How a Federal Minister’s Remarks Raised Jurisdiction Infringement Fears in the Prairies

Prairie premiers condemn Lametti's promise to look into a request to rescind natural resource agreement

Then-Justice Minister David Lametti speaks during a federal, provincial, and territorial ministers press conference on bail reform in Ottawa on March 10, 2023. The Canadian Press/Spencer Colby

In controversial remarks at an event on April 5, Justice Minister David Lametti said he would look into a request to revoke the resource rights of the Prairie provinces, a move that brought swift condemnation from the provinces’ premiers concerned about infringements in their jurisdiction.

In their latest salvo on April 11, Saskatchewan Premier Scott Moe, Alberta Premier Danielle Smith, and Manitoba Premier Heather Stefanson called on Prime Minister Justin Trudeau to “immediately retract those dangerous and divisive comments by his justice minister.”

At an Assembly of First Nations (AFN) chiefs’ conference in Ottawa on April 5, Grand Chief Brian Hardlotte from the Prince Albert Grand Council asked Lametti to rescind the Natural Resources Transfer Acts (NRTAs) that transferred authority over land and natural resource from the federal government to the three Prairie provinces in 1930.

The chief also suggested that the Saskatchewan First Act jeopardized treaty rights by emphasizing provincial jurisdiction over “Indian natural resources.” The act, which recently became law, asserts the province’s exclusive jurisdiction over its natural resources.

Chief Don Maracle of the Mohawks of the Bay of Quinte concurred, saying, “Those resources were given to the provinces without ever asking one Indian if it was OK to do that, or what benefits the First Nations expect to receive by Canada consenting to that arrangement.”

Alberta Premier Danielle Smith (2nd L) answers a question as Canada's premiers hold a press conference following a meeting on health care in Ottawa on Feb. 7, 2023. The Canadian Press/Sean Kilpatrick

In response, Lametti said, “I obviously can’t pronounce on that right now, but I do commit to looking at that. It won’t be uncontroversial is the only thing I would say, with a bit of a smile.”

The Constitution Act of 1867 gave Ontario, Quebec, Nova Scotia, and New Brunswick the ownership of Crown lands and resources. British Columbia (1871) and Prince Edward Island (1873) received similar rights when they joined the federation. However, these rights were not extended to the three Prairie provinces until 1930 when the three NRTAs were enacted, one each for Manitoba, Saskatchewan, and Alberta.

Moe, Smith, and Stefanson said in their statement that the rights granted by the NRTA “have been fundamental to the people and the economic autonomy of Manitoba, Saskatchewan and Alberta, for nearly 100 years. The federal government cannot unilaterally change the constitution. It should not even be considering stripping resource rights away from the the three Prairie provinces.”

Reserve lands were always excluded under the NRTA because they remain in federal hands.

Tom Flanagan, professor emeritus of political science at the University of Calgary, says the courts have mandated governments to consult but never compromised their jurisdiction.

“The Supreme Court has created this jurisprudence of the right to be consulted and the rather nebulous concept of traditional territories, which doesn’t have any clear definition,” Flanagan said in an interview.

“That’s a right to be consulted about development of resources on traditional territories where that would have an impact on the reserve lands, but that’s not the same thing as transferring ownership away from the Crown and back to the First Nations.”

Saskatchewan Premier Scott Moe speaks during a media event at the University of Saskatchewan campus in Saskatoon on June 28, 2022. Liam Richards/The Canadian Press

Flanagan said provincial laws made in conjunction with the NRTA suggest Ottawa could not rescind provincial rights unilaterally. In Alberta, for example, Section 24 of the Alberta Natural Resources Act says, “[T]his agreement may be varied by agreement confirmed by concurrent statutes of the Parliament of Canada and the Legislature of the Province.”

Alberta’s Sovereignty Act, which received royal assent on Dec. 15, 2022, reinforced provincial jurisdiction over resources, as did the Saskatchewan First Act, passed on March 16 and proclaimed on April 6. Both documents reinforce provincial rights granted under Section 92(1) of the Constitution Act, 1982.

‘Reason to be Concerned’

Moe first issued a statement on April 10, questioning on what basis Lametti thinks he “has the authority to unilaterally strip Saskatchewan and the other western provinces of our constitutional authority over our natural resources.”

“Saskatchewan has always had reason to be concerned about this federal government’s agenda to infringe on provincial jurisdiction and autonomy, and we will be relentless in defending our jurisdiction and autonomy,” he wrote.

The same day, Alberta Premier Danielle Smith also condemned Lametti’s comment.

“This would pose an unprecedented risk to national unity and Alberta condemns this federal threat in the strongest possible terms. I will be contacting Premiers Scott Moe and [Manitoba Premier] Heather Stefanson to discuss next steps and call on the Prime Minister to immediately have his Justice Minister retract and apologize for these comments immediately,” she tweeted.

Heather Stefanson, premier of Manitoba, speaks to the media at the Manitoba Legislative Building in Winnipeg on Jan. 18, 2022. The Canadian Press/David Lipnowski

The Epoch Times reached out to Lametti, and was sent a statement issued by the minister on April 10 regarding his comments at the AFN conference.

“Amongst the many questions I was asked, the Natural Resources Transfer Act was raised by First Nations Chiefs on a couple of occasions,” Lametti wrote. “It is part of my job to listen to those concerns. To be clear, at no point did I commit our government to reviewing areas of provincial jurisdiction, including that over natural resources.”

At a press conference on April 12, Trudeau rejected that Lametti’s comments indicated that the federal government is going to review the NRTA, and said what his government is stressing is living up to the requirements of the United Nations Declaration on the Rights of Indigenous Peoples, which his government is working to implement in Canada.

Section 92A of the Constitution Act, 1982, gives provinces exclusive legal jurisdiction for “exploration for non-renewable natural resources” as well as their “development, conservation and management.”

Brian Peckford, a former Newfoundland premier who participated in negotiations for the 1982 Constitution, said Ottawa can no more seize provincial resource rights than it could make a constitution without provincial consent.

“Pierre Elliot Trudeau, so-called alleged constitutional expert, lost in court in 1981 on the unilateral patriation to the Constitution. He lost, not by what was written but by what was not written, and that was convention and precedent over time,” Peckford told The Epoch Times.

“Our Constitution is both the BNA Act, the Constitution Act of 1982, plus all those precedents and conventions that have been established over time. Since 1930, through the Natural Resources [Transfer] Act, the Prairie provinces have enjoyed what was provided to them under that act, and therefore, if there’s ever a convention, there’s one.”

Peckford negotiated the Atlantic Accord with Ottawa in the mid-'80s to grant Newfoundland revenues for offshore oil drilling, something typically in federal jurisdiction. He called Lametti’s comments “outlandish” and agreed with Smith they were an affront to national unity.

“I couldn’t agree more. It’s very, very puzzling why, at this juncture, a federal justice minister would muse over something like that,” he said.

“If there was a fight [in the 1980s] over the National Energy Program, imagine the fight over any attempt to reduce the powers that are already been practised now for 90 years by the Prairie provinces.”