While climate change has been temporarily ascribed a secondary role relative to world economic affairs, it remains axiomatic to view it as a transcendent public policy issue facing governments in the coming decades. Canada, as a relatively decentralized federal state, faces a particular challenge in meeting the international treaty requirements bestowed on the country by federal law. Neither the federal nor the provincial order of government possesses anything approaching a monopoly on the environmental field, let alone the regulation of greenhouse gas (GHG) emissions. Thus, owing in part to this divided environmental house, federal-provincial efforts to structure an enforceable and coordinated (harmonized) national GHG reduction policy have not been forthcoming. Approaching this qualified failure from a division of powers perspective is disquieting. It suggests that the Canadian federation is unable to address perhaps the most significant policy challenge since the formation of the welfare state.
What is missing is federal leadership. There is stable constitutional ground on which the federal government may coordinate the reduction of GHGs. As a division of powers matter, the Supreme Court of Canada has viewed the environment writ large as shared jurisdiction. However, there is jurisprudence on environmental jurisdiction that has opened the door to an increased prominence for the federal government on GHG policy through the articulation of the national dimension arm of the “peace, order, and good government” clause of the Constitution, known as the POGG. Leaving aside issues of political resolve, with the judicially derived national dimension doctrine, the federal government can press a national agenda on climate change when navigating the corridors of interprovincial diplomacy and executive federalism. In other words, the national dimension arm can be a legal base for the federal cabinet and bureaucracy to retake a leadership role and advance harmonized GHG reduction in federal-provincial negotiations.
What follows in this article is an assessment of the national dimension doctrine as a legal head on which the federal government can press comprehensive climate change regulation. While the Supreme Court has not yet had the opportunity to decide on this issue, extrapolating from the leading decisions, Reference Re: Anti-Inflation Act and R. v. Crown Zellerbach, one can have an expectation of the essential constitutional debate. This article will begin by outlining the inadequacies of federal-provincial GHG policy thus far. It will then explore the jurisprudential history of the national dimension doctrine leading up to Anti-Inflation and Crown Zellerbach, before discussing the cases themselves. Subsequently, the narrative will shift to a discussion of the constitutional groundwork these decisions have laid, with the final paragraphs devoted to the political and legal implications of legislation grounded on national dimension.
Over the last two decades, federal-provincial policy efforts on GHG reduction have failed to produce a coordinated, Canada-wide policy. From 2002 on, the relationship disintegrated into one characterized by conflict. The policies produced from interprovincial, multilateral co-operation have been largely ineffective, breaking down into a lowest-common-denominator, voluntary approach. The arrival of the Harper government, with its de-emphasis on GHG reduction, has prolonged the problem. The practical result here is this: even as of 2006, GHG emissions in Canada increased by 27 percent, increasing steadily until the 2008 recession temporarily stalled their growth. Canada has now committed itself to a revamped international GHG reduction agreement — the Copenhagen Accord — whereby the country is obliged to reduce GHG emissions by 17 percent by 2020 from 2005 levels. Canada’s problem (federal-provincial disunity) and Canada’s challenge (the Copenhagen Accord) are thus daunting.
Over the last two decades, federal-provincial policy efforts on GHG reduction have failed to produce a coordinated, Canada-wide policy. From 2002 on, the relationship disintegrated into one characterized by conflict. The policies produced from interprovincial, multilateral cooperation have been largely ineffective, breaking down into a lowest-common-denominator, voluntary approach.
Jurists from the Judicial Committee of the Privy Council (JCPC) and the Supreme Court of Canada articulated the constitutional doctrine of national dimension (within the preamble of section 91 — the POGG) to address perhaps just such a problem. While previous cases had raised the spectre of a national dimension arm, the modern version of the doctrine originated from the JCPC in AG Ontario v. Canada Temperance Federation. Here Viscount Simon wrote:
In their Lordships’ opinion, the true test must be found in the real subject matter of the legislation: if it is such that it goes beyond local or provincial concern or interests and must from its inherent nature be a concern of the Dominion as a whole (as, for example, in the Aeronautics case, [1932] A.C. 54 and the Radio case, [1932] A.C. 304), then it will fall within the competence of the Dominion Parliament as a matter affecting the peace, order and good government of Canada, though it may in another aspect touch on matters specifically reserved to the provincial legislatures.
Based on the Aeronautics and Radio references, then, Viscount Simon fully elucidated a separate arm of the POGG, distinct from the traditional emergency power adjudicated in the many formative decisions early in Confederation. Following the abolition of JCPC appeals, the Supreme Court followed this national dimension legacy in earnest. The doctrine was used as an arbiter of federal expansion over a number of legislative areas, including aeronautics, a national capital region and the status of languages. The use of the doctrine often turned on jurists’ interpretation of whether the matter was sufficiently novel or national to justify federal attention. This case-by-case analysis left critics searching to limit the doctrine.
In 1976, the national dimension doctrine clashed with classic federalism in the Court with the major decision of Reference Re: Anti-Inflation Act. By effectively allowing federal regulation of economic activity over a certain size, the federal Anti-Inflation Act proposed a substantial accretion of federal power over aspects that fell under section 92(13), property and civil rights. While the Act was found intra vires through the emergency arm of the POGG, the majority rejected the national dimension justification. On this issue, Justice Jean Beetz formulated perhaps the trenchant limit on the doctrine:
The “containment and reduction of inflation” does not pass muster as a new subject matter. It is an aggregate of several subjects some of which form a substantial part of provincial jurisdiction. It is totally lacking in specificity. It is so pervasive that it knows no bounds. Its recognition as a federal head of power would render most provincial powers nugatory.
In other words, to be justified by national dimension, a field of legislation not only had to be of broad, national importance, but also sufficiently contained and precise to be self-limiting. In Anti-Inflation, Justice Beetz warned observers that such a broad and imprecise field of legislation held no relation to singular, distinct and indivisible (SDI) heads such as aeronautics or radio. By giving judicial sanction to unnecessarily broad legislation, Beetz hypothesized, the federal government would have a blank cheque to run roughshod over the division of powers, disrespecting the established constitutional order and nearly 100 years of jurisprudence. For advocates of the classic, decentralized federalism, this was unsettling.
This prescription, that anything to be of a national dimension had to have a requisite singleness, distinctiveness and indivisibility, was accepted as a formal requirement with Justice Gerard Le Dain’s opinion in R. v. Crown Zellerbach. In Crown Zellerbach, the Court was tasked with determining whether the federal Ocean Dumping Control Act was intravires explicitly on national dimension. The legislation proposed to regulate all forms of marine pollution, even if in provincial waters. Up for grabs was a shift in the division of powers over the environment, and perhaps a review of the Anti-Inflation obiter dicta from Justice Beetz.
At first brush, the environment would appear to have the same diffuse characteristics of legislation purporting to contain inflation: both attempt to regulate fields that touch and concern matters intimately linked to provincial heads of power (property and civil rights, matters of local and private nature most notably). Indeed, the issue of jurisdiction over marine pollution turned on whether it was sufficiently singular, distinct and indivisible to be justified on national dimension. For Justice Le Dain and the majority, marine pollution was a matter of national concern because of Canada’s international commitments, and the inability of provincial jurisdictions to adequately regulate waters beyond their borders. Marine pollution was, moreover, sufficiently ascertainable that it would not upset the division of powers because the statute did not cover fresh-water pollution.
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Justice Gerard La Forest, for the minority, drew the opposite conclusion, and relied on Beetz’s opinion in Anti-Inflation. Environmental degradation of the oceans was not an unfamiliar problem, and surely not novel enough to allow the federal government regulation of all marine waters. La Forest, however, saved his most stinging arguments for the SDI requirement. In his opinion, marine pollution was as diffuse as the control of inflation. Marine pollution came from sources deeply tied to areas of provincial regulation and, conceptually, could not be disassociated from pollution arriving from any number of sources. In essence, giving the Act a pass on national dimension would give judicial sanction to potentially boundless legislation regulating matters long held to be provincial.
Justice La Forest’s dissent, following in the footsteps of Justice Beetz’s contribution to national dimension jurisprudence, presents the legal obstacle to a national initiative on GHG reduction. Carbon emissions are ubiquitous in Canadian society. All sectors, individuals, households, corporations and industries — aspects that fall under many provincial heads of power — contribute daily. Indeed, looking regionally, one cannot ignore the extent to which the western petroleum industry is inexorably linked with a carbon economy. Some provinces might then consider a national GHG reduction scheme from the federal government, with or without judicial acquiescence, a centralizing carte blanche. It might be viewed further as challenging at least the spirit of Beetz’s dissent in Anti-Inflation. In a word, then, with substantial provincial interests at stake, any unilateral regulation by Parliament would likely be fertile ground for litigation, undoubtedly resulting in the same legal hurdles (SDI).
Despite the split decision in Crown Zellerbach, the Court did emerge with a consensus on the scope of the national dimension doctrine. National dimension could be invoked in areas of novel or genuinely national purview, so long as they possessed an impermeable limit on its subject matter (Beetz’s SDI). Further, when considering the SDI requirement, Justice Le Dain posited, “it is relevant to consider what would be the effect on extraprovincial interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter.” Essentially, this “provincial inability” requirement added that where the matter is beyond a province’s ability (whether it is constitutional, political or practical ability is yet unclear), because it affects either a federal jurisdiction or another province, national dimension should respond.
In the current case of climate change policy, while the emission and regulation of GHGs represent something that is connected to the provincial scope of powers, they are also, ostensibly, beyond the ability of any one province to effectively manage on a Canada-wide, uniform basis. Hitherto, the combined efforts of provinces and the federal government have varied between incipient harmonization and complete discord. Presently, the provinces retain nascent plans while they wait for the federal government to act. Nevertheless, climate change and GHG reduction represent a problem of national and international proportions. In this circumstance of an internationalized yet constitutionally far-reaching issue, the federal government must be prepared to take the legislative initiative to guide provincial governments. The decision in Crown Zellerbach can provide the groundwork for such an initiative.
Presently, the provinces retain nascent plans while they wait for the federal government to act. Nevertheless, climate change and GHG reduction represent a problem of national and international proportions. In this circumstance of an internationalized yet constitutionally far-reaching issue, the federal government must be prepared to take the legislative initiative to guide provincial governments.
While a subsequent hypothetical Supreme Court decision on GHG regulation could decide the issue, Crown Zellerbach may be sufficiently decisive. The impugned law in Crown Zellerbach was enacted pursuant to an international agreement ratified by Parliament. This international and cross-jurisdictional element of marine pollution was decisive for the majority in that case. A GHG reduction plan involving areas of intraprovincial jurisdiction from the federal government could be similarly premised. Though the constitutional argument of treaty enforcement as a means to pass national regulation has been rejected since the Labour Conventions decision and not resurrected by Canadian jurists, the need to comply with international standards would accord with a provincial inability consideration. Provinces lack the constitutional ability to enforce crossjurisdictional standards. They may also lack the political consensus or regulatory resources to move forward. In any case, a possible provincial inability could jeopardize compliance. Therefore, provided that any law is framed with sufficient ascertainable limits so as to accord with a bare SDI requirement (a not insignificant challenge), the holding in Crown Zellerbach could provide legal cover for federal GHG regulation.
However, despite being the nominal arbitrator of federal-provincial jurisdictional disputes, the Supreme Court of Canada has seen its role in adjudication of such matters diminish, especially since the last attempt at constitutional reform in 1992. A reluctance to risk an all-or-nothing decision from the judiciary led, in part, to a preference by leaders for interprovincial-federal cooperation, executive diplomacy and bureaucratic coordination. Because of this, the impact of division of powers decisions is per se diluted. Nonetheless, Supreme Court decisions, like Crown Zellerbach, still have a role to play within federal-provincial dialogues.
Where previous attempts at harmonization have failed owing to the hurdles of interprovincial diplomacy and the still potent sovereignties and divergent interests of the provinces, a revived attempt could use the judicial cover of Crown Zellerbach (or a decision built off it) to press a national scheme. The federal government, backed up by an empowered national dimension doctrine, would be in a position of strength to negotiate on a national, harmonized GHG reduction. The Supreme Court’s division of powers decisions, even without a per se impact, deeply affect the bargaining power of federal-provincial actors at the bureaucratic and ministerial levels. With the knowledge that the constitutional winds are cavalcading toward national dimension and not away from it, federal negotiators can make bold moves toward a federally led, nationally harmonized GHG reduction plan. To be sure, administering such a pervasive regulation would require substantial intraprovincial bureaucratic infrastructure. Provincial assistance would be essential. Thus, any legal advantage the federal government could obtain for negotiating such a plan would be a substantial benefit to the plan’s practical implementation in terms of uniform standards and enforcement.
One of the ancillary conclusions here, then, is that the fears of classical federalists, while not being unfounded, are not likely to be realized as a massive reordering of the established constitutional alignment. A wholesale unravelling of the division of powers through the environment is not on the horizon from the Court, nor is it likely to be a priority of the deficit-ridden Harper government or its successors. Cooperation and negotiation and executive federalism — the realm of politics — have been the ongoing model for some time and will likely continue. The effect of a robust application of the national dimension doctrine would be just one factor in policy-making and diplomacy between jurisdictions.
In light of the practical effects of judicial decisions, an aggressive approach to GHG reduction with the backing of the national dimension doctrine becomes an appreciable possibility even with shared jurisdiction over the environment and the legal pervasiveness of the regulation. Given the imperative of addressing climate change, such a robust application of the doctrine to backstop federal leadership would reflect positively on the ability of the Canadian federation to respond to great policy challenges that do not immediately accord with Canada’s constitutional organization.
This article was the winning entry in the first annual Policy Options Constitutional Affairs Essay Competition. Altogether, there were 27 entries from 11 law schools across Canada.
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