Canadian Federalism in the Context of Combating Climate Change

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

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