, David, except I had to look up ‘tumbrils’.

        DB

        Reply
  3. David

    February 21st, 2018

    Provinces have been banning, er regulating the sale of booze from other provinces for so long it is really a Canadian tradition and it is easy to do, unlike much other inter provincial trade, liquor boards are provincially regulated and controlled. Provinces banning pipelines, which seems to come under Federal jurisdiction, well that is a much more recent and dubious thing.

    I suppose BC is not the first province, or last province, to over reach in grabbing for Federal powers. Other provinces have tried many times in the past, some for instance even right now are talking about fighting against same the Federal government in court for imposing a carbon tax and arguing it intrudes into provincial jurisdiction. I suppose those that think Trudeau is doing to much or too little to protect the environment have arguments that appeal to certain important political constituencies, but they are on shakier grounds when it comes to legal grounds.

    However, politics is not always concerned about legality. Especially in BC where the current minority government could be defeated at any moment if it takes the wrong step, and at this point the wrong step would be doing something to upset the 3 Green MLA’s to much, whose support it needs to stay in power. By the time a court rules on things, there will probably be another election in BC and perhaps a government in place that no longer relies on the support of those 3 Green MLA’s. Sometimes, governments are even wise enough to quit a losing battle before things go to court. I wonder if this might happen in BC if the political equation changes.

    Reply
  4. Sam Gunsch

    February 21st, 2018

    To Climenhaga’s point about Harper’s pipeline blunders here’s a new blog post on legal issues… citing what the court found amiss with Harper’s NEB’s decision on Northern Gateway… which is in play again with some of the 15 lawsuits filed against NEB’s TransMountain process and decision.

    https://www.wcel.org/blog/bitumen-bc-wine-and-more-jurisdictional-turmoil

    EXCERPT: The problem for Premier Notley? There is nothing unconstitutional or illegal about a government issuing a press release about its intentions to study or regulate something. Several law professors weighed in, agreeing that nothing BC has done to this point is either illegal or unconstitutional. And as law professor Jason Maclean notes, the jurisdictional divide is as clear as bitumen.

    Maclean cites the Coastal First Nations decision regarding the Enbridge Northern Gateway project, which states:

    To disallow any provincial regulation over the project because it engages a federal undertaking would significantly limit the Province’s ability to protect social, cultural and economic interests in its lands and waters.’
    ================

    The WCEL post is a very useful post in general for understanding what actually happened during the NEB’s TransMountain review and for links to other resources.

    Key evidence on dilbit spills was never allowed into the process. The NEB approved the pipeline and advised that further research could be done later… just what BC is proposing to do now… hmmm. The legal folks think that is likely to mean that there isn’t case against BC for doing that research.

    Reply
  5. Sam Gunsch

    February 21st, 2018

    FWIW… Rather amazing how both the NEB and our AB energy regulator have this identical pattern of approving major oil/gas/tarsands developments without any firm evidence in advance that industry can clean up their environmental damage… see tailings ponds history, for example, here:
    http://www.pembina.org/blog/tailings-ponds-worst-yet-come
    excerpt: ‘ For the next five decades, industry pushed its tailings problem into the future with promises that forthcoming technologies would emerge to deal with them. As the years passed and tailings continued to grow, both industry and government assured Albertans that a silver-bullet technology was just one lab discovery away. In 2010 Suncor’s CEO Rick George announced “massive change” on the tailings front, which would soon reduce Suncor’s ponds from eight to one. In 2013, Premier Alison Redford declared that tailings ponds would “disappear from Alberta’s landscape in the very near future.”
    These promises were never met, however, and today the tailings problem is worse than ever. According to new plans currently under review by the Alberta Energy Regulator, industry is proposing to let tailings continue to accumulate until 2037 when there will be over 1.5 trillion litres. That will equate to seven decades — from 1967 to 2037 — of industry seeking a technological solution and failing to meaningfully address this massive environmental problem.’
    Or here: http://www.pembina.org/blog/fifty-years-of-oilsands-equals-only-0-1-of-land-reclaimed ‘Fifty years of oilsands equals only 0.1% of land reclaimed’
    ================
    If I was a BC citizen, given AB’s industry history, why would they be expected to trust AB’s industry promises?

    Reply
  6. Kang the barbarian

    February 21st, 2018

    Perhaps China will be a big market for tar for the next 50 years. But the following article tells a different story:

    https://www.theguardian.com/world/2018/feb/22/blue-sky-thinking-how-chinas-crackdown-on-pollution-is-paying-off

    Who really benefits from being able to buy tar oil cheap in Alberta and flip it to their refinery to make jet fuel? Was it the bros who did so much to help Mr. Klein get into power or did democracy in Alberta really work and the witless electorate put in a bunch of witless Cons who go conned?

    Little wonder people were uncomfortable when Mr. Prentiss suggested we look in the mirror. Where is Scotty on Denman? I’ve missed his comments.

    Reply

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