Sunday, October 30, 2016

Deceptive by definition

The Saskatchewan Party's introduction of new legislation (Bill 40, PDF) to define massive Crown sell-offs as not being "privatization" has received plenty of due attention. But it's worth taking a close look at exactly what the Wall government is doing - and how it reflects an attempt to sneak the change through the back door for no obvious reason.

Let's start by taking a look at the Crown Corporations Public Ownership Act, which sets out two specific process requirements for legislative changes. One section of the CCPOA covers the privatization of a Crown (section 4), requiring a set of consultations including a provincial election between the announcement of an intention to privatize and an actual privatization. The other covers amendments to its own terms (section 5), and involves an increased level of public participation compared to other legislation.

The CCPOA also offers a hint as to what's considered privatization within its terms:
6  Nothing in this Act is to be construed as preventing or restricting a Crown corporation from carrying out operations, including selling, exchanging or otherwise disposing of its property, in the ordinary course of its business.
So for a Crown to carry on business as usual doesn't trigger a consultation requirement under the CCPOA. But the selling off of a Crown in whole or in part outside the ordinary course of business is intended to be included - barring some amendment to existing legislation.

To be clear, a definition could likely be added to the CCPOA itself using the consultation process set out under section 5. And that's effectively what the Wall government has done in introducing Bill 1 (PDF), which is intended to remove the Saskatchewan Liquor and Gaming Authority from the scope of the CCPOA.

Not to say there aren't some severe problems with Bill 1. (And indeed, there's all the more reason to be suspicious of the Sask Party's plans for SLGA if it pushes through Bill 1 while also trying to pass legislation which would remove its liquor retail plans from the definition of privatization.) But it at least doesn't attempt a blatant procedural end-run around the CCPOA's consultation requirements.

In contrast, the effect of Bill 40 is to add a definition of "privatize" to the Interpretation Act, 1995 - which would affect the interpretation of the CCPOA without actually amending the CCPOA.

To see why that should raise red flags, let's compare the new definition to the normal use of the general definition provisions of the Interpretation Act.

For example, section 27(1) of the Interpretation Act - which is intended to be amended by Bill 40 - includes a definition of "person". And it makes sense to have a general definition of that term which can be applied across Saskatchewan's legislation and regulations because it is used frequently and consistently. The word "person" appears in 1,588 different statutes and regulations, and it would be an administrative nightmare to have to amend each of those every time a single word needs to be clarified.

By way of comparison, the word "privatize" appears in exactly one Saskatchewan law. So the effect of Bill 40 is to use a method intended to clarify definitions of general application in order to specifically change the CCPOA alone, while avoiding the CCPOA's consultation requirements for a direct amendment.

That choice makes especially little sense given that the Sask Party actually applied the CCPOA's own amendment process with Bill 1. But it's clear that Wall and company recognize the significance of opening the door to massive Crown selloffs at every stage of ownership other than the one transferring control of an entity - and that they don't want the public having any say in the choice.

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