Newfoundland & Labrador's plan to challenge the equalization formula is dead on announcement, don't fall for it

The government of Newfoundland & Labrador has announced its intentions to launch constitutional litigation against the federal equalization formula. Allow me to be blunt: the lawsuit has no chance in hell.

As described in the CBC story (linked above), the basis for the lawsuit is apparently that the province doesn’t think the formula treats it fairly, and that it should be entitled to hundreds of millions of extra dollars. Premier Andrew Furey had previously complained to the feds that “the formula does not account for the challenges that Newfoundland and Labrador has serving a small population over a vast terrain.”

The problem is that there is no specific, constitutionally-required formula. The constitution only commits the federal government to the principle of delivering equalization. It plainly does so. Equalization is a federal program, and the federal Parliament gets to determine how it works. There is no constitutional basis for this challenge, it simply has no leg to stand on.

This is only the latest in what has become a long line of rather pathetic provincial stunts in recent years. From Alberta’s Sovereignty Act and Saskatchewan’s Saskatchewan First Act, and Quebec and Saskatchewan legislation purporting to unilaterally amend the national constitution, provincial posturing over the constitution has been innovative as of late.

The equalization formula is subject to a lot of misinformation. Certain provinces (especially Alberta) have long complained about the program, often on the (false) premise that it represents provincial governments losing revenue to other provinces. But it’s federal revenue, spent in a manner determined by the federal government. While to my knowledge not every federation has a strict equalization program, all federations - indeed, many countries of any meaningful size and geographic diversity - subsidize certain regions to address fiscal capacity disparities, either formally through a direct funding mechanism or indirectly through regional development, infrastructure spending, or other forms of transfer.

It is difficult to believe that Premier Furey holds an honest assumption that this lawsuit will have a snowball’s chance. Instead, it’s more likely a (rather transparent) publicity stunt to try to distract the province’s voters from his government’s own failures. This is the dominant trend in Canadian federalism: provinces whine for federal money, simultaneously whine when the feds take the lead on something but in a way they don’t like, and engage in political buck-passing in attempts to blame the feds for the problems that are actually provincial responsibility, like health care, or their own budgetary situation (provinces have virtually all of the same funding levers that the feds do, they just don’t want to have to either raise taxes or shift their spending priorities).

It would be nice if they started getting called out on this bullshit more often. With a lawsuit with this weak a premise, maybe a judge can do it.