Woodrow Wilson Center's Canada Institute: A Year of Excellent Events and Publications

Want a primer on key issues impacting the Canada-U.S. bilateral relationship?

Check out the Woodrow Wilson Center's Canada Institute Activities 2012:  A Year in Review, a publication that summarizes and provides links to the Institute's 2012 events and publications.

From links to reports and archived webcasts that cover the Beyond the Border Initiative, discussions with Prime Minister Stephen Harper, and other speakers discussing topics ranging from Canada and America's energy policies and the ongoing Arctic race, this brochure offers links to the issues that define one of the world's most important bilateral relationships.

More On the Other Side of Mapping Out a Canadian Energy Strategy: The Shifting Landscape of Canadian Environmental Regulation

By Keith Edmund White
Editor-in-Chief 

Courtesy of this morning’s Mondaq news-update, we get a view of another challenge to Canada crafting a national energy strategy:  environmental regulation.

On this issue, Dianne Saxe—of the Saxe Law Office and the Environmental Law and Litigation website—offers some excellent analysis* on the three-layered cake of Canadian federalism re:  environmental regulation. 

For a recap of her environmental regulation presentation, I'll just re-post Mondaq's summary:

What happens when municipal bylaws try to control energy or resource projects authorized by the federal or provincial governments? (They have some scope). How far will the Spraytech precedent take them? Can corporations use federal insolvency laws to cleanse themselves of irksome environmental liabilities, such as contaminated sites? (sometimes). These are the type of jurisdictional conflicts that Dianne discussed during her keynote address at last week's Hazmat West Conference in Saskatoon. She also discussed shared responsibilities for waste, as in Enviro West v Copper Mountain Mining.

Here is the presentation: Shared Authority, Shared Risks

The Big Insights:

• Limited, But Still Real, Role in Environmental Regulation.  Municipalities, as political creations of Canada’s provinces, have no constitutional status—so they have limited room to maneuver when it comes to environmental regulation. So, according to Saxe’s presentation, a municipality can’t band fracking through a bylaw, but can probably limit toxic substances especially in certain areas (Presentation Page 8). 
• The New CEAA Scales Back Federal Environmental Assessments.  Federal Environmental Assessments are leaner, faster, and perhaps lesser ‘meaner’? The Harper government in Ottawa reworked the federal government’s role in environment assessment this summer by passing a new Canadian Environmental Assessment Act (CEAA). A May 2012 Ecojustice Legal Backgrounder blasted the new legislation: 

Ecojustice believes that improvements to CEAA are achievable, but not by eviscerating the federal role in environmental assessment, devolving reviews to provincial/territorial governments, and by imposing artificial timelines on a much small number of projects.

• Constitutional Showdown.  There’s a tension between the federal government regulation of bankruptcy (and, from that, the discharge of debt) and the provinces wanting companies to pay for environmental damages. So is letting provinces bill bankrupt companies for environmental clean-up costs counter Canada’s constitutional division of powers? We’ll have to wait and see. (Presentation Pages 29-31; And if you like graphs, check out Saxe's helpful Page 11 Presentation graphic). 
• Sum-Up.  Could the Harper's government-spurred CEAA reform come back to bite them by pushing provinces to step-up their regulation--delaying the energy projects so critical to Canada's near-term economic success?  Maybe.  But, then again, will provinces really step on their own energy futures? 
• *Key Caveat:  And, just in case you don’t see if on the Mondaq page, Saxe's presentation is legal research and analysis—not legal advice. 

Canadians Gaga for Obama on Energy; Americans Not So Much

On energy policy, it turns out Canadians and Americans have very different views of the U.S. presidential candidates.  Given the importance of the U.S.-Canada energy relationship, along with the recent candidate kerfuffle at the second presidential debate when it came to energy policy, this difference seems more than just an interesting polling side-note.

• A recent poll finds U.S. voters support President Obama on energy policy over Governor Romney by a 37% - 28% margin.  But that means 35% of U.S. voters are either unsure or undecided.  (Source:  University of Texas on-line poll of ~2,000 individuals)

• But when you look at Canadians, when asked specifically on which presidential candidate would do more to spur Canadian energy imports, 49% favor Obama, 26% favor Romney, and only 26% of Canadians either not knowing or finding no difference between the candidates.  (Source:  Sept. 29, 2012 Forum Research poll of 1,000 Canadian adults) 

Sure, this difference if just polling fluff, Canadians favoring consistency over change, or--perhaps--just the echo of Canada's more left-leaning political scene.  Or, most likely, the lack of coal being a big issue in the Canada-U.S. energy relationship.

Canada's Parliament Returns From Summer Break: Previewing the 2012 Fall Session

CUSLINexus rounds up assessments of Canada's upcoming fall 2012 parliamentary session.

5 Issues That Will Dominate the Fall Session of Parliament, Kieron Lang, CTV News. CTV News outlines and even offers a video segment on the key issues of Canada’s Fall Parliamentary Session. In short:

(1) Trade. EU and Trans-Pacific Partnership deals will get high priority, along with the government's review of a state-owned Chinese company bid to buy Canadian energy producer Nexen).

(2) Quebec. Will the PQ’s return to power in Quebec prompt another referendum. If so, they’ll be headaches in Quebec City and Ottawa.

(3) Government Contracts. There’s been criticism of how the government is handling non-competitive government contracts its administrating.

(4) Courts.  As many as 4 Canadian Supreme Court justices may step down before Harper’s term is up—talk about legacy-making stuff.

(5) NDP.  Last year, the NDP wowed the Canadian political world with a 2nd-place finish. Then, tragically, its leader—Jack Layton died of prostate cancer. Now the NDP’s new leader, Thomas Mulcair has to define himself and the party that needs to show the Canadian public it can take the reigns of Canada’s government.

 
Hoping for a Changed Tone in Parliament? Don’t Hope Your Breath,  Michael Den Tandt, Times Colonist and The Province. Writing for two leading Vancouver publications, Den Tandt previews the fall session—finding it will be much like the last—and again emphasizes trade and Quebec, but highlights the critical role Ontarian voters will play in the 2015 election:

NDP Leader Tom Mulcair has as yet shown no inclination to back away from his “Dutch disease” theme, which holds that the high Canadian dollar, driven by booming resource revenue, is harming Canadian manufacturing, to the benefit mainly of Alberta and the detriment mainly of the rest of Canada.

That ensures the critical political battleground this fall, and likely for the next three years until election 2015, will be economic, with the NDP and Conservatives vying primarily for hearts and minds in Ontario, in particular in the industrial heartland of the southwest, where most Ontarians live and where the economy still rests on automobile manufacturing.

The Conservatives and New Democrats will co-operate, to the extent that both will seek to sideline the third-place Liberals. The Grits will seek to capitalize on their leadership race, which concludes next spring, to maintain visibility. To that end, look for a Liberal leadership candidate or candidates to emerge with a platform that is aggressively conservative economically and just as aggressively progressive on social issues. All eyes now are on MPs Justin Trudeau and Marc Garneau, who are expected to run but have not yet publicly announced their intentions.

Canada’s MPs Set to Return, More Polarized than Ever, Mark Kennedy, Calgary Herald, seconds the polarization while suspecting the Conservatives will push hard to deliver on their platform:

Moreover, emboldened by the majority power they secured in the May 2011 election, the Tories are intent on using that clout for the remaining three years of their mandate to press ahead with an agenda that includes billions of dollars in government cuts, diminished federal environmental oversight on private-sector energy projects, and cuts to the public pension system for future generations of seniors. All have sparked controversy.

But Harper is not backing down, even as public opinion polls showing the Tories’ popularity has dropped, leaving them in a tie with the NDP.

“We’re putting our foot on the gas,” the prime minister said in early July, explaining that he was sticking with the same cabinet ministers because he wants them to continue with the Tory agenda this autumn.

“I’ve told officials in Ottawa the majority is not time to rest.’’

“I think that one step at a time, I think we’re moving the country in the right direction,’’ said Harper.

A Rough Guide to the Fall Sitting, Aaron Wherry, Macleans, gives us a concise, tongue-in-cheek run-down. One aspect worth mentioning, some other debates that will be gripping Parliament:

Stephen Woodworth’s motion on the legal definition of a human being is due to be debated this month. Conservative MP Rob Clarke wants to overhaul the Indian Act. Conservative MP Russ Hiebert wants to change the rules for financial disclosure by unions. And Pierre Poilievre has mused of making it possible to opt out of paying union dues.

Fallout From Cuts Follow MPs Back to Parliament, Jennifer Ditchburn, Chronicle Herald. This Halifax-based publication focuses on the local--emphasizing constituent concerns over Conservative budget cuts:

The Conservative caucus meets for the first time Monday since Parliament packed up for the summer, but the catching-up chatter won’t all be about cottages and barbecues.

Many MPs have had to cope all season with the fallout from last spring’s budget cuts, some of which hit local services in areas such as train travel, the coast guard and interior waterways.

The lobbying has been going on hard in some cases to try and mitigate the impact of the decisions on constituents.

Quebec Election 2012: The Significance of a CAQ Win

by Keith Edmund White

Yes, the PQ is still leading polls.  But after a reader comment directed me to review the parties' economic platforms, two things became very clear:  (1) the conservative CAQ are definitely in contention and (2) a CAQ government in Quebec would mean big changes to the economic and spending policies coming out of Quebec City.

Quebec Party Platforms

After a reader comment on an earlier post regarding the PQ’s economic platform, I thought readers might appreciate having a few resources on policy positions of Quebec’s three leading political parties: the PQ, the Liberals, and the CAQ.

One can find these parties full platforms at CBC News. (Side-note: to get the PQ’s platform in English, check out this Google-Translate page).

And for those wanting a quick primer, Reuters offers this crib sheet of these parties’ respective economic platforms.

Political Recap: PQ Leads, but CAQ Is on the Rise

The Gazette, a leading Montreal newspaper, offers an excellent report on the dynamics of the 2012 Quebec election. The PQ leads (with around 33%), but is unpopular, and is now shifting its attacks from its Liberal opponents (who have slipped to third place) to the CAQ. Both the Liberals and PQ are polling in the high 20s, but the Liberals are slipping, while the CAQ is on the assent.

The possibility of the CAQ winning a three-way race against the PQ and Liberals is itself a historic and significant development in Quebec politics. As the discussion below of the parties respective platforms will reveal, the CAQ has the opportunity to push a drastically more conservative approach to government spending and taxing in a province where a majority of the voters favor left or center-left on economic policies. Oh, the joys of modified parliamentary systems!

The Economic Politics of Quebec: Left (PQ) vs. the Center-Left (Libs) vs. the Conservative (CAQ) 

Now while I can’t comment on previous governing records in Quebec, the Reuters report allows a few conclusions to be drawn of these parties economic plans. 

1. Balancing the Budget:  All three parties are committed to balancing the province’s budget by 2013-14. 
2. Spending:  The PQ and Liberals favor government spending, but the Liberals’ spending plans are half of those of the PQ. 
3. Taxes:  All three parties are pushing tax increases, but the CAQ’s revenue plans only increase the estate taxes of second homes.  But guess what?  This revenue goes to paying for an income tax cut.

Conclusion

PQ is pushing (by to use American standards) and pretty liberal economic plan, Liberals are pushing what could be viewed as a center-left plan, with the CAQ’s plan that would probably find a lot in common with the Republican economic platform.

And on a final note, I find myself a touch envious that when Quebec voters go to the polls next week, they'll actually know--to a surprising degree of detail--what policies they're voting for.  The U.S. 2012 election, for all the focus on the role of government in the economy, has yet to see either major party lay out any real details on government spending. 

Quebec Election 2012: The (Inward Looking?) PQ Is Back, Liberals Fall, and the Center-Right CAQ Shows Its Staying Power

By Keith Edmund White

For American political junkies bored by the Democratic and Republican conventions, I would recommend tracking Quebec’s provincial election, taking place Sept. 4. Not only is the three-way race close, a center-right party is in striking distance of taking power in Quebec for the first time in modern history.

Admittedly, after four nights of debate, a poll has the Parti Quebecois (PQ)—a party supporting Quebec sovereignty and separation from Canada) in the lead, with 33% of the vote. And this might be the lead story, since 2007 saw support for the PQ implode, and give the party its first third-place finish in decades.

But most dramatic, to me, is the tie between the Liberal Party and the Coalition Avenir Quebec (CAQ)—a new party combining the former conservative Action Democratic Party and parts of the Parti Quebecois, standing at 27% and 28% respectively. Also, of note: the same poll found CAQ leader Francois Legault out-performed his rivals, the PQ’s Jean Pauline Marois and the Liberal’s Jean Charest.

Quebec has been governed by the Liberal Party for the last nine years, and either the Liberals or the PQ have held Quebec's parliament for the last forty years. (Side-note: anyone with a chance to visit Quebec City should really take a tour of the gorgeous parliament building and note the distinct lack of Canadian flags until you enter the near-by Parks Canada Fortifications of Quebec, a national historic site).

Most immediately, the PQ’s rise now has Quebec sovereignty issues grabbing headlines. First, the PQ has found itself twisting over its position on the timing of yet-another referendum on Quebec independence. The issue: whether only a petition of 15% of Quebec’s citizens would trigger a third referendum on independence, or if provincial parliamentary approval would be needed before a referendum took place. The significance: With only 30-40% of Quebec's citizens supporting independence, many voters see focusing on cultural or independence issues—instead of say, focusing on economic issues—not a thrilling prospect.

Second, the PQ is also facing criticism for some pro-sovereignty planks in its platforms. The PQ now wants a French language test for anyone running in provincial or municipal elections and a secularism charter that bans public servants from wearing of “conspicuous” religious symbols.

The National Post probes this inward lurch the PQ, interviewing critics and opponents of the PQ’s platform, gets at two conclusions: (1) demographic changes do show that Montreal may become minority French-speaking within two decades, a troubling development to Quebecers in favor of preserving the city’s French culture; (2) while easily characterized as intolerant, the moves do support PQ’s central goal of independence: (a) both proposals will likely be slapped down the Canadian Supreme Court, making it easy for the PQ to show Quebec doesn’t ‘fit’ into Canada’s federalism and (b) they are measures, if enacted, which could lead to next decade’s young voters pushing a independence reference over 50%.

But more interesting, to me, is the raise of the center-right CAQ. First, it is important to note, that in the 2007 provincial elections, its pre-merger Action Democratic Party finished second, taking advantage of an imploding PQ. But now, even in the face of a reinvigorated PQ party, the newly-minted CAQ is showing that center-rights politics in Quebec aren’t fading fast.

Sympathetic to Quebec’s French identity, the CAQ supports Quebec nationalism, but has promised a moratorium on independence for 10 years. In doing so, it has transformed the election from one between a left-leaning federalist party and left-leaning separatist party, but one that promises either a durable center-right opposition party, or even a possible center-right government in Quebec. In fact, the only thing that seems to be holding the CAQ from getting even more supports are doubts that the CAQ, like the PQ, will push for Quebec’s independence from Canada.

In short, this election matters. Will the PQ hang onto their lead, but then find its return to political power short-lived: with squabbling over a third referendum and court battles robbing it of public support? Will the Liberals hang on, stoking fears that a PQ and CAQ win will focus Quebec politics on independence and culture issues, at the expense of more pressing issues, like the economy and healthcare? Or will the CAQ quash doubts about its commitment to Canadian federalism, and break the left-leaning strangle hold on Quebec politics?

CUSLI 2012 Conference: Concluding Remarks

by Keith Edmund White

Rear Admiral Michael N. Parks:  “Everything we do in the U.S. Coast Guard is Water-Marked By Canada.”

Rear Admiral Michael N. Parks spoke on the importance of the Beyond the Border Initiative (BTB Initiative) builds on Canada and the United State’s strong relationship, and is necessary for the future security and economic development of both countries.  Noting that the robust Canadian-U.S. relationship, dating back to the Ogdensburg Declaration that Prime Minster King and President Franklin Roosevelt announced in 1940, he heralded the BTB Imitative as “exactly the right approach.”

Addressing if, indeed, security will trump trade along the Canada-U.S. border, his answer was:  “it depends.”  The critical question will be whether we balance the security and trade interests correctly.  And to do this there are three principles:  shared priorities, seamless operations, and synchronized priorities.     Starting with synchronized priorities, Rear Admiral Parks noted that the standards Canada and the United States need to have predictable standards to ensure their industries stay competitive.  Furthermore, since our trading relationship depends shared critical infrastructure and environmental concerns, we have already worked together to synchronize priorities.  Parks touted one such example, the agreement on ballast water agreement between Canada and the United States which has stopped new species from endangering the Great Lakes waters.

Then speaking on shared awareness, Parks touted current programs underway that show both countries are sharing information.  His key example:  Marine security operations centers.  But, to build on this success, Parks stated that stakeholders must be incorporated, legal frameworks

And looking at seamless operations, Rear Admiral pointed to Shiprider Program that shows Canada and the United States willing to bring their law enforcement and security personnel together in performing their services on the border.  Parks then went over that the next step is to bring this on the land:  with customs and inspections. 

But we must admit, Parks continued, that security and trade are competing principles.  The trucking community’s number one concern is wait times, not risk management.  But this doesn’t mean that current interests aren’t there:  a security threat can dispute trade.

Hence, the question becomes how we balance “these two imperative principles.”  And this is done by finding common interests to transform differences into commonalities.    Parks then gave examples of what has been done and what can be done.  Parks stressed that the Coast Guard Ninth District’s lawyers are delving through both countries regulations to harmonize regulations which both improve security and enhance trade.  A key example to works towards for the future:  a one-stop shop for security inspections in Montreal for U.S.-Canada merchant fleets.  There’s also a proposal to have a Canadian representative in the 9^th district to foster cross-border cooperation.  And the Coast Guard is pursuing a binational risk assessment approach so that Canada and the United States can focus on high-risk ships, therefore cutting down on shipping delays for low-risk vessels.   

Parks concluded that the BTB Initiative is “a call for action” from Prime Minster Harper and President Barack Obama to make the smart security regulations that both protect each nation and enhance trade.  And when it comes to the Great Lakes region, booming with trade and one of the world’s greatest bodies of fresh water, he made clear that he will continue to work towards a prosperous and secure U.S.-Canada relationship.

CUSLI 2012 Conference: Henry T. King Award Presentation to Sidney I. Picker

by Keith Edmund White

The 2012 Henry T. King award was presented to Sidney I. Picker, Professor Emeritus of Case Western Reserve University and founder of the Canada-United States Law Institute (CUSLI).  Professor Lewis Katz, Case Western Reserve University's LLM in U.S. and Global Legal Studies Program Director, accepted the award on behalf of Picker and delivered remarks on his behalf.

"How nice to get an award from one's own imagination, years later."

Professor Lewis Katz delivered warm words of congratulations, shared the history of CUSLI to a new generations, and pushes CUSLI to remain as meaningful in the 21st century as the 20th century as we accepted the Henry T. King Award on behalf of Sidney Picker.  The award 

Among some of the many highlights of Katz's speech, was reminding the audience of Sidney Picker's numerous accomplishments:

• Picker founded CUSLI after being asked to set up two presentations for the American Society of International Law in 1973 and 1974.  Picker focused both events on the Canadian-American relationship, and from that saw the need for a organization dedicated to exploring this relationship.
• Picker guided Case Western's highly regarded international law journal during its infancy. 
• Picker was instrumental to bringing former Nuremberg prosecutor, international trade lawyer, chief counsel for the Marshall Plan, and leader in bringing Canada and the United States closer together to Case Western Reserve University, first as an adjunct professor and then full professor.
•  Most importantly, during his 30 plus years as a professor, Picker would spend 20 minutes to 12 hours with his students to help them both understand materials and guide them in their future careers.

In conclusion, Professor Katz brought a message from Sidney:  

He [Picker] does not think CUSLI should replicate what he did when he was its director.  It was created in 1975 to add. Issues as seen then, he is happy to pass the torch to a new generation of CUSLI to develop any programs that are appropriate for more modern times.  He prods the two law schools and the advisory board to serve as that new new generation of caretakers [to keep CUSLI as relevant today as it was throughout the 20th century]. 

All in all, an excellent speech--especially for someone "who doesn't, and still doesn't, believe in international law."

Finally, for those who wish to further support Henry T. King's vision of strengthened ties between Canada and the United States, please email cusli@case.edu about supporting the Henry T. King Endowment that is currently providing financial support for American law students in work in Canadian legal positions.

2012 Niagara International Moot Court Results

by Keith Edmund White

As promised, the results of the 2012 Niagara Competition are below. Congratulations to all the winners, and thank you for all the competitors that made this competition so successful. Furthermore, any competitors with photos or other memories of the competition, shoot your experiences to cuslinexus@gmail.com. And as a competitor myself, who was horrible at networking with everyone, feel free to leave a comment to say hi (or any corrections to the list).

Niagara Cup Winner

University of Windsor

Memorial Awards*

Best Applicant Memorial 

University of Western Ontario (6)

Best Respondent Memorial

Creighton University 

Runner-Up Applicant Memorials

Queens Faculty of Law (4) and University of Pittsburgh (5)

Runner-Up Respondent Memorial

American University (17)

Individual Oralist Awards

Best Advocate

Gregory Graham, University of Pittsburgh

Runner-Up Advocates

Paul Allen, Creighton, and Alicia Roberts, Pittsburgh University

Third Place

Stacy Edwards, American University

Fourth Place

Reshma Sambre, Michigan State University

Fifth Place

Evgeny Krasnov, Hofstra University School of Law

Team Oralist Awards

Best Applicant

American University 

Best Respondent

University of Pittsburgh

Henry T. King Award

Michigan State University

Team Standings

Niagara Cup Runner-Up – University of Western Ontario

Semifinalists – Creighton University and Michigan State University

Quarterfinalists – American University, Case Western Reserve University, University of Pittsburgh, University of the Pacific McGeorge

*Team briefs can be found online here. They are labeled by team numbers which is the number in the parentheses. Creighton--I'm still looking for your number, it will be updated shortly. Furthermore, please send requests to take down any names to cuslinexus@gmail.com.