- Reaction score
Ah, but that is where you are blurring the lines.
The red portion is not about the constitutionality of a carbon tax, but the effectiveness, which the court was not out to judge.
If climate change is a national problem, can a national strategy be put in place that enters provincial jurisdiction was the question put before the court. Not whether or not it is the right strategy.
Just a point for anyone who uses "red" to highlight text they want to draw attention to, I find it almost impossible to read the red text against the green background. I tend to use yellow which stands out for me and is very readable. Sorry Altair, not picking on you but I've found a number of posts from various folks that I really have to strain to make out. Not sure if it's my old eyes or a general problem others have too.
Now to get to the issue. I wasn't saying whether it is the right strategy or not. All I'm saying is that with the scope of the problem world-wide, a federal strategy has little more effectiveness than individual provincial strategies. The question is does this justify over-riding a clear and established provincial jurisdiction over the matter.
Note the following when it comes to POGG which comes from the majorities decision.
National concern is a well-established but rarely applied doctrine of Canadian constitutional law derived from the introductory clause of s. 91 of the Constitution, which empowers Parliament to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects assigned exclusively to the legislatures of the provinces.
Courts must approach a finding that the federal government has jurisdiction on the basis of the national concern doctrine with great caution. The effect of finding that a matter is one of national concern is permanent and confers exclusive jurisdiction over that matter on Parliament.
a matter of national concern must be based on evidence. An onus rests on Canada throughout the national concern analysis to adduce evidence in support of its assertion of jurisdiction.
Note here that the evidence is not as to the need for a uniform carbon tax scheme but evidence of the fact that the Feds have jurisdiction in this area.
Finding that a matter is one of national concern involves a three-step analysis. First, as a threshold question, Canada must establish that the matter is of sufficient concern to the country as a whole to warrant consideration as a possible matter of national concern. Second, the matter must have a singleness, distinctiveness and indivisibility. Third, Canada must show that the proposed matter has a scale of impact on provincial jurisdiction that is reconcilable with the division of powers. The purpose of the national concern analysis is to identify matters of inherent national concern — matters which, by their nature, transcend the provinces.
The court hangs it's findings on this:
Provincial inability is established in this case. First, the provinces, acting alone or together, are constitutionally incapable of establishing minimum national standards of GHG price stringency to reduce GHG emissions. While the provinces could choose to cooperatively establish a uniform carbon pricing scheme, doing so would not assure a sustained approach because the provinces and territories are constitutionally incapable of establishing a binding outcome-based minimum legal standard — a national GHG pricing floor — that applies in all provinces and territories at all times. Second, a failure to include one province in the scheme would jeopardize its success in the rest of Canada.
That's not evidence, its supposition (actually it approaches sophistry). The provinces cooperate on a wide variety of standards that are within their exclusive jurisdiction from securities law to personal property rights to health care and, while those laws aren't one hundred percent uniform, they provide a generally uniform standard across the country.
Brown in his decision hits the nail on the head. Everyone concedes the fact that the pith and substance of this law falls exclusively within the provincial powers under the Constitution. Once that is clear, and it is, the following is the concern.
It is not possible for a matter formerly under provincial jurisdiction to be transformed, when minimum national standards are invoked, into a matter of national concern. To accept that allocating national targets or minimum national standards can serve as a basis for recognizing that some aspect of an area of provincial jurisdiction is distinctly national in scope, and therefore lies outside provincial jurisdiction, would be to accept a model of supervisory federalism by which the provinces can exercise their jurisdiction only as long as they do so in a manner that the federal legislation authorizes. This would open up any area of provincial jurisdiction to unconstitutional federal intrusion once Parliament decides to legislate uniform treatment.
I hate to use a "floodgates" argument, but the majority decision runs roughshod over explicit provincial constitutional powers on the basis of some declared need by the Feds to take control and impose a federal standard over greenhouse gas emissions. This is not a little thing that is merely about some carbon tax. It's a major blow against the provinces' constitutional powers and when the court will support the Feds in declaring that a particular issue is so dire that it is necessary to impose for the Feds to impose national standards in what is clearly a provincial matter. What's next health care, education, administration of justice? Hell, the Feds can't even administer aboriginal affairs properly.
Let's face the truth. The whole carbon tax thing has nothing to do with national standards but everything to do with a Liberal government signaling that it is doing something on the climate change front in order to rope in young voters. It's a lot easier to pass a federal law than to work with the provinces who have a much closer connection with their populations and who might have legitimate grounds for varying standards.