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Opposition says Premier Eby using tariff fight to give B.C. cabinet ‘unlimited power’

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From the Fraser Institute

By Bruce Pardy

It’s been 800 years since the Magna Carta. Governments everywhere now aspire to tear down the concept that it helped establish: the rule of law. Last week, British Columbia’s NDP government introduced the Economic Stabilization (Tariff Response) Act, also known as Bill 7, which would allow Premier David Eby and his cabinet the power to take the law into their own hands without going through the elected legislature.

In this case, the justification is President Donald Trump’s tariffs. But the bill would authorize any action taken for the vague purpose of supporting the economy of B.C. or Canada, or responding to the actions of any foreign government, even if the actions haven’t happened yet. But according to Eby, “These are not sweeping powers.”

The project of concentrating power in the executive branch (i.e. cabinet) and usurping the role of legislators has a long pedigree. In theory, no office or officers are above the law or are empowered to make it up as they go. In practise, that theory counts for less and less. Governments, including in Canada, don’t like the rule of law.

But what, exactly, does “the rule of law” mean? Legal theorists say it’s complicated. It need not be. To see it clearly, compare it to the alternative: the rule of persons. When King Solomon decreed that a baby claimed by two women should be split in half, he had absolute power to decide what to do. When Henry VIII ordered that Anne Boleyn should lose her head, that was absolute power, too. In each case, tyrants exercised their personal rule for good or bad.

The “rule of law” is the opposite idea. No single authority has free reign to decide how the state will use its force. The rule of law limits the powers of those who govern.

It does so in part by separating powers between three branches of the state. The Supreme Court of Canada has said that the “separation of powers” is a fundamental feature of the Canadian Constitution. Legislatures legislate. The executive executes. Judges adjudicate. In principle, no single office or officer can alone decide what should be done.

But not in practise. Exceptions are so common today as to be ubiquitous. The Human Rights Commission, not the legislature, declares what constitutes discrimination. The police decide whether to enforce court orders. Environment ministry officials determine when environmental impacts are permissible. Cabinet decides when pipelines will be built.

But in these cases, decision-makers at least must keep themselves within the boundaries of their authorizing statute, which was passed by elected legislatures. Under Bill 7, the Eby government will take delegation to the next level. Its cabinet will have the power not just to exercise broad discretion in accordance with legislation, but to override legislation itself. The bill will allow cabinet to make exceptions to the law, modify the law’s requirements, limit the law’s application, or establish powers or duties in place of the law. And not just a specific law, but any enactment on the books. The cabinet’s edicts will be valid for more than two years, until May 2027.

In 1539, the Statute of Proclamations conferred on King Henry VIII the power to rule by decree, directing that the King’s proclamations should be obeyed as though they were legislation. Such provisions, since known as “Henry VIII clauses,” are controversial because they eviscerate limits on executive power. Yet they may be constitutionally permissible in Canada. Parliament cannot abdicate its functions, the Supreme Court of Canada wrote in 1918, in a case considering the government’s conscription orders under the broad powers of the War Measures Act of 1914. But Parliament can pass legislation that delegates its powers to the executive as it sees fit. As long as the legislature retains the power to reverse the delegation, the theory goes, then separation of powers remains intact.

The rule of law is inconvenient. It gets in the way of governments and officials crafting solutions to problems they perceive as important. That’s not its downside but its purpose. Even when government efforts are well-intentioned, the power of officials to solve problems can pose a more serious threat to citizens than the problem itself. As the late Alan Borovoy, former general counsel of the Canadian Civil Liberties Association, once put it, “The source of the most insidious peril is not evil wrongdoers seeking to do harm, but parochial bureaucrats seeking to do good.” If the modern administrative state is incompatible with the rule of law, then the state should be required to adapt. For decades, the current has flowed strongly in the other direction.

Crises are an ideal time for the state to advance into territory from which it will not wish to retreat. COVID-19 was the previous excuse. Now the threat of American tariffs is the latest justification to declare an emergency and discard the limitations of the rule of law. Even impending calamity does not justify the tyranny of unfettered discretion. Boundless authority to respond to circumstances is an unbearable licence to dictate.

This commentary is based on previous commentaries.

Bruce Pardy

Professor of Law, Queen’s University

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B.C. premier wants a private pipeline—here’s how you make that happen

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From the Fraser Institute

By Julio Mejía and Elmira Aliakbari

At the federal level, the Carney government should scrap several Trudeau-era policies including Bill C-69 (which introduced vague criteria into energy project assessments including the effects on the “intersection of sex and gender with other identity factors”)

The Eby government has left the door (slightly) open to Alberta’s proposed pipeline to the British Columbia’s northern coast. Premier David Eby said he isn’t opposed to a new pipeline that would expand access to Asian markets—but he does not want government to pay for it. That’s a fair condition. But to attract private investment for pipelines and other projects, both the Eby government and the Carney government must reform the regulatory environment.

First, some background.

Trump’s tariffs against Canadian products underscore the risks of heavily relying on the United States as the primary destination for our oil and gas—Canada’s main exports. In 2024, nearly 96 per cent of oil exports and virtually all natural gas exports went to our southern neighbour. Clearly, Canada must diversify our energy export markets. Expanded pipelines to transport oil and gas, mostly produced in the Prairies, to coastal terminals would allow Canada’s energy sector to find new customers in Asia and Europe and become less reliant on the U.S. In fact, following the completion of the Trans Mountain Pipeline expansion between Alberta and B.C. in May 2024, exports to non-U.S. destinations increased by almost 60 per cent.

However, Canada’s uncompetitive regulatory environment continues to create uncertainty and deter investment in the energy sector. According to a 2023 survey of oil and gas investors, 68 per cent of respondents said uncertainty over environmental regulations deters investment in Canada compared to only 41 per cent of respondents for the U.S. And 59 per cent said the cost of regulatory compliance deters investment compared to 42 per cent in the U.S.

When looking at B.C. specifically, investor perceptions are even worse. Nearly 93 per cent of respondents for the province said uncertainty over environmental regulations deters investment while 92 per cent of respondents said uncertainty over protected lands deters investment. Among all Canadian jurisdictions included in the survey, investors said B.C. has the greatest barriers to investment.

How can policymakers help make B.C. more attractive to investment?

At the federal level, the Carney government should scrap several Trudeau-era policies including Bill C-69 (which introduced vague criteria into energy project assessments including the effects on the “intersection of sex and gender with other identity factors”), Bill C-48 (which effectively banned large oil tankers off B.C.’s northern coast, limiting access to Asian markets), and the proposed cap on greenhouse gas (GHG) emissions in the oil and gas sector (which will likely lead to a reduction in oil and gas production, decreasing the need for new infrastructure and, in turn, deterring investment in the energy sector).

At the provincial level, the Eby government should abandon its latest GHG reduction targets, which discourage investment in the energy sector. Indeed, in 2023 provincial regulators rejected a proposal from FortisBC, the province’s main natural gas provider, because it did not align with the Eby government’s emission-reduction targets.

Premier Eby is right—private investment should develop energy infrastructure. But to attract that investment, the province must have clear, predictable and competitive regulations, which balance environmental protection with the need for investment, jobs and widespread prosperity. To make B.C. and Canada a more appealing destination for investment, both federal and provincial governments must remove the regulatory barriers that keep capital away.

Julio Mejía

Policy Analyst

Elmira Aliakbari

Director, Natural Resource Studies, Fraser Institute
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Carney’s new agenda faces old Canadian problems

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From the Fraser Institute

By John Ibbitson

In his June speech announcing a major buildup of Canada’s military, Prime Minister Mark Carney repeated his belief that this country faces a “hinge moment” of the sort the allied countries confronted after the Second World War.

A better comparison might be with the beginning of the war itself.

Then, the Allies found themselves at war with an autocratic state bent on their defeat and possible destruction. Now, Carney faces an antagonistic American president bent on annexing Canada through economic warfare.

Then, Canada rose to the challenge, creating the world’s third-largest navy and landing an army at Normandy on D-Day. Now, Carney has announced the most aggressive reorienting of Canada’s economic, foreign and defence policies in generations.

Polls show strong support among Canadians for this new agenda. But the old Canada is still there. It will fight back. It may yet win.

The situation certainly would have been more encouraging had Carney not inherited Justin Trudeau’s legacy of severe economic and environmental restrictions—picking economic winners and losers rather than letting the market decide—and chronic deficits. The new prime minister would do well to dismantle as much of that legacy as he can.

Some advocate a return to the more laissez-faire approach of Stephen Harper’s government. But Harper didn’t confront a belligerent president hoping to annex Canada through the “economic force” of tariff walls.

The prime minister succeeded in getting Bill C-5, which is intended to weaken at least some of the restrictions on resource development and infrastructure, passed into law. He and the premiers pledge to finally dismantle generations of internal trade and labour mobility barriers. If we must trade less with the Americans, we can at least learn to trade with ourselves.

And the prime minister deserves high praise for reversing decades of military decline through increased spending and efforts to improve procurement. If Carney accomplishes nothing more than restoring Canada’s defences, especially in the Arctic, he will be well remembered.

That said, major challenges confront the Carney agenda.

There’s much talk about a new national energy corridor. But what does that mean? One KPMG executive defined it as a “dedicated, streamlined pathway for the energy, electricity, decarbonization, transportation and digital infrastructure.”

Yes, but what does that mean?

Whatever it means, some First Nations will oppose it tooth-and-nail. Not all of them, mind you. The First Nations Major Project Coalition is dedicated to assisting First Nations in working with government and the private sector for the benefit of all. But many First Nations people consider resource development further exploitation of their ancestral lands by a colonizing power. At the first major proposal to which they do not buy in, they will take the government to court.

What investor will be willing to commit to a project that could be blocked for years as First Nations and Ottawa fight it out all the way to the Supreme Court?

The prime minister, formerly a fervent advocate of combatting climate change, now talks about developing “conventional energy,” which means oil and gas pipelines. But environmental activists will fiercely oppose those pipelines.

There is so much that could go wrong. Sweep away those internal trade barriers? Some premiers will resist. Accelerate housing development? Some mayors will resist. Expand exports to Europe and Asia? Some businesses and entrepreneurs will say it’s not worth the risk.

As for the massive increase in defence spending, where will the money come from? What will be next year’s deficit? What will be the deficit’s impact on inflation, interest rates and sovereign creditworthiness? The obstacles are high enough to make anyone wonder how much, if any, of the government’s platform will be realized. But other factors are at work as well, factors that were also present in 1939.

To execute his mandate, Carney is surrounding himself with what, back in the Second World War, were called “dollar a year men”—executives who came to Ottawa from the private sector to mobilize the economy for wartime.

In Carney’s case he has brought in Marc-André Blanchard as chief of staff and Michael Sabia as clerk of the privy council. Both are highly experienced in government and the private sector. Both are taking very large pay cuts because, presumably, they understand the gravity of the times and believe in the prime minister’s plans.

Most important, Carney’s agenda has broad support from a public that fears for the country’s future and will have little patience toward any group seeking to block the prime minister’s agenda.

Millions of Canadians want this government’s reform efforts to succeed. Those who would put it at risk of failing will have to contend with public anger. That gives Carney a shot at making real change.

John Ibbitson

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