Jurisdictional Wrangling over Climate Policy in the Canadian Federation: Key Issues in the Provincial Constitutional Challenges to Parliament’s Greenhouse Gas Pollution Pricing Act

Abstract

Jurisdictional tensions are nothing new in the Canadian federation, but recent provincial challenges to the constitutionality of Parliament’s carbon pricing policy come with very large stakes for Canadians. With renewed commitments to meaningfully reduce its greenhouse gas (GHG) emissions under the Paris Agreement, and details for how to do so set out in the 2016 Pan Canadian Framework on Clean Growth and Climate Change, Canada seemed poised to start taking the steps needed to address what can fairly be described as a very serious threat to Canada and the world. But effective climate policy requires action at multiple levels of government, and Parliament’s choice to require a base level of carbon price applicable in all jurisdictions has raised the ire of some provinces who believe this is outside Parliament’s jurisdiction.

In this paper, I have examined three central issues that Saskatchewan and Ontario’s constitutional references will require the Courts to examine. First, I analyse the main basis of jurisdiction argued by Canada to justify the Greenhouse Gas Pollution Pricing Act (GGPPA), Parliament’s authority to legislate for Peace, Order and Good Government (POGG) under the National Concern branch. In particular, I address the argument made by the challenging provinces that conferring jurisdiction to Parliament over GHG emissions as a matter of national concern would displace provincial GHG emissions. I conclude that this argument is unfounded in light of recent jurisprudential approaches to the division of powers, proper characterization of the subject matter, applications of the double aspect doctrine, and the interpretative principle of cooperative federalism. While provincial concerns about federalism should not be minimized, there is ample constitutional space for provincial and federal legislation on GHG emissions to peacefully co-exist, especially when they are both aimed at the same broad goal of reducing GHG emissions. Second, I examine the prospects for justifying the GGPPA under the Emergency branch of POGG. In light of recent scientific evidence, there is a legitimate basis for qualifying the GGPPA as legislation addressing the global and national climate emergency. I examine the contours of the temporal limitation on the emergency branch, since it is through the temporary limit that courts justify this branch’s intrusion on provincial powers, and suggest that the window of time between now and 2030 may be the most appropriate timeframe for this power, given the Intergovernmental Panel on Climate Climate (IPCC)’s findings in its 1.5 degree report identifying this as the crucial timeframe within which to make the rapid, unprecedented changes needed to avert dangerous levels of climate change. Third, I consider a tension that arises when jurisprudential tests accustomed to dealing with regulatory charges that are aimed at offsetting regulatory costs are applied to a behaviour-modifying economic instrument, such as carbon pricing. While the courts have already recognized that behaviour-modifying measures can themselves constitute regulatory charges, thereby satisfying the jurisprudential test for finding a connection between a regulatory scheme and a charge, they have an opportunity in these cases to fill in the contours of this branch of the test.

While the provincial challenges raise important questions about the balance of power in our federation, their arguments – if successful – would leave a gaping hole in Canada’s ability to enact a country-wide policy to reduce GHG emissions. While they may not like the policy choice Parliament made in using carbon pricing, the choice of policy itself is not under scrutiny. The heart of the matter is whether Parliament has the jurisdiction to enact the GGPPA. My article concludes that the legislation is intra vires. The fact is that meaningfully reducing GHG emissions is going to require some difficult choices. But the difficulty is already here, being felt in floods, fires, droughts, extreme storms, and melting permafrost. Our future depends on the Courts recognizing that the Constitution is equipped with the flexibility and adaptability needed to enable the country to legislate an effective, full response to an issue with such grave repercussions as climate change, without leaving any cracks through which Canadians’ futures could fall.