I. INTRODUCTION

The essential factual backdrop to these appeals is uncontested. Climate change is real. It is caused by greenhouse gas emissions resulting from human activities, and it poses a grave threat to humanity’s future. The only way to address the threat of climate change is to reduce greenhouse gas emissions…^[1]

On March 25, 2021, the Supreme Court of Canada released its much-anticipated reference opinion regarding the constitutionality of the federal government’s greenhouse gas (GHG) pricing regime. In Reference re Greenhouse Gas Pollution Pricing Act,^[2] a majority of the Supreme Court held that the Greenhouse Gas Pollution Pricing Act^[3] fell within Parliament’s residual power to make laws for “peace, order, and good government” (POGG) as set out in s 91 of the Constitution Act, 1867.^[4] Writing for the majority, Chief Justice Richard Wagner concluded that setting minimum national standards of GHG price stringency to reduce GHG emissions was a “matter of national concern,” a recognized branch of the POGG power.^[5] Justices Suzanne Côté, Russell Brown, and Malcolm Rowe dissented, albeit each for different reasons. Importantly, Justice Côté agreed with the Chief Justice with respect to “his formulation of the national concern branch analysis.”^[6]

The GGPPA Reference was a jointly-heard appeal of three provincial appeals court reference decisions:^[7] the GGPPA was found to be constitutional under POGG’s national concern branch in a 3-2 decision in the Saskatchewan GGPPA Reference;^[8] Ontario’s Court of Appeal similarly advised that the federal legislation was constitutional under the national concern branch of POGG, in a 4-1 decision in the Ontario GGPPA Reference;^[9] and, finally, Alberta’s Court of Appeal, in a 4-1 decision, advised in the Alberta GGPPA Reference that the GGPPA was ultra vires Parliament.^[10]

The basic issue at the core of the GGPPA Reference was not whether the federal government has jurisdiction to address climate change. Rather, all of the parties conceded that Parliament has several heads of power at its disposal, including its criminal law power.^[11] The issue was the constitutionality of the GGPPA itself, which Counsel for Canada argued could be upheld under on the “national concern” branch of Parliament’s residual POGG power.^[12] While scholars have argued that carbon pricing policies could be upheld under POGG, the constitutionality of the legislation was in question because neither the environment nor climate change fall comfortably under any of the federal government’s enumerated heads of power as set out in section 91 of the Constitution Act, 1867.^[13] The GGPPA Reference also provided the Supreme Court with an opportunity to revisit the national concern doctrine itself, thirty years having passed since the Crown Zellerbach decision that last formalized a test for classification under POGG’s national concern branch.^[14]

Our commentary is organized as follows. Section II provides an overview of the GGPPA. This is followed by a review of Chief Justice Wagner’s majority opinion (section III) as well as the three dissenting judgments (section IV). Our aim in summarizing the dissenting judgments is to highlight the key differences between the majority and the dissents. We close with comments on four aspects of the entire Reference: the breadth of the matter and the characterization of the GGPPA, the constitutional implications of minimum national standards as defined in this case, the role of provincial inability and extra-provincial effects, and finally the role of domestic courts in adjudicating a global problem like climate change.

II. THE IMPUGNED LEGISLATION

The GGPPA is the centrepiece of the federal government’s climate change plan and provides for the imposition of regulatory charges on GHG emissions in Canada. The legislation contains four parts, of which only the first two parts were examined in the GGPPA Reference.

Part I of the GGPPA imposes a regulatory charge (or regulation with the “characteristics of a tax”^[15] through a fuel charge imposed at the point of purchase.^[16] The effective price on carbon emissions to be imposed via the fuel charge is specified in Schedule 4 of the Act and this price is converted to a charge to be applied to specific fuels on the basis of the emissions generated upon combustion of those fuels, stipulated in Schedule 2. The fuel charge applies only in provinces specified in Part 1 of Schedule 1 of the GGPPA.

The GGPPA restricts the use of funds collected by the fuel charge. Specifically, s. 165(1) stipulates that funds collected net of any rebates or exemptions must be distributed “in respect of the province.” It may be distributed directly to the province (s 165(2)(a)), or to prescribed persons or classes of persons in the province (s 165(2)(b)), or to a combination of the two.^[17] In practice, the federal government has chosen to distribute most of the funds through consumer rebates, which vary based on province, household size, and whether the household is in an urban or rural location.^[18] The balance of funds is returned by specific investments in emissions reductions in the province in question.

Part II establishes a separate carbon pricing system for large emitters, termed and output-based pricing system (OBPS). Necessary conditions for facilities to be covered are defined in the Output-Based Pricing System Regulations, which stipulate that facilities must have annual emissions greater than 50,000 tonnes of carbon dioxide equivalent (CO₂e) in any year after or including 2014.^[19] To be covered under the OBPS, facilities must also be engaged in one of 38 activities listed in Schedule 1 of the regulations (only facilities in 2 of the 38 sectors, natural gas pipelines and power generation, qualify for the OBPS as applied in Saskatchewan).

The intent of the OBPS is to provide a lower average cost of emissions pricing to firms with exposure to international markets, while also maintaining a financial incentive to undertake investments to reduce the emissions-intensity of production. This is accomplished by providing emissions credits at a set rate per-unit output which the GGPPA terms an “output-based standard” which, when multiplied by annual output yields what is termed a facility’s “emissions limit.”^[20] This is not a hard limit; a carbon price must be paid on emissions above the limit,^[21] while facilities with emissions below their emissions limit will be issued surplus credits.^[22] Since the carbon price applies at the margin, a facility increasing its emissions by one tonne (all else equal) will incur the same incremental costs as a consumer increasing their emissions by one tonne, and the same is true for the financial benefit of reduced emissions. The system is intended to protect industry competitiveness because the effective exemption from a carbon price on emissions up to the emissions limit reduces the total cost of the policy, thereby reducing incentives for firms to either relocate out of a jurisdiction or to target new investments elsewhere because of increased costs.^[23],[24]

Most importantly, despite the terminology of emissions limits and output-based standards, the legislation does not set performance standards or otherwise directly regulate or limit technology, production, or other facility activities; nor does it expressly forbid behaviour in any way other than in relation to compliance with the regulatory charges and reporting requirements.

As in Part I of the GGPPA, Part II also fetters the use of funds collected under the OBPS. As such, section 188 of the GGPPA is a parallel provision to section 165 referenced above.^[25] There is substantial discretion afforded the Minister of National Revenue in determining the timing and manner of distribution of collected funds.

The GGPPA functions as a backstop, applying only in provinces or territories that are listed in Schedule 1 of the Act. Provinces or territories are listed through regulatory action by the Governor in Council (a process that is central to the dissent of Justice Côté discussed below in Section IV.A.). With respect to Part I, the fuel charge, the GGPPA stipulates that, “for the purpose of ensuring that the pricing of GHG emissions is applied broadly in Canada at levels that the Governor in Council considers appropriate, the Governor in Council may [list a province in Schedule 1, thus applying the fuel charge in that province].”^[26] The discretion is not unfettered, since the Act requires that “the Governor in Council shall take into account, as the primary factor, the stringency of provincial pricing mechanisms for GHG emissions,” in making any listing decisions.^[27] A parallel provision exists for the purposes of the OBPS.^[28]

Other parts of the legislation define reporting requirements, exemptions, penalties, appeal provisions, inspections, and records keeping. These provisions were not central to the decision. Parts III and IV were not contested in this case and are not discussed in detail here either. Part III establishes the discretion for the federal Governor in Council to stipulate that provincial laws may apply to federally-regulated activities.^[29] Part IV requires that the government provide an annual report to Parliament on the administration of the GGPPA, beginning on the second anniversary of its coming into force.^[30]

III. CHIEF JUSTICE WAGNER’S MAJORITY OPINION

Facts matter in constitutional cases and they are particularly important in cases where a party is seeking to establish a new matter of national concern. It is therefore not surprising that, in addition to the opening passage cited at the outset of this post, the Chief Justice devoted substantial attention to background facts. This includes sections on the global climate crisis, Canada’s efforts to address climate change, and a summary of provincial action with respect to climate change, all of which we summarize briefly below.

A) THE GLOBAL CLIMATE CRISIS

The Chief Justice emphasized that global climate change driven by human activities is real,^[31] and that the effects of climate change “have been and will be particularly severe and devastating in Canada.”^[32] Particularly crucial for the national concern analysis were the following observations:

Climate change has three unique characteristics… First, it has no boundaries; the entire country and entire world are experiencing and will continue to experience its effects. Second, the effects of climate change do not have a direct connection to the source of GHG emissions. Provinces and territories with low GHG emissions can experience effects of climate change that are grossly disproportionate to their individual contributions to Canada’s and the world’s total GHG emissions… Yet the effects of climate change are and will continue to be experienced across Canada, with heightened impacts in the Canadian Arctic, coastal regions and Indigenous territories. Third, no one province, territory or country can address the issue of climate change on its own. Addressing climate change requires collective national and international action. This is because the harmful effects of GHGs are, by their very nature, not confined by borders.^[33]

B) CANADA’S ACTIONS ON CLIMATE CHANGE

The subsection on Canada’s efforts to address climate change recounts the history of the United Nations Framework Convention on Climate Change (1992) (UNFCCC),^[34] the Kyoto Protocol,^[35] and the Copenhagen Accord,^[36] as well as Canada’s failure to fulfill its commitments under these latter two instruments.^[37] Canada ratified the most recent agreement, the Paris Agreement,^[38] in 2016 following its adoption at the end of 2015. As the Chief Justice observed, Canada’s current-at-the-time commitment under the Paris Agreement, its Nationally Determined Commitment (NDC), is to reduce its GHG emissions by 30 per cent below 2005 levels by 2030.^[39] Note that Prime Minister Justin Trudeau indicated on April 22, 2021 that Canada’s target would be revised to 40–45 per cent below 2005 levels by 2030.

Prior to ratifying the Paris Agreement, the federal government had convened a First Ministers’ meeting that resulted in the adoption of the Vancouver Declaration on Clean Growth and Climate Change in which the parties recognized the commitment that Canada had made, as well the importance of adopting a collaborative approach to meet that commitment. The Vancouver Declaration led to the establishment of a federal-provincial-territorial Working Group on Carbon Pricing Mechanisms which in turn informed the adoption of the Pan-Canadian Framework on Clean Growth and Climate Change (December 2016).^[40] The Framework provided the policy direction for the GGPPA and contemplated that each province or territory would have to have in place a carbon pricing system by 2018.^[41] The Framework was initially adopted by all provinces except Saskatchewan but, as the Chief Justice noted, that support soon dissipated:

On the day the federal government released the Pan-Canadian Framework, it was adopted by eight provinces, including Ontario and Alberta, and by all three territories. Manitoba adopted the framework in February 2018, but Saskatchewan has not done so yet. Later in 2018, Ontario, Alberta and Manitoba withdrew their support from the Pan-Canadian Framework.^[42]

The federal government followed up the release of the Framework with further guidance documents on the elements of the proposed federal carbon pricing system including a benchmarking document to inform the decision to apply federal carbon pricing in the provinces.^[43]

The Chief Justice also referenced the various measures taken by different provinces and territories, noting that only four of the provinces — British Columbia, Alberta, Ontario and Quebec — had actually adopted a carbon pricing system at the time that the Pan-Canadian Framework was adopted, but all other provinces except Saskatchewan and Manitoba had indicated that they planned to do so.^[44] The Chief Justice closed his review of the factual background with the following observation referencing the “collective action problem of climate change”:

Despite the actions that had been taken, Canada’s overall GHG emissions had decreased by only 3.8 percent between 2005 and 2016, which was well below its target of 30 percent by 2030. Over that period, GHG emissions had decreased in British Columbia, Ontario, Quebec, New Brunswick, Nova Scotia, Prince Edward Island and Yukon, but had increased in Alberta, Saskatchewan, Manitoba, Newfoundland and Labrador, Northwest Territories and Nunavut. Illustrative of the collective action problem of climate change, between 2005 and 2016, the decreases in GHG emissions in Ontario, Canada’s second largest GHG emitting province, were mostly offset by increases in emissions in two of Canada’s five largest emitting provinces, Alberta and Saskatchewan. Canada’s remaining emissions reduction between 2005 and 2016 came from two of Canada’s remaining five largest emitting provinces, Quebec and British Columbia, as well as from decreases in GHG emissions of over 10 percent — well above Canada’s 3.8 percent overall GHG emissions reduction — in New Brunswick, Nova Scotia, Prince Edward Island and Yukon.^[45]

Armed with this assessment of the facts as well as a review of the legislation (see our summary in Section II) the Chief Justice was ready to embark on the legal analysis. This began with some remarks on the principle of federalism before turning to the division of powers analysis, characterization of the GGPPA, and finally its classification. The Chief Justice dealt with the all-important issue of the scope and applicability of the national concern doctrine as part of the issue of categorization. The judgment concludes with the Chief Justice’s reasons for characterizing the levies in Parts 1 and 2 of the GGPPA as regulatory charges rather than true taxes. In a final comment, the Chief Justice gave his reasons for thinking that it was inappropriate to comment on the validity of any implementing regulations for the GGPPA since they were not properly before the Court. We summarize each of these sections of the judgement in turn below.

C) PRINCIPLES OF FEDERALISM

The Chief Justice’s discussion of the principle of federalism that informs the subsequent analysis is short.^[46] He affirms that the objectives of Canadian federalism “are to reconcile diversity with unity, promote democratic participation by reserving meaningful powers to the local or regional level and foster cooperation between Parliament and the provincial legislatures for the common good.”^[47] The provinces are to have the autonomy to develop their societies while at the same time the federal government has “powers better exercised in relation to the country as a whole to provide for Canada’s unity” but those powers “cannot be used in a manner that effectively eviscerates provincial power.”^[48] While the Court now adheres to a flexible view of federalism rather than “a rigid division of federal-provincial powers as watertight compartments,” such a cooperative federalism “cannot override or modify the constitutional division of powers.”^[49]

D) CHARACTERIZATION

The characterization of the GGPPA in the three provincial Courts of Appeal generated a range of judicial responses as well as an evolution in counsel for Canada’s articulation of the “pith and substance” of the legislation. The Chief Justice helpfully identified three different formulations of the GGPPA’s pith and substance:

(1) a broad formulation to the effect that the GGPPA’s pith and substance is the regulation of GHG emissions; (2) a national standards-based formulation to the effect that the GGPPA’s pith and substance is to establish minimum national standards to reduce GHG emissions; and (3) a national standards pricing-based formulation to the effect that the GGPPA’s pith and substance is to establish minimum national standards of GHG price stringency to reduce GHG emissions.^[50]

In the end, the Chief Justice preferred the third formulation on the grounds that this was most consistent with the purpose and effects of the legislation, as defined with some precision, and having regard to the means chosen by Parliament to achieve its purpose.^[51] The intrinsic evidence in favour of this conclusion included the long title of the statute, the preamble including its references to the UNFCCC and the Paris Agreement, as well as the emphasis on GHG pricing in the Pan-Canadian Framework.^[52] The extrinsic evidence, in the form of background documents as well as parliamentary debates and testimony before the Standing Committee, all confirmed that the GGPPA was concerned with “imposing a Canada-wide GHG pricing system” and not “regulating GHG emissions generally.”^[53] The legal effects of both impugned Parts of the GGPPA are similarly concerned with price stringency rather than instructing individuals and industries “how they are to operate in order to reduce their GHG emissions.”^[54] And while the Act affords considerable discretion to the Governor in Council in triggering the actual application of the Act to a particular province or territory, that discretion is not open-ended and subjective but must be exercised in a manner “consistent with the specific guideline of ensuring that emissions pricing is applied broadly in Canada and would have to take the stringency of existing provincial GHG pricing mechanisms into account as the primary factor.”^[55] Much the same was true of both Parts 1 and 2 of the Act.^[56]

As for the practical effects of the legislation, it was difficult to conclude much since the legislation had only been in force for a short period of time. However, the experience to date did indicate that the legislation was being implemented in a manner that “is consistent with the principle of flexibility and support for provincially designed GHG pricing schemes.”^[57] The backstop nature of the legislation was also crucial; in this case “a national GHG pricing scheme is not merely the means of achieving the end of reducing GHG emissions.”^[58] Rather, the means was part of the rationale for the legislation. The Chief Justice also explains the reasons for characterizing the selective application of regulatory charges as imposing a “minimum national standard,” a subject to which we devote significant attention in the commentary below.^[59]

E) CLASSIFICATION

Having identified the pith and substance of the legislation and having dismissed arguments to the effect that the important regulation-making powers of the Act constituted unconstitutional sub-delegation, the Chief Justice turned to the classification of the Act, beginning with Canada’s contention that the legislation should be upheld on the basis of the national concern doctrine, with no consideration given to upholding the legislation under other federal heads of power.^[60]

F) THE NATIONAL CONCERN DOCTRINE

The Chief Justice began this part of his judgment by emphasizing both the residual and permanent nature of the “national concern” branch of the POGG power. As a result, “a finding that the federal government has authority on the basis of the national concern doctrine raises special concerns about maintaining the constitutional division of powers.”^[61] The Chief Justice then proceeded to carefully review the evolution of the national concern doctrine through the case law, emphasizing Justice Beetz’s dissenting reasons in the Anti-Inflation Reference,^[62] Justice Gerald LeDain’s judgment in Crown Zellerbach, as well as cases in which the Court had declined to recognize a national concern on the grounds that there was nothing in the proposed matter that transcended provincial boundaries or the power of local authorities to resolve.^[63]

Having conducted this chronological review, the Chief Justice then addressed what he referred to as two “preliminary” issues.^[64] The first was whether a new matter of national concern could be framed in terms of the subject matter of the statute (its “pith and substance”), or whether it had to be framed “at a level of generality that is broader than the matter of the statute.”^[65] The point was an important one insofar as the broader the articulation of the matter (e.g. the regulation of GHGs, as the Alberta Court of Appeal had framed the matter),^[66] the greater the likelihood that the matter would not be single, distinct and indivisible, and the greater the threat to provincial autonomy if jurisdiction under the national concern branch of POGG was deemed to be both plenary and exclusive.

The Chief Justice gave four reasons for rejecting the need for a broader and more abstract formulation of the matter. First, the Chief Justice pointed to the actual text of sections 91 and 92 of the Constitution, which distinguish between “matters” and “classes of subjects” and observed that there is “[n]othing in the words of the Constitution that supports the construction of a class of subjects under the POGG power that is broader than the matter of the statute.”^[67] Second, the Chief Justice observed that it was not unprecedented for the statement of the matter to be framed in the same terms as the pith and substance of the impugned legislation.^[68] Such was the case, for example, in both Anti-Inflation and Crown Zellerbach. Third, consistent with the principle of judicial constraint, the Court should confine itself to the precise question before it. Simply put, “if Parliament has not indicated in a statute that its intention is to exercise jurisdiction over a broad matter, there is no reason for a court to artificially construct such a broad matter.”^[69] Finally, the Chief Justice pushed back against the contention that this approach conflates the characterization and categorization stages. An impugned statute must still be subject to categorization and if “the matter is not legally viable as a matter of national concern, then…the statute cannot be upheld on the basis of that doctrine.”^[70]

The second preliminary issue related to an even more significant point, namely, the presumed exclusiveness of the federal power to legislate with respect to any matter that qualifies as a national concern. The backstop nature of the federal legislation raises this issue directly, since backstop legislation is premised on the capacity of a provincial or territorial government to pass a law or laws that establishes carbon prices that meet or exceed a national stringency standard. If the federal parliament’s power to make laws dealing with the stringency of carbon pricing was literally exclusive, there would be a question as to whether and how provincial laws could survive.^[71] The Chief Justice answered this seeming conundrum by pointing out that the use of the word “plenary” to describe a matter that qualifies as a national concern is “unhelpful” because plenary speaks to the “scope of the power” and does not speak to the exclusiveness of such a power.^[72] The scope of the power is determined by the nature of the relevant matter. Thus, in Ontario Hydro, labour relations fell within the scope of the matter of nuclear energy because of the link between labour relations and the safe operation of nuclear facilities.^[73] The ability of a province to regulate with respect to the same subject area should be determined through the application of the double aspect doctrine which permits “the same fact situation to be regulated from different perspectives.”^[74]

Crucially, the double aspect doctrine is equally applicable to national concern powers as to other federal and provincial heads of power; but that does mean to say “that it will apply in a given case.”^[75] The “fact situation” must lend itself to being viewed from different perspectives. But if it can, both laws may be valid, subject to federal paramountcy.^[76] The importance of this conclusion was not lost on the Chief Justice:

The double aspect doctrine takes on particular significance where, as in the case at bar, Canada asserts jurisdiction over a matter that involves a minimum national standard imposed by legislation that operates as a backstop. The recognition of a matter of national concern such as this will inevitably result in a double aspect situation. This is in fact the very premise of a federal scheme that imposes minimum national standards: Canada and the provinces are both free to legislate in relation to the same fact situation — in this case by imposing GHG pricing — but the federal law is paramount.^[77]

Having addressed these “preliminary” concerns, the Chief Justice turned to two other methodological considerations associated with identifying matters of national concern. The first was to emphasize that the recognition of a matter as being of national concern must be based on evidence.^[78] This points to the importance of building an adequate record, particularly with respect to such matters as provincial inability but also, as we shall see, with respect to what the Chief Justice describes as the important threshold question, namely “whether the matter is of sufficient concern to Canada as a whole to warrant consideration under the doctrine.”^[79] The second point relates to the issue of “newness” and the question as to whether the proposed matter should be something that must have been historically unknown at the time of Confederation. The Chief Justice rejected the requirement of “newness.” In his view, references to newness in the case law must be read such that “[t] he critical element of this analysis is the requirement that matters of national concern be inherently national in character, not that they be historically new.”^[80] Thus, original appreciation of a matter (such as uranium mining) as something that was local in nature coming within “various enumerated provincial classes of subjects: ss. 92(5), 92(9), 92(10) and 92(13)” might evolve over time such that “the production of its raw materials [could be] … found to be a matter which is, by nature, of national concern because of its safety and security risks, particularly the risk of catastrophic interprovincial harm…”^[81]

G) CROWN ZELLERBACH, REFRESHED AND REFURBISHED

With these important clarifications in hand, the Chief Justice turned to the test for identifying matters of national concern. While Chief Justice Wagner’s refurbished test draws significantly on Justice Le Dain’s test as articulated in Crown Zellerbach, there are some important modifications which draw extensively on the test for classification under the trade and commerce power developed in General Motors, as applied in re Securities Act and re Pan-Canadian Securities.^[82] Chief Justice Wagner’s test is effectively a three-step test. It begins with a threshold question (is the matter of sufficient concern to Canada as a whole to warrant consideration under the doctrine?) before proceeding to consider, as a second step, the question of “singleness, distinctiveness and indivisibility,” a strong indicator of which is provincial inability to effectively address the matter. The third and final step is to assess the impact of recognizing a matter of national concern on provincial autonomy. We discuss each of these in turn below.

1. The Threshold Question

The threshold question involves “a common-sense inquiry into the national importance of the proposed matter.”^[83] The inquiry is designed to ensure “that the national concern doctrine cannot be invoked too lightly and provides essential context for the analysis that follows.”^[84] This step will not be satisfied by merely asserting the importance of a matter: “Canada must adduce evidence to satisfy the court that the matter is of sufficient concern to Canada as a whole to warrant consideration in accordance with the national concern doctrine.”^[85] If the federal government is able to discharge this burden, the inquiry turns to the ideas of “singleness, distinctiveness and indivisibility,” informed by provincial inability but now viewed through the lens of two “principles.”

2. Singleness, Distinctiveness and Indivisibility

The first principle is that there must be “a specific and identifiable matter that is qualitatively different from matters of provincial concern.”^[86]

How then does one ascertain whether something is qualitatively different? The Chief Justice suggests that a key consideration is “whether it is predominantly extra-provincial and international in character, having regard both to its inherent nature and to its effects.” ^[87] In addition, “[i]nternational agreements may in some cases indicate that a matter is qualitatively different from matters of provincial concern.”^[88] A further limiting consideration is that the matter “must not be an aggregate of provincial matters,” and “federal legislation will not be qualitatively distinct if it overshoots regulation of a national aspect of the field and instead duplicates provincial regulation or regulates issues that are primarily of local concern.”^[89]

The second principle is that “the evidence establishes provincial inability to deal with the matter.”^[90] In developing this principle, the Chief Justice drew on the fourth and fifth indicia from General Motors. Thus:

(1) the legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable of enacting; and (2) the failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country. While Chief Justice Dickson frames the indicia in General Motors as not being individually necessary for classification under the trade and commerce power, for provincial inability to be established for the purposes of the national concern doctrine, both of these factors are required.^[91]

In adopting this framing, the Chief Justice rejected the argument made during the proceedings that provincial inability should be interpreted literally to mean that the provinces are without jurisdiction to address the matter whatsoever.^[92]

To these two principles, the Chief Justice adds a third indicium, namely that “a province’s failure to deal with the matter must have grave extra-provincial consequences.”^[93] While the Chief Justice suggested that this added element constitutes a “high bar,” it apparently encompasses a fairly broad range of scenarios.^[94] In an attempt at further clarification, the Chief Justice went on to say that the requirement of grave national consequences “can be satisfied by actual harm or by a serious risk of harm being sustained in the future. It may include serious harm to human life and health or to the environment, though it is not necessarily limited to such consequences.”^[95]At the same time “[m]ere inefficiency or additional financial costs stemming from divided or overlapping jurisdiction is clearly insufficient.”^[96]

The two principles between them give effect to the requirement that a matter be indivisible as enunciated in Crown Zellerbach. As the Chief Justice explains:

The first of these principles requires a specific and identifiable matter which is not a boundless aggregate. The second principle requires provincial inability, as it is clearly defined in Crown Zellerbach and, indeed, throughout the Court’s national concern jurisprudence, which is a marker of indivisibility.^[97]

3. Scale of Impact on Provincial Jurisdiction

The final step in the analysis is the scale of impact test, which is a contextual test designed to “prevent federal overreach.” Thus,

…the intrusion upon provincial autonomy that would result from empowering Parliament to act is balanced against the extent of the impact on the interests that would be affected if Parliament were unable to constitutionally address the matter at a national level. Identifying a new matter of national concern will be justified only if the latter outweighs the former.^[98]

H) APPLYING THE NEW TEST TO THE GGPPA

1. Threshold question: significant concern for Canada as a whole

As with all of the provincial appellate courts, the majority accepts that climate change is an “existential challenge” and “a threat to the future of humanity.”^[99] However, and much as in Crown Zellerbach where the matter was not marine pollution simpliciter but rather marine pollution by ocean dumping, “the specific question before the Court is whether establishing minimum national standards of GHG price stringency to reduce GHG emissions is a matter of national concern.”^[100] The record fully supported “the importance of carbon pricing,”^[101] and indeed reflected “a consensus, both in Canada and internationally, that carbon pricing is integral to reducing GHG emissions.”^[102] As such, the proposed identification of a new matter of national concern “readily passes the threshold test” and warrants further consideration.^[103]

As further discussed in Part V (commentary), these findings by the Supreme Court are significant. While not the central issue, the majority’s holdings with respect to climate change go beyond mere obiter and are bound to influence other types of climate litigation in Canada, including current Charter-based litigation, future tort-based litigation (e.g. for climate change related costs), and disputes with respect to project-related impacts.^[104]

2. Singleness, Distinctiveness and Indivisibility

With respect to the first principle of the test outlined above, the Chief Justice holds that the matter of the legislation is qualitatively different from matters of provincial concern. Here again, the reasons lead with the nature of GHG emissions, which “are a specific and precisely identifiable type of pollutant” that “represent a pollution problem that is not merely interprovincial, but global, in scope.”^[105] International agreements are brought to bear as “both the UNFCCC and the Paris Agreement help illustrate the predominantly extra-provincial and international nature of GHG emissions and support the conclusion that the matter at issue is qualitatively different from matters of provincial concern.”^[106] The reasons next look at emissions pricing, holding that the Vancouver Declaration and other federal/provincial initiatives reflect the status of GHG pricing as a “distinct form of regulation.”^[107] It does “not amount to the regulation of GHG emissions generally,” and “is also different in kind from regulatory mechanisms that do not involve pricing, such as sector-specific initiatives concerning electricity, buildings, transportation, industry, forestry, agriculture and waste.” ^[108] Finally, the implementation of minimum standards of carbon pricing through backstop architecture is deemed to be qualitatively different from matters of provincial concern. The federal approach complements provincial schemes and “does so on a distinctly national basis, one that neither represents an aggregate of provincial matters nor duplicates provincial GHG pricing systems.”^[109] While there is a sense in which the federal scheme is always applicable, it is only directly operable where a province or territory fails to implement a sufficiently stringent pricing mechanism and the federal government lists the province in a schedule by regulation.^[110] In sum:

…the GGPPA’s fundamental role is a distinctly federal one: evaluating provincial pricing mechanisms against an outcome-based legal standard in order to address national risks posed by insufficient carbon pricing stringency in any part of the country. The GGPPA does not prescribe any rules for provincial pricing mechanisms as long as they meet the federally designated standard.^[111]

We discuss below in our commentary the distinction between prescribing rules that a province must meet as opposed to the application of federal rules to supplement provincial rules that fail to establish the requisite degree of price stringency. We take the view that the GGPPA does the latter and not the former.

The Chief Justice then gave three reasons for concluding that the evidence established provincial inability to deal with the proposed matter. First, “the provinces, acting alone or together, are constitutionally incapable of establishing minimum national standards of GHG price stringency to reduce GHG emissions.”^[112] While they might be able to achieve the same result through cooperation, there could be no guarantee that such cooperation would continue; “any province could choose to withdraw at any time.”^[113] Here the Chief Justice draws upon the decision in re Pan‑Canadian Securities to support an interpretation of provincial inability which relies in part on the inability of provinces to pre-commit to future policies.

Second, the risk of a province opting out could undermine the efficacy of the entire scheme. Reduced emissions by provinces remaining in the scheme could be more than offset by increased emissions (whether as a result of emissions leakage or otherwise) in provinces failing to implement a sufficiently stringent GHG pricing mechanism.^[114] The record reinforced the reality of this risk, as set out in what are arguably two of the most important paragraphs in the decision. The Chief Justice noted that “[b]etween 2005 and 2016…emissions fell by 22 percent in Ontario, 11 percent in Quebec and 5.1 percent in British Columbia… But these decreases were largely offset by increases of 14 percent in Alberta and 10.7 percent in Saskatchewan.”^[115] He went on to observe that “when provinces that are collectively responsible for more than two thirds of Canada’s total GHG emissions opt out of a cooperative scheme, this illustrates the stark limitations of a non-binding cooperative approach.”^[116]

Finally, the Chief Justice emphasized that a province’s failure to cooperate would “have grave consequences for extra-provincial interests.” The reasoning that justifies this conclusion is necessarily complex. It begins with a passage that revisits the risks associated with climate change:

It is uncontroversial that GHG emissions cause climate change. It is also an uncontested fact that the effects of climate change do not have a direct connection to the source of GHG emissions; every province’s GHG emissions contribute to climate change, the consequences of which will be borne extra-provincially, across Canada and around the world. And it is well established that climate change is causing significant environmental, economic and human harm nationally and internationally, with especially high impacts in the Canadian Arctic, in coastal regions and on Indigenous peoples.^[117]

The Chief Justice then moved from this statement of global effects to confront the argument that a province’s failure to cooperate could hardly “have grave consequences for extra-provincial interests,” since the impact of any single province’s emissions could not result in measurable harm to other provinces.^[118] His response to this argument, which increasingly confronts domestic courts in different jurisdictions in a range of climate change litigation contexts (as further discussed in Part V), was concise: “[e]ach province’s emissions are clearly measurable and contribute to climate change. The underlying logic of this argument [that emissions from any individual jurisdiction are immaterial to climate change] would apply equally to all individual sources of emissions everywhere, so it must fail.”^[119] This conclusion was bolstered by further references to the dire implications of climate change together with the problem of defection in the context of collective action and the problems of emissions leakage. While the Chief Justice does not use this precise language at this point in the judgment, this appears to be the message underlying the following passage:

While each province’s emissions do contribute to climate change, there is no denying that climate change is an “inherently global problem” that neither Canada nor any one province acting alone can wholly address. This weighs in favour of a finding of provincial inability. As a global problem, climate change can realistically be addressed only through international efforts. Any province’s failure to act threatens Canada’s ability to meet its international obligations, which in turn hinders Canada’s ability to push for international action to reduce GHG emissions. Therefore, a provincial failure to act directly threatens Canada as a whole. This is not to say that Parliament has jurisdiction to implement Canada’s treaty obligations — it does not — but simply that the inherently global nature of GHG emissions and the problem of climate change supports a finding of provincial inability in this case.^[120]

Indeed, this is reinforced by the backstop nature of the GGPPA which only kicks in operationally when a province fails to legislate a sufficiently stringent carbon price.^[121]

3. The final test: the scale of impact on provincial jurisdiction

The scale of impact on provincial jurisdiction was at the core of the objections of each of the provinces challenging the constitutionality of the GGPPA, in particular Alberta. We summarize the majority opinion on this issue below and provide our commentary in Section V. The Chief Justice acknowledged that the recognition “of a previously unidentified area of double aspect in which the federal law is paramount” would have “a clear impact on provincial autonomy.”^[122] But this interference with autonomy is limited and could be justified or outweighed “by the impact on interests that would be affected if Parliament were unable to constitutionally address this matter at a national level.”^[123]

The Chief Justice gave two reasons for this conclusion. First, he observed that the interference with the provinces’ “freedom to legislate is minimal.”^[124] A province would still be able to legislate with respect to a broad range of matters pertaining to GHG emissions. Indeed, a province is still “free to design and legislate any GHG pricing system as long as it meets minimum national standards of price stringency.”^[125] Second, “the matter’s impact on areas of provincial life that would generally fall under provincial heads of power is also limited.”^[126] Individual consumers could choose how they responded to the price signals that might result from federal minimum standards,^[127] and while the new matter would entail some level of federal “supervisory” jurisdiction, this too would be limited by the purpose of the GGPPA and administrative law principles.^[128] Provinces would retain the ability to legislate in most areas related to GHG emissions without any federal supervision.^[129] In sum:

The result of the GGPPA is therefore not to limit the provinces’ freedom to legislate, but to partially limit their ability to refrain from legislating pricing mechanisms or to legislate mechanisms that are less stringent than would be needed in order to meet the national targets. Although this restriction may interfere with a province’s preferred balance between economic and environmental considerations, it is necessary to consider the interests that would be harmed — owing to irreversible consequences for the environment, for human health and safety and for the economy — if Parliament were unable to constitutionally address the matter at a national level.^[130]

In the commentary below, we address in more detail the suggestion that a province may not legislate a less stringent measure perhaps implying that such a provincial scheme may be invalid or inapplicable. In short, we do not believe that this implication is warranted. The failure of a province to legislate a carbon price or to legislated a carbon price of sufficient stringency to satisfy the federal standard merely exposes the province to the backstop application of the federal scheme; it does not render the provincial scheme invalid or inapplicable (unless there is actual inconsistency sufficient to trigger paramountcy).

The Chief Justice concluded his discussion of the national concern test by anticipating at least some of the criticisms of the dissenting Justices, in particular Justice Brown. More specifically, he addressed the concern that the inclusion of national standard setting within the new matter posed the risk of opening the door to a broad suite of federal national standard setting legislation and federal supervision of provincial governments in a manner that would be inconsistent with Canada’s version of federalism. After all, national standard setting will always be beyond the reach of the provinces and territories. The Chief Justice responded by emphasizing the cumulative requirements that the federal government would have to satisfy to qualify a matter as a new matter of national concern. In particular, he chose to emphasize the need to establish that the failure to recognize the matter would endanger the interests of other provinces.^[131]

IV. BRIEF SUMMARY OF THE REASONS FOR DISSENTS

As stated in the introduction, our goal in reviewing the dissents is to highlight areas of agreement and disagreement between the majority and the dissents.

A) DISSENT OF JUSTICE CÔTÉ

Justice Côté concurs with the majority with respect to the formulation of the national concern branch of POGG,^[132] but concludes that the GGPPA does not fit within that formulation because of the breadth of discretion the legislation provides to the Governor in Council which results in the absence of any meaningful limits on the power of the executive. In addition, she considers that these broad discretionary powers independently “violate the Constitution Act, 1867, and the fundamental constitutional principles of parliamentary sovereignty, rule of law, and the separation of powers.”^[133]

For Justice Côté the crux of the matter is that the minimum national standards contemplated by the GGPPA are established by the executive branch and not explicitly in the GGPPA itself,^[134] and that Part II of the GGPPA “empowers the executive to establish variable and inconsistent standards on an industry-by-industry basis.”^[135] Justice Côté concludes that regulations under the Act could “impose such strict limits on the fossil fuel or potash industries, both heavy emitters of GHG emissions, that the industries would be decimated.”^[136] As discussed above, Part II of the GGPPA does set output-based standards at the industrial level and so there may well be differing impacts across industries from the imposition of these policies. However, Part II ensures a standard of treatment that would no more disadvantageous than would be the case for a regulatory charge applied on all emissions. The output-based standards in Part II amount to the allocation of emissions credits on a per unit output basis, so Part II serves as a mechanism to reduce costs for large emitters relative to what would be the case if they were covered only under the fuel charge structure of Part I.

Justice Côté’s principal concern with the degree of discretion afforded to the federal cabinet focus lies with the “Henry VIII” clauses in s. 168 of Part 1 and s. 192 of Part II of the GGPPA. A Henry VIII clause is a statutory clause that permits “the executive to amend by regulation the very statute which authorizes the regulation.”^[137] Sections 168 and 192 of the GGPPA do, indeed, delegate broad authority to the Governor in Council to adjust a broad range of parameters which define the functioning of the fuel charge or the OBPS. Section 168 allows discretion to set rates, coverage, rebates, compliance assurance, and to set the benchmarking system to determine the listing of provinces for application of the backstop. Section 192, allows the executive to make regulations for the OBPS including definitions of a covered facility, constraints on record-keeping, compliance periods and payment deadlines, and emissions quantification and verification. These powers are all integral to the legislation. Only subsection 192(n) which allows for regulations “providing for user fees,” seems to lack a clear nexus with the legislative scheme. Justice Côté also highlights the broad discretion conferred by subsections 166(2-3) with respect to the fuel charge in Part I and especially subsection 166(4) which allows regulations to be made “in respect of the fuel charge system.” Since this applies “despite any provision of [Part 1 of the GGPPA]” such a regulation will prevail as Justice Côté notes over the text of the statute in the event of a conflict.^[138] This is indeed a classic Henry VIII clause and, for Justice Côté, such clauses “that purport to confer on the executive branch the power to nullify or amend Acts of Parliament are unconstitutional.”^[139]

This conclusion runs counter to long-standing and high authority.^[140] Broad delegations of legislative authority to the executive are common features of most — if not all — federal and provincial environmental and natural resources statutes in Canada.^[141]

In sum, while Justice Côté supports the majority’s formulation of the national concern test she still finds the GGPPA unconstitutional partly because the GGPPA does not fit with the national concern matter as formulated and partly because of what she considers extraordinary discretionary powers conferred on the executive. One can infer that she would have found the GGPPA to be valid under the national concern test had parliament been more prescriptive as to standards within the legislation itself (however difficult this might be from a drafting perspective) rather than delegating this to the executive.

B) DISSENT OF JUSTICE BROWN

While Justice Côté focuses on the scope of the regulation-making powers in the GGPPA, and Justice Rowe (as discussed in the next section) focuses on the implications of the residual nature of the POGG power, Justice Brown takes issue with all of the main conclusions of the majority with the exception of the decision to characterize the levy embedded in Parts 1 and 2 of the GGPPA as a regulatory charge and not a tax.^[142] At its core, and as further discussed in the commentary below, Justice Brown’s analysis systematically downplays the issue of extra-provincial harms, both generally and in the specific instances of GHGs.

Justice Brown offers the most detailed and nuanced discussion of the legislation, in particular with respect to the differences between Parts 1 and 2 of the GGPPA, emphasizing that, in his view, the OBPS of Part 2 affords the federal cabinet significant discretion to reach far into the details of industrial regulation.^[143] He argues that this potentially allows the federal cabinet to play favourites since it may lead to significant differences in the average carbon prices paid by different industrial sectors.^[144] In expressing this view, Justice Brown very much concurs with Justice Rowe’s comments on the potential for review of any implementing regulations on constitutional grounds,^[145] which also leads him to sympathize with Justice Côté’s concerns with respect to the scope of the regulation-making power.^[146] Most significantly, however, the differences between Parts 1 and 2 of the GGPPA ultimately lead Justice Brown to insist that Parts 1 and 2 should be characterized separately.^[147]

For Justice Brown, the purpose of characterization is to facilitate classification of a law,^[148] and as such he rejects not only the broad characterization of the GGPPA adopted in the Alberta GGPPA Reference as a law relating to the regulation of GHG emissions,^[149] but also the narrower characterizations offered by Canada and British Columbia and ultimately endorsed by the majority, i.e. minimum national standards of GHG price stringency to reduce GHG emissions.^[150] In particular, Justice Brown finds the inclusion of minimum national standards within the characterization of the legislation completely unhelpful, an “artifice” that “effectively decides the jurisdictional dispute” insofar as it short-circuits the analysis “by describing the means as something that only federal legislative authority can undertake.”^[151] Justice Brown is surely correct that provinces are incapable of enforcing minimum national standards, and thus legislation characterized as imposing minimum national standards “effectively decides the jurisdictional dispute.”^[152] The imposition of national policies, however, is not the sole anchor for provincial inability in the majority opinion, and Justice Brown does not really engage with the fundamental role that extra-provincial harms play in the Chief Justice’s analysis.^[153] Justice Brown also would have held that the backstop attributes of the legislation were not material to its purpose and legal effects, despite referring to them as a key feature of the Act.^[154] Instead, Justice Brown ultimately settles on characterizing Part 1 of the Act as concerned with “the reduction of GHG emissions by raising the cost of fuel,” and Part 2 as concerned with “the reduction of GHG emissions by pricing emissions in a manner that distinguishes among industries based on emissions intensity and trade exposure.”^[155]

While the majority moved immediately to consider Canada’s proposed classification of the GGPPA under the national concern head of POGG, both Justices Brown and Rowe insist that this is inappropriate given the residual nature of POGG, and that it was important to begin with the enumerated heads of power.^[156] And having removed the language of minimum national standards from the characterization of the legislation, Justice Brown concludes that both Parts 1 and 2 of the GGPPA fell under one or more heads enumerated in s 92 or s 92A;^[157] after all “the Act’s entire scheme is premised on the provinces having jurisdiction to do precisely what Parliament has presumed to do in the Act — that is, to impose carbon pricing through a comparable scheme.”^[158]

But while it is certainly the case that provincial governments could enact valid legislation to regulate GHGs under the heads of power described by Justice Brown, his discussion omits several considerations. First, the territorial limits of provincial jurisdiction preclude provinces from pricing or otherwise regulating GHG sources in other provinces. Second, it omits any meaningful consideration of the double aspect doctrine which has been applied in other national concern cases. For example, while labour conditions normally fall under provincial jurisdiction, the close connection between such conditions and nuclear safety brings labour conditions associated with nuclear plants within federal jurisdiction (Ontario Hydro). Similarly, while zoning and property are clearly provincial jurisdiction, federal laws in relation to the National Capital Region can validly include zoning and restrictions on property rights (Munro). In short, the fact that legislation in relation to carbon pricing can be classified under a provincial head or heads of power does not establish that similar legislation, enacted with a view to a federal aspect of the subject matter, cannot be classified under POGG’s national concern branch.

Having classified the GGPPA under one or more heads of provincial power, it was not strictly necessary for Justice Brown to return to POGG and the national concern test, given his views as to the residual nature of POGG. However, Justice Brown did go on to further explain why, in his view, the GGPPA could not be sustained under POGG. Here again, Justice Brown was critical of the work done by the phrase “minimum national standards” insofar as it effectively prejudged the idea of national concern and deprived elements of the existing Crown Zellerbach framework of much of their value.^[159] What he meant by this is that national standards must by definition be qualitatively different from provincial concerns and at the same time must also be beyond the authority of the provinces. For Justice Brown, characterizing the legislation in this way was a cheat code, allowing the majority to assume the result.

Justice Brown accepted that a narrow description of the matter that is alleged to be of national concern might make it easier to meet the Crown Zellerbach framework,^[160] but he was clearly skeptical of the idea that a matter of national concern could be framed as narrowly as the pith and substance of the impugned law (he stepped back from saying it could never be).^[161] But in this case, even if the matter of national concern could be confined to the scope of the legislation, however, the matter must still be described in terms broad enough to embrace both Parts 1 and 2 of the GGPPA.^[162] For Justice Brown, this meant that the alleged matter of national concern would have to be framed as broadly as “the reduction of GHG emissions.”^[163]

Having stripped away any reference to both minimum national standards and carbon pricing from the statement of the matter of national concern, it became much easier for Justice Brown to conclude that the legislation did not measure up to the Crown Zellerbach framework. Justice Brown gave three reasons for this conclusion. First, such a matter could not meet the test of distinctiveness in the sense of it being a matter that is distinct from matters falling within provincial jurisdiction under s 92.^[164] For Justice Brown, as noted above, this point was confirmed by the backstop nature of the legislation.^[165] The double aspect doctrine could not confer jurisdiction on the federal parliament where there was none, and neither could such jurisdiction be conferred simply by invoking minimum national standards.^[166] Second, the matter could not meet the test of indivisibility since, by their nature, GHG emissions are divisible by source and therefore by geography and jurisdictional boundaries.^[167] The fact that emissions might have extra-provincial effects was far from conclusive and does not make the issue indivisible.^[168] Under the Crown Zellerbach test, Justice Brown reminds us, provincial inability is an indicium of singleness and indivisibility and not itself proof of either.^[169] Finally, Justice Brown was of the view that “Even were the reduction of GHG emissions a single and indivisible area of jurisdiction, its impact on provincial jurisdiction would be of a scale that is completely irreconcilable with the division of powers.”^[170] Justice Brown reached this conclusion on the basis that the GGPPA was about much more than just paying money and would have profound effects on behaviour. The fact that backstop legislation based on a national concern would be far less invasive than a federal law based on either the taxation power or the criminal law power was irrelevant:

…within their sphere of jurisdiction, the provincial legislatures are sovereign, which sovereignty connotes provincial power to act — or not act — as they see fit, not as long as they do so in a manner that finds approval at the federal Cabinet table… The very idea of recognizing federal jurisdiction to legislate “minimum national standards” of matters falling within provincial jurisdiction is corrosive of Canadian federalism.^[171]

C) DISSENT OF JUSTICE ROWE

Justice Rowe adopts Justice Brown’s reasons for concluding that GGPPA is ultra vires in whole,^[172] but adds reasons of his own for that conclusion.^[173] He also adds some observations as to how the Court might, in a future case, examine the constitutional validity of any regulations enacted pursuant to the provisions of the GGPPA.^[174] With the exception of this discussion of the regulation-making powers under the Act, Justice Rowe’s dissent focuses entirely on the national concern power, which he contextualizes within his vision of Canadian federalism. Thus, he has nothing to say about the characterization of the legislation beyond generally adopting Justice Brown’s views.^[175]

Justice Rowe’s vision of federalism is one that privileges a certain type of provincial autonomy and celebrates difference and the opportunity to act differently.^[176] Much like Justice Brown, this leads him to a strong (but arguably lop-sided) view of provincial sovereignty,^[177] that allows provinces to “adversely affect extra-provincial interests if they are acting within their sphere of jurisdiction,”^[178] without recognizing that such adverse effects must also diminish the sovereignty of the affected province(s). This vision of federalism informs Justice Rowe’s emphasis on the residual nature of POGG and specifically the national concern head of POGG.^[179] This, at least according to Justice Rowe, seems to be the principal difference between him and the majority. Whereas for him the wording of the POGG power in s. 91 (‘not coming within’) is such that at the categorization stage one must look first to provincial powers, and at specific federal heads of power before moving to the general.^[180] He contrasts this with the approach taken by the Chief Justice which sees POGG as a primary source of authority that can be triggered or generated by the invocation of “minimum national standards”. This, according to Justice Rowe, “is not residual authority. It is the antithesis of residual authority, as it would operate to encroach on jurisdiction conferred on the provinces.”^[181] Indeed, like Justice Brown, Justice Rowe sees the entire idea of a national concern power based on minimum national standards as contrary to the Canadian version of federalism. This is because, in his view, it denies provinces autonomy and amounts to a supervisory view of federalism: “where provinces become subordinate units, the nation is no longer federal in its nature. In other words, supervisory federalism isn’t federalism at all.”^[182] Thus, while the double aspect doctrine may still allow a province to make laws with respect to aspects of carbon management, the federal paramountcy power effectively undermines provincial autonomy if the court adopts a broad view of national concern.^[183]

Ultimately, Justice Rowe’s analysis of national concern remains firmly grounded within Justice LeDain’s articulation of the relevant test in Crown Zellerbach and he was at pains to emphasize that the threshold for each of LeDain’s indicia was high. The importance of the matter is irrelevant,^[184] and a matter could not attain the status of national concern just because it was the subject of an international agreement or agreements for that would be inconsistent with the Labour Conventions case.^[185] The distinctiveness of the matter, for Justice Rowe, turns not just on the distinctive nature of the gases in question,^[186] but also required the federal government to show how the impugned matter was “distinct from matters falling under the enumerated heads of s. 92.”^[187] But this was “inherently incompatible with the backstop nature of the Act.”^[188] As for singleness and indivisibility, Justice Rowe seems to have been of the view that carbon pricing, much like “the environment,” represented an aggregate that could be shared between federal and provincial government and did not have a “singleness” that required exclusive federal competence.^[189] Finally, on the matter of provincial inability and extra-provincial effects, as already noted Justice Rowe’s strong views of provincial sovereignty led him to think that extra-provincial effects, while relevant, would not be determinative of provincial inability and neither would the mere risk of non-co-operation.^[190] All this said, it is difficult to get a reading from his judgment as to what Justice Rowe would consider to be sufficient to meet the test of provincial inability.

With respect to the broad regulation-making powers in Parts 1 and 2 of the Act, the main difference between Justice Rowe and the Chief Justice related to the question of whether it was appropriate to offer much in the way of comment on GGPPA-implementing regulations, given that they were not before the court. For the majority it was enough to observe that any such regulations would potentially be amenable to review on constitutional grounds. Justice Rowe went well beyond that.^[191] In particular, he expressed concerns that the breadth of the regulation-making powers under the Act create opportunities for favoritism and for regulating on grounds that have nothing to do with the effectiveness of GHG pricing.^[192] Justice Rowe also expressed some concerns as to the lack of transparency typically associated with regulation making.^[193] In our view, these comments represent a significant break with the traditional (and appropriate) reluctance of courts to comment on matters that are not before them. Furthermore, instead of offering the executive the benefit of the presumption that the executive will exercise its powers in conformity with the statute, Justice Rowe draws attention to the possibility that it may not and that the executive may exercise those powers for extraneous and preferential purposes. Furthermore, while Justice Rowe notes that some regulation making powers may not attract much transparency, he must also know that GGPPA regulations will require the preparation of a regulatory impact assessment statement (RIAS) that will be published in the Canada Gazette.^[194]

V. COMMENT AND ANALYSIS

A) PITH AND SUBSTANCE, AND THE SUBJECT MATTER OF NATIONAL CONCERN: NARROW OR BROAD?

As our review demonstrates, there are significant differences in how the majority and dissents view the breadth of both the subject matter of the legislation and the subject matter of national concern. While these are, as a matter of law, distinct questions, the majority and dissents follow the same alignment with respect to both questions. That is, while the majority consistently favours a narrow view of the pith and substance of the GGPPA and of the alleged matter of national concern, the dissents take a broader or more expansive view of both pith and substance and the national concern.

The following table summarizes the main positions:

	Pith and substance	The matter of national concern
Majority	Both parts 1 and 2: establish minimum national standards of GHG price stringency to reduce GHG emissions.[195]	Establish minimum national standards of GHG price stringency to reduce GHG emissions.[196]
Justice Côté	Dissents from the majority on the grounds that the Act itself does not establish minimum standards and so cannot fall within the matter of national concern;[197] does not offer an alternative characterization.	Concurs with the majority.[198]
Justice Brown	Part 1: the reduction of GHG emissions by raising the cost of fuel.[199] Part 2: the reduction of GHG emissions by pricing emissions in a manner that distinguishes among industries based on emissions intensity and trade exposure.[200]	The reduction of GHG emissions.[201]
Justice Rowe	Follows Justice Brown.[202]	No clear articulation; appears to base his critique on the national concern as articulated by Canada: “establishing minimum national standards integral to reducing nationwide [greenhouse gas] emissions.”[203]

 

 

The same is also true of the judicial commentary on the scope or reach of the legislation itself. Whereas the majority considers that the federal government is entitled to the usual presumption that it will only enact regulations within the four contents of the statute (and to some extent downplays the discretionary powers associated with the OBPS scheme), both Justices Brown and Rowe consider that the breadth of the regulation making powers in the GGPPA creates the risk of abuse. In our view, this risk is overstated and while we acknowledge that Justice Brown offers, in many respects, the clearest exposition of the GGPPA, he also exaggerates the scope of the discretion afforded to the federal executive. Thus, while the OBPS scheme affords discretionary powers that will affect the average price that different sectors of industry will pay on its carbon emissions, all are subject to the same marginal price and thus have a similar incentive to reduce emissions.^[204] Furthermore, insofar as Part II engages in industrial policy, it does so by reducing the total costs to some industries and facilities more than others. The regulatory discretion is bounded implicitly by the fact that the worst-case treatment for any facility covered under Part II of the GGPPA would be to receive the treatment of facilities covered under Part I, i.e. having the regulatory charge apply on all emissions.

The dissents, and in particular Justice Brown, take a broader view of both the pith and substance of the legislation and the national concern matter. This in turn makes it easier to find the statute unconstitutional because the expanded federal jurisdiction allows a greater, and in Justice Brown’s view impermissible, level of interference with provincial autonomy.

B) THE ROLE OF MINIMUM NATIONAL STANDARDS

As our summary of the majority and dissent demonstrates, the role of the concept of minimum national standards is one of the key dividing lines between the majority and the dissent of Justice Brown (with Justice Rowe concurring on these issues). The use of the term minimum national standards as part of the characterization of the GGPPA first made its appearance in the opinion of Richards C.J.S in the Saskatchewan GGPPA Reference.^[205] The majority and concurring the Ontario GGPPA Reference adopted this characterization with slight modifications and Chief Justice Wagner adopts this framing in specifying both the matter of national concern and the pith and substance of the GGPPA.^[206] In our view, the language of “standards” is both inaccurate and unfortunate. It is inaccurate because the legislation is concerned with ensuring the pricing of emissions rather than setting standards. And it is unfortunate because it suggests more intrusive federal supervisory authority than is actually the case.

The jurisprudence on the national concern branch of POGG reflects a long-standing concern that the federal parliament should not be able to occupy areas of provincial jurisdiction simply by establishing national standards in federal legislation. For example, in the Board of Commerce case, Viscount Haldane held that “however important it may seem to the Parliament of Canada that some such policy…should be made general throughout Canada,” a desire for national uniformity was not sufficient to establish federal jurisdiction.^[207] Nor was a general concern across the country an adequate basis for invoking federal authority. Chief Justice Duff amplified the implications of the Board of Commerce decision when he held in Re: Natural Products Marketing that “nobody denied the existence of the evil [addressed by the legislation in Board of Commerce]. Nobody denied that it was general throughout Canada. Nobody denied the importance of suppressing it.”^[208] It was therefore important for the majority in this case to establish that there were appropriate anchors for federal jurisdiction beyond the simple desire for coordinated national policy on the part of Parliament.

The majority does so by emphasizing the qualitative difference between carbon pricing rules in general and rules establishing minimum levels or carbon pricing stringency,^[209] and by emphasizing the substantial extra-provincial effects of GHG emissions.^[210] But in doing so majority also recognizes that there are substantial anchors for valid provincial legislation in relation to GHG emissions.^[211] It is thus clear that the majority relies heavily on the application of the double aspect doctrine within the context of POGG to minimize the degree of federal intrusion on provincial authority.^[212] The double aspect doctrine also provides the necessary underpinning for the backstop nature of the GGPPA which provides another key means of minimizing federal intrusion. As the majority notes, the fact that the regulatory charge applies only where provincial policies are not sufficiently stringent ensures that “the GGPPA does not create a blunt unified national system.”^[213]

While a broad application of the double aspect doctrine should serve to protect provincial autonomy, it is important to address two additional questions. First, and as already suggested above, there are a couple of examples in the majority judgment where the Chief Justice seems to suggest that the prescription of national standards may render some forms of provincial legislation invalid or inoperative:

1. “the only thing not permitted by the GGPPA is for a province or a territory not to implement a GHG pricing mechanism, or to implement one that is not sufficiently stringent.”^[214]
2. (In the context of scale of impact on provincial jurisdiction): “[u]nder the GGPPA, provinces and territories are free to design and legislate any GHG pricing system as long as it meets minimum national standards of price stringency.”^[215]
3. “Emitting provinces retain the ability to legislate, without any federal supervision, in relation to all methods of regulating GHG emissions that do not involve pricing,” and the “[provinces] are free to design any GHG pricing system they choose as long as they meet the federal government’s outcome-based targets.”^[216]

In our view each of these statements goes too far and serves to bolster claims that the recognition of a new matter of national concern will significantly impair provincial autonomy. We say these statements go too far because they simply do not follow from the application of the double aspect doctrine or the terms of the GGPPA. We can take them one at a time.

1. It is clear that there is nothing in the GGPPA that requires a province or territory to adopt carbon pricing. All that the legislation provides for is that the failure to do so establishes a condition precedent for the backstop application of the legislation. Similarly, the adoption of less stringent carbon pricing scheme than that established as a national standard does not somehow render that scheme invalid or even inoperative — it merely establishes the condition precedent necessary to trigger the backstop to eliminate the difference between the provincial price and the federal benchmark.
2. As with the discussion in the previous paragraph, it is clear that provinces and territories are in fact free to establish whatever scheme they like even if it doesn’t meet the minimum national standard. If it doesn’t meet the national standard, that merely gives the federal cabinet the license to trigger the application of the federal carbon price in that jurisdiction.
3. Similarly, a province or territory has no obligation to adopt an OBPS scheme of the same stringency as that provided for in the GGPPA. Its failure to do so though may trigger the backstop provisions and the application of the federal regulatory charge.

These passages all provide fodder for the dissents of Justices Brown and Rowe who, as noted above, emphasize both the conclusory effect of the national standards label as well as what the dissents characterize as the far-reaching supervisory implications of such standards. Justice Brown, for example writes that “the provinces can exercise their jurisdiction however they like, as long as they do so in a manner that the federal Cabinet also likes,”^[217] and that “provinces may legislate [in relation to emissions pricing] only where such legislation meets the criteria unilaterally set by the federal government.”^[218] Similarly, Justice Rowe holds that the federal act serves “to supervise provinces in the exercise of their authority.”^[219] However, just as with our itemized discussion of the three passages in the majority judgment, each of these statements can be shown to significantly overstate the supervisory or even coercive effect of the GGPPA.

In sum, it is inconsistent with our federal system to imply that federal legislation can restrict the provincial legislative ambit. The degree of federal supervision imposed by the GGPPA is actually very limited since, as the dissents concede, the provinces will still be able to legislate with respect to GHG emissions including GHG pricing. There is only one thing that the provinces cannot do as a consequence of this ruling: they cannot prevent the federal government from applying regulatory charges to GHG emissions within their province to the extent that the province has not itself imposed a sufficiently stringent charge on those emissions. The GGPPA does not place minimum standards on provincial emissions pricing policies; it provides for the contingent application of a federal regulatory charge on GHG emissions where a province or territory fails to make provision for an economy-wide carbon price with a stringency that meets the federal benchmark provided for in regulations made under the GGPPA.

The second point that we must address as part of double aspect is the role of federal paramountcy. Federal paramountcy is triggered in two situations: operational conflict and frustration of purpose,^[220] but neither is likely to be triggered in the context of GGPPA because of its backstop nature. There is nothing in the GGPPA that prevents a province or territory from establishing more ambitious carbon pricing provisions. And while a provincial regime that is deemed insufficiently stringent may trigger a federal regulatory charge there will be no direct conflict or frustration of purpose. Emissions pricing is such that it will always be possible to comply with both federal and provincial regimes by, as Wagner C.J. puts it, “just paying money.”^[221] While it is true that, in principle, the doctrine of federal paramountcy might have some further supervisory effect, it is hard to think of a practical example of operational conflict short of a province both failing to establish its own carbon pricing scheme and purporting to prohibit payment of any federal levy in relation to carbon pricing or attempting to otherwise negate the federal regulatory charges.

An analogy to income taxes may be illustrative. A provincial government has the authority to exempt entities from provincial income taxes, but it cannot prevent the collection of valid, federal income taxes in its jurisdiction since that would necessarily entail an operational conflict that would trigger federal paramountcy. Federal and provincial income taxes can also apply concurrently with no barriers to joint compliance. It is, however, unlikely that a court would choose to frame federal income taxes as imposing minimum national standards of income taxation.

C) PROVINCIAL INABILITY AND EXTRAPROVINCIAL EFFECTS

A third area of significant disagreement between the Chief Justice and Justices Brown and Rowe relates to the meaning and role of the provincial inability test and whether it is met in this case. Not surprisingly, each side claims fidelity to Crown Zellerbach and accuses the other of some departure. Perhaps also not surprisingly, the truth lies somewhere in between, though in our view and as further set out below it lies closer to the Chief Justice’s approach.

Returning to first principles, Crown Zellerbach described provincial inability as follows:

In determining whether a matter has attained the required degree of singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial 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 intraprovincial aspects of the matter.^[222]

At the risk of stating the obvious, this test is very clearly concerned with extra-provincial harms arising from provincial inaction. In tying it to the “singleness, distinctiveness, and indivisibility” inquiry, however, Justice LeDain rejected a deterministic role for provincial inability; rather, provincial inability was to be but one factor, or indicium, albeit out of an unspecified number of factors.

As summarized in Part III, the Chief Justice approaches provincial inability as one of two principles (the other being qualitative difference) informing the “singleness, distinctiveness and indivisibly” inquiry, which he fairly observes “does not amount to a readily applicable legal test.”^[223] Drawing on Crown Zellerbach and recent developments under the trade and commerce power, provincial inability now has three elements: (1) the provinces must be jointly or severally incapable, in the constitutional sense, of enacting the legislation; (2) refusal by one or more provinces would jeopardize the legislative scheme’s operation in other parts of the country; and (3) refusal to deal with the matter of the legislation must have grave extra-provincial consequences. While clearly an elaboration, these three elements can all be fairly traced back to the Crown Zellerbach test, which recognized that each province may have jurisdiction over some aspect of the matter (the “intra-provincial aspects”) but not over the whole (the “extra-provincial interests”) (1st element) and that these may be inextricably linked (2nd element) such that a province’s refusal to deal with the former has consequences for the latter (3rd element).

Justice Brown rejects the Chief Justice’s approach to provincial inability, which he describes as a dilution of the Crown Zellerbach test.^[224] Both he and Justice Rowe object to its seemingly strengthened position in the overall national concern analysis, reminding us several times that provincial inability was but one indicator of singleness, indivisibility, and distinctiveness in Crown Zellerbach.^[225] On this score, Justices Brown and Rowe are clearly correct, although the Chief Justice’s approach also technically meets this requirement (as one of two principles animating that inquiry).

As to the formulation of the test, Justice Brown complains that the “majority does not appear to appreciate that the extraprovincial effects must be such that all or part of the matter is beyond the scope of the provinces’ legislative authority under s. 92 to address, whether independently or in tandem.”^[226] For Justice Brown, the sum of provincial parts is equal to the federal whole, which perspective is made clearer in an earlier passage in his dissent: “Hence the constitutional impossibility of the Act’s backstop model: if the provinces have jurisdiction to do what the Act does — and, that is, again, the very premise of the Act’s scheme — then the Act cannot be constitutional under the national concern branch of POGG.”^[227] But this is plainly incorrect: the provinces do not have the jurisdiction to do all that the GGPPA does because no province has the jurisdiction to regulate the GHG emissions of another. As explained by the Attorney General of British Columbia, “the inability is not of the emitting jurisdiction, but of the jurisdictions experiencing the consequences of the emissions.”^[228] This, as noted by the Chief Justice, lies at the core of the GGPPA: “this matter would empower the federal government to do only what the provinces cannot do to protect themselves from this grave harm, and nothing more.”^[229]

Justice Brown also objects to the addition of the third criterion, “grave extra-provincial harm,” as “peremptory, almost uselessly subjective and susceptible to change.”^[230] We agree that qualifiers like “grave” or “significant” do inject some subjectivity to the exercise, but it seems clear enough that the intention here is to discourage indiscriminate invocation of the national concern branch and that such a qualifier does at least provide an intelligible basis for debate.^[231] Justice Brown’s concern for subjectivity is also hard to reconcile with his disdain for the provincial inability test, which in the wake of the Supreme Court’s decision in Hydro-Quebec was championed for establishing “an objective and normatively attractive standard for coordinating federal and provincial initiatives.”^[232] At the very least, it is doubtful that Justice Brown’s approach, which amounts to provincial inability and “something more” is any less subjective.^[233]

The majority and dissenters also disagree on the significance, or gravity, of the harm that one province’s failure to mitigate its own GHG emissions may have on other provinces. Drawing on the record before him, the Chief Justice sees a straight and increasingly dire line from such failure to Canada’s inability to meet its international commitments and its knock-on effects on global efforts to address climate change.^[234] Justice Brown, on the other hand, endorses the Alberta Court of Appeal majority’s reasoning that no “measurable harm” could be linked to any one province’s failure to limit its emissions.^[235] The same can be inferred for Justice Rowe, who begins with the somewhat jarring proposition that some extra-provincial effects must be compatible with provincial jurisdiction:

Clearly, some extra‑provincial effects are compatible with provincial jurisdiction, considering that, under the federal structure, provinces can adversely affect extra‑provincial interests if they are acting within their sphere of jurisdiction… If the pith and substance of provincial legislation comes within the classes of subjects assigned to the provinces, incidental or ancillary extra‑provincial effects are irrelevant to its validity… Given the potential displacement of provincial authority, courts should have a “strong empirical base” for concluding that the extra‑provincial effects are such that the matter is beyond the powers of the provinces to deal with on their own or in tandem…^[236]

Of course, the vires of provincial legislation was not at issue in the GGPPA references, and even if it was, it only tells part of the story. While it is true that pursuant to current doctrine (see BC v Imperial Tobacco), provincial legislation cannot be struck down on the basis of incidental or ancillary extra-provincial provincial effects (setting aside for the moment whether such effects are indeed merely incidental), this does not mean that such effects are lawful.^[237] The Supreme Court’s decision in Interprovincial Co-operatives is perhaps most widely known for holding that one province cannot modify the legal rights of a company in another province, but a majority of the Supreme Court also held that provinces cannot authorize harms beyond their own borders.^[238] Alberta conceded as much in its supplemental factum when it attempted to distinguish GHG emissions from “provincial actions with an immediate and tangible impact on other provinces — such as toxic waste flowing directly from one province to the other.”^[239]

This is essentially the state of affairs as between nation states, where national governments have recourse to litigation and principles of international environmental law, including the prohibition against significant transboundary environmental harm.^[240] Framed this way, the question is whether respect for provincial autonomy — as envisioned by Justices Brown and Rowe — requires British Columbia (or perhaps one of its municipalities) to sue Alberta or members of its oil and gas sector for climate change-related harms,^[241] or whether Canadian federalism can accommodate a “legislative solution,” in which case “Parliament is the only forum competent to weigh the competing provincial interests and reach a policy decision based on a perception of what will best serve the national welfare.”^[242]

In our view, the majority and dissenting judges’ disagreements regarding provincial inability can ultimately be traced back to competing visions of federalism — indeed, both Justice’s Brown and Rowe essentially admit as much. For Justice Brown, a strengthened role for provincial inability means embracing a “centralized vision” of Canadian federalism.^[243] Justice Brown rather boldly claims that “[n]o province, and not even Parliament itself, ever agreed to — or even contemplated” such an approach,^[244] while Justice Rowe concludes that it “permanently alter[s] the Confederation bargain.”^[245] The Chief Justice, for his part, does not really engage in this discussion, except perhaps in a subtle reminder “that courts, as impartial arbiters, are charged with resolving jurisdictional disputes over the boundaries of federal and provincial powers on the basis of the principle of federalism.” ^[246]

We cannot help but remark that both Justices Brown and Rowe appear to view provincial autonomy as something that can only be impaired by the federal government rather than something that may also be impaired by the effects of one province’s action or inaction on another province. This same omission can be found in the Alberta Court of Appeal majority opinion, as noted by the Attorney General for British Columbia.^[247]

The potential for unilateral action or inaction is another gap in Justices Brown and Rowe’s reasoning. They appear to be of the view that provinces should have a unilateral right to balance environmental concerns with economic sustainability even where it is abundantly clear, both conceptually and from the very record before the Court, that these competing interests are not situated wholly within any one province. This, in turn, can have profound and readily foreseeable incentivizing or disincentivizing effects. As noted by Ruth Sullivan almost thirty years ago, in such situations “the best solution for each [province] will likely be to sacrifice the interests in the other.”^[248] GHG emissions and their effect, in the form of climate change, are diffuse, transcending not only provincial boundaries but international ones as well.^[249] The preponderance of the benefits of resource development (i.e. jobs, royalties, and other taxes), on the other hand, remain within each province (acknowledging that the federal government also benefits from the revenues and taxes generated by such development). Fundamentally, when Alberta or Saskatchewan are considering the pace and scale of oil and gas development, they are weighing the majority of the benefits against only a part of the environmental costs. The remainder are essentially externalities, which predictably distort the balancing exercise — as is clear from the record before the Court in this Reference.^[250]

D) THE ROLE OF DOMESTIC COURTS IN ADDRESSING GLOBAL CLIMATE CHANGE

Around the world, domestic courts are increasingly being called upon to adjudicate disputes in relation to climate change. The response from some courts, especially in the United States, has recently been described as a form of “judicial nihilism,” where the complexity and global scale of the challenge serve to excuse domestic inaction.^[251] This approach is implicit in the Alberta Court of Appeal majority’s approach to the issue of extra-provincial harm.^[252]

The problem, as noted by the Chief Justice, is that the “underlying logic of this argument would apply equally to all individual sources of emissions everywhere, so it must fail.”^[253] In rejecting this approach, the Chief Justice very explicitly tethers his judgment to other recent and internationally renowned climate change judgments.^[254]

In our view, the Chief Justice’s approach is vastly preferable to the judicial shrugging offered by the dissenting justices and the Alberta Court of Appeal majority. It is also bound to affect the course of current and future Canadian climate litigation, beyond divisions of powers cases and even public law itself. Consider that, for example, in Mathur v Ontario Justice Carole Brown began her judgment by quoting from the majority opinion in the Ontario GGPPA Reference to emphasize that “global climate change is taking place and that human activities are the primary cause.”^[255] The Supreme Court’s opinion in this reference was similarly cited shortly after its release. In Flying Squad, the applicant company was granted an injunction prohibiting road blockades intended to obstruct its logging activities on Vancouver Island.^[256] Justice Verhoeven went out of his way, however, to acknowledge and validate the Flying Squad’s concerns:

The protestors have serious and passionate concerns about the environment. There is no doubt that climate change is real, and poses a grave threat to humanity’s future. The Supreme Court of Canada has said so just a few days ago. But as I have said, the effect of old growth forest logging on climate change and biodiversity is not before me and is not for me to say.^[257]

Of course, the Supreme Court’s findings were not directly relevant to the matter before the Court in Flying Squad, and so their actual influence was limited. But it is not difficult to imagine a wide range of litigation contexts, both public and private, where the Supreme Court’s findings and its approach to the global nature of climate change will be relevant. With respect to the former, the contributions of major projects to climate change are now formally part of Canada’s environmental assessment regime under the Impact Assessment Act.^[258] Setting aside for the moment the constitutionality of such consideration,^[259] project proponents should expect the GGPPA Reference to figure prominently in legal challenges to any assessment that would purport to minimize a project’s GHG emissions as insignificant relative to global emissions.^[260] The Chief Justice’s approach could also reasonably be invoked in the civil litigation context (e.g. if a municipality were ever to sue oil and gas companies for climate change-related harms, as is increasingly happening in the United States), where a traditional approach to de minimis causation might exclude all but the largest emitters. To be clear, we are not suggesting that the GGPPA Reference will be determinative in such disputes, but there is little doubt in our minds that their trajectory would be different in its absence.

VI. CONCLUSION

As one would expect of any decision in which the Supreme Court recognizes a new matter of national concern, the GGPPA Reference is significant. But this decision is particularly significant insofar as it recognizes a new matter of national concern in the context of developing appropriate legislative responses within the Canadian federation to an existential threat — global climate change. It confirms that the federal parliament is not confined to the blunt instruments of the criminal law power and the taxation power and that it may also craft less intrusive backstop legislation, in this case in the form of selectively applied regulatory charges.

The Reference has also clarified some aspects of the national concern doctrine. Perhaps the most important clarification is that the national concern (or any other branch of POGG) is not so exclusive as to eliminate the application of the double aspect doctrine whenever national concern is triggered. POGG does not confer plenary jurisdiction, and “Plenary” as it has been used in previous POGG cases does not mean no double aspect. This is crucial since it allows the national concern power to be wielded in a carefully crafted manner to fill in gaps and to take account of provincial inability rather than as something that necessarily limits provincial legislative authority. Indeed, there is nothing in this decision that limits provincial legislative authority, and the very narrowness of the matter of national concern that has been recognized means that the federal paramountcy doctrine has little if any role to play.

The decision has also modified the tests for recognizing new matters of national concern from those adumbrated by Justice LeDain in Crown Zellerbach. While the majority judgment still uses the language of “singleness, distinctiveness and indivisibility” it has layered on top of this some additional considerations. While layering-on does result in a proliferation of tests, principles and factors that as Justice Brown suggests can be somewhat confusing,^[261] there appear to be three main changes. First, the analysis begins with a new threshold question “a common-sense inquiry into the national importance of the proposed matter.”^[262] Second, and as part of applying the concept of distinctiveness the majority introduces the concept of “qualitative difference” which effectively serves to sanction the linked concepts of national standard-setting and backstopping. Third, and as part of analysing the idea of provincial inability which informs the Crown Zellerbach tests, the majority places increased emphasis on extraprovincial effects in the context of collective action problems as amply demonstrated in the section V.C above.

^aThis article is a revised version of a series of three posts published on ABlawg. The authors acknowledge with thanks the comments of our colleague David Wright and the comments, probing questions, and superb editorial work of Ms. Anna White (JD 2021).

* Nigel Bankes, Professor and Chair of Natural Resources Law, The University of Calgary, ndbankes@ucalgary.ca.

Andrew Leach, Associate Professor, Alberta School of Business, University of Alberta.

Martin Z. Olszynski, Associate Professor, Faculty of Law, The University of Calgary. Professor Olszynski discloses that he was counsel to the intervener, Progress Alberta Communications Limited, in the proceedings before the Supreme Court of Canada.

1. References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at para 2 [GGPPA Reference].
2. Ibid.
3. Greenhouse Gas Pollution Pricing Act, SC 2018 c 12, s 186 [GGPPA].
4. The Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted as RSC 1985, Appendix II, No 5 [The Constitution Act, 1867].
5. GGPPA Reference, supra note 1 at para 2.
6. Ibid at para 222. Note that while Justice Côté agrees with the formulation of the matter of national concern, she does not find that the federal government can rely on the national concern branch given the discretionary terms of the legislation.
7. For a summary of the issues in the provincial reference cases, see Nathalie J Chalifour, “Jurisdictional Wrangling over Climate Policy in the Canadian Federation: Key Issues in the Provincial Constitutional Challenges to Parliament’s Greenhouse Gas Pollution Pricing Act” (2019) 50:2 Ottawa L Rev 197.
8. Reference re Greenhouse Gas Pollution Pricing Act, 2019 SKCA 40 [Saskatchewan GGPPA Reference].
9. Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 544 [Ontario GGPPA Reference]. Note that Hoy A.C.J.O wrote a separate, concurring opinion with a narrower definition of the matter of national concern, as discussed further below.
10. Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74 [Alberta GGPPA Reference]. Note that Wakeling A. wrote separate, concurring reasons from the majority opinion of Fraser C.J.A. We previously wrote a comment on the ABCA decision in Martin Olszynski, Nigel Bankes & Andrew Leach, “Breaking Ranks (and Precedent): Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74” (2020) 33:1 J Envtl L & Prac 159.
11. For example, regulations in relation to GHG emissions mitigation made under the Canadian Environmental Protection Act, 1999, SC 1999, c 33 [CEPA], have been upheld as a valid exercise of the federal government’s criminal law power in Syncrude Canada Ltd v Canada (Attorney General), 2014 FC 776, aff’d 2016 FCA 160.
12. While counsel for Canada argued that the legislation should be upheld under the national concern branch of POGG, intervenors argued in favour of classifying the GGPPA under multiple heads of federal power. The majority opinion, as we not below, considers only the classification of the Act under POGG, while the dissent of Justice Brown engages in more thorough consideration of classification of the Act under other federal heads of power.
13. Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3, 88 DLR (4^th) 1 holds that the environment is shared jurisdiction between the provinces and the federal government.
14. R v Crown Zellerbach Canada Ltd, [1988] 1 SCR 401, 49 DLR (4^th) 161 [Crown Zellerbach].
15. The majority opinion of  Chief Justice Wagner uses this language in the GGPPA Reference, supra note 1 at para 213.
16. GGPPA, supra note 3, s 17(1).
17. GGPPA, supra note 3, ss 165(2)(a)-(b) respectively.
18. The government reports annual distributions of funds to the provinces. See e.g., Government of Canada, “Climate Action Incentive Payment Amounts for 2021” (last modified 16 December 2020), online: Government of Canada <www.canada.ca/en/department-finance/news/2020/12/climate-action-incentive-payment-amounts-for-2021.html> [perma.cc/R856-K6GM].
19. Output-Based Pricing System Regulations, SOR/2019-266, s 8 [OBPS Regulations].
20. GGPPA, supra note 3, s 174, and see also OBPS Regulations, supra note 19, s 36.
21. GGPPA, supra note 3, s 174.
22. Ibid, s 175. Facilities can bank or transfer emissions credits to another facility.
23. This is referred to as emissions leakage, emphasizing that where these dynamics occur, a facility will relocate rather than reduce emissions leading to emissions leaking to other jurisdictions as a result of the policy.
24. A quick example may be helpful here as the OBPS is a complex regulatory policy. Consider a large carbon-based electricity producer in Saskatchewan. The producer would be covered by the OBPS because Saskatchewan is listed in Part II, s.5 of Schedule 2 of the GGPPA and because, per s. 8(b)(ii) of the OBPS Regulations, electricity is a covered sector in Saskatchewan (Schedule 2, item 38 of the OBPS Regulations). The facility would be subject to a carbon price, in 2021, of $40 per tCO₂e (Schedule 4, item 4 of the GGPPA) and its output-based standard would be set at 0.622 tCO₂e per MWh (Schedule 2, item 38 of the OBPS Regulations). The facility’s emissions limit is defined by multiplying the output-based standard by the facility’s annual output (OBPS Regulations, s. 36). Supposing that the facility had an operating emissions intensity, on average through the year, of 1tCO₂e per megawatt-hour (MWh) of electricity generated, its net charge would be the equivalent of $15.12 per MWh, since it would be exempt from $24.88 per MWh (0.622 tCO₂ e x $40 per tCO₂e) of carbon charges on emissions below its emissions limit. The emissions limit thus serves to offset more than half of what would otherwise be a $40 per MWh (1tCO₂e x $40 per tCO₂e) emissions charge. In the case of electricity, this assures that large cost increases aren’t passed through power bills, and in the case of industrial production, reduces any cost disparity introduced between Canadian firms and global competitors.
25. GGPPA, supra note 3, s 188.
26. Ibid, s 161(1).
27. Ibid, s 166(2).
28. Ibid, s 189.
29. Ibid, s 263(1).
30. The initial annual report is available, see Government of Canada, “Greenhouse Gas Pollution Act Annual Report for 2019” (last modified 10 December 2020), online: Environment and Climate Change Canada <www.canada.ca/en/environment-climate-change/services/climate-change/pricing-pollution-how-it-will-work/greenhouse-gas-annual-report-2019.html> [perma.cc/U48C-JE25].
31. GGPPA Reference, supra note 1 at para 7.
32. Ibid at para 10.
33. Ibid at para 12.
34. United Nations Framework Convention on Climate Change, 9 May 1992, 1771 UNTS 107, 31 ILM 849 (entered into force 21 March 1994) [UNFCC].
35. Kyoto Protocol to the United Nations Framework Convention on Climate Change, 18 December 1997, 2303 UNTS (entered into force 16 February 2005) [Kyoto Protocol].
36. Copenhagen Accord, 18 December 2009, UNFCCC/CP/2009/L7 Draft decision -/CP15 [Copenhagen Accord], online (pdf): UNFCCC <unfccc.int/resource/docs/2009/cop15/eng/l07.pdf> [perma.cc/CPF9-EW3M].
37. GGPPA Reference, supra note 1 at para 13.
38. The Paris Agreement, United Nations Framework Convention on Climate Change, 12 December 2015, Can TS 2016/9 (entered into force 4 November 2016) [Paris Agreement].
39. Government of Canada, “Canada’s 2017 Nationally Determined Contribution (NDC) submission under the Paris Agreement”, (2017), online (pdf): UNFCC <www4.unfccc.int/sites/ndcstaging/PublishedDocuments/Canada%20First/Canada%20First%20NDC-Revised%20submission%202017-05-11.pdf> [perma.cc/BCZ9-LCQ6]. Note that in Government of Canada, “Canada’s Enhanced Nationally Determined Contribution” (last modified 23 April 2021), online: Environment and Climate Change Canada <www.canada.ca/en/environment-climate-change/news/2021/04/canadas-enhanced-nationally-determined-contribution.html> [perma.cc/6U4Z-3844], the government indicated that Canada’s target would be revised to 40–45% below 2005 levels by 2030 in advance of the 2021 Council of the Parties to the UNFCC meetings in Glasgow.
40. GGPPA Reference, supra note 1 at para 14. The framework referred to is Government of Canada, “Pan-Canadian Framework on Clean Growth and Climate Change” (2016), online (pdf): Environment and Climate Change Canada <publications.gc.ca/collections/collection_2017/eccc/En4-294-2016-eng.pdf> [perma.cc/3SQK-9TJS].
41. GGPPA Reference, supra note 1 at para 18. Carbon pricing systems could take the form of a carbon tax or levy as was in place in BC, a cap-and-trade system like the one in place in Quebec, or a hybrid system such as the carbon pricing system for large emitters in place in Alberta since 2007.
42. Ibid at para 19.
43. Ibid at para 20, with the application of the benchmark discussed at para 64. The federal benchmark referred to here is Government of Canada, “Guidance on the pan-Canadian carbon pollution pricing benchmark” (last modified January 2018), online: Environment and Climate Change Canada <www.canada.ca/en/services/environment/weather/climatechange/pan-canadian-framework/guidance-carbon-pollution-pricing-benchmark.html> [perma.cc/ GRU3-BNXC].
44. GGPPA Reference, supra note 1 at para 23.
45. Ibid at para 24.
46. Ibid at paras 48–50.
47. Ibid at para 48, references omitted.
48. Ibid at para 49.
49. Ibid at para 50.
50. Ibid at para 57.
51. Ibid.
52. Ibid at para 60.
53. Ibid at para 68. We return to this latter formulation in our commentary on the decision.
54. Ibid at para 71.
55. Ibid at para 73.
56. Ibid at paras 73, 76, referring to the GGPPA, supra note 3, ss 165(2), 189(2).
57. GGPPA Reference, supra note 1 at para 79.
58. Ibid at para 80.
59. Ibid at para 81.
60. Ibid at para 86.
61. Ibid at para 90.
62. Re: Anti-Inflation Act, [1976] 2 SCR 373, 68 DLR (3d) 452.
63. Cases cited include Labatt Breweries of Canada Ltd v Attorney General of Canada, [1980] 1 SCR 914, 110 DLR (3d) 594 (brewing and labelling of beer); Schneider v The Queen, [1982] 2 SCR 112, 139 DLR (3d) 417 (treatment of drug dependency); R v Wetmore, [1983] 2 SCR 284, 2 DLR (4^th) 577 (regulation of the pharmaceutical industry).
64. GGPPA Reference, supra note 1 at para 112.
65. Ibid at para 114.
66. Alberta GGPPA Reference, supra note 10.
67. GGPPA Reference, supra note 1 at para 115.
68. Ibid at para 116.
69. Ibid at para 117. See also Munro v National Capital Commission, [1966] SCR 663 at 672, 57 DLR (2d) 753 [Munro].
70. GGPPA Reference, supra note 1 at para 118.
71. Andrew Leach & Eric M Adams, “Seeing Double: Peace, Order, and Good Government, and the Impact of Federal Greenhouse Gas Emissions Legislation on Provincial Jurisdiction” (2020) 29:1 Const Forum Const 1, frame this interpretation of the national concern branch as the transfer theory of POGG.
72. GGPPA Reference, supra note 1 at para 122.
73. Ontario Hydro v Ontario (Labour Relations Board), [1993] 3 SCR 327, 107 DLR (4^th) 457 [Ontario Hydro]. Other matters (see e.g., aerodrome siting in Johannesson v Municipality of West St Paul, [1952] 1 SCR 292, [1951] 4 DLR [Johannesson]) might result in an even wider reach, but in each case the scope or plenary nature of the power must be determined by reference to the nature of that matter.
74. GGPPA Reference, supra note 1 at para 125, citing Desgagnés Transport Inc. v Wärtsilä Canada Inc., 2019 SCC 58 at para 84 which holds that, “[i]f a fact situation can be regulated from different federal and provincial perspectives and each level of government has a compelling interest in enacting legal rules in relation to that situation, the double aspect doctrine may apply.”
75. GGPPA Reference, supra note 1 at para 128, emphasis in original. The argument that the double aspect doctrine should apply to matters of national concern was argued in Leach & Adams, supra note 71, Nathalie J Chalifour, Peter Oliver & Taylor Wormington, “Clarifying the Matter: Modernizing Peace, Order, and Good Government in the Greenhouse Gas Pollution Pricing Act Appeals” (2020) 40:2 NJCL 53, and in our comment on the Alberta GGPPA Reference, Olszynski, Bankes, & Leach, supra note 10.
76. GGPPA Reference, supra note 1 at paras 129–130.
77. Ibid at para 129.
78. Ibid at para 133, citing Jean Leclair, “The Elusive Quest for the Quintessential ‘National Interest’” (2005) 38 UBC L Rev 355, and Katherine Swinton, “Federalism under Fire: The Role of the Supreme Court of Canada” (1992) 55:1 Law & Contemp Probs 121.
79. GGPPA Reference, supra note 1 at para 142.
80. Ibid at para 136.
81. Ibid at para 138.
82. General Motors of Canada Ltd v City National Leasing, [1989] 1 SCR 641, 58 DLR (4^th) 255 [General Motors]; Reference re Securities Act, 2011 SCC 66; Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48. For a detailed discussion of the test for classification under the trade and commerce power applied to the GGPPA and other carbon pricing policies, see Andrew Leach, “Environmental Policy is Economic Policy: Climate Change Policy and the General Trade and Commerce Power” (2021) 52:2 Ottawa L Rev 97.
83. GGPPA Reference, supra note 1 at para 142.
84. Ibid at para 143.
85. Ibid at para 144.
86. Ibid at para 146, emphasis added.
87. Ibid at para 148.
88. Ibid at para 149. Canada (Attorney General) v Ontario (Attorney General), [1937] 1 DLR 673 (PC), [1937] 1 WWR 299, holds that international agreements are not determinative of federal jurisdiction, but they have played a role in previous POGG cases including Reference re the Regulation and Control of Aeronautics in Canada, [1932] AC 54 (PC), [1931] 10 WLUK 26, Reference re Regulation and Control of Radio Communication in Canada, [1932] AC (PC), [1932] 2 DLR 81, and notably in Crown Zellerbach, supra note 14 at 408. Chief Justice Wagner explains that “international agreements may help to show that a matter has an extra-provincial and international character, thereby supporting a finding that it is qualitatively different from matters of provincial concern,” while emphasizing that they do not in and of themselves confer new powers to Parliament.
89. GGPPA Reference, supra note 1 at para 150.
90. Ibid at para 152, emphasis added.
91. Ibid, referring to General Motors, supra note 82.
92. For an argument that provincial ability to legislate in relation to GHG emissions should be determinative of a negative answer to the provincial inability indicium, see GGPPA Reference (Factum of the Attorney General of Saskatchewan), at para 86, or GGPPA Reference (Factum of the Attorney General of Quebec), at para 36.
93. GGPPA Reference, supra note 1 at para 153.
94. Ibid at paras 153–54. For example, the Chief Justice references Johannesson, supra note 73 (the intolerable consequences of isolating northern communities were federal jurisdiction not to apply to aeronautics), Munro, supra note 69 (the absence of federal jurisdiction “would have resulted in the denial of a suitable national capital to all Canadians”), Attorney General for Ontario v Attorney General for the Dominion, [1896] AC 348 (PC), CR [11] AC 222 (referencing the discussion in that case of arms trafficking), and Ontario Hydro, supra note 73 (the risk of a nuclear disaster).
95. GGPPA Reference, supra note 1 at para 155.
96. Ibid.
97. Ibid at para 158.
98. Ibid at para 161.
99. Ibid at para 168.
100. Ibid.
101. Ibid at para 169.
102. Ibid at para 170.
103. Ibid at para 171.
104. See e.g., the Government of Alberta’s reference to the Alberta Court of Appeal, Re: An Act to Enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, SC 2019, c 28 and the Physical Activities Regulations, SOR/2019-285, ABCA, File Number 1901-0276-AC (decision pending) with respect to the validity of the Impact Assessment Act [C-69 Reference].
105. GGPPA Reference, supra note 1 at para 173.
106. Ibid at para 174.
107. Ibid.
108. Ibid at para 175.
109. Ibid at para 177.
110. Ibid at para 178.
111. Ibid at para 179.
112. Ibid at para 182.
113. Ibid.
114. Ibid at para 183.
115. Ibid at para 184.
116. Ibid at para 185. The provinces referred to here are the three provinces which had launched reference proceedings: Saskatchewan, Ontario, and Alberta.
117. Ibid at para 187.
118. Ibid.
119. Ibid at para 188. Bracketed clarification added.
120. Ibid at para 190. Recall that the Chief Justice had specifically recognized the problem of collective action earlier and as quoted above at para 24.
121. Ibid at para 195.
122. Ibid at para 197.
123. Ibid at para 196.
124. Ibid at para 199.
125. Ibid at para 200.
126. Ibid.
127. Ibid at para 201.
128. Ibid at para 202.
129. Ibid at para 206.
130. Ibid.
131. Ibid at para 209.
132. Ibid at para 222.
133. Ibid.
134. Ibid at para 236.
135. Ibid at para 238.
136. Ibid.
137. Ibid at para 231.
138. Ibid at para 276.
139. Ibid at para 294.
140. See, as cited by the majority at paras 85–87, In Re George Edwin Gray, [1918] 57 SCR 150, 42 DLR 1, as well as more recent lower court authorities such as Waddell v Governor in Council, [1983] 8 Admin LR 266, 5 DLR (4^th) 254.
141. See e.g, s 59 of Alberta’s Environmental Protection and Enhancement Act, RSA 2000, c E-12, which authorizes Cabinet to designate or exempt activities from environmental assessment, or s 81(a) of Saskatchewan’s Environmental Management and Protection Act, 2002, SS 2002, c E-10.21, which authorizes Cabinet to make regulations “defining, enlarging or restricting the meaning of any word or expression used in this Act but not defined in this Act.”
142. GGPPA Reference, supra note 1 at para 409.
143. Ibid at paras 331, 339, 346.
144. Ibid at para 338.
145. Ibid at para 413.
146. Ibid at para 414.
147. Ibid at para 340.
148. Ibid at para 317.
149. Alberta GGPPA Reference, supra note 10 at para 256.
150. GGPPA Reference, supra note 1 at paras 321–25.
151. Ibid at paras 327–31.
152. Ibid at para 329.
153. We refer specifically here to the analysis in the majority reasons, ibid at para 190.
154. Ibid at para 312.
155. Ibid at para 340.
156. Ibid at para 341 (Brown J.) and at para 480 (Rowe J.).
157. Ibid at paras 343–51.
158. Ibid at para 344.
159. Ibid at paras 376, 378.
160. Ibid at para 354.
161. Ibid at paras 369–70.
162. Ibid at para 370.
163. Ibid, emphasis in original.
164. Ibid at para 371.
165. Ibid at para 372.
166. Ibid at paras 374–77.
167. Ibid at para 381.
168. Ibid at para 382.
169. Ibid at para 383.
170. Ibid at para 387, emphasis in original.
171. Ibid at para 394, references omitted.
172. Ibid at para 616.
173. Ibid at paras 457–795.
174. Ibid at paras 595–615.
175. Ibid at para 616.
176. Ibid at paras 464–69. Justice Brown cites Jean Leclair, “The Supreme Court of Canada’s Understanding of Federalism: Efficiency at the Expense of Diversity” (2002) 28 Queen’s LJ 411, on this point.
177. GGPPA Reference, supra note 1 at para 557.
178. Ibid at para 556.
179. Ibid at paras 480, 532. Note, at para 478, that Justice Rowe’s conception of the national concern branch also embraces the ‘gap’ head of POGG.
180. Ibid at para 532.
181. Ibid at para 574.
182. Ibid at para 570.
183. Ibid at paras 566–70.
184. Ibid at paras 540, 577.
185. Ibid at para 578.
186. Ibid at para 580.
187. Ibid at para 541.
188. Ibid at para 580.
189. Ibid at paras 545, 579–87.
190. Ibid at paras 556–57.
191. Ibid at para 600 et seq.
192. Ibid at para 614 for Part 2 and 609 for Part 1.
193. Ibid at para 606.
194. See e.g., Output-Based Pricing System Regulations SOR/2019-266, (2019) C Gaz II, 5232, online (pdf): Canada Gazette <www.gazette.gc.ca/rp-pr/p2/2019/2019-07-10/pdf/g2-15314.pdf> [perma.cc/7GDL-MXYT]. Rowe J. references this requirement in GGPPA Reference, supra note 1 at para 607.
195. GGPPA Reference, supra note 1 at para 80.
196. Ibid at para 119.
197. Ibid at paras 236–40.
198. Ibid at para 236.
199. Ibid at para 340.
200. Ibid.
201. Ibid at para 370.
202. Ibid at para 616.
203. Ibid at para 577.
204. The marginal price refers to the impact on operating costs of increasing emissions by one tonne while holding output and all else constant. For more detail, see Canada’s EcoFiscal Commission, “Comparing Stringency of Carbon Pricing Policies” (July 2016) at 7, online (pdf): EcoFiscal <ecofiscal.ca/wp-content/uploads/2016/07/Ecofiscal-Commission-Comparing-Stringency-Carbon-Pricing-Report-July-2016.pdf>.
205. Saskatchewan GGPPA Reference, supra note 8 at para 125, as discussed by the majority opinion in GGPPA Reference, supra note 1 at para 39.
206. Ontario GGPPA Reference, supra note 9 at para 77 (majority), 187 (concurring opinion). As discussed in the majority reasons in the GGPPA Reference, supra note 1 at paras 41–42.
207. Attorney-General For The Province Of Ontario v Attorney-General For The Dominion Of Canada, [1922] 1 AC 191 (PC) at 200–01, 60 DLR 513.
208. Reference re legislative jurisdiction of Parliament of Canada to enact the Natural Products Marketing Act, [1936] SCR at 422–23, [1936] 3 DLR 622.
209. GGPPA Reference, supra note 1 at paras 142–57, 167–71.
210. Ibid at para 173.
211. Ibid at para 197.
212. Ibid at paras 120–31.
213. Ibid at para 81.
214. Ibid at para 79, emphasis added.
215. Ibid at para 200, emphasis added.
216. Ibid at para 206, emphasis added.
217. Ibid at para 358, emphasis added.
218. Ibid at para 348, emphasis added.
219. Ibid at para 574, emphasis added.
220. See Orphan Well Association v Grant Thornton Ltd, 2019 SCC 5.
221. GGPPA Reference, supra note 1 at para 71. See also the dissent of Justice Brown at para 391.
222. Crown Zellerbach, supra note 14 at 432.
223. GGPPA Reference, supra note 1 at para 146.
224. See e.g. GGPPA Reference, supra note 1 at paras 376, 420, 441, 448.
225. See e.g. Ibid at paras 383, 448, 558.
226. Ibid at para 446, emphasis added.
227. Ibid at para 350; see also the dissenting reasons of Rowe J. at para 555.
228. GGPPA Reference (Factum of the Attorney General of British Columbia) at para 46.
229. GGPPA Reference, supra note 1 at para 195.
230. Ibid at para 447.
231. We can draw from the international case law on this issue. See, for example Certain Activities carried out by Nicaragua in the Border Area, (Costa Rica v Nicaragua and Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), [2015] ICJ Rep 665.
232. David M Beatty, “Canadian Constitutional Law in a Nutshell” (1998) 36:3 Alta L Rev 605 at 610.
233. GGPPA Reference, supra note 1 at para 382.
234. Ibid at para 190.
235. Ibid at para 384.
236. Ibid at para 556, citations omitted.
237. British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49.
238. Interprovincial Co-operatives Ltd et al v R, [1975] 1 SCR 477 at 498 (per Laskin J.), 511 (per Pigeon J.), 53 DLR (3d) 321.
239. GGPPA Reference, supra note 1, (Factum of the Attorney General for Alberta) at para 28.
240. The Trail Smelter Arbitration, the United States v Canada (1938 and 1941), 3 UNRIAA 1905-1982.
241. See e.g. Martin Olszynski, Sharon Mascher & Meinhard Doelle, “From smokes to smokestacks: Lessons from tobacco for the future of climate change liability” (2017) 30:1 Geo Intl Envtl L Rev 1.
242. Ruth Sullivan, “Interpreting the Territorial Limitations on the Provinces” (1985) 7 SCLR 511 at 551.
243. GGPPA Reference, supra note 1 at para 365.
244. Ibid at para 456.
245. Ibid at para 592.
246. Ibid at para 50, emphasis added.
247. See GGPPA Reference, supra note 1, (Supplemental Factum of the Attorney General of British Columbia) at para 47, which notes that “the (ABCA) majority does not consider – and indeed discounts – the possibility that provinces may find themselves on the ‘outside looking in’ at the unilateral action or inaction of other provinces that affects their vital interests. But this was above all why those colonies opted for a federal union.”
248. Sullivan, supra note 242 at 544.
249. GGPPA Reference, supra note 1 at para 173.
250. Ibid at para 184.
251. Scott Novak, “The Role of Courts in Remedying Climate Chaos: Transcending Judicial Nihilism and Taking Survival Seriously” (2020) 32(4) Geo Env L Rev 743 at 755.
252. Alberta GGPPA Reference, supra note 10 at para 324, as endorsed by Justice Brown in GGPPA Reference, supra note 1 at para 384.
253. GGPPA Reference, supra note 1 at para 188.
254. The Chief Justice referenced the following cases: (1) Massachusetts v Environmental Protection Agency, 549 US 497 (2007) in which the majority rejected the federal government’s argument that projected increases in other countries’ emissions meant that there was no realistic prospect that domestic reductions in GHG emissions in the U.S. would mitigate global climate change. (2) The State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Stichting Urgenda, three levels of court culminating in ECLI:NL:RBDHA:2015:7196, at para. 4.79 confirming the finding at first instance that at “any anthropogenic (GHG) emission, no matter how minor, contributes to…hazardous climate change”. (3) To the same effect, Gloucester Resources Limited v Minister for Planning, [2019] NSWLEC 7 dealing with a coal project.
255. Mathur v Ontario, 2020 ONSC 6918 at para 97 [Mathur], citing the Ontario GGPPA Reference, supra note 9 at para 7. Mathur was a representative action seeking certain declaratory and mandatory orders against the province on the basis that the province’s climate change standards and targets were insufficiently stringent and as such violated the plaintiff’s Charter rights. Justice Brown relied on several findings from the Ontario GGPPA Reference majority reasons to conclude that the Mathur applicants could marshal scientific evidence to establish the requisite harm from climate change. For these citations, see Mathur, supra note at para 97, citing the Ontario GGPPA Reference, supra note 9 at paras 9–11, 16.
256. Teal Cedar Products Ltd v Rainforest Flying Squad, 2021 BCSC 605.
257. Ibid at para 74, reference to GGPPA Reference, supra note 1 at para 2 omitted.
258. Impact Assessment Act, SC 2019, c 28, s 1.
259. Recall that this matter is currently before the Alberta Court of Appeal in the C-69 Reference, supra note 104.
260. See e.g. Mark Friedman, “Assessing Greenhouse Gas Emissions in the Oil Sands: Legislative or Administrative (in)Action?” (2016) 6:3 UWO J Leg Studies 5, online: <ir.lib.uwo.ca/uwojls/vol6/iss3/5>.
261. GGPPA Reference, supra note 1 at para 300.
262. Ibid at para 142.