Whither Alberta—and the Rest of Canada?

It was a good deal all around. The Keystone XL pipeline, which “adds a branch connecting terminals in Hardisty, Alberta, and Steele City, Nebraska, through a shorter route using a larger diameter pipe,” was the safest and most efficient way to ship crude oil in measures of scale—some 830,000 barrels a day—to the United States. Its cancellation was Joe Biden’s first official act. At least 10,000 American jobs will be lost and another nail has been hammered into that territorial coffin called Alberta. A good deal for the time has become a bad prospect for the future.

The consensus is that Biden, following in the footsteps of Obama, is catering to his woke-progressivist base and its environmental extremism by deep-sixing America’s energy industries in favor of expensive and unreliable Green technology. Donald Trump Jr. has a different or collateral explanation for Biden’s precipitous action. It is a gift to Warren Buffet and other Democratic Party donors.

Expanding on the younger Trump's take, Lorie Wimble explains,

Their methods of transportation, from rail lines to semi-trucks, benefit from the diminished effectiveness of the pipeline. The oil will still come, but now it will have to be transported less efficiently and at higher cost to consumers… Blocking Keystone XL has nothing to do with the environment and everything to do with leftist megadonors.

Interestingly, climate change activists have tended to grow comparatively silent now that their president has promoted an energy alternative which is clearly more harmful to the environment than any conceivable state-of-the-art pipeline.

As NOQ notes,

Proponents championed [sic] that Keystone XL was going to be the cleanest pipeline project ever constructed while creating thousands of high-paying jobs. TC Energy partnered with four labor unions that would have generated $2 billion in earnings for U.S. workers. Plus, the company worked with five First Nations groups regarding equity.

But that still wasn't enough. The report goes on to point out that beyond a "black eye to the Trudeau government," this is "significant blow" to Jason Kenney's United Conservative Party. Kenney's government "invested $1.5 billion of taxpayer dollars in the project, plus about $6 billion in loan guarantees, to ensure KXL would be completed." Saskatchewan is also in the pickle jar, but Alberta is far deeper in the brine.

Canada’s PM Justin Trudeau has expressed pro forma “disappointment” with the cancellation, but Rex Murphy, Canada’s premier conservative columnist, does not see the debacle as a  “black eye” for Trudeau. Far from it. He suggests that the "honour' of Trudeau receiving Biden's first phone call as president is a "diplomatic quid pro quo perhaps for not making any noise over the slashing of Alberta’s prime industry.” Murphy poses the question of the hour to the rest of Canada:

Justin, it's for you.

If you allow the savaging of our economy, if you ignore what we in Alberta have contributed to you during the good times, if you side with rabid environmentalism, pour on carbon taxes and fuel emission standards, if you bar every effort to build even one damn pipeline: Why are we in this thing?”

He concludes: “And you know what ‘this thing’ refers to.”

This thing, of course, is Confederation, and although Murphy does not use the word, the only option, in the absence of a complete “re-imagining” of the country along fair and rational lines, is secession. For the situation in which Alberta now find itself cannot go on indefinitely. If a reasonable accommodation with the federal government is not forthcoming, a tectonic shift in political and national alignments will become necessary. 

There will be many problems, of course. As I’ve written before, there are too many Canadians and not enough Albertans in the province; the ratio will have to change and a Wexit party will have to replace the current, pro-federalist Conservative administration. Perhaps a third of the population is puckered for divorce, which is a promising start. But if Alberta follows the Quebec model, secession will take 50 percent plus 1. Time is running out.

Another major issue is the fact, as Murphy points out, that Alberta is landlocked. It would need to run an “independent” pipeline to tidewater, clearly through the adjoining province of British Columbia, for which approval may not be readily forthcoming. But Alberta wields a powerful bargaining chip. It is the land bridge from Eastern Canada to the Pacific Ocean which, if blockaded, would lead to economic tribulation for the country as a whole. A trade-off with British Columbia is far from inconceivable. In fact, it seems more than likely.

There is yet another significant political development to consider, one which has international ramifications. I refer not only to the perennial struggle between the radical Left and the conservative Right, which is embedded in history and is a function of the human psyche, but to its current instantiation. The seismic conflict we are now witnessing involves two great socioeconomic forces arrayed against one another for political dominance across the planet. These may be described as the movement for one-world hegemony, as per the Great Reset and UN Agenda 2030 on the one hand, and the rise of national movements on the other, in other words, Globalism against Populism. 

The former conceives itself as universal, the latter as revanchist. The former is proposed and backed by a coalition of billionaires, technocrats and political elites, the latter by ordinary people and patriotic citizens who feel disenfranchised and coerced. The Global orientation envisions the elimination of private property, the curtailment of private transportation, surveillance of entire populations, and top-down dirigiste control of subservient nations. The populist revolution, in contrast, envisages local autonomy for peoples that recognize a common heritage and tradition, that defend the principles of free speech, religious belief, and assembly, and that demand political and economic control of their own affairs. The Global initiative advances the belief in “climate change” and the necessity of expunging the fossil-fuel energy industry at whatever cost. Populism believes it can balance economic benefits with environmental concerns.

The conflict is heating up as we speak. At the same time that the Globalist phenomenon is being enacted by a pluto-techno cabal with its headquarters in Davos, populist sentiment is erupting in many different locales around the world—Scotland, Spain/Catalonia, the U.K. (Brexit), the U.S. (Texit), and elsewhere. According to the Institute for Global Change, “Between 1990 and 2018, the number of populists in power around the world has increased a remarkable fivefold, from four to 20. This includes countries not only in Latin America and in Eastern and Central Europe—where populism has traditionally been most prevalent—but also in Asia and in Western Europe.

Within the present Canadian context, the federal perspective under Justin Trudeau is Globalist, heavily influenced by the Great Reset and what its main proponent Klaus Schwab calls the “fourth industrial revolution.” The Wexit movement in Alberta is plainly populist, consisting, in the words of the Institute for Global Change, of “hard-working victims of a state run by special interests and outsiders as political elites [who are seen] as the primary enemy of the people.”

Alberta for the Albrtans.

In the war between these two world-historical forces, global hegemony and local sovereignty, the Great Reset and nationalist populism—assuming nothing changes—Alberta will have to choose. If it goes the route of separation, it stands to reason that the rest of the country may begin to break up into several states, comprising the Maritime provinces, Newfoundland and Labrador, Quebec, Ontario/Manitoba, British Columbia, and the three northern territories, Nunavut, Yukon and Northwest Territories, combining as a single federation.

In my estimation, Canada was never a coherent, overarching polity; the fault lines were always evident, incised by competing regional visions and needs, power imbalances, economic disparities and profound linguistic strife. Its eventual disintegration was probably foreordained. The break between the Eastern elites and the Western heartland is likely irremediable. There is certainly little sympathy in the rest of the country for Alberta’s plight. A recent Angus Reid poll shows that Alberta (and Saskatchewan) “will be fighting the battle to save the Keystone XL pipeline project on their own as the rest of Canada says it’s time to move on.”

Without the energy resources and capital generated by Alberta (and Saskatchewan), one wonders where the rest of the country can move on to? A Fraser Institute study finds that transfer payments make up over 27 percent of Atlantic Canada’s GDP, and that Alberta, with a diminishing tax base and a growing deficit, has financed most of the funds going to the Atlantic provinces and to Quebec. A myopic Canada does not understand that you can’t squeeze money from a dry well or that money does not drop from turbine blades.

In any event, given a Liberal-Marxist administration, a Leftist and parasitic New Democratic Party, a fantasy-driven Green Party, and a feckless Conservative Party that has sold its birthright as an electoral strategy, the choice would seem to me inevitable.

On Keystone, Trudeau Folds While Kenney Fights

In the wake of President Joe Biden's executive order killing the Keystone XL pipeline extension, Canadian prime minister Justin Trudeau issue a statement saying that he was "disappointed but acknowledge[s] the President’s decision to fulfil his election campaign promise on Keystone XL.” Which is to say, he folded.

Alberta Premier Jason Kenney, meanwhile, is going on offense, and he's trying to provoke the Prime Minister into following his lead. Kenney has been making the rounds on American television, pointing out that the U.S. and Canada have "the biggest bi-lateral trade relationship in world history," and that "the biggest part of that trade is Canadian energy exports." He continues,

We ship about, nearly $100 billion worth of energy to the U.S. every year. Keystone XL would have been a significant safe, modern increase in that shipment. It is very frustrating that one of the first acts of the new President was, I think, to disrespect America’s closest friend and ally, Canada. And to kill good-paying union jobs on both sides of the border and ultimately to make the United States more dependent on foreign oil imports from OPEC dictatorships. We don't understand it.

Kenney's been hammering away at the official account of this cancelation so that the shapers of Canadian opinion like the CBC can't just settle on a win some/lose some narrative, and then go back to cheering on Biden for not being Trump. For instance, here's Kenney at a press conference after Biden's E. O. was signed:

Let's be clear about what happened today: The leader of our closest ally retroactively vetoed approval for a pipeline that already exists, and which is co-owned by a Canadian government [the province of Alberta], directly attacking by far the largest part of the Canada-U.S. trade relationship, which is our energy industry and exports. The portion of the Keystone XL pipeline that crosses the Canada-U.S. border between Montana and Saskatchewan was installed last summer. It was built following a decade of rigorous environmental analysis and approval.... This decision was made without even giving Canada the opportunity respectfully to make the case for how Keystone XL would strengthen U.S. nation and energy security, how it would bolster both economies, and how our two countries could find a path together on climate and environmental policy.... That's not how you treat a friend and an ally.

Most pointedly, he's called out Trudeau's handling of the whole affair, and couching it not in the language of lazy partisanship we're so familiar with, but in the language of patriotism and duty. He's challenged the PM to do his job and fight for Canada. For an example, this letter Kenney wrote to Trudeau:

By retroactively revoking the permit for this project without taking the time to discuss it with their longest standing ally, the United States is setting a deeply disturbing precedent for any future projects and collaboration between our two nations. The fact that it was a campaign promise makes it no less offensive. Our country has never surrendered our vital economic interests because a foreign government campaigned against them....

We must find a path to a reconsideration of Keystone XL within the context of a broader North American energy and climate agreement.... Should that not happen, the federal government must do more than express disappointment with the decision.... I strongly urge you to ensure that there are proportionate economic consequences in response to these unfair U.S. actions.

Kenney's appeals to Trudeau's patriotism are admirable, but unlikely to hit home. Justin is, ultimately, a post-national man, and so loath to come to blows with the new, respectable Leader of the Free world. He would, no doubt, prefer the economic boost of the pipeline as a boon to his own reputation but not having to make a tough decision which could alienate either Canadian voters or the environmentalist left might be good enough for him. It's certainly in character.

Trudeau's Pipeline 'Weak Sauce'

Well, it looks like the Trudeau Government is throwing in the towel on the Keystone pipeline. On Wednesday evening the Prime Minister released a statement saying “We are disappointed but acknowledge the President’s decision to fulfil his election campaign promise on Keystone XL.” Ben Woodfinden is exactly right:

As I mentioned earlier in the week, Trudeau's initial approach was to argue that Biden's anti-climate change instincts were admirable but misguided, since the project had addressed the issues which most troubled environmentalists at the outset. It seemed as though Trudeau was attempting to employ his own green bona fides to give Biden cover to back down on Keystone, but to no avail. So, as in the case of Pfizer's failing to deliver Canada's contracted vaccine doses, Justin has decided to just put up his well-manicured hands and say, in essence, 'We're a small country, what can I do?'

Never mind that Canada's unemployment and labor participation rates are down, and the jobs Keystone XL generates for the resource sector are desperately needed.

Source: Statistics Canada

Trudeau would do well to remember the old saying, '[W]hen America sneezes, Canada gets a cold.' Both countries have weathered the lockdowns better than one would have thought back in March. That's why they are still going on (even if some of their most ardent apologists have started to back away from them).

But they've only done so well by taking on enormous amounts of new debt, the bill for which will begin to come due sooner than anyone thinks. This will no doubt cause serious problems for the U. S., but America's sheer size and its extremely diverse economy will provide a cushion that the smaller and resource-dependent Canada just won't have.

So what should Trudeau do? Well, some of the aggressiveness he showed when America's last president put a ten percent tariff on Canadian aluminum (part of a push which led Trump to drop the duty a month later) would be welcome. Of course, Trump was not a CBC-approved American the way Joe Biden is, and consequently Trudeau would have to expend real political capital -- perhaps more than he has -- to similarly fight for his nation's interests.

A more realistic hope might be for his making a sustained case for Keystone XL as beneficial for both of our countries at a time of real economic distress. The Heartland Institute's Steven Milloy has a good brief against Biden's Keystone cancellation which lays out many of the points that Trudeau could make. After establishing that the environmental effects of Keystone XL would be negligible, Milloy explains that,

According to the U. S . Chamber of Commerce, the Keystone XL will:

Consequently, for Milloy, "the revocation of the Keystone XL permit will be the exaltation of imaginary global climate benefits over real ones to U. S. workers and communities." Needless to say, the same could be said on the Canadian side.

Unfortunately, it seems as though Trudeau has officially folded. TC Energy -- which owns the pipeline -- have already announced a halt on construction and thousands of layoffs. More's the pity.

Biden to Execute Keystone Pipeline via E.O.

The Biden campaign's strategy was to hide their candidate in the basement while letting a fawning press make the case for him as president. This case was short on substance and long on impression, particularly the impression that the former V.P. is a moderate, working-class guy and a statesman who would restore America's reputation in the world and restrain the Bernie Sanders/Elizabeth Warren/AOC wing of the party.

Well, with the election over Biden's priorities are starting to become clear. They are anything but moderate and, insofar as they unnecessarily antagonizing one of our closest allies, neither are they statesmanlike.

This past weekend a memo written by incoming chief of staff Ron Klain was released which outlines the executive orders Biden plans to implement immediately upon taking over the White House. Highlights on this list -- which the Associated Press calls "a 10-day blitz of executive actions... to redirect the country in the wake of Donald Trump’s presidency without waiting for Congress" -- include immigration reform; a national face mask mandate (mandating that they be worn on all federal property and "during interstate travel," whatever that means in practice); and an extension of the moratorium on evictions and foreclosures and the "pause" on student loan payments.

Among the memo's most consequential items is the bullet point which reads "Roll back Trump enviro actions via EO (including rescind Keystone XL pipeline permit)." That is, on his first day in office tomorrow Biden plans to employ the "pen and phone" tactic to kill a multimillion dollar international project that employs tens of thousands of people (in two countries!) in the midst of a pandemic-created recession. This is madness.

Canada vs. the Democrats.

Meanwhile, in Canada, the Trudeau government are scrambling to make the case that this move is unnecessary from an environmentalist perspective. Canada’s ambassador to the U.S., Kiersten Hillman, released a statement on Sunday saying "The government of Canada continues to support the Keystone XL project and the benefits that it will bring to both Canada and the United States.” She went on to stress that the Keystone project was more environmentally friendly than the one the Obama administration rejected in 2015:

Not only has the project itself changed significantly since it was first proposed, but Canada’s oilsands production has also changed significantly. Per-barrel oilsands (greenhouse gas) emissions have dropped 31 per cent since 2000, and innovation will continue to drive progress... Keystone XL fits within Canada’s climate plan at a time when our economic recovery is a top priority... there is no better partner for the U.S. on climate action than Canada as we work together for green transition.

Alberta Premier Jason Kenney took a slightly more aggressive tone, saying: "Should the incoming U.S. administration abrogate the Keystone XL permit, Alberta will work with [pipeline owners] TC Energy to use all legal avenues available to protect its interest in the project."

These appeals are unlikely to sway Team Biden, who are riding a wave of anti-Republican sentiment in the wake of the recent disturbance at the Capitol. They believe they have a window of opportunity to make some big, cost-free moves which will garner them goodwill with activists but will be forgotten by voters still focused on the Trump show.

This could well be a miscalculation on their part. The issues which gave rise to Trump in 2016 won't go away when he does. And the most important of those, the alienation of America's working class since the end of the Cold War, will be aggravated by virtue signaling environmentalist moves like the cancelation of Keystone.

Child Soldiers of the Revolution

Despite her best efforts, all's been quiet on the Greta Thunberg front during the Covid-19 pandemic. The problem is that her I'm-sacrificing-my-education-to-travel-around-saving-the-world schtick doesn't go down so well when international travel is restricted and lots of kids are locked out of schools by government order, not to mention selfish teachers unions.

Even so, Greta has pioneered a practice which we can expect to see more of -- using children as human shields in the climate war. The idea is that their emotional appeals will tug at the heart, and fog the mind, until any attempt to engage their arguments is met with horror and reproach.

For just one example of Greta's progeny at work, see this report about a judge in Ontario who defied recent federal court precedent to allow a lawsuit brought against the province by two minors (and five "youths") to go forward. The suit alleges that "the Ontario government’s 2018 reduction in its climate-change target by 15 per cent violates their constitutional rights to life, liberty and security of the person."

Retired litigator Andrew Roman comments,

The exploitation of children to front a lawsuit in this way is ethically troubling. If this case goes to trial and sets this dangerous precedent, why not have children in Calgary sue to set aside the carbon tax or the Clean Fuel Standard or Ottawa’s hyper-regulatory Bill C-69 because they kill any prospect of their employment in the oil industry and thereby infringe their constitutional rights? It does not take a lot of imagination to invent such misuse of children for numerous future cases that are essentially political theatre.

Of course, as the mainstream media has a near monopoly on framing cases like this in the popular mind, you can imagine how they would portray any child who brought forth an anti-Carbon Tax lawsuit on these grounds -- as a poor dupe being cynically manipulated by some adult with an ideological ax to grind. And they might well be right. It's just unfortunate that they promote such cynical manipulation of children when it's their own ideology on the line.

As Canada Goes Green, Canada Goes Broke

It’s no longer news that the Liberal government of Canada under Justin Trudeau and his “social justice” cronies Gerald Butts and Chrystia Freeland have pulled out the stops in an effort to destroy the major source of Canada’s energy sector, the oil-gas-pipeline industry in the province of Alberta.

The oil sands have effectively become a dead letter. Every pipeline project has been quashed and energy companies have decamped for sunnier climes. The decline in Alberta’s GDP is pegged at 11.3 per cent. Unemployment and under-employment are rampant. The Alberta secession movement has acquired momentum and a political party, Wexit Canada, rebadged as the Maverick Party, has been formed—although the province’s Conservative premier Jason Kenney remains a staunch federalist and majority sentiment remains “loyalist.”

What Canadians do not seem to understand is that as Alberta goes, so goes Canada. For more than 50 years Alberta, Canada’s energy producing breadbasket, has been a major net contributor to the rest of the nation via the Equalization Formula in which “have” provinces subsidize their “have not” counterparts.

As Canada under the Liberal administration has now become a heavily indebted “have not” country, Alberta was its last remaining mainstay—until Alberta itself imploded thanks to the energy crushing policies of the federal government. It is now a “have not” province. 

Indeed, as Canada goes Green, Canada goes broke, forcing it to increase its debt load and enact burdensome domestic programs that will impoverish its citizens and devastate the productive classes. At a steadily approaching inflexion point, Canada will face the spectre of default—a time-honored South American prospect.

In an article for the National Post, former Conservative leadership candidate Leslyn Lewis shows why she would have been a far better choice for the Conservative nomination than the waffly, Andrew Scheer-like Erin O’Toole. Lewis reveals how the new creeping socialism operates, confiscating not our property but our wealth via various levies like a home equity tax, a ubiquitous carbon tax, a new tax on the private sale of homes costing home owners a portion of their retirement savings, and a “perpetual debt scheme reminiscent of Argentina.”

What is taking place, she warns, is “a quiet and bloodless revolution that seeks to control our lives through economic dependency.” Conrad Black believes “the government… has lost its mind”—though more likely it is acting quite deliberately, in full knowledge and intent, cleverly pursuing a soft totalitarian agenda. Meanwhile, most Canadians linger in a condition of blissful oblivion as the country they believe is theirs and continue to be proud of is being insidiously stolen from them before their very eyes.

Regardless, Canadians on the whole believe in big government and continue to vote left, ensuring that Trudeau’s Liberals and the New Democratic Party (NDP) helmed by Jagmeet Singh will likely retain control of parliamentary business and national policy. A recent Angus Reid poll indicates that nearly 60 percent of Canadian women would vote today for either the Liberals or the NDP under these two leaders. Such are the wages of feminism.

Ontario, Quebec and the Maritime provinces—aka the “Laurentian Elite”—trend massively socialist, as do the major conurbations like Halifax, Montreal, Toronto and Vancouver. There can be no doubt that socialism is the name of the game. Trudeau has boasted that China’s “basic dictatorship” is his favorite political system and, as Spencer Fernando writes, is far too week to stand up to Chinese Communist pressure.

Trudeau, we recall, lamented the passing of Cuban dictator Fidel Castro, “join[ing] the people of Cuba in mourning the loss of this remarkable leader.” Similarly, Jagmeet Singh had this to say: “He saw a country wracked by poverty, illiteracy & disease. So he lead [sic] a revolution that uplifted the lives of millions. RIP #Fidel Castro.

Trudeau’s approval rating has taken a hit of late but carrots count in moving the dray electorate forward. A new Angus Reid poll indicates where his strength lies province by province. Many Canadians are happy to allow the government to borrow hundreds of millions to subsidize their idleness with a monetary COVID response package, dubbed CERB (Canada Emergency Response Benefit), recently increased by 20 percent, rendering it difficult for many entrepreneurs and businesses to hire service personnel who relish living off the government dole.

Nevertheless, despite his many false promises, numerous scandals, proroguing of parliament for several months on the pretext of mitigating COVID, fiscal incontinence, 600 million dollar media bribe (sugar-coated as a “bailout”), and overall economic witlessness (“the budget will balance itself”), Trudeau’s carrots to select beneficiaries enable him to retain a considerable voting constituency and markedly improve his chances of re-election.

Indeed, The Liberal Party can count on an ample war chest. A recent special report here at The Pipeline demonstrated that, of the top ten third-party spenders that influenced the previous election, eight of them were leftist groups, outspending their rivals on the right by a factor of over 15 to 1. The CBC poll tracker indicates that the Conservatives are currently trailing the Liberals by 5 percentage points but, as the propaganda arm of the Liberals and favorite son Trudeau, its results should be met with a degree of skepticism.

Nonetheless, the Conservatives are likely no match for the combined electoral clout of the Left in this country. The cash-strapped, media bête noire, the People’s Party of Canada, is the best option for Canada’s (and Alberta’s) future, but it may not garner a single parliamentary seat—as was the case in the last election. This is to be expected. The Liberals may form a minority government once again, but with the NDP hitching a ride it would in any case be tantamount to a majority. Canada’s premier columnist Rex Murphy speculates, with considerable evidence, that Trudeau and Singh have formed “a (silent) concordat.”

Alberta had better get its act together before the Overton window closes. Alea iacta est.

Dwight Newman, the Carbon Tax, and Canada's 'Legal Monoculture'

Last week I wrote about the Carbon Tax Reference, a high-profile case before the Supreme Court of Canada that will decide whether the Trudeau government’s federal carbon tax is constitutional. As an addendum to that piece, I wanted to call your attention to an academic dispute which sheds some light on the case.

Back in August, the Centre for Law & the Environment at the law school of the University of British Columbia posted a paper by three Canadian law professors on its website, entitled “Responsible Scholarship in a Crisis: A Plea for Fairness in Academic Discourse on the Carbon Pricing References.” Their names are Stepan Wood, Meinhard Doelle, and Dayna Nadine Scott.

On its face, the paper seemed fairly straightforward and somewhat anodyne. The authors spoke of the importance of widely accepted academic standards in discussing this difficult topic, things like rigorous scholarly research, accurate citations to referenced sources, and conduct consistent with the highest standards of civility and integrity. 

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But they also did something noteworthy and unusual in this paper. They pointed to another article, written by a professor named Dwight Newman from the University of Saskatchewan, as an example of how legal scholarship should not be practiced. 

That paper was “Federalism, Subsidiarity, and Carbon Taxes," published by Professor Newman in the Saskatchewan Law Review in 2019. His argument was fairly technical, but essentially he averred that the federal carbon tax poses a serious challenge to Canadian federalism and called for a disciplined application of the law to “clarify and confine” federal power in a manner that respects provincial autonomy.

He also suggested that there's a contradiction in the position of defenders of the law -- including the Trudeau government -- who hold that the carbon tax is a matter of "national concern," such that it allows the invocation of the federal governments constitutional “residual powers,” but also that the provinces can opt out if they come up with something even more rigorous. Consequently, Professor Newman maintained that the carbon tax is unconstitutional.  

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This shouldn't be shocking to anyone -- a law professor has an opinion about the law, even if that position differs from the opinion of other scholars. That's what scholarship is all about. However, according to Wood, Doelle, and Scott, Professor Newman is also guilty of “distorting the published work of scholars with whom he disagrees, and portraying them in derogatory terms” as well as “selectively presenting the relevant case law to suit his purposes.”

They claim to “take no issue” with the arguments Professor Newman makes in his paper. Rather, their concern is “with how Professor Newman chose to make his argument and the implications of this choice for legal scholarship and informed public debate." 

These are grievous charges indeed. But the authors hardly make a case for their allegations. They do little more than assert their point, something which you would assume a group of lawyers would be sensitive to.

But, then, why write the article in the first place? Well, as Sean Spear recently pointed out in the National Post, Professor Newman’s paper was apparently influential in the Alberta Court of Appeal’s finding that the law is unconstitutional. Indeed, his paper is cited in the majority opinion several times.

Though the appellate courts of Ontario and Saskatchewan reached the opposite conclusion, albeit in split decisions, the timing of this article -- a draft was posted just under a month before the Supreme Court began hearing on the Carbon Tax Reference -- suggests that the authors were concerned that Newman's arguments might sway the Supreme Court as well. 

In a public reply to their paper, Newman dealt with several of the specific charges levied by Wood, Doelle, and Scott, such as they are (and reading his replies gives you a sense of how shallow they are:

"On p 7, Wood/Doelle/Scott suggest I should have read a particular article. I actually discussed that very article and showed how it had problems in its understanding of the relationship between the legal doctrines of POGG and interjurisdictional immunity." But he also dealt with the larger dimensions beyond this exchange, including that which related to the impending Supreme Court case: “accusations of irresponsible scholarship… have an even graver dimension when they give the appearance of being framed and timed so as to attempt to interfere with academic contributions to a major public debate.”

Newman rightly cautioned that “the publication of [this paper] threatens academic discourse through the intimidating effects it could have on [all] scholars.” 

Other scholars seem to agree, and defenses of Professor Newman were quick to surface. This is heartening, since the broadside against professor Newman was shameful, and the pretense of its authors that this was just about the integrity of legal scholarship, and was not politically motivated, only makes it worse. As Speer rightly put it,

The charitable read of professors Wood, Doelle and Nadine Scott’s article is that they’ve grown unaccustomed to alternative interpretations and analysis in the bubble of Canada’s legal monoculture. They’re not acting in bad faith per se. They just assume that anyone who reaches divergent constitutional views must necessarily be failing to live up to the standard of responsible scholarship.

A less charitable view is that the authors don’t like Prof. Newman’s article because it was influential with the Alberta court of appeal and contributed to a legal outcome that they don’t like. They’re determined to discredit him and his arguments before the Supreme Court’s upcoming hearings, so he doesn’t also influence its thinking.

Two ironies stand out in this whole affair, the more obvious one being that Professors Wood, Doelle, and Scott's article was purportedly about the standards of responsible scholarship, but in their quest to demonstrate those standards via negativa, as it were, by pointing to Newman's paper, they actually provided that example in their own writing. In their contention that Professor Newman had “crosse[d] a line,” they crossed one themselves.

The second irony is that their article might well have the exact opposite effect from the one intended. The controversy over Newman's essay makes it increasingly likely that everyone following the case will have read it, and even those Supreme Court justices reluctant to be seen siding with conservatives, the west, or so-called climate change deniers will have to contend with his arguments.

As the saying goes, you can't buy that kind of publicity.

Federalism On Trial in Canada

With all of the focus on the U.S. Supreme Court last week, it’s interesting to note that Canada’s top court found itself at the center of that nation's national drama at exactly the same time. The Supreme Court of Canada held a two-day hearing on the Trudeau Government's federal carbon tax scheme. And the stakes for the nation as a whole, and the nature of Confederation, are potentially quite high.

You’ll recall that Trudeau’s Liberals, appealing to Canada’s Paris Agreement commitments to drastically reduce the nation's carbon emissions, passed a law nearly two years ago which forced a carbon tax on provinces that didn't already have one of their own. The law has been described as a “backstop," which is to say it requires provincial and territorial governments to put a price on carbon that meets minimum standards. Provincial governments can choose how to meet this benchmark, but they have to do something, and if their proposals are deemed insufficient, Ottawa will impose one on them directly.

From the beginning, Canadian conservatives -- especially Brad Wall and Scott Moe of Saskatchewan, and Alberta premier Jason Kenney -- have stood firmly against the law. They've argued, first, that the carbon tax is bad for Canadian consumers and industry, and second, that it is an unconstitutional usurpation of provincial authority.

The first of these points was put before the voters in last year's election, contributing to the Liberal's losing the their majority (along with, for what its worth, the popular vote), while maintaining a minority government. Meanwhile, the second point has been put to the test before three provincial appellate courts thus far, those of Alberta, Ontario, and Saskatchewan. In split decisions from each, the courts of Saskatchewan and Ontario found the law to be constitutional, while that of Alberta held that it was not. The appeals of those decisions is what is now being considered. 

Carbon pricing is not the only available option.

Unlike the American Constitution, whose 10th amendment stipulates that any power not specifically delegated to the federal government automatically falls under the purview of the states, Canada's Constitution Act of 1867 details which "matters" fall under federal jurisdiction (s. 91) and which under provincial jurisdiction (s. 92). Of course, constitutional grey areas arise when the “matter” wasn't an issue at the time of Confederation (carbon taxes, for instance) and is therefore not assigned to federal or provincial power.

Moreover, Canada's constitution does grant the federal government “residual powers” to pass laws for peace, order, and good government, in emergency situations or for matters of national concern. Supporters of Trudeau's carbon tax argue that it falls under the latter.

Consequently, the court must classify this matter as falling under either federal or provincial jurisdiction, and in so doing answer the question of whether the reduction of greenhouse gas emissions qualifies as a matter of national concern such that it justifies the implementation of a federal carbon tax, and in the way the Trudeau government has chosen to implement one.

Interestingly, counsel for both sides admitted that carbon pricing is not the only available option. A suite of pricing and non-pricing policy measures is at the provinces’ disposal to address this issue.  Several provinces have already put their own carbon pricing measures into place, which lends support to the argument that the federal carbon tax intrudes on provincial jurisdiction. In fact, one of the criteria of the national concern doctrine is "provincial inability," which holds that if the provinces don't have the jurisdiction to act in a matter that has extra-provincial effects, then the door is open for the feds to step in.

But the limiting factor of provincial inability is an important part of this debate. Does it refer only to constitutional inability -- that the jurisdiction to act is lacking; or is it a practical inability -- that is, that the political will to act is lacking. My reading of the relevant jurisprudence and Canadian history suggests that it is the former. As you would expect, however, counsel for the government took the opposite position, while arguing that precedent was split between the two. Even so, common sense seems to land on the constitutional side. Not acting on an issue can be an intentional choice. If the federal government can step in and legislate simply because a province has not done so -- in the case of a carbon tax --  this turns our whole understanding of federalism on its ear.

And -- a related point -- the very fact that the law is structured as a backstop, both implies that it is firstly the prerogative of the individual provinces to act, and makes a farce of federalism by penalizing provinces who act contrary to the will of the federal government.

And, listening to the hearing, it is clear that fear of being seen to support climate skeptics weighed on the justices. Justice Russell Brown made it a point to stress the issue is not whether the federal government can regulate greenhouse gas emissions but whether how it has chosen to do so is constitutional. Justice Rosalie Abella noted that the provinces “do not have plexiglass at their borders” to keep out greenhouse gas emissions. Justice Michael Moldaver expressed concern that if one province “goes rogue” and takes no action that would moot the efforts of the others.

At the same time, Justice Malcolm Rowe voiced serious concerns from the other side of the spectrum. Throughout the hearing he reiterated the danger of the law creating “winners and losers," punishing industries that use larger amounts of energy. Counsel for the appellants agreed with this view, suggesting that the law gives undue discretion to the federal cabinet to set sector-by-sector emissions costs, and thereby represents an unprecedented "federal power grab." 

The hearing has now concluded, and we will probably have to wait several months to find out which way the Court will rule. Its decision will likely affect the relationship between federal and provincial governments going forward, and at a time when the tension between them is shakier than its been in decades. I'm hesitant to guess which way they will go, though I often have occasion to think of the wise words of a professor of mine, speaking in an American context: "Never trust the Supreme Court to make the right decision."

But the justices would do well to remember two things. First, that their role is simply to faithfully interpret the constitution, and not to meddle in political questions or ensure particular policy outcomes. And second, that federalism cannot be a fair-weather friend. It is the bedrock of Canada’s constitutional structure and the courts must weather this commitment through any storm. We might not always like the outcome these two require, especially in hard cases. But as the appellants' counsel put it, “That’s federalism and that’s democracy.”

Canada: Minorities Should Be Seen But Not Heard

Considering their obsession with race, liberals everywhere have a tendency to stumble into racist territory at least as often as the "normies" they so despise. This is principally because, for all of their mockery of Republicans for having "token" black friends (Dick Durban memorably used the word to describe Senator Tim Scott), many of them only know of minorities what they learned from outdated activist playbooks.

We're seeing this phenomenon play out in the U.S. election, as when Joe Biden proclaimed that African Americans "ain't black" if they haven't yet decided whether to vote for him. Similarly, many Hispanic voters were alarmed by Biden's declaration that he would "go down as one of the most progressive presidents in American history," remembering, as they do, that "progresivo" is the preferred self-description of the regimes many of them fled. (Quinnipiac recently even had Trump leading outright with likely Hispanic voters in the crucial state of Florida).

Though they don't like to say it out loud, liberals tend to think that they're owed the votes of racial minorities, and that they should be seen -- especially at campaign rallies -- but not heard. Specifically, that their actual opinions about contentious issues, from defunding the police, to  immigration, to job killing regulations, just complicate the narrative.

Native groups, of course, are frequently used this way, especially on environmental issues. In a feature I wrote back in July, after retelling the story of Canada's Wet’suwet’en nation, who were supportive of a pipeline project on their territory that protesters were boycotting on their behalf (something I'd written about before), I commented:

Activists and their friends in the media don't want us to hear that side of the story [i.e. that Natives supported a pipeline], as it undercuts the Rousseauvian depiction of indigenous people that they want haunting our imaginations. They would prefer we think of Natives exclusively as victims... still in a state of mystical harmony with nature, disinterested in all worldly concerns. But this is an embarrassing caricature of natives, both historically as well as in the present day.

Writing at the Calgary Herald, Stephen Buffalo and Ken Coates have an op-ed that looks at the struggles Canada's Liberal Party has along these same lines. As they explain:

Since its election in 2015, the Trudeau government cancelled the Northern Gateway Pipeline, banned oil and gas exploration in the Arctic and oil tankers off the British Columbia coast, brought in complex environmental assessment processes, and appeared to actively discourage investment in the industry.

However, that same government is committed, at least rhetorically, to supporting indigenous communities. The problem is that the economic well-being of First Nations in Canada

[I]s closely associated with the natural resource economy, particularly mining, oil and gas. Government policy is putting at risk the impressive gains supported by government policy in recent decades.

As in the Wet’suwet’en situation, oil and gas projects often occur on or near the lands of First Nations communities. Having title to that land is an asset to them. It also provides jobs for members of their communities. The authors make clear that these groups care about responsible environmental stewardship, and don't want to see their lands polluted or spoiled -- who does? But if that can be managed while also bringing wealth and employment to the communities, where's the problem?

Indigenous communities engaged with the oil and gas industry for solid reasons: to build prosperity, employment and business, to gain autonomy from the government of Canada, to secure a measure of influence over project decision-making, and to assert a prominent place in the national and international economy.

Read the whole thing.

Dance with the One That Brung Ya

As John O'Sullivan has mentioned, the Conservative Party of Canada has just selected a new leader: Durham, Ontario M. P. Erin O'Toole. O'Toole succeeded in edging past former Progressive Conservative leader Peter MacKay, as well as the more right-wing candidates, Leslyn Lewis and Derek Sloan.

O'Toole himself ran as essentially the "Buckley Rule" candidate, referring to the founder of National Review's mid-'60s proclamation that his magazine would support "the rightwardmost viable candidate" in a given election. Despite his not-particularly-conservative voting record, O'Toole leaned hard on his military service during the campaign to sell himself as "True Blue O'Toole," manly patriot, not like progressive pretty boy like MacKay (who was famously named 'Canada's Sexiest Male MP' by The Hill Times in the early oughts, a fact which should have disqualified him from the start), who can actually hold Justin Trudeau to account in opposition (unlike Lewis, who doesn't yet have a seat in parliament) but is moderate enough (unlike, according to some, Sloan) to win a general election.

There's a lot of balancing going on in that pitch, one that sticks close to the political consultants' standard playbook: right-wing enough to win out west, centrist enough to pick up a few more seats in Ontario and then form a government.

That is, of course, a tenuous balance. That playbook also advises conservatives to go all-in on green initiatives to win in the Greater Toronto Area, and offer Western Canada... well, nothing. Except not being Trudeau that is. But western Canadians have a fiercely independent streak, and they've acted on it before, breaking off from the Progressive Conservative Party in the '80s (in rebellion against a Tory leader who they felt was unresponsive to their interests) to form the Reform Party, which supplanted the the P. C. Party within five years.

The "unite the right" movement of the early 2000s healed that divide and led to the creation of the modern Conservative Party, but it would be foolish for O'Toole to assume that's the end of the story. Consequently, O'Toole made it a point to launch his leadership campaign in Calgary, and he's racked up western endorsements, including from Alberta Premier Jason Kenney, who proclaimed that O'Toole is "committed to a fair deal for the West and a strong future for our resource industries."

Only time will tell whether that is an accurate assessment. O'Toole has been all over the place on the resource sector, initially calling for an end to fossil-fuel subsidies -- a questionable description of industry-specific tax deductions for one of the largest contributors to Canada's economy, especially since the so-called renewable energy industry against which it is competing wouldn't exist without massive government subsidies -- before backing away from that pledge. He's also advocated repealing the Liberal's carbon tax, which he pledged to replace with "a national industrial regulatory and pricing regime," essentially a carbon tax by another name.

Alberta's support was definitive in O'Toole's beating out MacKay, and as much as he's likely being told to break left right now to appeal to the Toronto suburbs, he should heed the advice of a fellow Ontarian, and "dance with the one that brought" him. Because Alberta's economy has been hit harder by Covid-19 and the lockdowns than any other, and western discontentment have the potential to tear the party and the country apart.