Climate Change and Canadian Politics

Politics & Elections
1

So some provinces have come up with climate plans. The federal government thinks their plan is better and more effective. But they have to accept the provincial ones for now. Climate is not mentioned in the Constitution and both provinces and Canada claim responsibility. Since this will be debated until the Supreme Court, the feds want to say they took provincial views seriously. They say climate is an existential subject so must be decided by national policy. Alberta and Saskatchewan disagree - voters might prefer provincial policies and can democratically vote people out if they don’t.

Most agree climate is important. Many also weigh jobs, resources and economic benefits against environmental actions. Provinces weigh these differently - where you stand often depends on where you sit.

But it seems to me that the federal government has a stronger case. How do other Dopers feel about these jurisdictional issues?

2

The problem is this. As long as the Government is Liberal, I like it to be a federal responsibility. But if it is federal under a Conservative, science hating government (the last Conservative government appointed a creationist as minister of science) I would prefer leaving it to the provinces.

The real trouble is that one party is concerned with climate change and the other with oil revenues.

The Canadian constitution does not have a “reserve clause” that states that powers not explicitly given to the Federal government are reserved to the provinces–or to the people. Cf. the 10th amendment to the US constitution.

3

Sadly the conservatives (small-c) have won on climate change. For decades, climate scientists have been sounding the alarm. And people who got it, have been right there with them. But conservatives have fought and fought and fought. Lately, the message has been that the point of no return is rapidly approaching. Just climate alarmism they say. And the fact is, they’ve won. They’ve prevented any serious efforts to be made to address climate change. Any year now I expect the conservative message to be “Well, it is too late now. I guess there’s no point in doing anything.” So really, I don’t think jurisdiction matters. Through lies and propaganda the conservatives won. Congratulations, now we all get to burn. But don’t worry the ultra rich, who you will never be a part of, appreciate you supporting them getting richer.

4

The Canadian constitution doesn’t say so in so many words, but in practice, the same idea as the 10th Amendment is there. Only it’s reversed: anything not specified as provincial is reserved to the federal government. How can this be, if it’s not written in the constitution? The reason is complicated.

It is important to remember that the Canadian constitution is not just one document (or two, if you want to count the Charter separately). Wikipedia gives a good summary of everything involved:

All of these together form the Canadian constitution. The document that we call “the Constitution” is perhaps the most important element of our entire constitution, but it is not the only one. Which is why studying constitutional law in Canada is quite the challenge.

But this may help the OP with his query. Right now, lacking “climate” enumerated as a provincial responsibility in the constitution (the 1867 document, ss. 92-95), the answer would seem to be the federal government. But as we have seen, there is more to the constitution than just that document. As new technologies and societal changes occurred over time, things that were never envisioned when the 1867 document was drafted, similar decisions had to made when provincial claims conflicted with federal claims: there is a reason why atomic energy, telecommunications, and aviation (none of which are mentioned in the 1867 document) are federally-regulated; and each one of the above was fought over in court between a province (or provinces) and the federal government. Just as climate will be, none of the above was a slam-dunk for the federal government. The climate question will ultimately depend on the arguments made by each side, using the entire constitution and constitutional caselaw.

I cannot answer the OP’s question, but I hope that my remarks provide some context to the conflict.

5

FWIW, I endorse your remarks completely. Thanks for clarifying it all. I expect it will turn out to federal responsibility, for all the reasons you mentioned.

In the US, the interstate commerce clause has been used to override the 10th amendment.

6

I appreciate your response. Since Canada cannot yet be said to have interprovincial free trade (as an indicator of agreeability), I have a follow up query.

When was the last time a new topic arose and the federal and provincial governments just agreed one would take jurisdiction - avoiding a long court battle. Are they any times governments avoid a possible power grab and just concede - “yeah, aviation, that needs to be a federal thing. Clearly.” I’m excluding things like Covid where no one would really want responsibility if it could be avoided.

7

To be honest, I don’t know. I cannot imagine any jurisdiction rolling over and saying, “Okay, we give up; it’s yours,” especially if they have an argument to the contrary. Long court battles are nothing new, and if there is a constitutional question to be decided, then both the provinces and the feds tend to agree that the courts should decide it.

Keep in mind, though, that many such division-of-powers issues are quite clearly federal or provincial. No province is going to establish its own military, create its own currency (though Alberta did try, back in the 1930s), or establish diplomatic missions in foreign lands. Similarly, the feds are not about to regulate speed limits on highways, establish landlord-tenant laws, or look after issuing liquor licenses to bars.

The questions arise when the issue could go one way or the other, mainly because of a lack of mention, or just plain ambiguity in the wording of the original 1867 constitution, and occasionally in the 1982 Charter. Railways are specifically mentioned in 1867 Constitution, but aviation is not. Do we treat aviation the same as railways, or is a different solution needed? Telegraphs are specifically mentioned as federal in the 1867 Constitution; does this extend to TV and radio broadcasting, given that the latter can go over the air, instead of being hardwired like a telegraph is? And how many arguments could arise over the 1867 Constitution s. 92(16): “Generally all Matters of a merely local or private Nature in the Province”? How local is local; how private is private? Rules and regulations regarding marriage are undoubtedly provincial, but can the feds take the matter of gay marriage to court under 1982 Charter s. 15, the equality clause, and apply it Canada-wide, over the objections of some provinces?

As I said, the questions arise when the issue could go one way or the other, and in spite of the fact that the framers of our constitution tried to avoid arguments over the separation of powers, such as arose under the US Constitution’s 10th Amendment, it’s become clear over the years that there are, and will continue to be, questions regarding the separation of powers that need to be resolved.