Senator Tannas: Thank you. I don’t know how far back we have to go. But you’re right, this had its beginnings a long time ago. It seems there is an issue of fairness and there are multiple parties involved. We are doing something that I don’t think has ever been done. We have extinguished what is a constitutional right of somebody. We’ve not only done that but made it retroactive.

We need to get this in front of a committee. We have an excellent Legal Affairs Committee. I think they could do this justice in short order and make it clear to folks like me what exactly it is we’re doing and why, so I can vote with a clear conscience.

Senator Tannas: Actually, I’ll put a date a little sooner than that, just because I think there is an intention to pull the rights of Canadian Pacific away before this court case happens. I don’t see any other explanation for it than that.

If that’s what we’re being asked to do, we should not foreclose that by saying we’re going to wait six months. We should deal with it in a forthright and expeditious manner and get the facts before us here so we can make the decision.

Hon. Scott Tannas moved:

That, pursuant to rule 5-7(b), the question under debate be referred to the Standing Senate Committee on Legal and Constitutional Affairs for examination and report; and

That the committee submit its final report no later than March 31, 2022.

Senator Tannas: I will, any and all.

Senator Tannas: Yes, for the reasons I just said, that’s a great question. Whatever we do here, particularly if we pass this motion, I’m convinced that we will be asked to pass the same motion from Manitoba and from Alberta. We will have, I think, morally foreclosed our ability to look critically at those requests when we’ve waved the first one through. So I think it’s equally important that we have a look at this.

Let me just say that I think we need to do it — I’m going to join the chorus. We need to do it quickly. This is not a stalling tactic. I think we need to do our homework quickly and efficiently and get to the bottom of it and have the facts presented to senators, continue our good debate and then make a decision. Thank you.

Senator Tannas: I feel lucky that I don’t have to answer for the Government of Alberta.

This has been a really interesting piece of news. I didn’t realize that this existed — that there was a perpetual tax break for Canadian Pacific as it relates to the operation of their railroad in Manitoba, Alberta and Saskatchewan, which were not provinces at the time the deal was struck. I think that’s why they were stuck with this.

So I can’t say why it hasn’t been more of a news story. It was news to me, and I thought it was interesting news.

Senator Tannas: Yes.

Senator Tannas: When I said “listless,” I think there were members from different sides who were talking about their hesitation on this.

There is a political element to this that I think we need to recognize in the unanimous motions that went through both houses. That’s not supposed to influence us here. So to me, again, it begs us to do our homework even more than if they had done in-depth studies and made those decisions.

You raised another good point, though. How did Saskatchewan, Alberta and Manitoba get hung with this bill? How did they come to shoulder the burden for tax exemptions for the CPR? What role did the federal government play in this?

The Canadian Pacific Railway line from coast to coast is a benefit to all Canadians. Why are those three provinces the only ones where this right exists?

Is there some obligation or role that might rightly be put to the federal government? That’s an interesting question for our committee to delve into as well. It might not get answers, and we’re certainly not going to bind the Canadian government to anything.

Again, there are so many questions that deserve an answer before we have a vote.

Hon. Scott Tannas: I’m happy to rise to speak on Motion No. 14. I’ve listened to the speeches that were made and some of the questions. For me, they raised a number of questions, and the following questions are just a sample.

I wonder: Are governments really this enthusiastic about unilaterally and retroactively taking away the rights of an organization that negotiated these rights in good faith and shouldered the risk and the obligations that were detailed on a contract that exists? That was the first question I had as I listened to the speeches. Are we really going to take away some kind of a legal, negotiated, executed right and make it retroactive for 50 years?

I thought maybe I misunderstood, but no, that’s what we’re talking about here, or at least I think we are.

One of the comments or some of the implications were somehow that in 1966, Canadian Pacific gave away or agreed to give away their provincial tax exemption. We must realize that we’re talking about a very small exemption. It applies only to the running of the railroad through the province. It doesn’t apply to any of the other activities that in 1966 Canadian Pacific had. Remember, Canadian Pacific in 1966 had ships, an airline, a chain of hotels, a huge oil and gas company, an enormous real estate company, a coal company and a railway in Canada only.

Did they really, in 1966, give that away? Did it get thrown in with the request around property taxes? If they didn’t, then why are we going back to 1966 in this motion? What is the magic of 1966 if it’s clear somewhere else, possibly clear in a court decision, that they did not give up provincial taxes? I don’t understand it. It’s a question that I think we should try to find an answer to.

The other one was that, as I was listening to the speakers, Senator Gold, Senator Cotter and Senator Arnot, they all mentioned in their speeches that we needed to deal with this quickly, with alacrity; it should be passed quickly, and I wondered why. Why was there a rush after 150-some years? Why suddenly did this have to happen quickly?

If you go back and look at Hansard, “quickly” and “with alacrity” were mentioned multiple times with no explanation as to why. So what was that about?

I wanted to know how much due diligence had been done in the other places. I haven’t done much due diligence, but it was interesting to know that the Saskatchewan legislature debated this for four minutes and 30 seconds. The House of Commons had an opposition day on it with some kind of listless debate that appeared like there was uncomfortableness but it was a foregone conclusion. I don’t believe it went to committee but I’m not sure. I didn’t get a good feeling, when I took a cursory look at the due diligence path behind us, that there was a lot of transparent due diligence by legislators.

I also wondered about precedence and what precedents we might be setting with this particular motion, as I understand it, and I’m not 100% clear that I do understand it. I do know that Canadian Pacific has a similar set of rights and obligations in the province of Alberta and in the province of Manitoba. So I suspect that whatever it is we do here, if we pass this, I think we will be obligated when Alberta comes and Manitoba comes to do the same thing.

Senator Tannas: This could be exactly what we need to do. I’m not saying it isn’t. But there is more to this than meets the eye, in my view.

This issue of precedent is interesting. So if we do what I think we’re going to do with this motion, we can expect Alberta and Manitoba here in relatively short order. If we somehow discover that we didn’t do our due diligence and we made a mistake by waving this through, we will get to repeat that mistake twice more because we will have made it now.

There is also the issue of — there was a little bit of this in some of the speeches — the precedent that what if this were an organization that was a little bit more virtuous than Canadian Pacific? What if it were a minority group that was about to win a $50-billion award in a province that the province couldn’t afford or didn’t want to pay or there was public — are we actually 100% clear on all of these questions such that we can just do it with a few words here in the chamber, like has been done in other chambers, and whistle it through? Is that why we are the last guys, because we should just follow along? I don’t think that’s what our job is. I don’t believe it’s what our job is.

So these were my questions. I did a little bit of research. I’m not a great researcher and I did it myself. But I would say, colleagues, that I am absolutely convinced that before we do something, we should do a little bit more due diligence ourselves. I don’t know that it will change the outcome. I don’t think that’s the point.

I think that we should do our homework here, though. I really believe that. And we should have all of us, all senators, make the decision on this particular motion with our eyes wide open and understanding exactly what it is we are doing and why.

Senator Tannas: I think that’s a role we potentially could play in bringing all of this to light. With the parties retreated to their corners, and if we bring them together, maybe a solution with the hammer still in the hand of the Senate — there may be something that can be done over the next little while.

I think it’s worth the discussion and us getting educated and taking this matter seriously. I agree that it was a fundamental unfairness that happened when those provinces were formed.

On the other hand, there’s a great, wonderful story of Canadian Pacific to be told there — the fact that for their 25 million acres of land there were parcels side by side that the federal government took and used to sell and generate money for the treasury and populate the country. It was, no thanks to Pierre Berton, a wonderful story of an organization that got done what others couldn’t get done and helped us fulfill the national dream.

I think we owe it to everybody to try to fix this without a sledgehammer as crude as we have here.

Senator Tannas: No, I’m not bothered by it. We have a job to do. We could pass everything that came here unanimously or that came through other legislatures, with our apologies for being in the way, if that’s what you think we ought to do.

We need to do our due diligence. Quite frankly, this has turned into something that is a little more complicated than was presented to us. I would also say the unanimity, and the lack of debate and research in the other legislatures, create a flashing red light — not a green light for us to do the same. It should be encouragement for us to actually perform sober second thought rather than wave it through. Therefore, no, I’m not at all troubled by us taking the time.

There are two elements to your question. One is whether we would be showing disrespect to the House of Commons or the Legislative Assembly of Saskatchewan by holding committee meetings and trying to get to the facts so we can have an informed vote. I don’t think that’s the case.

Regarding the time issue, my motion is for March 31. In that time frame, I believe there are three weeks of sitting time for study by the Legal Committee, which I don’t think is seized with any legislation right now; I could be wrong. That should be plenty of time to get to the facts. I think they can be garnered with a relatively small number of witnesses.

As far as timing goes, the fact is that the rush about this, as I’ve come to understand — and I might be wrong — is that Saskatchewan and Canadian Pacific have their final arguments in court set for sometime in May and that we’re being asked to do this because there is some calculation that Saskatchewan will lose this lawsuit, so we must take the legal rights away from Canadian Pacific before the judge rules.

So now that we all know that — or at least I think I know that; maybe the committee will tell me that’s wrong — and if those are the facts in the case, I think we have time to go to March 31 and do the deed if it needs to be done in April. That would be well ahead of final arguments and a decision by the judge.

Senator Tannas: I agree. That is an interesting twist to all of this; that the initial lawsuit that CP put forward to try and assert what they believed were their rights with respect to federal taxes, they lost. Part of that decision where they lost has given rise to the fact that that court, as I see it, provided a lot of light for CP to then go to the next step to assert their rights in the provinces, and in particular in the provinces of Saskatchewan, Alberta and Manitoba.

The federal government seems to have their fingerprints in different spots all over this, including this famous 1966 agreement that was done on behalf of the provinces. Frankly, the best result, rather than asking legislatures to yank, retroactively, legal contracts out from under parties, would be for the federal government to work toward solving this problem in a way that didn’t involve the courts. I guess they’ve had 100 years or so to do that and haven’t done it. It is an interesting element to this.

Senator Simons, me and others, we did a bit of research — and I know you’ve done a lot of research — but in the bit of research I did, I felt there was a story that needed to be clear in all of our minds when we do this, especially because I’m sure we’re going to be asked twice more to do the same thing.

Senator Tannas: We did hear about a large number here in debate and in the bit of work that I was able to do. That certainly appears to be the high side of things. The Federal Court, as I understand it, is a lot narrower. Nonetheless, it is still $100 million or something like that. It’s a lot less, but it’s a lot of money and there is still the issue of going forward. This has to stop. It should. By the way, so should Canadian Pacific’s obligations. They have obligations in perpetuity as well. The Saskatchewan legislature, I don’t think, thought to relieve Saskatchewan of that obligation that’s in the contract, but they do have an obligation to operate a railroad across the country in perpetuity.

Who knows? One hundred years from now, that might not be a good bet, but that’s for another day. The point is that there was this money issue. Just in the little bit of work I did, I agree, Senator Dalphond, that the numbers I heard from other sources, other than what I heard in the chamber here, are significantly less.