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Allan Hutchinson is a professor at Osgoode Hall Law School, York University


The pressure is increasing on Prime Minister Justin Trudeau and his government to deliver the goods on climate change. Agreements have been signed, commitments made, and now, action is required. But even with the best of political wills, the government will need to solve a difficult constitutional puzzle: How to get the provinces onside.

Negotiations between the federal government and its provincial counterparts have begun in earnest. Not surprisingly, there are conflicting agendas and views on how best to get the job done. However, the hidden dynamic in all of this is the constitutional division of powers. Who can do what? And who can prevent the other from doing what?

The fact that Canada has signed international agreements and incurred obligations about the environment does not have any compelling effect on the provinces. The federal government can make whatever treaties it wishes without formal provincial consent. However, it cannot railroad these into national policy, without the provinces' agreement, if it trenches upon provincial powers.

Climate change and environmental regulation are not expressly covered by the Constitution as, among other things, they were not thought about in 1867. Nevertheless, there are now some basic constitutional understandings about who gets to do what in regard to the environment, climate change and related matters.

As a general rule, the basic powers that go to the federal government flow from its authority over "peace, order and good government" (POGG) and "criminal law," whereas the provincial governments have control over "property and civil rights" as well as "local undertakings" and "public lands." Obviously, these areas are not mutually exclusive to one level of government. The major challenge has been to negotiate a way through this concurrency of powers (two examples of this are health-care and securities regulation).

As regards the environment, Ottawa has enacted the Canadian Environmental Protection Act and the Fisheries Act under its POGG, waterways and criminal-law power. Under their allotted powers, most provinces have passed environmental-protection statutes. So disagreement between the federal and provincial governments is not fatal. Each can go its own way. Indeed, a patchwork of legislative regimes is common across the Canadian state.

It is only when the relevant and validly enacted statutes are contradictory in operation and effect, not merely in conflict, that problems arise. Over the years, the courts have developed a doctrine whereby federal legislation is given paramountcy over provincial legislation in such circumstances.

This means that the federal and provincial governments can, and must, negotiate about climate-change measures against this constitutional background. It offers benefits and drawbacks to each negotiating entity and affects the general dynamic of negotiations. However, the federal government does have a few more contentious avenues open to it, if it wants to take a more unilateral position and impose a legislative regime on reluctant or recalcitrant provinces.

If Ottawa wants to implement a series of criminal sanctions with regard to climate change, it can rely on its criminal-law power to regulate "a legitimate public health evil." The courts have given approval to this approach in regard to pollution generally and to the control of tobacco. However, it would be difficult to include all the proposed measures within the criminal law rubric.

Another promising avenue for the federal government is what is known as the "national concern doctrine." The federal government can legislate on matters of national concern where there is a "singleness, distinctiveness, and indivisibility" to the matter at hand, even if it trespasses on settled provincial jurisdiction. The fact that climate change affects the whole country and its impact cannot be restricted within provincial boundaries gives special salience to this possibility. But the courts insist on strong evidence and arguments to ground such exceptional claims.

Of course, constitutional law is a moving framework that, as the judicial mantra has it, is "a living tree capable of growth and expansion within its natural limits." While legislation is a governmental matter, the courts are standing in the background and wield a quiet, but very important, influence.

It may well be that whatever does happen, the courts, for good and bad, will have their say – and perhaps the final say – in how Canada responds to climate change.