The fact that greenhouse gases are caused by a wide range of human activities is why the federal government’s so-called “carbon tax” legislation is over-reaching and unconstitutional, the Ontario government states in legal submissions filed at the Court of Appeal. “Greenhouse gas emissions are not a single, distinct, and indivisible matter which Parliament can regulate under its jurisdiction over matters of a national concern without fundamentally disturbing the balance of federalism,” the province says in written submissions for the upcoming reference case to be heard by the court.
“Transferring jurisdiction over greenhouse gases to Parliament would give the federal government broad jurisdiction not just to impose a price on greenhouse gas emissions but also to regulate a wide range of matters of traditionally provincial concern,” the province adds.
A special five-judge panel of the Court of Appeal is scheduled to hear the challenge to the federal Greenhouse Gas Pollution Pricing Act during a four-day hearing in mid-April. The reference case follows a similar challenge initiated by the Saskatchewan government that was heard earlier this month by its Court of Appeal, which has reserved its decision.
The Ontario government was an intervener in the hearing in Saskatchewan. Just as in that case, the Ontario Court of Appeal has granted intervener status to a large number of parties as well as the British Columbia, Saskatchewan and New Brunswick governments. A significant portion of the arguments before the court in Saskatchewan focused on the “peace order and good government” power of the federal government and the scope of the “national concern” doctrine. Constitutional law precedents dating back decades and even as far as the late 19th century were cited by both sides.
While this is also likely to be the focus of arguments in Ontario, a lawyer acting for a First Nations intervener says there are other important issues for the court to consider beyond a straight division of powers analysis.
“There are more than two governments that must be considered. There are also First Nations governments,” says Cynthia Westaway, who acts for the United Chiefs and Councils of Mnidoo Mnising. “You can’t approach the division of powers as if this is 1867,” adds Westaway, who heads the Westaway Law Group in Ottawa.
The effects of climate change also impact constitutionally protected Aboriginal rights, she says.
“First Nations are here to speak for the environment. They will be acutely affected,” says Westaway.
First Nations and environmental organizations have been critical of the decision by the government of Premier Doug Ford to repeal the former cap-and-trade regime in place in Ontario. Potential new rules were released earlier this month and are now in the middle of a 45-day consultation period.
Three days after the Ontario government made this announcement, Ford tweeted, “United we roll! Stop the carbon tax and let’s get those pipelines built,” while posing in front of large trucks at an automobile show.
“The premier has shown a clear preference for industry over environmental protection,” says Westaway. “The tough thing is that you have a province that has ripped something up and says we’ll do something later. One province should not be able to decide when to do it. This is not just a national issue, it is an international issue.”
The federal government, in its written arguments in the Saskatchewan hearing, outlined the national concern doctrine as first stated by the Judicial Committee of the Privy Council in its 1896 decision in the Local Prohibition case. The scope of the doctrine in a case involving regulation of marine pollution was clarified by the Supreme Court in 1988 in its Crown Zellerbach ruling. In considering whether there is the necessary degree of singleness, distinctiveness and indivisibility to be a matter of national concern, “it is relevant to consider what would be the effect on extraprovincial interests of a provincial failure to deal effectively with the control or regulation of the intra‑provincial aspects of the matter,” wrote Justice Gerald Le Dain for the majority in that case.
The Canadian Environmental Law Association, which was an intervener in Saskatchewan and is one in the Ontario reference as well, is arguing that the federal government has the authority to regulate greenhouse gas emissions through its trade and commerce or criminal law powers.
Joseph Castrilli, counsel at CELA, who will be appearing for the organization at the Ontario Court of Appeal, says upholding the federal legislation under these powers would not prevent provinces from enacting regulations as well under its constitutional jurisdiction.
“You can have two regimes, provincial and federal, that deal with carbon pricing. Only to the extent of a conflict would the provincial law not apply,” he says.