Little point in braying about Ottawa’s offshore drilling ban

Between fracking for gas and development in the Peel, it seems that we Yukoners spend a lot of time these days discussing potential future projects that are unlikely to actually happen any time soon.

Between fracking for gas and development in the Peel, it seems that we Yukoners spend a lot of time these days discussing potential future projects that are unlikely to actually happen any time soon.

The Trudeau government gave us another hypothetical to discuss recently when it announced a ban on drilling in the Arctic — a move that apparently came without any consultation with the territorial governments.

Our new premier’s response to this exercise in unilateralism was somewhat muted — a relative silence that drew some criticism from the Opposition and some commentators.

My own view is that Sandy Silver’s measured response wisely conserved his political capital vis-a-vis Ottawa. We would be better served by maintaining good relations with the feds in the interest of securing more tangible concessions rather than jumping at an opportunity to climb up on our soapbox and scream about a ban that is unlikely to hurt us anyway.

Readers may be wondering how a red-blooded Yukoner could I say such a thing?

Well most importantly, the practical implications of the ban are minimal — and even that may be something of an overstatement.

It should be noted that the “ban” on drilling will be reviewed in five years (which I guess would make it a moratorium, for anyone following the great semantic debate over those terms in the recent territorial election).

What are the odds of anyone serious undertaking any drilling before then? Virtually nil.

At the moment at least it is simply not a feasible location for the development of an oil and gas industry.

No drilling has taken place in the Arctic since 2006 and even then, it was conducted off the coast of the Northwest Territories, not the Yukon.

Michael Byers, a UBC professor who has studied oil and gas in the Arctic, was quoted by the Canadian Press as saying that oil prices would need to return to $150 US per barrel — a level they have historically only flirted with once, very briefly — to make the practice economically feasible. For those keeping track, the price of oil is currently hovering at just over $50 a barrel with very few predicting a return to previous heights in the immediate future.

But what about our sovereignty and territorial self-determination?

I think it is important to bear in mind that jurisdiction over offshore oil and gas development is, for the most part, federal jurisdiction to begin with and this isn’t just a case of Ottawa treating us like some sort of distant territorial colony.

Back in 1968 the Supreme Court of Canada released its landmark reference on offshore mineral rights saying that “it is the sovereign state of Canada that has the right, as between Canada and [in that case] British Columbia, to explore and exploit these lands, and Canada has exclusive legislative jurisdiction in respect of them.” Later decisions added a little bit of murk to the legal landscape but the principle that this is primarily a federal area still stands.

This isn’t to say that the provinces have been completely cut out, but Nova Scotia and Newfoundland and Labrador had to fight long and hard for co-management and revenue sharing with Ottawa over offshore drilling areas. And British Columbia’s coastal waters have existed under an informal federal moratorium since 1972.

What about the Yukon? The law is unequivocally not on our side.

In terms of what ought to be, it is worth noting the lack of connection most Yukoners have with our Arctic coast.

Yes the Arctic Ocean is technically off our northern coast but the overwhelming majority of us live more than 500 kilometres away. Only a handful of this territory’s residents have ever so much as set their eyes on its waters. Our nearest settlement is more than a hundred miles away and its people have their own government — the Vuntut Gwitchin First Nation — which, arguably, ought to have a greater say in the matter than any territorial government in far-away Whitehorse.

Our connection is so weak that I can count several instances where Yukoners forgot we had a coast at all.

And I have one final question for those demanding consultation with territorial governments:

Had Ottawa asked Yukon what its position was on offshore drilling what would the territorial government have even said? Is there anything resembling a territorial consensus on the matter? What mandate would the Yukon government have to express any position at all? The matter of drilling in the Arctic has hardly been on the radar in terms of the political discussion and, frankly, any move by the new Liberal government to either permit or ban the practice would seem to me every bit as unilateral as a move by Ottawa.

So yes, the polite and respectful thing for the federal government to do would have been to at least discuss the matter with our territorial representatives. And we are justified in being mildly irritated at such unilateralism on the part of Ottawa.

But what Ottawa did was indisputably within its legal rights — as likely would have been the case even if we were a province. Given that the ban is temporary and there is little practical detriment to the territory in the medium term, the premier’s decision to opt for diplomacy over grandstanding was, in my view at least, sensible.

Having said all that, if we Yukoners need another hypothetical to debate, perhaps we should spend the next five years in the lead up to the promised “review” of the ban formulating some sort of position so next time Ottawa knows where we stand.

Kyle Carruthers is a born-and-raised Yukoner who lives and practises law in Whitehorse.

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