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The Greenhouse Gas go-ahead
Last Thursday, Canada’s Supreme Court issued a judgment finding the federal Greenhouse Gas Pollution Pricing Act to be constitutionally valid. Therefore, Canada can go ahead and administer a rising floor price for carbon and invite the provinces to set up their own systems, failing which the federal system kicks in.
The decision is an important victory for the feds. If the Court had found that the subject fell exclusively within provincial jurisdiction, the federal legislation would have been declared void. It would have effectively added years of delay to Canadian legislative efforts to reduce greenhouse gasses.
The most publicized Supreme Court decisions have usually involved the application of the Canadian Charter of Rights and Freedoms to invalidate some legislation that offends against the Charter— such as the challenge to the original version of the medical assistance in dying law. The Greenhouse Gas case, however, was a case involving the limits of federal and provincial powers under our Constitution Act. In Charter cases, the legislature has the option of overriding the Court by re-enacting the law “notwithstanding” the Charter. In a constitutional case, however, there are no second chances. The Court’s decision is final: the law (or some key part of it) is either “intra vires “(within Parliament’s jurisdiction), or “ultra vires“ (beyond Parliament’s jurisdiction).
The Court’s decision comes as a result of three provinces instituting a legal challenge to the federal Greenhouse Gas law, saying it falls within their powers, not federal powers. The Alberta Court of Appeal agreed with this position, but the Saskatchewan and Ontario Courts of Appeal did not. This inconsistency therefore had to be resolved by the Supreme Court.
When a statute’s constitutionality is challenged in the Supreme Court, every provincial government has the opportunity to participate—a right which most of them exercised. In addition, more than 20 other parties—including the David Suzuki Foundation, the Canadian Labour Congress and Amnesty International—were granted permission to intervene. Even with tele-argument, it must have been a full house.
The allocation of powers between the federal and provincial governments is found in sections 91 and 92 of our constitution. Section 91 lists the federal powers. They include taxation, the military, the postal service, navigation and shipping, Indians and lands reserved for Indians, and bankruptcy and insolvency. The provincial powers enumerated in section 92 include hospitals, municipalities, and more generally property and civil rights within the province.
As for any resulting gaps or uncertainties, section 92 says that the provinces are responsible for “all matters of a merely local or private nature”, while section 91 says that for the “peace, order and good government” of Canada, the federal government may deal with “all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.” This latter provision is known to lawyers as the “POGG” clause, and has bedevilled the courts ever since it was enacted, There is no question that somebody has the jurisdiction to act: it’s just that it could be the federal government the provincial governments, or both dealing with different aspects of the same subject. The POGG clause allows the courts to perform some acrobatics with their reasoning.
The nine justices of the Court issued four sets of reasons for decision. Five justices sided with an opinion written by Chief Justice Richard Wagner; three others wrote their own dissenting reasons. (Unlike in a criminal jury trial, there is no need for unanimity on the Court—the majority opinion prevails).
The reasons are important because they comprise court-developed law that binds subsequent courts to their findings. And the majority opinion makes several important ones. Right at the outset, Chief Justice Wagner states that climate change is real (much to the chagrin of the federal Conservative party, no doubt). It is caused by greenhouse gas emissions resulting from human activities, and it poses a grave threat to humanity’s future. The only way to address the threat of climate change is to reduce greenhouse gas emissions. (It is interesting to see how much written evidence the Court considered in order to make its findings. One normally thinks of Supreme Court hearings as being composed of oral arguments based on narrow legal briefs.)
Chief Justice Wagner concludes that the Greenhouse Gas law “sets minimum national standards of greenhouse gas price stringency to reduce greenhouse gas emissions, pollutants that cause serious extra-provincial harm. Parliament has jurisdiction to enact this law as a matter of national concern” under the POGG clause.
The judgment spends a lot of time unravelling the concept of “national concern.” It has to have a “singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern,” but also a “scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power” in sections 91 and 92. The national concern doctrine “can be applied only in exceptional cases, where doing so is necessary in order for the federal government to discharge its duty to address truly national problems.”
In addition to its importance to the environmental action world, the Greenhouse Gas decision is also a landmark in the exploration of a constitution that rarely gets updated, and that fails to address every scenario that may arise in the allocation of power to federal and provincial governments. That, however, is the price we pay for living in our Confederation.
It’s a good thing Canada wasn’t racing to fight a pandemic and needed the Court’s endorsement of its legislation. I hate to think how many lawyers would be involved in that one.
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