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DIVISION OF POWERS - Federal jurisdiction - Peace, order and good government - Residuary powers

Friday, April 17, 2020 @ 8:32 AM  


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Reference to determine the constitutionality of the Greenhouse Gas Pollution Pricing Act. The purpose of the Act was to mitigate climate change by mandating minimum national standards for pricing of commodities and activities that produced greenhouse gas (GHG) emissions wherever a province did not have in place a provincial GHG pricing system. Part 1 of the Act set a levy on various fuels. Part 2 provided for output-based limits on large industrial emitters that were required to reduce their GHG emissions or pay under the prescribed output-based pricing system if those emissions exceeded certain limits. For Alberta, the combined effect of Parts 1 and 2 covered essentially the entire oil and gas industry. The Executive was given large and liberal discretionary powers vis à vis the existing scheme. There were no limits on what could be covered or on price stringency. Under the Act, this concept was open-ended and entirely subjective. The Executive was also effectively given broad and pervasive discretion to take whatever other steps the Executive decided should be taken to mitigate climate change. Canada argued the Act fell within the national concern doctrine of Parliament’s peace, order and good government power.

HELD: Parts 1 and 2 of the Act were unconstitutional and had no legal force. The Act did not fall under any heads of power assigned to Parliament by the Constitution Act, 1867, or any other enactment. The regulation of GHG emissions fell within heads of powers assigned to the provinces under ss. 92A, 92(2), 92(10), 92(13) and 109 of the Constitution. The regulation of GHG emissions did not qualify for inclusion as a federal head of power under the national concern doctrine because it did not meet the requirements of the national concern doctrine for singleness, distinctiveness and indivisibility. Assigning this Act or a class of laws of this nature to Parliament would forever alter the constitutional balance that existed between the heads of power allotted to Parliament and the provincial Legislatures in the federal Canadian state. The Act contemplated a wholesale takeover of a collection of clear provincial jurisdictions and rights. There was no principled basis to judicially expand the heads of federal powers to concentrate such extensive law making powers in Parliament. The legal and practical effects of the Act directly intruded on provincial powers, including their exclusive jurisdiction to develop and manage their natural resources. The Act provided for a standardless sweep of authority in favour of the Executive. There was almost no limit to the extent to which the Executive could interfere in the day-to-day operations of the various industries falling under Part 2. Apart from a national emergency, Parliament could not use powers reserved exclusively to the provinces to regulate GHG emissions subject to provincial jurisdiction. Nor did Parliament have the constitutional right to demand or dictate that the provinces enact laws in accordance with its policy choice, a price on carbon, on persons and industries subject to provincial jurisdiction.

Reference re: Greenhouse Gas Pollution Pricing Act (Can.), [2020] A.J. No. 234, Alberta Court of Appeal, C.A. Fraser C.J.A., J. Watson, T.W. Wakeling, E.A. Hughes and K.P. Feehan JJ.A., February 24, 2020. Digest No. TLD-April132020007