Canadian Federalism in the Context of Combating Climate Change
Alexis Bélanger *
Introduction
Many people today describe Canada’s policy But in the past, by wanting to act hastily on the environment as fragmented. Thus, for and with no thought to the division of legisla- a number of years, there have been more and tive power, Canada has committed a certain more calls for federal leadership in environ- number of errors—mistakes it would be better mental matters. However, in the Canadian con- not to repeat in an issue as fundamental as that text, pondering the development of innovative of climate change. The national energy policy public policy without also asking which level of was one such example. In reality, numerous government has the power to adopt and imple- aspects indicate that true federalism could ac- ment it is equivalent to circumventing the real- tually constitute an asset in responding to the ity of Canadian federalism. Conversely, raising challenges of climate change. After defining the this question at times appears akin to intro- concepts of environment and federalism, this ducing an irritant—the division of powers in article attempts to place the evolution of, and the context of contemporary issues such as cli- the relationship between these concepts in re- mate change can easily be perceived by some as cent political history and in the Canadian legal a constitutional relic, an obstacle to overcome framework. This overview then demonstrates in the process of choosing the means to imple- why, in the current context of combating cli- ment truly national, modern, and effective pub- mate change, and going beyond constitutional lic policies. arguments, a single imposed policy on the en- tire Canadian federation is ill advised and det- Centralization appears, in the eyes of many, rimental to all other potential policies. to be an obvious solution in the climate change dossier: provincial policies are viewed as a fragmented patchwork, a source of failure to Environmental Federalism (the act; the federal and provincial governments are principles) caught in the trap of joint decision making; and the current system is packed with useless and costly structural duplications that undermine The Concepts of Environment and the efficiency and effectiveness of the policies. Federalism After many decades of a federalmodus operandi The word “environment” primarily makes us that has led to generalized involvement in think of all the surrounding conditions and in- provincial fields of jurisdiction, for some, fluences that affect the development of a living Canadian federalism is becoming a simple organism.2 A concept that is multi-faceted and institutional idiosyncrasy to be accommodated both wide-ranging and local, the environment to avoid conflict. has become the focus of public policy when the
Constitutional Forum constitutionnel 21 preservation of natural resources required for compromise among those in favour of a polit- economic development has become imperative. ical union and those in favour of diversity.8 But Urbanization, the rapid industrialization of the choice of a federal system for Canada was our societies, and the massive use of fossil fuel not a second-best solution: “the federal form of energy are the causes of another phenomenon government has some distinctive advantages.” central to the concept of the environment: pol- Thus, according to Hogg, one of the main ad- lution. In just a few decades, pollution and the vantages of federalism remains its ability to take overexploitation of natural resources have gen- into account the different interests and prefer- erated a number of complex problems, such as ences throughout the federation. Another sig- declines in marine biomass, forests, and biodi- nificant advantage of Canadian federalism is versity; climate change; and an overabundance the provinces’ innovative capacities: “Provinces of harmful chemical products in the environ- […] being more homogenous than the nation ment. Problems that call for urgent action at all as a whole, will occasionally adopt policies that levels to protect the environment. are too innovative or radical to be acceptable to the nation as a whole. If a new programme does In June 1992, at the Rio de Janeiro Earth not work out, the nation as a whole has not been Summit, the international community concep- placed at risk. If the programme works well, it tualized the environment as a “common good” might be copied by other provinces or states, 3 or a “public good.” An awareness emerged on and perhaps (if the Constitution permits) by the an international political scale, that environ- federal government.”9 mental problems cannot be separated from social and economic problems, leading to the The Division of Jurisdiction in Environmental concept of sustainable development, which en- Matters compasses all of these aspects. Protecting the environment was not a major Whereas the environment is a holistic con- concern in the nineteenth century; therefore cept, for its part federalism is based on the it is easy to understand that this topic was not very concept of segmentation.4 Hence, within expressly mentioned as a specific aspect in the the Canadian framework, an added difficulty Constitution Act, 1867. Today, in case law, the in legislating issues surrounding the environ- environment is considered a domain that is not ment, and more specifically climate change, exclusively under the jurisdiction of one or the arises from our perception of the environment, other level of government. In the Friends of the which is unitary and global, versus the nature Oldman River10 judgment, the Supreme Court of our federal structure, which advocates de- of Canada determined that each level of gov- centralization and the division of power. The ernment can legislate in environmental matters fact that Canada is a federation has significant when it is acting from the basis of one of its con- consequences on the manner in which we ad- stitutional powers. dress environmental issues.5 The particular challenges posed by managing the environment The constitutional foundation for the role of within federal or quasi-federal structures have the provinces on environmental issues is based, led to extensive scientific documentation on in particular, on provincial ownership of natural environmental federalism, chiefly dealing with resources and the jurisdiction that ensues. This European and U.S. cases.6 confers important power pertaining to the environment on the provinces over anything Federalism does not take the form of a affecting the sustainable development of these single model. According to Henri Brun et al, resources, for example. The provinces also have this institutional system basically proposes a jurisdiction over crown land, property and partial amalgamation to accomplish certain civil rights, municipal institutions, and, more common tasks without sacrificing the auton- generally, matters of a local or private nature. omy of the components in other matters.7 For These important constitutional foundations constitutionalist Peter Hogg, the genesis of the enable the provinces to intervene with respect federal system in Canada arose from a political to certain environmental issues using global
22 Volume 20, Number 1, 2011 approaches. The only real limit to environmental pact on a Canadian and international scale. action by the provinces, apart from the specific areas under federal jurisdiction, is the relative In 1997, in the case of R v Hydro-Québec, difficulty in addressing the cross-border aspect the Supreme Court, on the basis of federal juris- of pollution. However, even in this regard, several diction under criminal law, considered the con- precedents illustrate how, in certain situations, tested provisions of the Canadian Environmen- the provinces and U.S. states are better able to tal Protection Act (CEPA) valid. This divided resolve transboundary problems than federal decision, enabling the development of regulato- authorities, in particular through the practice ry schemes through jurisdiction over criminal of interprovincialism and the implementation law, has given rise to many questions in terms of the ensuing multiple agreements. For of its negative impact on the balance of pow- 12 example, the provinces and states along the ers within the federation. Since the Hydro- shores of the Great Lakes recently concluded Québec decision, the Supreme Court has recog- the Great Lakes—St. Lawrence River Basin nized that too broad a definition of criminal law Sustainable Water Resources Agreement.11 presents risks. Furthermore, it is interesting to Under this agreement, individual action by note a certain reticence by the Supreme Court two Canadian provinces and eight U.S. states in the Hydro-Québec decision concerning the resulted in the harmonization of regulations national dimensions doctrine, given its even on the management of Great Lake resources, greater impact on the balance of powers within and today it is helping maintain sustainable Canadian federalism. For the Court, this latter management of their waters. doctrine cannot allow the Canadian Parliament to claim general power over protection of the For its part, federal jurisdiction is char- environment. acterized by greater ambiguity. Although the Canadian Parliament has the power to legislate with regard to federal properties and works, Relationships between Ottawa its legislative authority in environmental mat- and the Provinces Regarding the ters remains largely indirect and limited. Con- Environment (in practice) sequently, a number of federal environmental policies are based on powers in specific areas In response to the emerging concerns of cit- such as the fisheries and navigation. Further- izens about the initial visible impact of econom- more, in case law, some federal interventions in ic growth on the quality of the environment, the environmental matters have been grounded on two levels of government mobilized at the end the “national dimensions” doctrine and the fed- of the 1960s to implement the first real public eral jurisdiction over criminal law. policies on the subject. Also, in this context, in the name of the environment, the federal gov- In 1988, in the case of R v Crown Zellerbach, ernment first manifested the political desire to the Supreme Court recognized the validity of intervene in fields of jurisdiction that had been the federal provision prohibiting the dump- held exclusively by the provinces.13 However, the ing of waste into the sea. To do so, the majority federal government’s action remained relatively based their decision on the matter falling with- limited, and the strong resistance of the most in the national concern doctrine of the “peace, populated provinces to these encroachments order and good government” clause. The Court made it quickly retreat, preferring to support a concluded that no specifically enumerated fed- more cooperative approach.14 eral jurisdiction enabled validation of the provi- sion, but that control over ocean pollution met This first period of tension was then- fol the test of this general doctrine. In examining lowed by a period of relative decentralization this test, the Court considered among other is- in the mid-1970s. In this era, the Fisheries Act sues that the failure of a province to deal effec- (section 33) constituted the principal justifica- tively with the control of transboundary aspects tion for federal regulations pertaining to the of marine pollution would have a harmful im- environment. The federal Department of the
Constitutional Forum constitutionnel 23 Environment left the responsibility for apply- regional differences. This problem was recently ing and enforcing federal standards to the prov- demonstrated in the context of intergovern- inces.15 The federal government, however, main- mental discussions towards the development tained its role of developing those “national” of federal regulatory control over air pollutants standards. and the adoption of a federal regulation that would impose on the provinces specific limits In the early 1980s, several events helped on the discharge of wastewater. accelerate a collective awareness of modern- day environmental issues (Bhopal—1984; the Over the course of the past decade, climate discovery of a hole in the ozone layer—1985; change has dominated a major part of the Chernobyl—1986; a fire in a PCB storage facility Canadian political debate on environmental in Saint-Basile le Grand—1988.) At the time, the matters, in particular the intergovernmental development of a green plan with a $3-billion conflict surrounding adherence to the Kyoto budget by Brian Mulroney’s federal government Protocol and the terms of its implementation. was an indication of the growing importance The will of the federal government to centralize of the environment in Canadian public policy. and lead climate change control has given rise The adoption of the Canadian Environmental to an important power brokerage game, despite Protection Act in 1988 and the Canadian the principle of federalism and distribution of Environmental Assessment Act in 1992 marked powers. As a provincial senior public service a significant change in the balance of federal- official, cited by author Barry G. Rabe, has provincial relations regarding the environment, said: “The feds are going to every province and and the beginning of a new era of tension. asking, ‘What will it take to make this work?’ With the Canadian Environmental Protection For Saskatchewan, it’s subsidies for clean coal Act, Parliament considerably strengthened research. For Manitoba, it’s the promise of an its own regulatory powers, particularly in the electricity transmission line to Toronto. The regulation of toxic substances, taking the “from assumption is that every province has its price cradle to grave” approach.16 and that you can buy them off.”17 Also, according to this author, a significant part of the energy In the same time period, the late 1980s saw and resources of the provinces that are opposed the establishment of the first formal intergov- to the ratification of Kyoto has been devoted ernmental cooperation forum in environmental to upping the bids and, at the end of the line, matters, the Canadian Council of Ministers of derailing the process of implementing Kyoto. the Environment. Originally identifying itself as an alternative to federal unilateralism, this However, this conflict and the ensuing po- body soon became a co-optation platform of litical impasse provided the provinces with the Canada-wide standards, which led to the nego- opportunity to take charge of combating cli- tiation of Canada-wide standards in 1996 and mate change. They have consequently expanded their subsequent adoption by all provinces ex- and enhanced innovative measures to reduce cept Quebec. This agreement provided a con- greenhouse gas emissions, in particular. In this crete structure for the division of tasks between regard, the provinces benefitted from a notable Ottawa and the provinces, a model that is re- change in approach by Ottawa under the gov- flected in a number of other fields, in which the ernance of Paul Martin, who in 2005 made a federal level reserves for itself the role of thinker, commitment to support the various efforts of designer, and architect, and in which the prov- the provinces, a commitment that was partially inces have the responsibility of implementing fulfilled by Stephen Harper in February 2007.18 these federal policies while respecting a num- Under its eco-Trust program, Ottawa has allo- ber of conditions ensuring consistency in the cated $1.5 billion to provincial environmental policies. This type of approach, although often initiatives. drawing on provincial innovation, nonetheless curbs provincial capacity to innovate further This decision to promote relative decentral- by weakening policy flexibility and ignoring ization has already shown results: announce- ments of ambitious provincial plans have been
24 Volume 20, Number 1, 2011 increasing since 2007 and often exceed federal tion of a high-speed rail line in the Quebec- proposals to combat climate change and adapt Windsor corridor illustrates the extent to which to the impact of these new initiatives. As one ex- certain sectors of federal jurisdiction, which ample among many,19 Quebec established royal- require attention from an environmental point ties on the carbon content of gasoline and fossil of view, could greatly benefit from more sus- fuels, a North American first. Shortly after, Brit- tained political activity.22 Federal environment- ish Columbia adopted a carbon tax. Further- al policy could also take on a more structuring more, Quebec was the first Canadian province nature by setting the example rather than try- to adopt greenhouse gas emission standards for ing to control. motor vehicles aligned with those of California. What is more, with its partners from the West- ern Climate Initiative, Quebec is in the process Patchwork or Tapestry? of developing and implementing a common (the debate) cap-and-trade system for emission allowances that would become the foundation for a future In its Climate Change Plan, published in 2007 common carbon market in North America.20 along with the Kyoto Protocol Implementation Ontario, British Columbia, and Manitoba are Act, the federal government stated that: “Prov- also involved in the Western Climate Initiative, inces, territories and municipalities control and are implementing comprehensive action many of the important levers for making sig- plans that target most activities and the most nificant reductions in greenhouse gas emissions important sectors. New Brunswick’s objective from particular sectors. […] Over 85% of Cana- is to bring emissions back to their 1990 level by da’s total greenhouse gas emissions is emitted in areas under sole or partial provincial/territorial 2012 and then to reduce them by an additional 23 10 percent of their 1990 level by 2020. responsibility.” It is precisely in this context that most of the provinces and territories have The leadership shown to date by the prov- expanded measures to reduce greenhouse gases. inces on the climate change front illustrates their ability to lead the way in combating cli- Nonetheless, a little less than two years mate change, based on powers attributed to later, the National Round Table on the Envi- them by the Constitution. ronment and the Economy (NRTEE), a federal government advisory body whose mission is “to The federal government, itself, already has play the role of catalyst in identifying, explain- a broad scope of action within its given con- ing and promoting, in all sectors of Canadian stitutional jurisdictions. Phenomenal environ- society and in all regions of Canada, principles mental challenges must be addressed, especially and practices of sustainable development”24 in the area of sustainable management of the published a report on a possible Canadian car- fisheries; public, military, and other supplies; bon tax. In the initial pages the report states: federal works and undertakings; and interprov- “Our collective challenge now is to transition incial transportation.21 To cite one example, it the emerging fragmentation of current carbon appears somewhat paradoxical that the federal pricing policies to a unified policy framework government is seeking to expand its control across all emissions nationally. The negative capacity to domains that are not under its juris- consequence of not doing this, and maintain- diction while interprovincial railways, which ing this fragmentation of differentiated carbon are essentially its responsibility (para. 92 (10) prices across emissions and across jurisdictions, (a) of the Constitution Act, 1867), suffer from will be significantly higher economic costs, in- chronic technological underdevelopment and a tensified environmental impacts, entrenched minimal service offer. Greater use of this form barriers that will make it harder to act in the fu- of transportation for moving both people and ture, and the real risk of not being able to meet merchandise could significantly contribute to Canadian emission reduction targets.”25 the reduction of greenhouse gases in Canada. The procrastination surrounding the construc- Should it be concluded from these two state- ments that the provinces are responsible for the
Constitutional Forum constitutionnel 25 vast majority of carbon emissions but are not environmental balance sheet of recent years is the best placed to develop policies targeting the examined, this assumption falls short of the reduction of these emissions, despite the fact facts. Not only that, such an assumption is in- that they control “many of the important levers” consistent with the concept of the citizen move- enabling such reductions? If the past is any in- ment and local action, on which the environ- dication of the future, “to transition the emerg- mental movement calls. Strengthening local ing fragmentation of current carbon pricing powers, for which the provinces are constitu- policies to a unified policy framework” could tionally responsible, appears in this regard to be stifle the innovation and drive at work within a much more promising avenue, much more in Canadian provinces by imposing a single solu- line with these objectives. tion on a country-wide scale, obtained at the cost of expensive efforts and numerous compro- It appears paradoxical that both industrial mises, which would very likely be accompanied lobbies and environmental groups argue in fa- by delay tactics. This has been the experience vour of greater centralization of environmental with the current federal plan on air quality and power and the policies that ensue in Ottawa. climate change: Turning the Corner,26 which is This position is more consistent with some still not implemented more than four years after of the interests defended by major industrial its announcement. groups.
Canada has a relatively decentralized fed- Adaptability and Proximity to Citizens eral structure, which allows the diversity of its population and geography to be taken into con- Provincial leadership in combating climate sideration through the existence of autonomous change appears desirable in principle, to the governments that are much closer to citizens extent that reaching political compromise is and their concerns. The Canadian experience, generally less complex at the provincial level similar to that of other federations, should dis- than at the federal, as evidenced in the thorny sipate the fears expressed by the NRTEE and Kyoto Protocol file. It is also precisely for this show to the contrary that federalism is an asset reason that the most ambitious Canadian social in combating pollution and protecting the envi- policies have been developed at the provincial ronment. Rather than visualizing a patchwork, level (in particular, universal health insurance which gives the impression of a fragmented, and the subsidized daycare program).29 heterogeneous arrangement, let us apply the Geographical and environmental char- metaphor of a tapestry in which various pat- acteristics vary immensely in Canada, from terns are skilfully combined to produce a unit one region to another and from one province whose quality exceeds the sum of its parts. In to another. Canada occupies one of the largest this regard, Bob Page, chair of the NRTEE, land masses in the world. Climate change could stated when speaking of a plan to establish car- cause an increase in the frequency or intensity bon pricing: “[F]lexibility is a key to our success of certain meteorological phenomena as vastly because we are unlikely to get it right the first different as heat waves, downpours, droughts, time.”27 floods, the melting of glaciers, and the thawing of permafrost. However, Canada has a federal The Position of Environmental Groups structure capable of managing a vast territory Historically, many Canadian environmental- characterized by diversity in its geographical ists, surprisingly, have perceived the provinces environments. The diversity of ecosystems calls as environmental ignoramuses and have dem- for diversity in environmental responses. En- onstrated greater confidence in the federal vironmental standards must be adapted to the government.28 This point of view appears to numerous local contexts in order to have their be based on the assumption that the Canadian full effect. This is also why one-size-fits-all poli- federal government is synonymous with pro- cies can often prove to be costly and inefficient. gressive public policy. As seen above, when the They are rarely optimal in a country as diversi- fied as ours, particularly in environmental mat-
26 Volume 20, Number 1, 2011 ters. Reaching a consensus is often based on de- policies (for example, a new tax). Beyond the termining the smallest common denominator, merit of the various measures, political capacity to the detriment of more relevant, progressive, to implement policies that lack public support and stringent policies. Furthermore, in terms could prove to be a fundamental determinant of of climate change, the deepening and current success in combating climate change. economic imbalance among the provinces fed by energy prices, an issue that is itself related Innovation/Testing to the control of carbon emission, makes any Canada-wide compromise very difficult at best, The release of excessive amounts of greenhouse if not impossible. gases into the atmosphere causes our societies to face a wide variety of complex and complete- It might be preferable to see a majority of ly new challenges, for which the most effective the provinces adopt diverse but bold measures solutions, for the most part, still remain to be such as carbon taxes or participating in region- developed. Hence, our ability to control climate al carbon credit trading systems and let those change could be determined in large part by our implacably opposed to this type of measure ability to innovate, in terms of both technology develop their own solutions rather than mobil- and public policy. ize all resources to decide on a single weak and ineffective Canada-wide policy, likely doomed A study of the factors conducive to innova- for failure. As the publication Hot Air: � �M����eet- tion in a knowledge-based society has shown ing Canada’s Climate Change Challenge illus- the fundamental importance of local knowl- trates, all of the federal plans to combat climate edge as the determinant of a government’s abil- change have not only failed but also futilely ity to innovate. As Globe and Mail journalist engaged numerous resources in their prepara- David Mitchell recently wrote: “Where all think tion and production.30 The implementation of alike, no one thinks very much. […] Canada is the environmental policies emanating from a federation—the most creative public policy is these plans requires significant organizational found at the provincial level of the government, resources, especially for analysis, evaluation, not the federal.”33 To attain a certain maturity and inspection. This thus diverts the attention in the development of our policies, it appears to of the experts towards an often illusory quest be essential to support local innovation across for a Canadian consensus in a context in which the country, which federalism encourages. In defending the interests of each prevails, para- this regard, universities and research play an es- lyzing action, rather than encouraging a pro- sential role, especially when they are well-root- fusion of innovative solutions. And, despite all ed in the territories involved; this can constitute of these efforts, the federal government’s prin- a priceless asset for sustainable development cipal achievements in the area of combating and the development of environmental policy climate change to date are limited to the often adapted to realities in the field. low-profile preparation and posting of costly The environment, and especially efforts to reports. Thus, despite statements of conviction combat climate change, requires public inter- by federal politicians and successive green plans ventions that affect every aspect of society. The in Ottawa, greenhouse gas emissions have not environment not only encompasses physical, stopped increasing. In 2008, they exceeded the economic, and social dimensions but also tran- level of Canada’s commitments with respect to scends global and local issues. In many ways, the Kyoto Protocol by more than 30 percent.31 the development of innovative environmental On the whole, when developing measures policies has just begun. It is critical that, in this to protect the environment, difficult decisions context and with our federal framework, the ensuring the fragile balance between social fac- central government not consider the provinc- tors and economic development are more eas- es as simple agents for implementing national ily taken at the local level.32 Consideration of policies but rather as veritable laboratories for this factor is vital when introducing unpopular the development of solutions adapted to local realities.
Constitutional Forum constitutionnel 27 Carbon Tax (an example) cial legislative power in the field.37 In addition, The concept of a carbon tax effectively illus- the establishment of an ambitious federal policy trates how federalism can contribute to the de- on carbon taxation would very likely give rise to velopment and implementation of innovative intensive bargaining. Given the current geopo- policy. Many people believe that such a tax re- litical and economic context, certain industries mains the most inexpensive way to collectively would be extremely likely to be exempted and attain our goals in reducing greenhouse gases.34 all of the provinces would undoubtedly claim In Canada, provincial governments introduced equivalent exemptions in the name of intergov- ernmental equity, thereby greatly reducing the (British Columbia and Quebec) this ambitious 38 policy.35 effectiveness of the tax. The main cause con- tributing to the reduced effectiveness of the sys- Yet, today, numerous voices are demanding tem of carbon taxation levied in Norway, one strong federal leadership that will put some of the pioneers in this arena, was just that: the “order” in this “patchwork” of emerging policies numerous exceptions granted to various indus- across Canada. Stéphane Dion’s proposal for a tries.39 The recent constitutional invalidation of federal carbon tax presented during the 2008 the carbon tax in France was also justified by electoral campaign came in part from this the excessive number of industries exempted desire to see the federal government play a from its application, which would have pre- greater role in an area the provinces have begun vented the desired goal from being attained: to to cover. The aforementioned NRTEE report reduce greenhouse gas emissions. also falls within this shift and thereby seeks to give a leading role in this policy issue to the The groups that support the implementa- federal government. The innovative role of the tion of direct carbon taxation as the simplest provinces to combat climate change appears and least expensive way to control climate once again about to be eclipsed by the perpetual change should logically support its handling by search for the best solution with a view to setting provincial powers, because the desire to see this a Canada-wide policy. policy gain Canada-wide support that would enable centralized handling in Ottawa strongly Arguments are already being advanced to risks clashing with political reality. lay the groundwork for the federal government eventually taking control of this new source of Global Lessons for Local Empowerment revenue. As an example, some suggest that con- stitutional jurisdiction over carbon tax can be During a visit to the Chinese city of Xi’an on 25 based on criminal law, federal jurisdiction over July 2009, the Secretary General of the United trade and commerce, or a centralist reinterpre- Nations, Ban Ki Moon, declared that: “National tation of federal power to conclude and imple- governments can have their national policies, ment treaties.36 However, justifying the regula- but after all it is provincial governments who tion of carbon based on these heads of power have to implement these policies and even from would be a real constitutional Trojan horse. this kind of bottom-up support, policies will be 40 Carbon is essentially omnipresent; every hu- much more effective than top-down policies.” man and animal activity is a source of carbon For several years, some observers have been emission. There is no single dimension of our proposing the establishment of a world feder- societies that is not affected directly or indi- alism of policies on climate, which is seen as 41 rectly by carbon emission. Direct intervention preferable to the centralized Kyoto approach. in the environment by the federal government, Noting this reality, the international community under the guise of general jurisdiction over cli- is organizing itself, and initiatives such as the Lo- mate change or air quality, would contribute to cal Government Climate Roadmap are enabling the excessive centralization of legislative powers a group of territories and federal states to em- in Canada. In this policy area, certain provinces phasize their key role in the negotiation of a new such as Quebec have already adopted standards planetary agreement on greenhouse gas reduc- on greenhouse gas emissions that affirm provin- tion in 2012, the deadline foreseen in the Kyoto
28 Volume 20, Number 1, 2011 Protocol. This new approach favouring decen- alism can facilitate this transition. Above all, tralization may prevail in the wake of the fail- it enables the advantages emanating from cen- ure of the Copenhagen Summit. Furthermore, tralization and decentralization to be balanced. continental institutions, such as the North American Free Trade Agreement (NAFTA), Much is to be gained from taking advantage the European Union (EU), and the Asia-Pacific of the diversity of political solutions developed Economic Cooperation (APEC), are considered across Canada, rather than impose a national to be more capable of responding to adaptation policy, which would inevitably produce friction issues that will take on increasing importance given the vast number of divergent interests in the future.42 within the federation. Until now, the intergov- ernmental conflict surrounding adherence to In 2008, the United Nations Development the Kyoto Protocol and the conditions for its im- Programme (UNDP) established a cooperative plementation have dominated too much of the program targeting climate change titled, “To- Canadian political debate on climate change. It wards Carbon Neutral and Climate Change Re- is preferable to use all of the resources available silient Territories.” For the UNDP, the capacity to develop and test various formulas in seeking for action among federated states in combating the best possible combination of public policies climate change is undeniable, and this is why it based on different local and regional realities. is seeking the cooperation of developed federat- Instead of a centralized approach, the federal ed entities to help developing federated entities government should work in partnership with and regional governments with their climate the provinces to undertake activities to comple- change mitigation and adaptation strategies. ment provincial initiatives, thereby maximizing Moreover, the UNDP solicited the participa- the impact of environmental action. tion of Quebec in this innovative partnership, precisely because of the particular expertise the New strategies must be adopted to face new province has developed. challenges. To address increasingly urgent en- vironmental problems, the federal government and its supporters must set aside their central- Conclusion ist reflexes and encourage the provinces to con- tinue experimenting. Ottawa must, at the same Diversity should not be viewed as synonymous time, fulfill its environmental responsibilities with chaos—far from it. Such a reaction reflects in its own fields of jurisdiction, for the greatest the old habit of viewing environmental policies benefit of both federalism and the environment. from the perspective of centralization whereas regional approaches are gaining increasing im- portance and notice. The most common criti- Notes cism levelled at decentralized initiatives is that * The author is a policy analyst with the Depart- they do not guarantee the attainment of global ment of Intergovernmental Affairs, government objectives. However, as Canadian federal poli- of Quebec. The views expressed herein are those cies for combating climate change and, on a of the author in his personal capacity. They do larger scale, the worldwide Kyoto effort have not necessarily reflect the position of the govern- demonstrated, the centralized alternative has ment of Quebec. not been characterized by success. Although 2 Gage Canadian Dictionary, 1998, sub verbo the decentralized approach must not be viewed “environment”. as capable of meeting all the challenges posed 3 Report of the United Nations Conference on by climate change, it should be of greater appeal Environment and Development, Rio de Janeiro, 1992 (UNA/CONF 151/26 (vol 1)), online: to the political and academic elite who have ex-
may have reached its limits.In brief, on an inter- 4 Jean Leclair, “L’étendue du pouvoir national scale, as on the Canadian scale, one re- constitutionnel des provinces et de l’État central ality stands out: environmental challenges call canadiens en matière d’évaluation des incidences for new forms of governance. Exercising feder- environnementales” in Hélène Trudeau & Ejaan
Constitutional Forum constitutionnel 29 Mackay, L’environnement: À quel prix? (Éditions
30 Volume 20, Number 1, 2011 unveiling of this framework, the Opposition Trading: Waking a Sleeping BNA Bear (or Two)” and environmentalist groups—who were joined (2008) 13:1 Rev Const Stud 67. See also Shi-Ling by Al Gore—unanimously denounced the Hsu & Robin Elliot, “Regulating Greenhouse ineffectiveness and timidity of the measures put Gases in Canada: Constitutional and Policy forward in this document). Dimension” (2009) 54 McGill LJ at 463. 27 Bob Page, “Climate Change, Carbon Pricing, 37 See the Regulation respecting greenhouse gas and Environmental Federalism” (Paper delivered emissions from motor vehicles, RSQ, c Q-2, r at the Carbon Pricing and Environmental 6.001. Federalism Conference, Institute of 38 See e.g. “Les gaz a effet de serre au menu”, Radio- Intergovernmental Relations, Queen’s University, Canada (9 September 2009), online: Radio- Ontario, 17 October 2008), online: Queens Canada
Constitutional Forum constitutionnel 31