This paper is so bad, its obvious weaknesses should speak for itself. However, perhaps to save some readers the time and the pain, I will parse through a number of the errors made by @Gerard_Lucyshyn which ought to have resulted in this work never being released.

1/ https://twitter.com/frontiercentre/status/1189573385468207104

First of all, the @FrontierCentre paper considers whether access to the sea (or tidewater as used in the paper) is a right, referencing international law. In particular, the paper wrongly cites the 1966 UN Conference on Transit Trade of Land-locked Countries.

2/

Canada is not a signatory to it, and thus none of the obligations contained in it apply to Canada. However, Canada *has* ratified the UN Convention on the Law of the Sea (UNCLOS). Part X of UNCLOS deals with the right of access of land-locked states to and from the sea.

3/

I have already covered at a high-level that the “freedom of access” guaranteed under UNCLOS is a highly qualified one and does not suggest that an independent AB and/or SK would have better access. See the embedded thread.

https://twitter.com/tim4hire/status/1189246597898657795?s=21

4/

This, however, applies only if AB and/or SK were to secede. International law does not apply when determining the rights of a sub-sovereign body vis-a-vis its sovereign parent. That question is wholly settled by domestic constitutional law.

5/

Interprovincial pipelines are, constitutionally, under federal jurisdiction. The federal government ultimately decides on whether or not to approve those pipelines if they are in the national interest.

6/

The interests of a province naturally play into a determination of what the national interest is, but there are times when they will not be perfectly aligned. In the case of pipelines to the BC coast, for example, the pipelines can provide clear economic benefit to AB.

7/

The benefits to BC, however, are, at best, less clear. There are environmental risks associated with pipeline construction and operation, and the economic returns to BC may be much lower than the risks to that province.

8/

It is precisely for these reasons that interprovincial pipelines *are* federal jurisdiction. Only the federal government can weigh the competing interests of the provinces and make a decision as to what is, or is not, in the overall interests of Canada.

9/

So, the problem is not that AB and SK lack coastal access. The problem is that the benefits and disadvantages associated with pipelines are not evenly shared across the country, which means that sometimes a project favoured by AB may not always be in the national interest.

10/

To get pipelines approved, then, proponents must show how the project would benefit Canada as a whole. Note that this can be done by taking steps to address some of the concerns of the pipeline (such as design/engineering/operational elements to reduce environmental risks).

11/

Even if AB had direct coastal access, it would need to show a national benefit. The intraprovincial pipeline can very well end up being within provincial jurisdiction, and so not need a federal approval. The export terminal is federal jurisdiction, though.

12/

There is then a discussion of riparian water rights. These rights are common law rights and can (and have often been) superseded by legislation. While some riparian rights have been preserved and codified by relevant provincial and federal laws, others have been abrogated.

13/

Riparian rights only accrue to property bordering a body of water (lake, river, etc). To suggest that AB or SK is disadvantaged because it lacks a border to sea water is bizarre. Most Canadians would fall in a worse boat (so to speak) as we don’t own any waterfront at all.

14/

The discussion of economic rights is equally bizarre. As noted by the author, the 1982 amendments to the Constitution Act, 1867 confirmed provincial control over the development of non-renewable resources within their borders. This largely settles the entire discussion.

15/

However, @Gerard_Lucyshyn then contradicts himself by first noting that interprovincial trade is federally regulated but then claiming that provincial approval is needed for AB or SK to access the sea. As noted in the above tweets, interprovincial pipelines are federal.

16/

There is also a long and possibly interesting historical discussion of the development of the provincial boundaries that exist today. All of them, except the formation of Nunavut (which is a particular and unique case), pre-date 1982. This is somewhat critical.

17/

The Constitution Act, 1982 set out, inter alia, how certain changes to the constitution of Canada could be amended. This includes any changes to the borders of a province. The relevant provision is section 43.

18/

It is absolutely clear that any change to the borders of the provinces along the lines proposed by the @FrontierCentre paper would require the consent of the legislatures of BC and MB in addition to that of both Houses of Parliament.

19/

Yet @Gerard_Lucyshyn completely ignores this point. There is absolutely NO mention of this requirement, much less why the provinces that would cede territory to AB and SK would agree, or how their opposition to such a proposal would be overcome.

This is beyond a fatal flaw.

20/

Even were this impossible event to happen, @Gerard_Lucyshyn also fails to discuss how this would resolve the provinces’ perceived grievances over the difficulty of accessing the coast. AB would gain the port city of Prince Rupert, which is covered by the tanker moratorium.

21/

SK would gain access to Hudson’s Bay, although perhaps not to Churchill. Regardless, any port on the Bay is not currently accessible year-round. There would be the additional concerns of shipping in the environmentally sensitive and navigationally challenging north.

22/

There is also a dearth of infrastructure for shipping the relevant resources to those two coasts. Albertans well know that the Northern Gateway Pipeline was not approved. Similarly, there is no link to Hudson’s Bay to SK going through the land proposed to be transferred.

23/

Provinces, just as the federal government, are subject to the duty to consult Indigenous peoples regarding proposed Crown conduct. A proposed intraprovincial pipeline to this hypothetical Prince Rupert, AB would trigger that duty, just as the NGP proposal did.

24/

AB would have to engage in meaningful consultations with every single First Nation that had any claim to title or Aboriginal rights that could be affected by the proposed pipeline. Based on those consultations, reasonable accommodations would need to be made.

25/

It is not sufficient that even the vast majority of affected First Nations consent to a project. Each Nation only speaks for itself; if any one Nation has not been adequately consulted and reasonably accommodated, the project will be halted by the courts.

26/

As NGP has shown, a pipeline project to Prince Rupert is particularly challenging, in part due to the environmentally sensitive and culturally/spiritually important lands traversed and the higher risks associated with shipping from that port.

27/

In addition, there are overlapping claims by Indigenous peoples covering all of that territory, including some very strong claims for land. The interests and concerns of these Indigenous peoples naturally vary from nation to nation.

28/

The rights that these Indigenous peoples are protecting are grounded in section 35 of the Constitution Act, 1982. These rights cannot be overridden by any federal or provincial law, and the notwithstanding clause cannot be used to limit them. This is a serious legal issue.

29/

Yet, @Gerard_Lucyshyn does not mention this at all. One cannot simply ignore a fundamental constitutional challenge that must be overcome when that challenge is directly relevant to the paper.

It is another flaw that is beyond fatal to the paper.

30/

In short, this @FrontierCentre research paper by @Gerard_Lucyshyn has one and only one particular use: it is a good example for professors to show to their students on the type of research paper that would get a failing grade at even an undergraduate level.

/fin