Kyoto and the Constitution

The specter of federal government unilateralism has haunted the Kyoto debate from the start. As Canada’s Natural Resources Minister Ralph Goodale announced shortly after the federal government signed on to the 1997 protocol, “Ultimately the decision about the ratification of international treaties is a federal government decision. By the Constitution that is our responsibility and we will discharge that responsibility. We’ll make the decision about ratification when, in our judgment, it is appropriate, in the Canadian circumstances to do so.”

This constitutional claim has received scant attention in the intervening years. Now, with the clock ticking towards his impending retirement and his heart set on his political legacy, Prime Minister Jean Chrétien has decided that ratification is indeed “appropriate,” regardless of the fierce provincial opposition and the conspicuous absence of a clear implementation plan. Alberta and the other western provinces expected to bear most of the estimated $23-40 billion economic costs of the deal now have little choice but to take the issue to court.

While the Canadian constitution may give the federal government the authority to ratify an international treaty such as the Kyoto Protocol, implementation depends on the agreement and cooperation of the provinces. As Lord Sankey wrote in the 1937 Labour Conventions case, “The question is not how is the obligation formed, that is the function of the executive: but how is the obligation to be performed and that depends upon the authority of the competent Legislature or Legislatures.”

Thus the fate of the Protocol ultimately depends on whether Ottawa has the constitutional jurisdiction to implement domestic law that addresses the commitments it would assume under the Protocol.

Remarkably, while eager to ratify the treaty, the federal government has given little indication as to what type of legislation it would enact to achieve its Kyoto-mandated targets. Under the Kyoto Protocol, Canada is committed to reducing its greenhouse gas (GHG) emissions 6% below 1990 levels by 2008-12. These emission goals are themselves extremely hard to measure, ultimately depending on estimates from a variety of sources.

Denied of a plenary treaty power, one option of the federal government would be to implement climate change policies separately. Clearly the government would have jurisdiction to implement some of the measures laid out in the Protocol. Parliament could substantially (although not exclusively) enact legislation concerning market incentives and subsidies, transportation, agriculture, and renewable resource development. Ottawa is already sinking millions into climate education and research, using its spending power to invest in new environmental technologies and renewable energy through such budgetary vehicles as the Climate Change Action Fund.

But such piecemeal measures would not bring Canada close to meeting its targets. The Government of Canada has estimated that a “gap” of about 240 MT GHG emissions must be addressed in order to meet the Kyoto target. According to the government, their current spending initiatives account for 20% of this gap, almost certainly an overly optimistic estimate.

The federal government claims that another 10% of the Kyoto target will be met by credits gained from carbon sinks, the green areas and agricultural land said to absorb GHGs. While Parliament is authorized to make laws promoting sustainable forms of agriculture that would overrule any conflicting provincial law, the vast majority of Canada’s forests and green areas lie exclusively within provincial jurisdiction. The Prime Minister’s latest promise to double the size of the national park system, a dubious policy move for many other environmental and economic reasons, would have a marginal effect on Canada’s carbon sink credits.

The federal government is also banking on having another 30% of Canada’s target covered by credits for clean energy exports to the United States. This is nothing more than wishful thinking, as European signatories have consistently rejected Canada’s request for new credits.

Thus, there is still at least a 166 MT GHG gap to be accounted for. In order to begin approaching Canada’s Kyoto targets, Parliament would ultimately have to enact broad legislation addressing Canada’s Kyoto commitments. This hinges on the Supreme Court’s interpretation of jurisdiction over the environment.

Because the environment is not delegated to one level of government, Parliament and the provincial Legislatures have concurrent jurisdiction over environmental management. Thus, to enact environmental laws, Parliament must either exercise power over the subject matter or territory affected by an environmental issue, or use a legal instrument such as criminal law.

While provincial jurisdiction over natural resources permits legislatures to guard natural resources against the economic effects of environmental laws, Parliament can use its residual power (the POGG clause) to address matters not assigned exclusively to the provinces – but only if the legislation either responds to a national emergency or constitutes a national concern. In R. v. Crown Zellerbach (1988), the existence of an international obligation influenced court’s decision to make marine pollution a matter of national concern.

This is unlikely to hold true for climate control legislation, as the regulation of GHGs affects numerous areas of provincial jurisdiction, including ability to make laws regarding property and civil rights, and the development, conservation and management of non-renewable natural resources. Accordingly, any broad legislation regulating GHGs would fail the test of singleness and distinctiveness necessary to make it a matter of “national concern.” While Canada’s Kyoto commitments require long-term emission controls, legislation justified as a “national emergency” can only be temporary in nature.

Furthermore, lodging constitutional authority for such legislation in POGG would ultimately give Ottawa exclusive jurisdiction over the environment. The Supreme Court of Canada has gone to considerable length to protect shared federal-provincial jurisdiction over the environment. This desire to maintain concurrency was explicit in R. v. Hydro-Quebec (1998), where the Supreme Court majority failed to uphold rejected the Canadian Environmental Protection Act (CEPA) as a matter of national concern.

While Hydro-Quebec opens the door to the possibility that the federal government could also attempt to implement the Kyoto Protocol by passing criminal legislation aimed at controlling GHGs, there are other factors that could discourage a criminal law approach to GHG regulation. Because Parliament could only impose sanctions on companies that failed to reduce emissions rather than working in tandem with industries, such an approach pits environmental regulation directly against the economy.

Without the power too unilaterally implement Kyoto, the federal government’s treaty promises will only be effective to the extent the provinces agree to implement them.