Peace, Order, Good Government And'climate Change: The Supreme Court Articulates The Constitutional Doctrine Of The National Concern

• Published date: 08 June 2021
• Subject Matter: Environment, Environmental Law, Climate Change, Clean Air / Pollution
• Law Firm: Langlois lawyers, LLP
• Author: Mr Sean Griffin, Laurence Angers-Routhier, Geneviève Claveau, Lana Rackovic and Fady Toban

In 2018, in accordance with its international commitments, including the Paris Agreement, Parliament passed the Greenhouse Gas Pollution Pricing Act (the "GGPPA"). This legislative scheme has two components: (1) the creation of a fuel charge payable by certain producers, distributors and importers of various types of carbon-based fuels, and (2) the establishment of an output-based pricing system ("OBPS") for industrial greenhouse gas ("GHG") emissions by emissions-intensive industrial facilities.

The governments of Ontario, Alberta and Saskatchewan have all challenged the constitutionality of this legislation in their respective courts of appeal. While the GGPPA is a source of deep division between Ottawa and the provinces, all parties are unanimous on one fact: climate change is a reality. According to the challenging provinces, the purpose of their appeals is not to debate the existence of climate change but to determine whether the GGPPA infringes significantly on their jurisdiction.

The Saskatchewan Court of Appeal (3-2) and the Ontario Court of Appeal (4-1) ruled that the GGPPA is intra vires because its purpose is to establish minimum national standards for pricing GHG emissions, and this is a matter of national concern requiring a uniform legislative framework across Canada. On the other hand, the Alberta Court of Appeal (4-1) declared the GGPPA to be unconstitutional because the Act's pith and substance is the regulation of GHG emissions, which falls under several provincial heads of power and therefore precludes the federal government from relying on the national concern doctrine.

Appeals as of right were filed in respect of the above three decisions, and the Attorneys General of Canada, Quebec, Ontario, Saskatchewan, Alberta and British Columbia, as well as more than twenty intervenors, were heard by the justices of the Supreme Court of Canada on September 23 and 24, 2020. In a judgment signed by a majority of six (6) judges (the "Judgment"),¹ the Supreme Court dismissed the appeals of the Attorneys General of Ontario, Alberta and Saskatchewan and declared the GGPPA constitutionally valid.

Analysis

The Court began its analysis of the validity of the GGPPA by reiterating that the division of legislative powers in ss. 91 and 92 C.A. 1867 gives the provinces the autonomy they need to ensure their society's development while reserving to the federal government powers that can be exercised on a Canada-wide basis.² The reasons for the Judgment were thus rendered through the lens of cooperative federalism.³

To determine the constitutional validity of the GGPPA, the Court looked first at the analysis of the pith and substance. The first step of this analysis involves examining the purpose and effects of the impugned act or provision. The second step is to...