Liberal Justice Minister Lametti Suggests “Looking At” Taking Back Natural Resources From the Provinces

In recent comments, federal Justice Minister David Lametti suggested that he will be “looking at” the possibility of unilaterally rescinding the natural resources transfer agreements concluded with the Prairie provinces in the 1930s. This is a worrying development for the Canadian Constitution.

Lametti recently attended the Assembly of First Nations special chiefs assembly, where he was asked to rescind the agreements. His answer was to indicate that he would consider the matter, while noting that he could not pronounce on the issue immediately. He acknowledged, however, that “it won’t be uncontroversial.”

Saskatchewan Premier Scott Moe condemned these comments as “dangerous and divisive,” and observed that they are a “threat to the unity of our country.” This sentiment was echoed by Manitoba Premier Heather Stefanson, who suggested that this was “another example of divisive disregard for the Prairie provinces.” Alberta Premier Danielle Smith has also called out Lametti’s comments “in the strongest possible terms.”

Lametti, in response, skirted around the problem identified by the premiers and indicated that he did not “commit” the government to “reviewing areas of provincial jurisdiction, including that over natural resources.” The premiers have since released a joint statement calling on Prime Minister Justin Trudeau to clarify the federal government’s position.

The most charitable interpretation of Lametti’s comments at the special chiefs assembly is that he was placating his audience. As Lametti himself acknowledged in his response to the premiers, as an elected official, he is required to listen to the concerns raised by Canadians, including Indigenous peoples. One would expect nothing less.

But even this interpretation does not fully explain why he would consider the possibility of unilaterally rescinding these agreements, irrespective of whether he has made a commitment to that effect. It should be said clearly that any attempt to rescind them unilaterally would be unconstitutional.

Since patriation, their constitutional status is protected by Section 52(2)(b) of the Constitution Act, 1982. In other words, these agreements, like other aspects of the Canadian Constitution, are subject to the formal amendment procedure. They cannot be rescinded or amended by the federal government acting unilaterally.

It is possible that Lametti’s comments are an attempt to respond, in some way, to recent developments in Alberta and Saskatchewan. Indeed, in making his comments “with a bit of a smile,” he appeared to take some pleasure in floating the possibility of rescinding these constitutional agreements.

To some extent, this is understandable and to be expected in a federal system like ours. Since our constitutional structure permits uncooperative conduct, the federal government is also at liberty to exercise its powers in this way, whether that is a wise decision or not.