Law Times

law Times • July 8, 2013 Page 7 COMMENT Ontario's economic future out of its hands as Ring of Fire languishes F rom beaver pelts to the oilsands, Canada's economy has benefited from a blessed treasure trove of resources. Why else would anyone slog through dense bush while fighting mosquitoes, navigate huge waterways, and pound through granite but for those rich rewards? Toronto's financial district owes much to mining, forestry, and energy as a quick glance at the Toronto Stock Exchange attests. Look west and the British Columbia, Alberta, and Saskatchewan economies are booming while Ontario's moribund manufacturing sector struggles with a petro dollar that puts mainstays like the auto makers on alert as labour costs rise. It wasn't always like this, of course. Hooked up to cheap hydro electric power, Ontario was the engine that drove the nation. But today, it languishes as a have-not province in Confederation while hamstrung by deficits and a debt that will hover like a thundercloud over successive governments for generations. What Ontario needs today is money. It needs lots of it and it can't come soon enough. But the future of Ontario is mired in its past as well as lingering questions over aboriginal rights and which land claims are valid. Three years ago, then-premier Dalton McGuinty naively bet on a five-year plan to open northern Ontario to mining and develop the Ring of Fire in a massive area the size of Prince Edward Island in the have worked directly with the sparse James Bay lowlands 540 kilometres northeast of ThunQueen's exploration companies. over There are more fights der Bay, Ont. As they say, it's Park whether building haulage not the middle of nowhere, but routes by rail for $2 billion is a you can see it from there. better idea than roads at $600 The prize is chromite, somemillion, concerns about the thing that's vital to the producboreal forest and wildlife habition of stainless steel. There's tat, and, of course, the usual also nickel, platinum, copper, blockades. and maybe other precious metThe Ring of Fire has been als. In all, it's worth $120 billion. dubbed Ontario's tarsands, a It's cash that will flow to northIan Harvey double-edged moniker that ern Ontario, create jobs, and could suggest an environsustain communities, many of them aboriginal. The proposal would also mental disaster in the making or a goldgenerate taxes all the way back down to en opportunity to restore the province to economic glory. Queen's Park's coffers. But instead of shovels in the ground, Predictably, with that much money on we more predictably have lawyers at the the table, the fights soon began. Junior exploration companies battled with their tables. Former federal Liberal interim larger counterparts that launched hostile leader and past Ontario premier Bob Rae takeovers and Ontario Mining Act re- stepped down as MP last month to devote views over claim stakes. We also had may- his time to his role as a representative of ors arguing over whose city should get the the Matawa First Nations and nine native $1.8-billion smelter (it went to Sudbury, governments. Last week, retired Supreme Ont., over Thunder Bay) while First Na- Court of Canada justice Frank Iacobucci tions want not just consultations but a became Ontario's lead negotiator. Their mandate is to ensure agreement veto as they complain that everything is on key issues related to environmental moving too fast. There's also a pending judicial review protection and monitoring, regional inover the format of the environmental as- frastructure planning and development, sessment and an Ontario Superior court resource revenue sharing, and social and ruling severing one First Nation's lands economic supports before any mining acfrom the development area because it tivity goes ahead. Clearly, five years was never going to would cause "irreparable harm to their culture" while others like the Marten Falls be enough time to get a project of this size First Nation welcome the opportunity and off the ground. The landscape has also changed since then as First Nations increasingly assert claims over lands where they hold fishing and hunting rights. Frustrated by a process it perhaps initially thought would move quickly given the government's initial enthusiasm and wary of softening commodity prices, Cliff Natural Resources Inc. announced last month it was suspending its timelines and was now looking to 2016 or later to start operations. However, Noront Resources Ltd. says it will stay the course regardless of the ongoing quagmire. Mining is a vital industry in Ontario. It's the biggest private-sector employer of aboriginals and provides, overall, 27,000 highly paid jobs and another 50,000 jobs in processing. Both the federal and Ontario governments want this project to go ahead as quickly as possible, but the fate of the Ring of Fire and the jobs and revenues attached to it now rests in the hands of Ontario's First Nations. With $120 billion at stake, however, the parties aren't going to resolve the issue any time soon. It's a depressing example of how so much of Canada's future resource development, extraction, and marketing has yet to escape our history. Like Alberta, Ontario's economic future is out of its hands. LT Ian Harvey has been a journalist for 35 years writing about a diverse range of issues including legal and political affairs. His email address is ianharvey@rogers.com. Senate's future on hold as SCC considers legal complexities BY RUCHIRA KULKARNI For Law Times T accountability of the Senate to the Canadian public will continue to be an issue. Despite the appeal for a second chamber based on regional distribution, drastic changes are necessary for the Senate to meet its mandate. However, because Senate reform will require provincial consent, not only for the method of selection but also to redefine the powers of the upper chamber, the changes are unlikely to pass. Quebec might choose to opt out if it feels its powers are under threat. Direct accountability and democratic legitimacy would come at the price of the independence of the Senate from party politics. On the other hand, if the government cannot make the required changes, having a Senate that does not fulfil its role is questionable and redundant. So if Senate reform of the required magnitude is not possible, abolition should be the next best option. Of course, abolishing the Senate is not without its legal complexities. It is difficult to say whether the Supreme Court of Canada will provide a direct answer. If the court suggests that the general amending formula is sufficient to abolish the powers of the Senate and eliminate representation of the provinces pursuant to the Constitution Act, getting rid of the upper chamber might become a more realistic possibility. With the current trend towards supporting the abolition of the Senate among the provinces, it may become easier to get a consensus on eliminating it rather than reforming it. On the other hand, if the unanimous consent of the provinces is necessary, abolition will be a distant thought. Despite the complexities, Canadians and Parliament are anxiously awaiting the Supreme Court of Canada's response on the constitutionally valid method of bringing about Senate changes. Whether the Senate will undergo meaningful reform or abolition rests in the hands of the Supreme Court of Canada. LT u SPEAKER'S CORNER he future of the Senate has been subject to much debate, particularly since the 1980s during the constitutional battles. While there are many calls to eliminate it, a Globe and Mail article in May 2013 reported that Senate reform has consistently outpolled outright abolition or maintaining the status quo. Most recently, the expense scandals surrounding senators Mike Duffy, Patrick Brazeau, Pamela Wallin, and Mac Harb have brought the issue of accountability for the upper chamber to the forefront of public attention. Such scandals have heightened public support for the abolition of the Senate. The essence of the problem with the current senatorial selection process lies in its lack of democratic legitimacy, an issue that has consequently allowed senatorial abuse to take place. Although Senate reform may seem like a subject best left to the legislatures, it's also a question of constitutional validity. Regardless of whether Canada should reform or abolish the Senate, the pertinent question remains as to how much involvement and consent from the provinces is necessary. The obstacles faced by Parliament in implementing any real changes to the Senate are a testament to the importance of resolving the issue. Parliament initially thought it could proceed unilaterally with the proposed Senate changes as outlined in bill C-20, the Senate appointment consultations act, and bill C-7, the Senate reform act. However, Quebec's opposition to the Senate reform proposals and the ongoing debates have forced Prime Minister Stephen Harper to present a reference question to the Supreme Court of Canada. Harper has asked the court to review its Senate reform proposals under s. 53 of the Supreme Court Act. The court proceedings are on track to begin in November of this year. The prior upper house reference in 1980, which also dealt with Senate reform, is now out of date in light of the Constitution Act of 1982. It therefore does not give sufficient guidance on the proposed changes. The questions currently posed to the Supreme Court of Canada concern issues related to term limits, national and provincial processes for Senate appointment consultations, property qualifications, and whether the Senate can be abolished by amending the Constitution pursuant to s. 38 of the Constitution Act of 1982 or unanimous consent. The Supreme Court of Canada will not, however, answer the question of whether the government should reform or abolish the Senate but will provide Parliament with a constitutionally valid method of bringing about any changes. It is highly unlikely that the Supreme Court of Canada will give Parliament the green light to move forward unilaterally on the proposed Senate reforms. This is due to the fact that the proposed reforms fundamentally affect the Senate. In fact, a section of the Constitution Act specifically outlines four exceptions to Parliament's exclusive power to amend the Constitution in relation to the Senate, which includes the selection method of senators. These paragraphs require the concurrence of at least seven provinces representing at least 50 per cent of the population. Four provinces — British Columbia, Saskatchewan, Manitoba, and Nova Scotia — have stated their preferences for abolition, whereas Prince Edward Island, New Brunswick, and, most recently, Ontario seem to support Senate reform. The only way Parliament could proceed unilaterally would be to allow the provinces to pass legislation that sets out a framework enabling the voters to elect potential Senate nominees whom the prime minister would then take into advisement. Alberta has already gone ahead with such a process. However, there is a drawback as the prime minister does not have to select those nominees. As a result, the direct www.lawtimesnews.com Ruchira Kulkarni is a student in the common law program at the University of Ottawa.

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