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86 LEXPERT MAGAZINE | NOVEMBER/DECEMBER 2016 | IN-HOUSE ADVISOR: INTERPROVINCIAL TRADE | e province has appealed, and some ob- servers suggest the case could make its way to the Supreme Court. Depending on the outcome, that could do more to smash the brick walls blocking interprovincial trade than the proclamation by 13 wide-smiling premiers in Whitehorse that they'd signed an agreement in principle on a new Canada Free Trade Agreement (CFTA). e an- nouncement was accompanied by plenty of hype. Every premier, it seemed, expressed a bone-deep belief in the benefits of internal free trade to Canada's economy. For in-house advisors in sectors most affected by the morass of current interpro- vincial trade barriers — the construction, beer, wine, dairy and trucking industries to name the most obvious — the 190-word statement issued by the premiers gives scant guidance on how to prepare for this supposedly barrier-free future. About all it gave us was this: "Unlike the previous AIT [Agreement on Interprovincial Trade], this agreement will be based on a 'negative list' approach, where all government measures would automatically be skewed towards free trade unless specifically excluded." e AIT approach was exactly the oppo- site: provinces could essentially maintain existing and protective trade barriers across the board except in a handful of industries or situations specifically exempt from such protection under the agreement. e re- sult, says Gordon LaFortune, who has rep- resented the Canadian Vintners Associa- tion (CVA) in trade and other matters over the past decade, are differing regulations in each province for the still protected indus- tries that are "a dog's breakfast." Details of the CFTA deal, including that all-important "negative list," were sup- posed to be released this fall. But there's no guarantee the CFTA will be ratified. Still, LaFortune, a trade lawyer and partner in the Ottawa firm Woods La- Fortune LLP, who emphasized he wasn't speaking to Lexpert on behalf of the CVA, isn't convinced internal trade is as com- plicated and prohibitive as critics say. "In terms of the [AIT] I don't know that we are overwhelmed with internal barriers to trade. …. Most goods move freely. Alco- holic beverages don't because of historical circumstances. We have federal/provincial agreements in place to support supply man- agement that limit your ability to produce poultry, dairy and eggs ... in different parts of the country. But no one is going to over- turn that. Most other products, so long as you can show they meet federal standards, can move freely." Heard it all before For Ottawa-based Michael Atkinson, Pres- ident of the Canadian Construction Asso- ciation (CCA), the Whitehorse agreement echoes hollow promises made in 1994 when the provinces signed the AIT. at agreement has been widely disparaged as ineffective in tearing down the many walls inhibiting interprovincial trade. Atkinson, who holds a law degree and sometimes acts as in-house counsel for the CCA, which represents more than 20,000 member firms, has little optimism the CFTA will be any better than the AIT has been for the construction industry. With- out the federal government's involvement in upholding the free-trade mantra, what leverage is there to nudge the provinces to make meaningful changes? "e provinces," Atkinson says, "have no constitutional right to demand a seat at the table with respect to interprovincial trade. at is the solid jurisdiction of the federal government under the Constitution." And while he's fine with the feds seeking the provinces' opinions on trade, "at the end of the day the federal government must be the decision maker, must be a leader. Not a referee." But considering Prime Minister Justin Trudeau's calls to fight global anti-trade sentiments and protectionism at the G20 Summit in China in September, his gov- ernment has stood back to let the provinces haggle over interprovincial trade problems on their own. When the Agreement on Interprovin- cial Trade came into force on July 1, 1995, it contained conditions meant to prevent new trade barriers between provinces and start reducing remaining ones. e AIT calls for equivalent treatment by all Cana- dian governments for goods and services, although it makes exceptions for some sec- tors such as transportation, labour mobil- ity, agricultural products, government pro- BRIAN CROWLEY > MACDONALD-LAURIER INSTITUTE I am gobsmacked that successive fed governments have just waved this away. … The Constitution is signalling in every way it possibly can that the intention was to create a national, unified economic base, and that Ottawa is the guardian of that base.