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

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.