The Perils of Using Litigation to Win a Political Battle

There were two very interesting stories today involving the use of Courts to achieve a political end.

If the Government won't do it, force an activist Court to make them do it - that will endear the Prime Minister to your cause

Now, I am not an expert, but an important element of using a court to enforce compliance is ensuring that all other available avenues have been exhausted.

WAIT A SECOND - I AM AN EXPERT!!!

It is 2007. The protocol requires reductions based on the 1990 emissions levels between 2008 and 2012. If there has ever been a lawsuit that can't sustain a judicial order this is it. Notwithstanding the ability of the Environmental non-governmental organizations to prognosticate - it might not be ridiculous to suggest that Canada won't meet an obligation under an existing plan, it is ludicrous to initiate a lawsuit seeking an order to meet an obligation the terms of which have yet to expire.

It would be like my bank preemptively suing me for non-payment of my mortgage which doesn't expire for another four years. My favourite part of their application is:

The applicant relies on the following statutory provisions, rules and principles:

e) the precautionary, intergenerational equity and public trust principles;

I am sorry, were these added as important aspects of the Rule of Law while I was napping in Law School?

I admire their initiative - I really do - but you can't use international treaties like contracts. Issue Estoppel doesn't apply to reductions which could, theoretically, still happen.

Oh, and in terms of the expected result, if I was the judge, my judgement would still be rooted in the Clean Development Mechanisms of the Accord. Their application makes no mention of it.

Sadly, it isn't only ENGOs who don't understand how courts work:

I am gonna sue you!

I don't understand why a man who has constantly assailed activist judges is going to sue Nova Scotia and Newfoundland to make them "shut up" or expects such a positive result that he is inviting them to sue the federal government.

As it relates to his action - on the one hand, where is he going to do it? Newfoundland Supreme Court? I can't imagine the PM would get a fair trial these days - the judgement would likely be "Let Danny be Danny." On the other hand - on what grounds? The "Waaaaaah- they won't leave me alone" provisions of the Atlantic accord which he is violation of? If he is right, he doesn't have any recourse beyond the political battle that he is winning in seven of the ten provinces. If he is wrong, the correct response is "fuck you, I'm right."

Now, his suggestion that the Premiers' sue him is an entirely different kettle of kelp. The question of whether or not the Atlantic Accord is a contract is a subject matter I happen to have a little familiarity with. If it was a contract, it was most assuredly broken by the Prime Minister's resource revenue recalibration under Budget 2007 - so, he is inviting Newfoundland and Nova Scotia to sue for the strict enforcement of a contract he is obviously in violation of? DOOO-EY!!! DOOO-EY!!!

On the other hand, if the accord is a political arrangement, based on the 2005 agreement signed between then Prime Minister Martin, the federal Minister of Natural Resources and the Provinces, on what grounds do the provinces initiate their suit? Promissory Estoppel?

I sincerely hope that the rest of the country can see just how ridiculous this issue is. Danny's gripe is political. It always has been. He says Steve promised. Rodney thinks he can have either the budget or the accord, and wants to choose the accord. They should continue to fight these battles on National, or local, television. They will simultaneously win the local battle and lose the national war.

Now, back in the real world - offshore natural resources are not specifically considered in the constitution, and the respective positions of the federal government and the provincial governments are equally stupid. My view on the issue is that both orders should work with each other and come up with a solution that makes EVERYONE rich.

Both Premiers claim that they were wronged by the budget. Maybe they were- so what? My view on equalization is REALLY simple. If we are forced to have equalization - we should take every nickel of tax revenue - put it into a pot and then divide it by the number of people in the country. Assign it equally. Side deal carve outs for any province whose infrastructure was paid for by everyone else equally are ridiculous. What Danny and Rodney are complaining about is similar to raising the "personal exemption" to income taxes to a higher level for their provinces.

Would my idea encourage provinces to lower their taxes and compete internally for investment dollars knowing that other jurisdiction tax dollars would flow back into their province under the one man, one dollar formula? Absolutely.

The only actual issue as it relates to offshore revenue is that Danny (personally, not as the Premier, PERSONALLY) is a barrier to investment in the province's infrastructure by private industry who have money to invest. They think he is totally insane- and they are probably right.

For every nickel he thinks he is being screwed out of by Harper, he is screwing himself out of a dollar from offshore developers who are realistically looking at St. Pierre (or even London England) as a home base for their on shore offices. Calgary is also of the view that it isn't worth investing anything in the area because of the...instability of the regime.

Danny can hoot and holler all he wants - and notwithstanding his popularity - there is no constitutional validity whatsoever to his view that offshore licensing are subject to any type of provincial controls. Even if it fell squarely under 92, and even if the Atlantic Accord specifically excluded resource revenue in the various calculations, what he doesn't seem to understand is that once you get the black junk out of the bottom of the ocean, it has to be refined and shipped from somewhere. Even if they could do it from Hibernia(s) or the White Rose (they are massive faclities, afterall), the on-shore infrastructure is where it is at. Danny remains the biggest disincentive to MASSIVE offshore investment right now because he thinks he can take a skim off the top for the province.

Not only is he wrong, he is doing his province a dis-service - he is complaining that revenue that will NEVER EXIST (unless he starts to play nice with the oil companies) aren't being excluded from the equalization process. He should focus on getting the revenue flowing, then complain on how much of it he has to share.