26 Sep The Canadian Constitution, the Environment, and the Misguided Notions of Provincial Sovereignty
The Canadian Constitution, the Environment, and the Misguided Notions of Provincial Sovereignty
The proposed Alberta Sovereignty Act has been extensively discussed in the media and in the legal realm since it was first outlined as part of Danielle Smith’s ‘Free Alberta Strategy.’ The proposed Act purports to give the provincial government the power to refuse to enforce federal legislation that is perceived as intruding upon Alberta’s provincial rights or attacking the interests of Albertans. While there has been extensive commentary on the constitutionality, or lack thereof, of the proposed Act, there has been limited discussion of the Act’s impact on effective environmental law. In this blog, we will consider why cooperation, rather than a disregard for federal law, is the better option for effective environmental law.
Is this constitutional framing around environmental matters a new idea? Far from it, and yet, as explored below, the interlinking and overlapping of jurisdiction does well to reflect the overlapping nature of environmental harms and gives credence and balance to national and provincial/territorial environmental objectives.
The Constitution & the Environment: An Overview
In Canada, the Constitution is considered the supreme law of the land. This means that not only do all other pieces of legislation need to ensure that they are in line with the Constitution but it also restrains government action and jurisdiction. When we think of our Constitutional documents, two things often come to mind: the Charter of Rights and Freedoms and the division of powers. This blog will focus on the division of powers as set out in sections 91 and 92 of the Constitution Act, 1867. This is important because as stated by the Supreme Court of Canada (“SCC”) in the 2009 decision Consolidated Fastfrate Inc. v Western Canada Council of Teamsters, “the division of powers in ss. 91 to 95 of the Constitution Act, 1867 form the bedrock of our federal system.”
Legislative authority is granted to the Parliament of Canada through the enumerated subsections of section 91 and to the provincial legislatures through section 92. According to this division of powers, each level of government has the jurisdiction to legislate on their respective subject matters. If one level of government tries to pass a law on a subject matter that falls outside of their jurisdiction, it can be declared unconstitutional and ultra vires. In this way, the division of powers provides checks and balances to ensure that one level of government is not legislating outside of its jurisdictional boundaries.
Issues arise; however, because the categories set out in the Constitution Act, 1867 are not inclusive of all possible legislative topics and are quite broad. This can result in both levels of government passing overlapping pieces of legislation. In those cases, courts may be called upon to distinguish whether a law is intruding upon the other level of government’s jurisdiction or whether both laws can exist side by side. Again, this serves as a check to ensure that governments are working within constitutional limits. It is important to note that this is a role for the judiciary, a branch of government independent of the executive and legislative branches, not for the provinces to decide unilaterally. Notably, the environment is not referred to specifically in these sections which has meant that regulation of the environment has, throughout the years, been divided amongst both levels of government.
In performing this oversight, courts often rely on constitutional principles to guide their decisions. In particular, for a topic as complex as environmental law, it is often necessary to allow for some degree of overlapping jurisdiction in order to allow for more effective legislation. Two of the principles that allow for this overlap include cooperative federalism and the double aspect doctrine. We will consider each in turn.
The principle of cooperative federalism is a modern interpretation which “urges courts to adopt constitutional interpretations which favour, where possible, the ordinary operation of statutes enacted by both levels of government.” As Justice Abella of the SCC stated, “[t]oday’s constitutional landscape is painted with the brush of co-operative federalism.” This concept signifies a shift from earlier jurisprudence which favoured a ‘watertight compartments’ interpretation of the heads of power.
In the decision Orphan Well Association v Grant Thornton Ltd. Chief Justice Wagner applies cooperative federalism, arguing that “[t]o find an essential part of Alberta’s regulatory regime inoperative based on the theoretical possibility of frustration of purpose would be inconsistent with the principles of paramountcy and cooperative federalism.”Similarly, in the decision of Saskatchewan (Attorney General) v Lemare Lake Logging Ltd. the Court held that “[g]iven the guiding principle of cooperative federalism, paramountcy must be narrowly construed” and that “[c]onstitutional doctrine should give due weight to the principle of cooperative federalism.”
The concept of cooperative federalism has also been discussed by academics, including Professors Eric Adams and Andrew Leach who argue that “we should think of overlapping legislative powers as more than simply unavoidable; they are the best way to ensure full democratic participation by the different national and provincial constituencies with a stake in the subject matter at issue.” Leading constitutional scholar Peter Hogg also described the idea, arguing that it represented the complex interactions between the federal and provincial administrations.
Double Aspect Doctrine
The second constitutional principle that supports a cooperative approach is the double aspect doctrine. This doctrine allows for a law to validly fall under both federal and provincial jurisdiction. It may be traced back to the 1883 decision of Hodge v The Queen, in which the Privy Council found that “…subjects which in one aspect and for one purpose fall within s.92, may in another aspect and for another purpose fall within s.91.” The double aspect doctrine has also been upheld by the SCC with their recognition “that both Parliament and the provincial legislatures can adopt valid legislation on a single subject depending on the perspective from which the legislation is considered.” This doctrine also recognizes that, in practice, “most significant legislative matters cannot be reduced to one discrete subject.”
Most recently, the SCC applied the double aspect doctrine in their analysis during the Reference re Greenhouse Gas Pollution Pricing Act. The majority in that decision clarified that the double aspect doctrine “recognizes that the same fact situations can be regulated from different perspectives, one of which may relate to a provincial power and the other to a federal power.” The Court went on to state that “[a]pplying the double aspect doctrine to the national concern doctrine is also consistent with the modern approach to federalism which favours flexibility and a degree of overlapping jurisdiction” also known as cooperative federalism.
The SCC has confirmed that the double aspect doctrine can apply to provincial jurisdiction. In the SCC decision of Multiple Access v McCutcheon, the SCC found that the province could regulate insider trading through their constitutional jurisdiction over property and civil rights while the federal government could do so through the POGG power.
Federal Paramountcy & Interjurisdictional Immunity
Despite the trend towards the double aspect doctrine and cooperative federalism, there are limits. Two of the limiting principles are the doctrines of federal paramountcy and interjurisdictional immunity.
The doctrine of federal paramountcy provides the federal government with priority rights over provincial jurisdiction in situations where provincial law clearly frustrates a federal power. It has been upheld by the SCC which supports federal jurisdictional paramountcy in the event of a conflict between the two levels of government. This is directly relevant to the proposals behind the Alberta Sovereignty Act which do not seem to recognize, on their face, the well-established doctrine of federal paramountcy. In light of this, it is important to note that the doctrine of paramountcy has not been applied by the SCC to provincial heads of power, despite arguments in favour.
The doctrine of interjurisdictional immunity recognizes that the Constitution is based on an “allocation of exclusive powers” meaning that subjects are intended to fall primarily within the jurisdiction of one level of government rather than concurrently. This doctrine “seeks to avoid, when possible, situations of concurrency of powers.”Interjurisdictional immunity can work to “immunize certain entities” from otherwise valid laws and can be solved by reading down a section of legislation. However, it is limited and as the SCC argued in the 2019 decision of Desgagnés Transport Inc. v. Wärtsilä Canada Inc. “[i]nterjurisdictional immunity should not be the first recourse in a division of powers dispute — a broad application of interjurisdictional immunity is inconsistent with the notion of flexible federalism and fails to account for the fact that overlapping powers are unavoidable.”
Cooperative Constitutional Interpretation & Environmental Law
As highlighted above, the SCC has acknowledged that “the environment is not, as such, a subject matter of legislation under the Constitution Act, 1867” and “[r]ather, it is a diffuse subject that cuts across many different areas of constitutional responsibility, some federal, some provincial.” This has meant that successive governments and court decisions have had to wedge environmental concepts into this somewhat limited document. For example, Justice La Forest, in the seminal decision of Friends of the Oldman River Society v Canada (Minister of Transport), stated that,
“the Constitution Act, 1867 has not assigned the matter of the ‘environment’ sui generis to either the provinces or Parliament. The environment, as understood in its generic sense, encompasses the physical, economic and social environment touching several of the heads of power assigned to the respective levels of government.”
There are many examples of this overlap in environmental law decisions over the years. In a forthcoming project on the Canadian Constitution and Environmental Law, the ELC will consider a number of topics of environmental law and in most cases will identify how both levels of government must be involved if we are to achieve effective environmental protection. We provide a few brief examples below.
The regulation of toxic substances has been considered by the SCC in the decision of R v Hydro-Quebec. In this decision, the SCC found that the federal government’s regulation of toxic substances under the Canadian Environmental Protection Act was valid federal law. Specifically, they upheld the regulation of toxic substances as a valid exercise of federal power under section 91(27), known as the criminal law power. The Court concluded “that Parliament may validly enact prohibitions under its criminal law power against specific acts for the purpose of preventing pollution or, to put it in other terms, causing the entry into the environment of certain toxic substances.”However, the SCC also held that “[t]he use of the federal criminal law in no way precludes the provinces from exercising their extensive powers under s. 92 to regulate and control the pollution of the environment either independently or in co-operation with federal action.”
Some of this jurisdiction may be found through provincial control over municipalities, local works and undertakings, all matters of a merely local or private nature, and the section 92A jurisdiction over the development of non-renewable natural resources, forestry, and electrical energy resources. In Alberta, this is done in part through the Environmental Protection and Enhancement Act. In fact, the federal government has even passed the Alberta Equivalency Order which takes into account provincial regulation of pollution and which sets out certain federal provisions that do not apply in Alberta. In cases like this, the federal government has jurisdiction to regulate but chooses not to in cooperation with the province.
In their decision Friends of the Oldman River v Canada, the SCC considered the jurisdiction of each level of government to conduct an environmental assessment process prior to the approval of large-scale intraprovincial projects, like the proposed Oldman River dam. In this decision, the majority confirmed that due to the diffuse nature of the environment, “it defies reason to assert that Parliament is constitutionally barred from weighing the broad environmental repercussions, including socio-economic concerns” of a project. So long as the “exercise of legislative power, as it affects concerns relating to the environment, must, as with other concerns, be linked to the appropriate head of power” it will be intra vires Parliament’s jurisdiction.
The Court underwent the same analysis for provincial powers and concluded that “[t]he provinces may similarly act in relation to environment under any legislative power in s.92.” Again, in the case of environmental assessment, both provincial and federal jurisdiction may be impacted and can validly exist alongside one another.
At this time, we must acknowledge the recent Alberta Court of Appeal (“ABCA”) opinion in Reference re Impact Assessment Act, in which the majority of the ABCA held that the Impact Assessment Act is unconstitutional, distinguishing it from past environmental assessment law. This opinion has since been appealed to the SCC and in light of its significant departure from SCC jurisprudence it will be an important decision to watch for.
Greenhouse Gas Emissions
Greenhouse gas (“GHGs”) emissions, by virtue of their international implications, are clearly an environmental issue that will require a cooperative approach. In light of this, while the SCC confirmed that minimum national standards for pricing GHG emissions fell within federal jurisdiction they also noted that this did not remove all provincial ability to regulate GHG emissions. Specifically, during their jurisdictional analysis, the Court acknowledged that:
“while it is true that finding that the federal government has jurisdiction over this matter will have a clear impact on provincial autonomy, the matter’s impact on the provinces’ freedom to legislate and on areas of provincial life that fall under provincial heads of power will be limited and will ultimately be outweighed by the impact on interests that would be affected if Parliament were unable to constitutionally address this matter at a national level.”
In a past ELC blog post on the Reference re Greenhouse Gas Pollution Pricing Act, Allison Boutillier noted that “if this subject matter were recognized as a national concern, all the provinces would lose would be the ability to create a carbon pricing scheme that is less effective than the national standards.” As such, provinces retain the ability to legislate with regard to all other aspects of GHG emissions. In a practical sense, this cooperation can be seen in Alberta where both the federal Greenhouse Gas Pollution Pricing Act and the provincial Technology Innovation and Emissions Reduction Regulation play a role in pricing GHG emissions at the consumer and industrial levels, respectively.
Species at Risk
In their work on Wildlife and the Canadian Constitution, Priscilla Kennedy and John Donihee spend a significant amount of time considering the importance of cooperative federalism for Canadian, and Albertan, species at risk.They highlight cooperative agreements from the 1990s including the Wildlife Ministers’ Council of Canada which adopted “A Wildlife Policy for Canada” and the “Statement of Commitment to Complete Canada’s Network of Protected Areas” which was a joint agreement between the federal and provincial governments. They note that these agreements were not intended to alter the constitutional division of powers but instead to allow for cooperation within the bounds of the Constitution. In fact, the Species at Risk Act and amendments to the Alberta Wildlife Act were preceded by the 1996 National Accord for the Protection of Species at Risk in Canada through which governments committed “to complementary legislation and programs” including for the protection of species at risk within their jurisdictions.
In Alberta, an example of cooperative work can be seen in the Agreement for the Conservation and Recovery of the Woodland Caribou in Alberta. This agreement is made under Section 11 of the federal Species at Risk Act which enables the Minister to “enter into a conservation agreement with any government in Canada, organization or person to benefit a species at risk or enhance its survival in the wild.” The Agreement does not pertain to federal land, which would fall within federal jurisdiction regardless, and instead focuses on supporting “the conservation and recovery of woodland caribou local populations to naturally self-sustaining status, consistent with the population and distribution objectives and critical habitat outcomes outlined in the Recovery Strategies and aligned with A Woodland Caribou Policy for Alberta.” Not only does an agreement of this type require cooperation between the provincial and federal governments, it also requires an acknowledgment of dual jurisdiction over these same species at risk.
Recent legal battles over the Trans Mountain Expansion line serve to illustrate some of the limits of cooperative federalism. In the British Columbia Court of Appeal (“BCCA”) opinion in Reference re Environmental Management Act, the Court began by recognizing that provincial law, with regard to environmental management, can be “validly enacted under sections 92(10), (13), and (16)” of the Constitution Act, 1867 while asking “to what extent this legislation is applicable to interprovincial pipelines?” At the time, proposed changes to the Environmental Management Act would have prohibited the “possession, charge or control” of heavy oil in an amount larger than the “largest annual amount of the substance transported… during each of 2013 to 2017.”
In their decision, the BCCA held that proposed sections of the Act “cross[ed] the line between environmental laws of general application and the regulation of federal undertakings.” Justice Newbury, for the majority, held that unless a pipeline is located entirely within a single province, “federal jurisdiction is the only way it may be regulated” and it “is simply not practical or appropriate in terms of constitutional law for different laws and regulations to apply to an interprovincial pipeline (or railway or communications infrastructure) every time it crosses a border.” While the Court acknowledged cooperative federalism in this decision, they found that “co-operative federalism cannot override or modify the separation of powers nor support a finding that an otherwise unconstitutional law is valid.” Simply, the provincial law was found to infringe upon an area of federal jurisdiction and was declared ultra vires.
Scholars have noted that in this decision, “the Court’s reasons clarify that our current constitutional toolbox will not go so far as to restructure the division of powers in the name of environmental protection.” As lawyer Marie-France Major argues: “the bottom line is that a valid law enacted by either level of government will very likely affect a matter reserved for the other government. But when the affected matter is exclusively federal, provincial law must yield. It’s a simple matter of constitutional traffic law.” While British Columbia law is not mandatory precedent in Alberta, it is interesting to note that upon appeal, the SCC dismissed the reference from the bench and as an Alberta Law Review article put it, seemed unwilling to chip away at federal jurisdiction over interprovincial undertakings. The Court specifically stated that “we are all of the view to dismiss the appeal for the unanimous reasons of the Court of Appeal for British Columbia.”
Cooperative Federalism is Needed to Achieve our Environmental Goals
While this is clearly not an exhaustive list, these scenarios do serve to underline the importance of cooperative federalism in environmental law. Pollution and other impacts on the environment have no regard for borders and if environmental law stops at the border between provinces, or the line between federal and provincially controlled land, it will not have the same impact as if there is cooperation between jurisdictions. Stay tuned for our future work on Constitutional Law and the Environment which will consider these topics in more depth.
 Consolidated Fastfrate Inc. v Western Canada Council of Teamsters, 2009 SCC 53 at para 29.
 Andrew Leach and Eric M Adams, “Seeing Double: Peace, Order, and Good Government, and the Impact of Federal Greenhouse Emissions Legislation on Provincial Jurisdiction” (2020) 29-1 Constitutional Forum 1 at 9 [Leach & Adams].
 NIL/TU,O Child and Family Services Society v BC Government and Service Employee’s Union, 2010 SCC 45 at para 42.
 Canada (Attorney General) v. Ontario (Attorney General),  A.C. 326 at para 15.
 Orphan Well Association v Grant Thornton Ltd., 2019 SCC 5 at para 111.
 Saskatchewan (Attorney General) v Lemare Lake Logging Ltd., 2015 SCC 53 at paras 21 & 22.
 Leach & Adams, supra note 3 at 9.
 Peter W Hogg, Constitutional Law of Canada, 5th ed (Toronto: Carswell, 2007) (loose-leaf updated 2013, release 1) at 46.
 Canadian Western Bank v Alberta, 2007 SCC 22 at para 30 [Canadian Western Bank].
 Brendan Downey et al., “Federalism in the Patch: Canada’s Energy Industry and the Constitutional Division of Powers” (2020) 58:2 Alta L Rev 273 at 282 [Downey].
 Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 [Reference re GGPPA].
 Ibid at paras 125 & 126.
 Ibid at para 126.
 Multiple Access v McCutcheon,  2 SCR 161 at 162.
 See for example Law Society of British Columbia v Mangat, 2001 SCC 67.
 Canadian Western Bank, supra note 10 at para 32.
 Ibid at para 34.
 Downey, supra note 11 at 284.
 Desgagnés Transport Inc. v. Wärtsilä Canada Inc., 2019 SCC 58 at 237.
 R v Hydro-Quebec,  3 SCR 213 at para 112 [R v Hydro-Quebec].
 Friends of the Oldman River Society v Canada (Minister of Transport),  1 SCR 3 at para 63 [Oldman River].
 R v Hydro-Quebec, supra note 21.
 Ibid at para 130.
 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, ss 92(8), (10), (16) & 92A.
 Environmental Protection and Enhancement Act, RSA 2000, c E-12.
 Alberta Equivalency Order, SOR/94-752.
 Oldman River, supra note 22.
 Ibid at 66.
 Ibid at 67.
 Ibid at 68.
 Reference re Impact Assessment Act, 2022 ABCA 165.
 Reference re GGPPA, supra note 12 at para 196.
 Allison Boutillier, “I Read the Carbon Tax Decision So You Don’t Have To: A Detailed Summary of the Main Issues” (7 Apr 2021) Environmental Law Centre online: https://elc.ab.ca/i-read-the-carbon-tax-decision-so-you-dont-have-to-a-detailed-summary-of-the-main-issues/.
 Priscilla Kennedy & John Donihee, “Wildlife and the Canadian Constitution” (Aug 2006) Canadian Institute of Natural Resources Canadian Wildlife Law Project Paper #4 online: https://prism.ucalgary.ca/bitstream/handle/1880/47560/CIRL-WL-KennedyDonihee-Report-4w.pdf [Kennedy & Donihee
 Ibid at 11.
 Ibid at 11.
 Environment Canada, News Release, “Wildlife Ministers Commit to Protecting Canada’s Endangered Species” (2 October 1996); Kennedy & Donihee, supra note 36 at 13.
 Species at Risk Act, SC 2002, c 29, s 11.
 “Agreement for the Conservation and Recovery of the Woodland Caribou in Alberta” (21 Oct 2020) at s 2 online: https://open.alberta.ca/dataset/40a40950-f210-4a37-b2a1-e274a9c75a48/resource/9d5326f4-0f3a-4aef-b0a2-d6fabc8439b4/download/aep-agreement-for-the-conservation-and-recovery-of-the-woodland-caribou-in-alberta-2020.pdf.
 Alastair R. Lucas, “Can Provincial Governments Stop Interprovincial Pipelines?” (4 June 2021) Canadian Institute of Resources Law Occasional Paper #74 at 11 [Lucas].
 Environmental Management Act, SBC 2003, c 53, Part 2.1; Downey, supra note 11 at 301-302.
 Reference re Environmental Management Act (British Columbia), 2019 BCCA 181 at para 101.
 Reference re Environmental Management Act (British Columbia), 2019 BCCA 181 at para 101.
 Reference re Environmental Management Act (British Columbia), 2019 BCCA 181 at para 7.
 Downey, supra note 11 at 303.
 Downey, supra note 11 at 306.
 Lucas, supra note 42 at 10.
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