A synthesis of current approaches to managing the non-timber values linked to forest ecosystems i... more A synthesis of current approaches to managing the non-timber values linked to forest ecosystems is key to understanding questions related to ecosystem services. Issues of note include: examining whether valuing ecosystem services, and creating new markets for them can lead to forest management. The analysis of market-based approaches to conservation, and in depth coverage of two market-based instruments are critical in the realm of disturbance permits and forest carbon tendering. Furthermore, the recommendations of The National Round Table on the Environment and the Economy (NRTEE 2005) are upheld in the analysis.
The literature that supports assigning economic value to ecosystem services (ES) has been identif... more The literature that supports assigning economic value to ecosystem services (ES) has been identified as a topic for discussion. The challenges of economic valuation is a pressing issue, yet the knowledge and barriers associated with them are of equal significance. Specific policy mechanisms that may be used for ES provision are examined in this work. It is also acknowledged that legal and constitutional challenges create obstacles in moving forward toward market-based policies. Furthermore, the challenges touch upon political controversies, and explore details regarding tradable disturbance permits and carbon offsets.
Few passages in the Canadian Constitution have generated as much debate over the years as the ope... more Few passages in the Canadian Constitution have generated as much debate over the years as the opening words of section 91 of the Constitution Act, 1867 commonly known as the Peace, Order, and Good Government (hereinafter “POGG”) clause. Most of the controversy about POGG centers around how to interpret the clause in a way that allows the federal government to address issues of genuine national concern (that warrant a national response) while respecting provincial autonomy and diversity in our federation. The tensions underpinning POGG were recently revealed in the trio of provincial challenges to the constitutionality of Parliament’s Greenhouse Gas Pollution Pricing Act (GGPPA), in which provinces argued that upholding the GGPPA would have the effect of displacing provincial jurisdiction over GHG emissions. While two of the three Courts of Appeal (Saskatchewan and Ontario) upheld the GGPPA as a matter of national concern under POGG, doing so was apparently a struggle, as they strained against the watertight confines of earlier eras of constitutional interpretation still evident in POGG jurisprudence. Now under appeal to the Supreme Court, this trio of references offers an opportunity for the Court to clarify the contours of POGG in the modern context of flexible, cooperative federalism.
In this article, we examine three central tensions that the GGPPA appeals revealed about POGG. First, we consider, and reject, the argument that POGG benefits from a special kind of exclusivity, different from enumerated powers, that has the effect of displacing provincial power. We show that this argument is steeped in the bygone era of watertight compartments and a suggestion that POGG creates an unassailable core, akin to that which underpins the doctrine of interjurisdictional immunity. We explain why this argument is unfounded in the modern era of cooperative federalism. Second, we examine a source of confusion in the GGPPA appeals related to how the word ‘matter’ is used, which we submit contributed to the challenging provinces’ fear that provincial power will be permanent displaced if the legislation is upheld under POGG. Specifically, the challenging provinces argued that upholding the GGPPA would necessarily create a new sub-head of exclusive federal power over a broad subject matter (GHG emissions) that would displace their jurisdiction. We discuss how the word ‘matter’ is used to refer both to the pith and substance of legislation and the possibility of a new sub-head of power that could be recognized for Parliament if the law is upheld. We submit that this terminological confusion fuels the fears about the impact of upholding the legislation under POGG on provinces. Third, and most importantly, we consider the extent to which federal jurisdiction under POGG can peacefully co-exist with related provincial authority. The provincial appeals have revealed that most of the justices – even those that upheld the GGPPA – are operating under an assumption that the double aspect doctrine does not apply to matters justified under POGG. We examine the historical development of the double aspect doctrine to show that there is no basis for this assumption, and suggest the Supreme Court should clarify that the doctrine applies to matters upheld under POGG, just as it would for enumerated powers.
We also argue in this paper that the Supreme Court should update the test set out in Crown Zellerbach more than 30 years ago. In the intervening decades, the courts have more fully embraced a flexible interpretation of the division of powers that tolerates more de facto concurrent operation of statutes on similar subject matters. The provincial challenges have revealed the extent to which the Crown Zellerbach test, and specifically the way in which the potential scale of impact on provincial jurisdiction is evaluated, leaves much uncertainty about the level of overlap that can operate. We deconstruct the Crown Zellerbach test and propose a more flexible, nuanced, analytical approach that empowers the federation to address pressing public policy problems such as climate change in a way that respects federalism. Ultimately, the Supreme Court has an opportunity in the GGPPA appeals to interpret POGG in a way that empowers all levels of government in our federation to respond to increasingly pressing, dynamic, multi-dimensional public policy challenges, such as climate change. Our article shows that there is a role for POGG to play in enabling the federal government to be accountable for reducing the country’s overall level of emissions in accordance with international commitments while also allowing the provinces to continue legislating to reduce GHG emissions.
There is increasing evidence of environmental injustice in Canada, where individuals and/or commu... more There is increasing evidence of environmental injustice in Canada, where individuals and/or communities experience disproportionate levels of harm from pollution or do not share equally in the benefits a healthy environment has to offer (such as clean air and water). This article examines the extent to which the right to life, liberty and security of the person under s. 7 and the equality guarantee in s. 15 safeguard against such injustices. The analysis suggests that there is ample scope within both sections to capture many different types of environmental justice claims. While each section has relative advantages and disadvantages, and the facts of a specific case will ultimately be determinative, the strength of s. 7 is the scope of its protections, which apply to all Canadians, as well as recent progressive and expansive judicial interpretations of s. 7. One of the stumbling blocks of s. 7 is the need for claimants to establish a sufficient causal connection between the harm they have suffered and the government action. One of s. 15’s strengths is that it focuses on discriminatory treatment rather than a causal connection, which may side-step the challenge of proving a s. 7 claim. A downside of section 15 is that it only applies to specific groups, which means those individuals experiencing environmental injustices based on income levels alone would not be captured by its protections. However, the fact that environmental cases have rarely been argued under section 15 may create an opening for progressive judicial interpretation of its protections, especially given the Supreme Court of Canada’s repeated statements about the importance of a healthy environment.
Concerns about the way in which we grow, distribute and consume food around the world have grown ... more Concerns about the way in which we grow, distribute and consume food around the world have grown in recent years. From the environmental impacts of farming practices (exacerbated by the industrialization of agriculture) and GHG emissions from agriculture, to the viability of farming communities and health concerns about concentrated livestock operations, the issues are numerous, often overlapping, and sometimes underpinned by different values and/or preoccupations. These concerns are intensified when set against the backdrop of expanding global population, with its growing need for food and increasing demand for diets high in both caloric and meat consumption, and climate change. Public policy in support of sustainable farming is essential to safeguard the ecosystems upon which farms are dependant, while providing sustainable rural livelihoods, promoting food security and contributing to a vibrant agricultural economy. This paper evaluates the extent to which Canada's federal agricultural policy framework enables sustainable farming and agricultural food production. We find that, although there have been many ad-hoc initiatives within Canadian federal and provincial/ territorial governments relating to sustainability, Canada has not made any national policy commitments to pursuing sustainable farming. The government's central agricultural policy framework fails to establish the enabling vision and incentive structure needed to influence a systemic change in the sector towards sustainable farming. The policy framework is primarily geared towards helping the sector become more competitive and gain and maintain market share, through innovation for instance. A shift in agricultural policy is required in order to safeguard the future of food security and rural livelihoods in Canada.
Prime Minister Justin Trudeau has committed the government to do what is needed to ensure Canada ... more Prime Minister Justin Trudeau has committed the government to do what is needed to ensure Canada meets or exceeds its national climate targets under the Paris Agreement. While he has promised to work collaboratively with the provinces in establishing a pan-Canadian clean growth and climate framework, it is clear that some new federal climate laws will be required. There are many factors involved in selecting and designing climate policies, one of which is constitutional jurisdiction. This article analyzes Parliament's authority to regulate greenhouse gas (GHG) emissions and implement a carbon price, either through a national carbon tax or a national emissions trading scheme. Taking into account recent jurisprudence and previous scholarship, the article considers five federal powers: Peace, Order and Good Government (P.O.G.G.), criminal law, taxation, trade and commerce, and the declaratory power. It also considers the spending power. The analysis shows that there is ample authority within the Constitution for a strong federal role in regulating GHG emissions and pricing carbon without displacing appropriately scoped provincial climate programs. While thoughtful legislative drafting will be important, ultimately the Canadian Constitution's division of powers is adequately equipped to deal with what may be the greatest public policy challenge of our time. In fact, climate change is perhaps the quintessential issue for engaging the tools of cooperative federalism and progressive interpretation of our Constitution.
Le premier ministre Justin Trudeau s'est engagé à ce que le gouvernement fasse ce qui est nécessaire pour que le Canada respecte ou dépasse ses objectifs climatiques nationaux en vertu de l'Accord de Paris. Même s'il a promis de *332 travailler en collaboration avec les provinces afin d'établir un cadre pancanadien en matière de croissance propre et de changement climatique, il est clair que certaines nouvelles lois climatiques fédérales seront nécessaires. Plusieurs facteurs entrent en jeu dans le choix et la conception des politiques climatiques, dont l'une est la compétence constitutionnelle. Dans cet article, l'auteure analyse le pouvoir du Parlement lui permettant de réglementer les émissions de gaz à effet de serre (GES) et mettre en oeuvre un prix du carbone, soit par le truchement d'une taxe nationale sur le carbone ou d'une bourse nationale du carbone. Tenant compte de la jurisprudence récente et des précédents travaux, l'auteur considère cinq pouvoirs fédéraux: paix, ordre et bon gouvernement, le droit pénal, la fiscalité, le commerce et le pouvoir déclaratoire. Il tient également compte du pouvoir de dépenser. L'analyse montre qu'il y a des pouvoirs amplement suffisants au sein de la Constitution pour que le gouvernement fédéral joue un rôle de premier plan dans la réglementation des émissions de GES et la tarification du carbone sans avoir à modifier la portée des programmes climatiques provinciaux. Même s'il est important que la rédaction législative soit réfléchie, en fin de compte, le partage des compétences de la Constitution canadienne est suffisant pour faire face à ce qui peut être le plus grand défi de la politique publique de notre temps. En fait, le changement climatique est peut-être la question par excellence pour mobiliser les outils du fédéralisme coopératif et l'interprétation progressive de notre Constitution.
A State of Knowledge Report - Sustainable Forest Management Network, 2010
A synthesis of current approaches to managing the non-timber values linked to forest ecosystems i... more A synthesis of current approaches to managing the non-timber values linked to forest ecosystems is key to understanding questions related to ecosystem services. Issues of note include: examining whether valuing ecosystem services, and creating new markets for them can lead to forest management. The analysis of market-based approaches to conservation, and in depth coverage of two market-based instruments are critical in the realm of disturbance permits and forest carbon tendering. Furthermore, the recommendations of The National Round Table on the Environment and the Economy (NRTEE 2005) are upheld in the analysis.
There has been some slow but steady progress on sustainable forest management (SFM) in Canada ove... more There has been some slow but steady progress on sustainable forest management (SFM) in Canada over the last decade. While the change is positive, it is insufficient to keep up with the multiple demands on forest ecosystems. This paper argues that while the provinces should work towards fundamental regulatory reform in the forest sector (such as reforming tenure structures to better reflect Aboriginal, social and ecological needs and values), the federal government should concomitantly offer short-to-medium term fiscal incentives to encourage forest companies operating in Canada to voluntarily move faster and closer towards SFM. The paper argues that such measures would also serve to help level the playing field between leading forest companies (who are facing increased costs from implementing SFM) and other companies who continue to operate at the regulatory baseline. The paper discusses some of the challenges of using fiscal incentives (such as WTO subsidy rules) and offers suggestions for ensuring the measures avoid these pitfalls.
Many First Nations communities living on reserves in Canada do not have consistent access to one ... more Many First Nations communities living on reserves in Canada do not have consistent access to one of the most essential requirements for life — clean and safe drinking water. This article analyses the Charter’s equality guarantee to determine whether it offers a remedy. The analysis shows that the experience of First Nations communities living on reserve without access to clean water is discriminatory within the meaning of s 15 of the Charter, and that this discrimination would not be saved by s 1. The most significant hurdle to a s 15 claim is the fact that there is no single law which categorically excludes First Nations reserve communities from its protection. While the courts have not considered a case with similar facts, the article argues that the Charter’s equality protections extend to the full range of government action (and inaction) regardless of whether the action stems from one law, regulation or policy, or a set of laws that, acting together, creates discrimination. An interpretation that would limit s 15 protections based on a narrow, formalistic interpretation of the word “law” in section 15 would not only run counter to the interpretations of the section in recent decisions, but more importantly would run afoul of the Charter’s purpose of promoting substantive equality.
he Supreme Court of Canada and Social Justice: Commitment, Retrenchment or Retreat, 2010
This paper examines the jurisprudence of the Supreme Court of Canada under Chief Justice McLachli... more This paper examines the jurisprudence of the Supreme Court of Canada under Chief Justice McLachlin in terms of its implications for environmental justice. It examines specifically how the Court’s decisions influence the promotion of environmental justice, the government’s role as a trustee for environmental values, access to justice (in the environmental context), participatory decision-making, and the precautionary principle.
Keywords: Environmental justice, Supreme Court of Canada, access to justice, precautionary principle, trustee for environmental values, procedural rights
Critical Issues in Environmental Taxation, Vol VI, 2009
This paper examines the potential for using economic instruments to stimulate the use of renewabl... more This paper examines the potential for using economic instruments to stimulate the use of renewable energy in the Canadian residential sector, notably micro-wind and solar photovoltaics. We examine three instruments in particular: installation grants, feed-in tariffs and municipal development charges.
Keywords: Economic instruments, renewable energy, Canadian residential sector, micro-wind, solar photovoltaics, feed-in tariffs, development charges, installation grants
Environmental assessment is a critical tool for helping to reduce the environmental impacts of de... more Environmental assessment is a critical tool for helping to reduce the environmental impacts of development projects. However, the process as currently designed and implemented does little to ensure that the environmental harms created are fairly distributed among members of the public. Using the human health concerns raised by the community of Fort Chipewyan in the wake of massive oil sands developments upstream as a case study, this paper argues that the Kearl Oil Sands environmental assessment process did little to promote social justice for this community. While the environmental assessment process created an avenue for the community to share its concerns, the process failed to protect against the possibility that these concerns, once voiced, would simply be discounted or marginalized in the determination of what is a “significant environmental adverse effect (SAEE)”. I argue that the duty to apply the precautionary principle now explicitly embodied within CEAA creates a reverse onus upon project proponents to show that their proposal will not create SAEEs and suggest it should be interpreted to include a duty to demonstrate that the environmental harms deemed acceptable will not be shouldered disproportionately by an under-privileged community. I propose a number of reforms that could help transform environmental assessment into a process that promotes environmental justice. To critics who suggest that project-level assessment is not the place to address environmental justice, I argue that environmental assessment processes must not be a mechanism for perpetuating existing systemic inequalities by condoning an unfair distribution of environmental harm. Bringing the question of the distribution of environmental benefits and burdens to the forefront of assessments will lead to greater justice for all.
The 2015 Paris Agreement represents a significant step forward in international cooperation to mi... more The 2015 Paris Agreement represents a significant step forward in international cooperation to mitigate greenhouse gas (GHG) emissions. Aviation emissions represent approximately 2 percent of global GHG emissions, a percentage that is predicted to grow rapidly over the next few decades. In spite of their importance, aviation emissions have been essentially left out of the UNFCCC processes, including the recent Paris Agreement. Responsibility for negotiating a plan to mitigate global aviation emissions has been left to the UN International Civil Aviation Organization (ICAO). After years of challenging negotiations, ICAO members recently agreed to establish a global offsetting mechanism. While this is an important step, the program will not begin its voluntary pilot phase until 2021 and its first mandatory phase in 2024. Further, the program only covers international emissions. Given the projected growth in this industry, some jurisdictions are taking steps domestically to mitigate aviation emissions. For instance, the countries of the European Union (EU) included aviation in the EU Emissions Trading Program in 2012, although they offered international flights a hiatus while awaiting the outcome of ICAO negotiations on a market-based mechanism. In the wake of ICAO’s decision to implement an offsetting program, states now need to determine whether and how they will regulate emissions from aviation. This paper examines Canada’s options for mitigating aviation emissions. Under Canada’s division of legislative powers, aviation falls squarely within federal jurisdiction. As such, most provincial climate change policies exclude domestic aviation. We examine the potential for federal action on GHG emissions from domestic aviation as a first step in the broader climate change action program, as well as the possibility of further action on international flights. Since the majority of aviation emissions are a consequence of burning fuel, we first survey the ways in which aviation fuels are currently regulated and then we consider the potential for carbon pricing and other regulations to be applied. We argue that addressing GHG aviation emissions would not only show leadership, but could also ultimately set Canada up to cooperate with the EU in the event it once again includes international flights in the EU ETS. Taking steps to implement a carbon price on international aviation in Canada could ensure that the considerable revenue that would be raised by such a carbon price stays in Canada.
Citizens are increasingly searching for ways to spur their governments to take climate change act... more Citizens are increasingly searching for ways to spur their governments to take climate change action, and recent successes in courtrooms around the world suggest litigation may be an effective recourse. This article evaluates the legal basis for a claim that the Canadian government’s conduct in relation to climate change and greenhouse gas (GHG) emissions violates the Charter’s right to life, liberty and security of the person. A section 7 climate case would raise a number of novel questions, three of which are addressed in detail.
The first question arises because there is not one specific law or decision that alone is leading to harmful climate change, but rather a series of government plans, policies and decisions made over many years that infringe rights. Framing the challenge around a constellation of decisions versus the government’s inadequate action in achieving national GHG reduction targets would raise different questions and potentially yield different results. We explore some of these tensions, and argue for a flexible and purposive interpretation of section 7 that overcomes this issue. A second question relates to the issue of the evidentiary burden. Establishing causation is often the thorn in the side of environmental cases. Unlike in many environmental cases, however, the state of climate science provides a rich evidentiary basis that shows how a certain level of GHG emissions leads to warming that causes harm. We discuss the evidentiary burden required in a Charter case and how this would be applied to the context of government conduct in relation to climate change. We also consider and reject the de minimus argument that the government should not be held responsible given that it only emits a small proportion of global GHG emissions (though it still ranks high among emitting countries). The third question relates to justiciability of a Charter challenge. This issue is important in a Canadian context because there have been two climate lawsuits against the federal government and both were dismissed for being non-justiciable. We explain why we believe those cases are distinguishable from the kind of challenge contemplated in this article.
Throughout the article we argue that in determining how to handle this relatively uncharted terrain, courts should be guided by a normative approach. In other words, courts should interpret the Constitution in light of its purpose, overarching principles and the evolving circumstances of climate change which poses serious risks to the future of life as we know it. The international community and Canadian governments have acknowledged the severity of the problem and the need to take urgent action to prevent dangerous levels of warming. Ultimately, we believe courts should avoid using the unusual circumstances of climate change to justify a narrow, technical application of the Charter, and rather adapt their reasoning to ensure the Charter achieves its purpose of guaranteeing the fundamental rights and freedoms of Canadians. Canadians are already adapting to the realities of climate change, and judges should do the same.
Many constitutional questions arise in the context of assessing, approving, and regulating interp... more Many constitutional questions arise in the context of assessing, approving, and regulating interprovincial pipelines. This paper examines the extent to which upstream and downstream greenhouse gas (GHG) emissions can be considered and acted upon when proponents seek federal approval to build, expand, or modify an interprovincial pipeline. This question has become relevant in the context of Canada’s international commitments under the Paris Agreement, which require rapid, broad, and systemic decarbonisation of the Canadian economy. The article examines the questions through the lens of the regulatory frameworks in force at the time of writing (the National Energy Board Act and the Canadian Environmental Assessment Act, 2012) as well as draft legislation under Bill C-69, namely the Canadian Energy Regulator Act and the Impact Assessment Act. Although the new laws do not explicitly refer to indirect emissions, a reasonable interpretation of the legislation suggests that federal regulators would be within the bounds of their statutory authority to include indirect emissions in their deliberations and decision-making. A constitutional analysis suggests that that they would also be justified in doing so. The courts have confirmed federal jurisdiction over regulation of GHG emissions under the criminal law power, and there are two reference cases active at the time of writing that will examine the jurisdictional scope of the peace, order and good government power in the context of carbon pricing. Although it is unchartered jurisprudential territory, it is reasonable to conclude that under the new regulatory regime, Parliament will have the statutory and constitutional authority to consider the full implications of GHG emissions associated with an interprovincial pipeline proposal, especially if the courts continue to interpret jurisdictional powers through the flexible, purposive lens of cooperative federalism.
University Microfilms order no. 31-71805. Thesis (D.Sc.Law)--Stanford University, 2005. Includes ... more University Microfilms order no. 31-71805. Thesis (D.Sc.Law)--Stanford University, 2005. Includes bibliographical references.
There is increasing agreement in Canada that we need carbon pricing policies. Indeed, Quebec and ... more There is increasing agreement in Canada that we need carbon pricing policies. Indeed, Quebec and British Columbia have forged ahead with carbon taxes, and the Liberal opposition has included a carbon tax in its most recent platform. One is tempted to simply point to the respective federal and provincial taxation powers for jurisdictional authority.However, and perhaps surprisingly, the taxation powers are not the optimal source of authority. This paper shows that both levels of government have authority to implement carbon taxes under various heads of power, depending on the measure’s design. Federally, carbon taxes could be justified under the national concern branch of the POGG power, and possibly under the criminal law, trade and commerce and taxation powers. While the property and civil rights power, taxation power and authority over natural resources might justify carbon taxes provincially, the licensing power offers the strongest source of authority. Analysis of Quebec and B.C...
ABSTRACT In Pembina, the Federal Court reviewed a Joint Panel Report evaluating the environmental... more ABSTRACT In Pembina, the Federal Court reviewed a Joint Panel Report evaluating the environmental impacts of the Kearl Oil Sands project. The case received considerable attention for its laudable finding that the Panel should have provided reasons to support its conclusion that the project’s proposed greenhouse gas (GHG) emissions would be insignificant. However, this paper critiques the decision for accepting the Panel’s reliance upon future, uncertain mitigation measures and recommendations as a basis for finding that the various environmental impacts – including GHG emissions, but also impacts upon water, land, wildlife and human health - would be insignificant. I respectfully argue that the Court gave too broad an interpretation to the concept of "technically feasible" mitigation measures, given the high degree of uncertainty involved. I also respectfully argue that the Court failed in its duty to apply the precautionary principle in environmental assessment, as now mandated in the CEAA. The Court justified the Panel’s reliance upon measures and recommendations with uncertain outcomes as appropriate mitigation of environmental impacts by relying upon the concept of adaptive management as a counter to the precautionary principle. I argue that the Court erred in doing so. Application of the precautionary principle is a legislated duty that reduces the threshold of uncertainty that panels may tolerate in assessing environmental impacts. While adaptive management is a concept that can be applied in the implementation of follow-up programs, it is not an appropriate substitute for duty to apply the precautionary principle.
A synthesis of current approaches to managing the non-timber values linked to forest ecosystems i... more A synthesis of current approaches to managing the non-timber values linked to forest ecosystems is key to understanding questions related to ecosystem services. Issues of note include: examining whether valuing ecosystem services, and creating new markets for them can lead to forest management. The analysis of market-based approaches to conservation, and in depth coverage of two market-based instruments are critical in the realm of disturbance permits and forest carbon tendering. Furthermore, the recommendations of The National Round Table on the Environment and the Economy (NRTEE 2005) are upheld in the analysis.
The literature that supports assigning economic value to ecosystem services (ES) has been identif... more The literature that supports assigning economic value to ecosystem services (ES) has been identified as a topic for discussion. The challenges of economic valuation is a pressing issue, yet the knowledge and barriers associated with them are of equal significance. Specific policy mechanisms that may be used for ES provision are examined in this work. It is also acknowledged that legal and constitutional challenges create obstacles in moving forward toward market-based policies. Furthermore, the challenges touch upon political controversies, and explore details regarding tradable disturbance permits and carbon offsets.
Few passages in the Canadian Constitution have generated as much debate over the years as the ope... more Few passages in the Canadian Constitution have generated as much debate over the years as the opening words of section 91 of the Constitution Act, 1867 commonly known as the Peace, Order, and Good Government (hereinafter “POGG”) clause. Most of the controversy about POGG centers around how to interpret the clause in a way that allows the federal government to address issues of genuine national concern (that warrant a national response) while respecting provincial autonomy and diversity in our federation. The tensions underpinning POGG were recently revealed in the trio of provincial challenges to the constitutionality of Parliament’s Greenhouse Gas Pollution Pricing Act (GGPPA), in which provinces argued that upholding the GGPPA would have the effect of displacing provincial jurisdiction over GHG emissions. While two of the three Courts of Appeal (Saskatchewan and Ontario) upheld the GGPPA as a matter of national concern under POGG, doing so was apparently a struggle, as they strained against the watertight confines of earlier eras of constitutional interpretation still evident in POGG jurisprudence. Now under appeal to the Supreme Court, this trio of references offers an opportunity for the Court to clarify the contours of POGG in the modern context of flexible, cooperative federalism.
In this article, we examine three central tensions that the GGPPA appeals revealed about POGG. First, we consider, and reject, the argument that POGG benefits from a special kind of exclusivity, different from enumerated powers, that has the effect of displacing provincial power. We show that this argument is steeped in the bygone era of watertight compartments and a suggestion that POGG creates an unassailable core, akin to that which underpins the doctrine of interjurisdictional immunity. We explain why this argument is unfounded in the modern era of cooperative federalism. Second, we examine a source of confusion in the GGPPA appeals related to how the word ‘matter’ is used, which we submit contributed to the challenging provinces’ fear that provincial power will be permanent displaced if the legislation is upheld under POGG. Specifically, the challenging provinces argued that upholding the GGPPA would necessarily create a new sub-head of exclusive federal power over a broad subject matter (GHG emissions) that would displace their jurisdiction. We discuss how the word ‘matter’ is used to refer both to the pith and substance of legislation and the possibility of a new sub-head of power that could be recognized for Parliament if the law is upheld. We submit that this terminological confusion fuels the fears about the impact of upholding the legislation under POGG on provinces. Third, and most importantly, we consider the extent to which federal jurisdiction under POGG can peacefully co-exist with related provincial authority. The provincial appeals have revealed that most of the justices – even those that upheld the GGPPA – are operating under an assumption that the double aspect doctrine does not apply to matters justified under POGG. We examine the historical development of the double aspect doctrine to show that there is no basis for this assumption, and suggest the Supreme Court should clarify that the doctrine applies to matters upheld under POGG, just as it would for enumerated powers.
We also argue in this paper that the Supreme Court should update the test set out in Crown Zellerbach more than 30 years ago. In the intervening decades, the courts have more fully embraced a flexible interpretation of the division of powers that tolerates more de facto concurrent operation of statutes on similar subject matters. The provincial challenges have revealed the extent to which the Crown Zellerbach test, and specifically the way in which the potential scale of impact on provincial jurisdiction is evaluated, leaves much uncertainty about the level of overlap that can operate. We deconstruct the Crown Zellerbach test and propose a more flexible, nuanced, analytical approach that empowers the federation to address pressing public policy problems such as climate change in a way that respects federalism. Ultimately, the Supreme Court has an opportunity in the GGPPA appeals to interpret POGG in a way that empowers all levels of government in our federation to respond to increasingly pressing, dynamic, multi-dimensional public policy challenges, such as climate change. Our article shows that there is a role for POGG to play in enabling the federal government to be accountable for reducing the country’s overall level of emissions in accordance with international commitments while also allowing the provinces to continue legislating to reduce GHG emissions.
There is increasing evidence of environmental injustice in Canada, where individuals and/or commu... more There is increasing evidence of environmental injustice in Canada, where individuals and/or communities experience disproportionate levels of harm from pollution or do not share equally in the benefits a healthy environment has to offer (such as clean air and water). This article examines the extent to which the right to life, liberty and security of the person under s. 7 and the equality guarantee in s. 15 safeguard against such injustices. The analysis suggests that there is ample scope within both sections to capture many different types of environmental justice claims. While each section has relative advantages and disadvantages, and the facts of a specific case will ultimately be determinative, the strength of s. 7 is the scope of its protections, which apply to all Canadians, as well as recent progressive and expansive judicial interpretations of s. 7. One of the stumbling blocks of s. 7 is the need for claimants to establish a sufficient causal connection between the harm they have suffered and the government action. One of s. 15’s strengths is that it focuses on discriminatory treatment rather than a causal connection, which may side-step the challenge of proving a s. 7 claim. A downside of section 15 is that it only applies to specific groups, which means those individuals experiencing environmental injustices based on income levels alone would not be captured by its protections. However, the fact that environmental cases have rarely been argued under section 15 may create an opening for progressive judicial interpretation of its protections, especially given the Supreme Court of Canada’s repeated statements about the importance of a healthy environment.
Concerns about the way in which we grow, distribute and consume food around the world have grown ... more Concerns about the way in which we grow, distribute and consume food around the world have grown in recent years. From the environmental impacts of farming practices (exacerbated by the industrialization of agriculture) and GHG emissions from agriculture, to the viability of farming communities and health concerns about concentrated livestock operations, the issues are numerous, often overlapping, and sometimes underpinned by different values and/or preoccupations. These concerns are intensified when set against the backdrop of expanding global population, with its growing need for food and increasing demand for diets high in both caloric and meat consumption, and climate change. Public policy in support of sustainable farming is essential to safeguard the ecosystems upon which farms are dependant, while providing sustainable rural livelihoods, promoting food security and contributing to a vibrant agricultural economy. This paper evaluates the extent to which Canada's federal agricultural policy framework enables sustainable farming and agricultural food production. We find that, although there have been many ad-hoc initiatives within Canadian federal and provincial/ territorial governments relating to sustainability, Canada has not made any national policy commitments to pursuing sustainable farming. The government's central agricultural policy framework fails to establish the enabling vision and incentive structure needed to influence a systemic change in the sector towards sustainable farming. The policy framework is primarily geared towards helping the sector become more competitive and gain and maintain market share, through innovation for instance. A shift in agricultural policy is required in order to safeguard the future of food security and rural livelihoods in Canada.
Prime Minister Justin Trudeau has committed the government to do what is needed to ensure Canada ... more Prime Minister Justin Trudeau has committed the government to do what is needed to ensure Canada meets or exceeds its national climate targets under the Paris Agreement. While he has promised to work collaboratively with the provinces in establishing a pan-Canadian clean growth and climate framework, it is clear that some new federal climate laws will be required. There are many factors involved in selecting and designing climate policies, one of which is constitutional jurisdiction. This article analyzes Parliament's authority to regulate greenhouse gas (GHG) emissions and implement a carbon price, either through a national carbon tax or a national emissions trading scheme. Taking into account recent jurisprudence and previous scholarship, the article considers five federal powers: Peace, Order and Good Government (P.O.G.G.), criminal law, taxation, trade and commerce, and the declaratory power. It also considers the spending power. The analysis shows that there is ample authority within the Constitution for a strong federal role in regulating GHG emissions and pricing carbon without displacing appropriately scoped provincial climate programs. While thoughtful legislative drafting will be important, ultimately the Canadian Constitution's division of powers is adequately equipped to deal with what may be the greatest public policy challenge of our time. In fact, climate change is perhaps the quintessential issue for engaging the tools of cooperative federalism and progressive interpretation of our Constitution.
Le premier ministre Justin Trudeau s'est engagé à ce que le gouvernement fasse ce qui est nécessaire pour que le Canada respecte ou dépasse ses objectifs climatiques nationaux en vertu de l'Accord de Paris. Même s'il a promis de *332 travailler en collaboration avec les provinces afin d'établir un cadre pancanadien en matière de croissance propre et de changement climatique, il est clair que certaines nouvelles lois climatiques fédérales seront nécessaires. Plusieurs facteurs entrent en jeu dans le choix et la conception des politiques climatiques, dont l'une est la compétence constitutionnelle. Dans cet article, l'auteure analyse le pouvoir du Parlement lui permettant de réglementer les émissions de gaz à effet de serre (GES) et mettre en oeuvre un prix du carbone, soit par le truchement d'une taxe nationale sur le carbone ou d'une bourse nationale du carbone. Tenant compte de la jurisprudence récente et des précédents travaux, l'auteur considère cinq pouvoirs fédéraux: paix, ordre et bon gouvernement, le droit pénal, la fiscalité, le commerce et le pouvoir déclaratoire. Il tient également compte du pouvoir de dépenser. L'analyse montre qu'il y a des pouvoirs amplement suffisants au sein de la Constitution pour que le gouvernement fédéral joue un rôle de premier plan dans la réglementation des émissions de GES et la tarification du carbone sans avoir à modifier la portée des programmes climatiques provinciaux. Même s'il est important que la rédaction législative soit réfléchie, en fin de compte, le partage des compétences de la Constitution canadienne est suffisant pour faire face à ce qui peut être le plus grand défi de la politique publique de notre temps. En fait, le changement climatique est peut-être la question par excellence pour mobiliser les outils du fédéralisme coopératif et l'interprétation progressive de notre Constitution.
A State of Knowledge Report - Sustainable Forest Management Network, 2010
A synthesis of current approaches to managing the non-timber values linked to forest ecosystems i... more A synthesis of current approaches to managing the non-timber values linked to forest ecosystems is key to understanding questions related to ecosystem services. Issues of note include: examining whether valuing ecosystem services, and creating new markets for them can lead to forest management. The analysis of market-based approaches to conservation, and in depth coverage of two market-based instruments are critical in the realm of disturbance permits and forest carbon tendering. Furthermore, the recommendations of The National Round Table on the Environment and the Economy (NRTEE 2005) are upheld in the analysis.
There has been some slow but steady progress on sustainable forest management (SFM) in Canada ove... more There has been some slow but steady progress on sustainable forest management (SFM) in Canada over the last decade. While the change is positive, it is insufficient to keep up with the multiple demands on forest ecosystems. This paper argues that while the provinces should work towards fundamental regulatory reform in the forest sector (such as reforming tenure structures to better reflect Aboriginal, social and ecological needs and values), the federal government should concomitantly offer short-to-medium term fiscal incentives to encourage forest companies operating in Canada to voluntarily move faster and closer towards SFM. The paper argues that such measures would also serve to help level the playing field between leading forest companies (who are facing increased costs from implementing SFM) and other companies who continue to operate at the regulatory baseline. The paper discusses some of the challenges of using fiscal incentives (such as WTO subsidy rules) and offers suggestions for ensuring the measures avoid these pitfalls.
Many First Nations communities living on reserves in Canada do not have consistent access to one ... more Many First Nations communities living on reserves in Canada do not have consistent access to one of the most essential requirements for life — clean and safe drinking water. This article analyses the Charter’s equality guarantee to determine whether it offers a remedy. The analysis shows that the experience of First Nations communities living on reserve without access to clean water is discriminatory within the meaning of s 15 of the Charter, and that this discrimination would not be saved by s 1. The most significant hurdle to a s 15 claim is the fact that there is no single law which categorically excludes First Nations reserve communities from its protection. While the courts have not considered a case with similar facts, the article argues that the Charter’s equality protections extend to the full range of government action (and inaction) regardless of whether the action stems from one law, regulation or policy, or a set of laws that, acting together, creates discrimination. An interpretation that would limit s 15 protections based on a narrow, formalistic interpretation of the word “law” in section 15 would not only run counter to the interpretations of the section in recent decisions, but more importantly would run afoul of the Charter’s purpose of promoting substantive equality.
he Supreme Court of Canada and Social Justice: Commitment, Retrenchment or Retreat, 2010
This paper examines the jurisprudence of the Supreme Court of Canada under Chief Justice McLachli... more This paper examines the jurisprudence of the Supreme Court of Canada under Chief Justice McLachlin in terms of its implications for environmental justice. It examines specifically how the Court’s decisions influence the promotion of environmental justice, the government’s role as a trustee for environmental values, access to justice (in the environmental context), participatory decision-making, and the precautionary principle.
Keywords: Environmental justice, Supreme Court of Canada, access to justice, precautionary principle, trustee for environmental values, procedural rights
Critical Issues in Environmental Taxation, Vol VI, 2009
This paper examines the potential for using economic instruments to stimulate the use of renewabl... more This paper examines the potential for using economic instruments to stimulate the use of renewable energy in the Canadian residential sector, notably micro-wind and solar photovoltaics. We examine three instruments in particular: installation grants, feed-in tariffs and municipal development charges.
Keywords: Economic instruments, renewable energy, Canadian residential sector, micro-wind, solar photovoltaics, feed-in tariffs, development charges, installation grants
Environmental assessment is a critical tool for helping to reduce the environmental impacts of de... more Environmental assessment is a critical tool for helping to reduce the environmental impacts of development projects. However, the process as currently designed and implemented does little to ensure that the environmental harms created are fairly distributed among members of the public. Using the human health concerns raised by the community of Fort Chipewyan in the wake of massive oil sands developments upstream as a case study, this paper argues that the Kearl Oil Sands environmental assessment process did little to promote social justice for this community. While the environmental assessment process created an avenue for the community to share its concerns, the process failed to protect against the possibility that these concerns, once voiced, would simply be discounted or marginalized in the determination of what is a “significant environmental adverse effect (SAEE)”. I argue that the duty to apply the precautionary principle now explicitly embodied within CEAA creates a reverse onus upon project proponents to show that their proposal will not create SAEEs and suggest it should be interpreted to include a duty to demonstrate that the environmental harms deemed acceptable will not be shouldered disproportionately by an under-privileged community. I propose a number of reforms that could help transform environmental assessment into a process that promotes environmental justice. To critics who suggest that project-level assessment is not the place to address environmental justice, I argue that environmental assessment processes must not be a mechanism for perpetuating existing systemic inequalities by condoning an unfair distribution of environmental harm. Bringing the question of the distribution of environmental benefits and burdens to the forefront of assessments will lead to greater justice for all.
The 2015 Paris Agreement represents a significant step forward in international cooperation to mi... more The 2015 Paris Agreement represents a significant step forward in international cooperation to mitigate greenhouse gas (GHG) emissions. Aviation emissions represent approximately 2 percent of global GHG emissions, a percentage that is predicted to grow rapidly over the next few decades. In spite of their importance, aviation emissions have been essentially left out of the UNFCCC processes, including the recent Paris Agreement. Responsibility for negotiating a plan to mitigate global aviation emissions has been left to the UN International Civil Aviation Organization (ICAO). After years of challenging negotiations, ICAO members recently agreed to establish a global offsetting mechanism. While this is an important step, the program will not begin its voluntary pilot phase until 2021 and its first mandatory phase in 2024. Further, the program only covers international emissions. Given the projected growth in this industry, some jurisdictions are taking steps domestically to mitigate aviation emissions. For instance, the countries of the European Union (EU) included aviation in the EU Emissions Trading Program in 2012, although they offered international flights a hiatus while awaiting the outcome of ICAO negotiations on a market-based mechanism. In the wake of ICAO’s decision to implement an offsetting program, states now need to determine whether and how they will regulate emissions from aviation. This paper examines Canada’s options for mitigating aviation emissions. Under Canada’s division of legislative powers, aviation falls squarely within federal jurisdiction. As such, most provincial climate change policies exclude domestic aviation. We examine the potential for federal action on GHG emissions from domestic aviation as a first step in the broader climate change action program, as well as the possibility of further action on international flights. Since the majority of aviation emissions are a consequence of burning fuel, we first survey the ways in which aviation fuels are currently regulated and then we consider the potential for carbon pricing and other regulations to be applied. We argue that addressing GHG aviation emissions would not only show leadership, but could also ultimately set Canada up to cooperate with the EU in the event it once again includes international flights in the EU ETS. Taking steps to implement a carbon price on international aviation in Canada could ensure that the considerable revenue that would be raised by such a carbon price stays in Canada.
Citizens are increasingly searching for ways to spur their governments to take climate change act... more Citizens are increasingly searching for ways to spur their governments to take climate change action, and recent successes in courtrooms around the world suggest litigation may be an effective recourse. This article evaluates the legal basis for a claim that the Canadian government’s conduct in relation to climate change and greenhouse gas (GHG) emissions violates the Charter’s right to life, liberty and security of the person. A section 7 climate case would raise a number of novel questions, three of which are addressed in detail.
The first question arises because there is not one specific law or decision that alone is leading to harmful climate change, but rather a series of government plans, policies and decisions made over many years that infringe rights. Framing the challenge around a constellation of decisions versus the government’s inadequate action in achieving national GHG reduction targets would raise different questions and potentially yield different results. We explore some of these tensions, and argue for a flexible and purposive interpretation of section 7 that overcomes this issue. A second question relates to the issue of the evidentiary burden. Establishing causation is often the thorn in the side of environmental cases. Unlike in many environmental cases, however, the state of climate science provides a rich evidentiary basis that shows how a certain level of GHG emissions leads to warming that causes harm. We discuss the evidentiary burden required in a Charter case and how this would be applied to the context of government conduct in relation to climate change. We also consider and reject the de minimus argument that the government should not be held responsible given that it only emits a small proportion of global GHG emissions (though it still ranks high among emitting countries). The third question relates to justiciability of a Charter challenge. This issue is important in a Canadian context because there have been two climate lawsuits against the federal government and both were dismissed for being non-justiciable. We explain why we believe those cases are distinguishable from the kind of challenge contemplated in this article.
Throughout the article we argue that in determining how to handle this relatively uncharted terrain, courts should be guided by a normative approach. In other words, courts should interpret the Constitution in light of its purpose, overarching principles and the evolving circumstances of climate change which poses serious risks to the future of life as we know it. The international community and Canadian governments have acknowledged the severity of the problem and the need to take urgent action to prevent dangerous levels of warming. Ultimately, we believe courts should avoid using the unusual circumstances of climate change to justify a narrow, technical application of the Charter, and rather adapt their reasoning to ensure the Charter achieves its purpose of guaranteeing the fundamental rights and freedoms of Canadians. Canadians are already adapting to the realities of climate change, and judges should do the same.
Many constitutional questions arise in the context of assessing, approving, and regulating interp... more Many constitutional questions arise in the context of assessing, approving, and regulating interprovincial pipelines. This paper examines the extent to which upstream and downstream greenhouse gas (GHG) emissions can be considered and acted upon when proponents seek federal approval to build, expand, or modify an interprovincial pipeline. This question has become relevant in the context of Canada’s international commitments under the Paris Agreement, which require rapid, broad, and systemic decarbonisation of the Canadian economy. The article examines the questions through the lens of the regulatory frameworks in force at the time of writing (the National Energy Board Act and the Canadian Environmental Assessment Act, 2012) as well as draft legislation under Bill C-69, namely the Canadian Energy Regulator Act and the Impact Assessment Act. Although the new laws do not explicitly refer to indirect emissions, a reasonable interpretation of the legislation suggests that federal regulators would be within the bounds of their statutory authority to include indirect emissions in their deliberations and decision-making. A constitutional analysis suggests that that they would also be justified in doing so. The courts have confirmed federal jurisdiction over regulation of GHG emissions under the criminal law power, and there are two reference cases active at the time of writing that will examine the jurisdictional scope of the peace, order and good government power in the context of carbon pricing. Although it is unchartered jurisprudential territory, it is reasonable to conclude that under the new regulatory regime, Parliament will have the statutory and constitutional authority to consider the full implications of GHG emissions associated with an interprovincial pipeline proposal, especially if the courts continue to interpret jurisdictional powers through the flexible, purposive lens of cooperative federalism.
University Microfilms order no. 31-71805. Thesis (D.Sc.Law)--Stanford University, 2005. Includes ... more University Microfilms order no. 31-71805. Thesis (D.Sc.Law)--Stanford University, 2005. Includes bibliographical references.
There is increasing agreement in Canada that we need carbon pricing policies. Indeed, Quebec and ... more There is increasing agreement in Canada that we need carbon pricing policies. Indeed, Quebec and British Columbia have forged ahead with carbon taxes, and the Liberal opposition has included a carbon tax in its most recent platform. One is tempted to simply point to the respective federal and provincial taxation powers for jurisdictional authority.However, and perhaps surprisingly, the taxation powers are not the optimal source of authority. This paper shows that both levels of government have authority to implement carbon taxes under various heads of power, depending on the measure’s design. Federally, carbon taxes could be justified under the national concern branch of the POGG power, and possibly under the criminal law, trade and commerce and taxation powers. While the property and civil rights power, taxation power and authority over natural resources might justify carbon taxes provincially, the licensing power offers the strongest source of authority. Analysis of Quebec and B.C...
ABSTRACT In Pembina, the Federal Court reviewed a Joint Panel Report evaluating the environmental... more ABSTRACT In Pembina, the Federal Court reviewed a Joint Panel Report evaluating the environmental impacts of the Kearl Oil Sands project. The case received considerable attention for its laudable finding that the Panel should have provided reasons to support its conclusion that the project’s proposed greenhouse gas (GHG) emissions would be insignificant. However, this paper critiques the decision for accepting the Panel’s reliance upon future, uncertain mitigation measures and recommendations as a basis for finding that the various environmental impacts – including GHG emissions, but also impacts upon water, land, wildlife and human health - would be insignificant. I respectfully argue that the Court gave too broad an interpretation to the concept of "technically feasible" mitigation measures, given the high degree of uncertainty involved. I also respectfully argue that the Court failed in its duty to apply the precautionary principle in environmental assessment, as now mandated in the CEAA. The Court justified the Panel’s reliance upon measures and recommendations with uncertain outcomes as appropriate mitigation of environmental impacts by relying upon the concept of adaptive management as a counter to the precautionary principle. I argue that the Court erred in doing so. Application of the precautionary principle is a legislated duty that reduces the threshold of uncertainty that panels may tolerate in assessing environmental impacts. While adaptive management is a concept that can be applied in the implementation of follow-up programs, it is not an appropriate substitute for duty to apply the precautionary principle.
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In this article, we examine three central tensions that the GGPPA appeals revealed about POGG. First, we consider, and reject, the argument that POGG benefits from a special kind of exclusivity, different from enumerated powers, that has the effect of displacing provincial power. We show that this argument is steeped in the bygone era of watertight compartments and a suggestion that POGG creates an unassailable core, akin to that which underpins the doctrine of interjurisdictional immunity. We explain why this argument is unfounded in the modern era of cooperative federalism. Second, we examine a source of confusion in the GGPPA appeals related to how the word ‘matter’ is used, which we submit contributed to the challenging provinces’ fear that provincial power will be permanent displaced if the legislation is upheld under POGG. Specifically, the challenging provinces argued that upholding the GGPPA would necessarily create a new sub-head of exclusive federal power over a broad subject matter (GHG emissions) that would displace their jurisdiction. We discuss how the word ‘matter’ is used to refer both to the pith and substance of legislation and the possibility of a new sub-head of power that could be recognized for Parliament if the law is upheld. We submit that this terminological confusion fuels the fears about the impact of upholding the legislation under POGG on provinces. Third, and most importantly, we consider the extent to which federal jurisdiction under POGG can peacefully co-exist with related provincial authority. The provincial appeals have revealed that most of the justices – even those that upheld the GGPPA – are operating under an assumption that the double aspect doctrine does not apply to matters justified under POGG. We examine the historical development of the double aspect doctrine to show that there is no basis for this assumption, and suggest the Supreme Court should clarify that the doctrine applies to matters upheld under POGG, just as it would for enumerated powers.
We also argue in this paper that the Supreme Court should update the test set out in Crown Zellerbach more than 30 years ago. In the intervening decades, the courts have more fully embraced a flexible interpretation of the division of powers that tolerates more de facto concurrent operation of statutes on similar subject matters. The provincial challenges have revealed the extent to which the Crown Zellerbach test, and specifically the way in which the potential scale of impact on provincial jurisdiction is evaluated, leaves much uncertainty about the level of overlap that can operate. We deconstruct the Crown Zellerbach test and propose a more flexible, nuanced, analytical approach that empowers the federation to address pressing public policy problems such as climate change in a way that respects federalism. Ultimately, the Supreme Court has an opportunity in the GGPPA appeals to interpret POGG in a way that empowers all levels of government in our federation to respond to increasingly pressing, dynamic, multi-dimensional public policy challenges, such as climate change. Our article shows that there is a role for POGG to play in enabling the federal government to be accountable for reducing the country’s overall level of emissions in accordance with international commitments while also allowing the provinces to continue legislating to reduce GHG emissions.
Le premier ministre Justin Trudeau s'est engagé à ce que le gouvernement fasse ce qui est nécessaire pour que le Canada respecte ou dépasse ses objectifs climatiques nationaux en vertu de l'Accord de Paris. Même s'il a promis de *332 travailler en collaboration avec les provinces afin d'établir un cadre pancanadien en matière de croissance propre et de changement climatique, il est clair que certaines nouvelles lois climatiques fédérales seront nécessaires. Plusieurs facteurs entrent en jeu dans le choix et la conception des politiques climatiques, dont l'une est la compétence constitutionnelle. Dans cet article, l'auteure analyse le pouvoir du Parlement lui permettant de réglementer les émissions de gaz à effet de serre (GES) et mettre en oeuvre un prix du carbone, soit par le truchement d'une taxe nationale sur le carbone ou d'une bourse nationale du carbone. Tenant compte de la jurisprudence récente et des précédents travaux, l'auteur considère cinq pouvoirs fédéraux: paix, ordre et bon gouvernement, le droit pénal, la fiscalité, le commerce et le pouvoir déclaratoire. Il tient également compte du pouvoir de dépenser. L'analyse montre qu'il y a des pouvoirs amplement suffisants au sein de la Constitution pour que le gouvernement fédéral joue un rôle de premier plan dans la réglementation des émissions de GES et la tarification du carbone sans avoir à modifier la portée des programmes climatiques provinciaux. Même s'il est important que la rédaction législative soit réfléchie, en fin de compte, le partage des compétences de la Constitution canadienne est suffisant pour faire face à ce qui peut être le plus grand défi de la politique publique de notre temps. En fait, le changement climatique est peut-être la question par excellence pour mobiliser les outils du fédéralisme coopératif et l'interprétation progressive de notre Constitution.
Keywords: environmental practices, ecosystem services, ecotourism, forest carbon tendering, forest ecosystems, forest management, renewable tradable disturbance permits
Keywords: Environmental justice, Supreme Court of Canada, access to justice, precautionary principle, trustee for environmental values, procedural rights
Keywords: Economic instruments, renewable energy, Canadian residential sector, micro-wind, solar photovoltaics, feed-in tariffs, development charges, installation grants
Keywords: environmental justice, environmental assessment, precautionary principle, equality, oil sands, Aboriginal communities, Fort Chipewyan
This paper examines Canada’s options for mitigating aviation emissions.
Under Canada’s division of legislative powers, aviation falls squarely within federal jurisdiction. As such, most provincial climate change policies exclude domestic aviation. We examine the potential for federal action on GHG emissions from domestic aviation as a first step in the broader climate change action program, as well as the possibility
of further action on international flights. Since the majority of aviation emissions are a consequence of burning fuel, we first survey the ways in which aviation fuels are currently regulated and then we consider the potential for carbon pricing and other regulations to be applied. We argue that addressing GHG aviation emissions would not only show
leadership, but could also ultimately set Canada up to cooperate with the EU in the event it once again includes international flights in the EU ETS. Taking steps to implement a carbon price on international aviation in Canada could ensure that the considerable revenue that would be raised by such a carbon price stays in Canada.
The first question arises because there is not one specific law or decision that alone is leading to harmful climate change, but rather a series of government plans, policies and decisions made over many years that infringe rights. Framing the challenge around a constellation of decisions versus the government’s inadequate action in achieving national GHG reduction targets would raise different questions and potentially yield different results. We explore some of these tensions, and argue for a flexible and purposive interpretation of section 7 that overcomes this issue. A second question relates to the issue of the evidentiary burden. Establishing causation is often the thorn in the side of environmental cases. Unlike in many environmental cases, however, the state of climate science provides a rich evidentiary basis that shows how a certain level of GHG emissions leads to warming that causes harm. We discuss the evidentiary burden required in a Charter case and how this would be applied to the context of government conduct in relation to climate change. We also consider and reject the de minimus argument that the government should not be held responsible given that it only emits a small proportion of global GHG emissions (though it still ranks high among emitting countries). The third question relates to justiciability of a Charter challenge. This issue is important in a Canadian context because there have been two climate lawsuits against the federal government and both were dismissed for being non-justiciable. We explain why we believe those cases are distinguishable from the kind of challenge contemplated in this article.
Throughout the article we argue that in determining how to handle this relatively uncharted terrain, courts should be guided by a normative approach. In other words, courts should interpret the Constitution in light of its purpose, overarching principles and the evolving circumstances of climate change which poses serious risks to the future of life as we know it. The international community and Canadian governments have acknowledged the severity of the problem and the need to take urgent action to prevent dangerous levels of warming. Ultimately, we believe courts should avoid using the unusual circumstances of climate change to justify a narrow, technical application of the Charter, and rather adapt their reasoning to ensure the Charter achieves its purpose of guaranteeing the fundamental rights and freedoms of Canadians. Canadians are already adapting to the realities of climate change, and judges should do the same.
In this article, we examine three central tensions that the GGPPA appeals revealed about POGG. First, we consider, and reject, the argument that POGG benefits from a special kind of exclusivity, different from enumerated powers, that has the effect of displacing provincial power. We show that this argument is steeped in the bygone era of watertight compartments and a suggestion that POGG creates an unassailable core, akin to that which underpins the doctrine of interjurisdictional immunity. We explain why this argument is unfounded in the modern era of cooperative federalism. Second, we examine a source of confusion in the GGPPA appeals related to how the word ‘matter’ is used, which we submit contributed to the challenging provinces’ fear that provincial power will be permanent displaced if the legislation is upheld under POGG. Specifically, the challenging provinces argued that upholding the GGPPA would necessarily create a new sub-head of exclusive federal power over a broad subject matter (GHG emissions) that would displace their jurisdiction. We discuss how the word ‘matter’ is used to refer both to the pith and substance of legislation and the possibility of a new sub-head of power that could be recognized for Parliament if the law is upheld. We submit that this terminological confusion fuels the fears about the impact of upholding the legislation under POGG on provinces. Third, and most importantly, we consider the extent to which federal jurisdiction under POGG can peacefully co-exist with related provincial authority. The provincial appeals have revealed that most of the justices – even those that upheld the GGPPA – are operating under an assumption that the double aspect doctrine does not apply to matters justified under POGG. We examine the historical development of the double aspect doctrine to show that there is no basis for this assumption, and suggest the Supreme Court should clarify that the doctrine applies to matters upheld under POGG, just as it would for enumerated powers.
We also argue in this paper that the Supreme Court should update the test set out in Crown Zellerbach more than 30 years ago. In the intervening decades, the courts have more fully embraced a flexible interpretation of the division of powers that tolerates more de facto concurrent operation of statutes on similar subject matters. The provincial challenges have revealed the extent to which the Crown Zellerbach test, and specifically the way in which the potential scale of impact on provincial jurisdiction is evaluated, leaves much uncertainty about the level of overlap that can operate. We deconstruct the Crown Zellerbach test and propose a more flexible, nuanced, analytical approach that empowers the federation to address pressing public policy problems such as climate change in a way that respects federalism. Ultimately, the Supreme Court has an opportunity in the GGPPA appeals to interpret POGG in a way that empowers all levels of government in our federation to respond to increasingly pressing, dynamic, multi-dimensional public policy challenges, such as climate change. Our article shows that there is a role for POGG to play in enabling the federal government to be accountable for reducing the country’s overall level of emissions in accordance with international commitments while also allowing the provinces to continue legislating to reduce GHG emissions.
Le premier ministre Justin Trudeau s'est engagé à ce que le gouvernement fasse ce qui est nécessaire pour que le Canada respecte ou dépasse ses objectifs climatiques nationaux en vertu de l'Accord de Paris. Même s'il a promis de *332 travailler en collaboration avec les provinces afin d'établir un cadre pancanadien en matière de croissance propre et de changement climatique, il est clair que certaines nouvelles lois climatiques fédérales seront nécessaires. Plusieurs facteurs entrent en jeu dans le choix et la conception des politiques climatiques, dont l'une est la compétence constitutionnelle. Dans cet article, l'auteure analyse le pouvoir du Parlement lui permettant de réglementer les émissions de gaz à effet de serre (GES) et mettre en oeuvre un prix du carbone, soit par le truchement d'une taxe nationale sur le carbone ou d'une bourse nationale du carbone. Tenant compte de la jurisprudence récente et des précédents travaux, l'auteur considère cinq pouvoirs fédéraux: paix, ordre et bon gouvernement, le droit pénal, la fiscalité, le commerce et le pouvoir déclaratoire. Il tient également compte du pouvoir de dépenser. L'analyse montre qu'il y a des pouvoirs amplement suffisants au sein de la Constitution pour que le gouvernement fédéral joue un rôle de premier plan dans la réglementation des émissions de GES et la tarification du carbone sans avoir à modifier la portée des programmes climatiques provinciaux. Même s'il est important que la rédaction législative soit réfléchie, en fin de compte, le partage des compétences de la Constitution canadienne est suffisant pour faire face à ce qui peut être le plus grand défi de la politique publique de notre temps. En fait, le changement climatique est peut-être la question par excellence pour mobiliser les outils du fédéralisme coopératif et l'interprétation progressive de notre Constitution.
Keywords: environmental practices, ecosystem services, ecotourism, forest carbon tendering, forest ecosystems, forest management, renewable tradable disturbance permits
Keywords: Environmental justice, Supreme Court of Canada, access to justice, precautionary principle, trustee for environmental values, procedural rights
Keywords: Economic instruments, renewable energy, Canadian residential sector, micro-wind, solar photovoltaics, feed-in tariffs, development charges, installation grants
Keywords: environmental justice, environmental assessment, precautionary principle, equality, oil sands, Aboriginal communities, Fort Chipewyan
This paper examines Canada’s options for mitigating aviation emissions.
Under Canada’s division of legislative powers, aviation falls squarely within federal jurisdiction. As such, most provincial climate change policies exclude domestic aviation. We examine the potential for federal action on GHG emissions from domestic aviation as a first step in the broader climate change action program, as well as the possibility
of further action on international flights. Since the majority of aviation emissions are a consequence of burning fuel, we first survey the ways in which aviation fuels are currently regulated and then we consider the potential for carbon pricing and other regulations to be applied. We argue that addressing GHG aviation emissions would not only show
leadership, but could also ultimately set Canada up to cooperate with the EU in the event it once again includes international flights in the EU ETS. Taking steps to implement a carbon price on international aviation in Canada could ensure that the considerable revenue that would be raised by such a carbon price stays in Canada.
The first question arises because there is not one specific law or decision that alone is leading to harmful climate change, but rather a series of government plans, policies and decisions made over many years that infringe rights. Framing the challenge around a constellation of decisions versus the government’s inadequate action in achieving national GHG reduction targets would raise different questions and potentially yield different results. We explore some of these tensions, and argue for a flexible and purposive interpretation of section 7 that overcomes this issue. A second question relates to the issue of the evidentiary burden. Establishing causation is often the thorn in the side of environmental cases. Unlike in many environmental cases, however, the state of climate science provides a rich evidentiary basis that shows how a certain level of GHG emissions leads to warming that causes harm. We discuss the evidentiary burden required in a Charter case and how this would be applied to the context of government conduct in relation to climate change. We also consider and reject the de minimus argument that the government should not be held responsible given that it only emits a small proportion of global GHG emissions (though it still ranks high among emitting countries). The third question relates to justiciability of a Charter challenge. This issue is important in a Canadian context because there have been two climate lawsuits against the federal government and both were dismissed for being non-justiciable. We explain why we believe those cases are distinguishable from the kind of challenge contemplated in this article.
Throughout the article we argue that in determining how to handle this relatively uncharted terrain, courts should be guided by a normative approach. In other words, courts should interpret the Constitution in light of its purpose, overarching principles and the evolving circumstances of climate change which poses serious risks to the future of life as we know it. The international community and Canadian governments have acknowledged the severity of the problem and the need to take urgent action to prevent dangerous levels of warming. Ultimately, we believe courts should avoid using the unusual circumstances of climate change to justify a narrow, technical application of the Charter, and rather adapt their reasoning to ensure the Charter achieves its purpose of guaranteeing the fundamental rights and freedoms of Canadians. Canadians are already adapting to the realities of climate change, and judges should do the same.