RECONCILING SOVEREIGNTY AND SUSTAINABILITY: A CONSTITUTIONAL INQUIRY INTO THE GREENHOUSE GAS POLLUTION PRICING ACT AND FIRST NATIONS' RIGHTS

The ABCA begins with analyzing the pith and substance or the “Matter” of the Act. The pith and substance is found by looking at the state of the purpose of the Act, the legal effects, the social effects, and economic context and the purpose of the law (Tansowny, 2020). Alberta, Ontario, and Saskatchewan all agree that the matter of the Act is about regulating the GHG emissions and to give the federal government the exclusive authority using the national concern doctrine would negate the provinces to regulate their own natural resources using s. 92A (Reference re Greenhouse Gas Pollution Pricing Act, 2020). Canada argues that the “Matter” of the GGPPA was to establish a minimum national standard to reduce GHG emissions (Reference re Greenhouse Gas Pollution Pricing Act, 2020, para. 27).

Once the court can determine what the “Matter” of the Act it is only then that they can decide which head of government it will be allotted to. Although the GGPPA falls within provincial powers, the federal government argues that the environmental impacts of GHG emissions is a matter of national concern requiring federal legislative action.

When a “Matter” of a provincial local concern meets the needs of a national concern it can then be transferred to the federal government, if it effects the “dominion as a whole” under the national concern doctrine of POGG (Reference re Greenhouse Gas Pollution Pricing Act, 2020, para. 164). The national concern branch of POGG was established in the leading case R v Crown Zellerbach Canada Ltd. In Zellerbach “[t]he national concern branch applies to new matters and to matters that have risen to the level of national importance” (R v. Crown Zellerbach Canada Ltd., 1988, para. 32). It does not apply to the national emergency branch of POGG that are temporary in nature but once found to fall under the national concern branch of POGG the federal government has control permanently (Reference re Greenhouse Gas Pollution Pricing Act, 2020, para. 145). The majority concluded that the regulation of the GHG emissions could not be saved under the national concern branch because the Act does not meet the criteria of “singleness, distinctiveness and indivisibility” that the national concern doctrine demands (Marion & Carlson, 2020). The federal government believes that the “Matter” is a national concern and that it meets the singleness, distinctiveness, and indivisibility of the national concern doctrine, and also the provincial inability test (Marion & Carlson, 2020).

Canada argued that the head of power that GGPPA would properly fall under was Parliament’s residual power to makes laws for the POGG, in relations to all “Matters” not coming within the classes of the provinces’ jurisdictions (Constitution Act, 1982). Canada defended the constitutionality of the Act on that one basis that the Act falls within the doctrine of national concern of Parliaments POGG power (Reference re Greenhouse Gas Pollution Pricing Act, 2020, para. 15). There are three branches of POGG, one being the “gap” branch, which covers new subject matters, the second being the “emergency branch”, and the third being the “national concern branch” (Reference re Greenhouse Gas Pollution Pricing Act, 2020, para. 964). However, there have only been three instances where the SCC has relied on the national concern doctrine, and courts have generally been very reluctant to use this power to create federal power (Reference re Greenhouse Gas Pollution Pricing Act, 2020, paras. 17, 970-971).

The ABCA point out that there are two stages in the division of powers analysis. One being the characterization of the pith and substance and two, the classification. The ABCA proceeds to explain that once the characterization is figured out that most times the classification happens automatically. Once the “dominant or most important characteristic” is identified, the power of government follows naturally either under s. 91 or s. 92 (Reference re Greenhouse Gas Pollution Pricing Act, 2020, para. 145). Frequently the depiction of the issue will “effectively settle the question of its validity, leaving the allocation of the matter to a class of subject little more than a formality” (Hogg, 2016, cited in Reference re Greenhouse Gas Pollution Pricing Act, 2020, para. 151); however, this will not always be the case (Reference re Greenhouse Gas Pollution Pricing Act, 2020, para.153). Although all courts have disagreed with the characterization of the GGPPA, they all seem to agree and have very similar analysis about the Preamble and conclude the GGPPA’s main purpose is to combat the climate change (Tansowny, 2020). However, ABCA quickly forgets this and states, “there can be no doubt that the purpose of the Act is to mitigate climate change (Reference re Greenhouse Gas Pollution Pricing Act, 2020, para. 219).”

The ABCA majority began their review by examining the division of powers analysis which outlines the division of powers between the federal and provincial legislators. “What is fundamental to Canada’s constitutional democracy and our continued existence is federalism? And what is essential to federalism is preservation of the carefully calibrated division of powers between the federal and provincial governments?” (Reference re Greenhouse Gas Pollution Pricing Act, 2020, para. 5). Sections 91 and 92 (ss. 91 and 92) clearly set out what powers lay within each government’s jurisdiction. No one government has more power than the other “[t]he federal and provincial governments are co-equals, each level of government being supreme within its sphere” (Reference re Greenhouse Gas Pollution Pricing Act, 2020, para. 11). Provincial powers under s. 92 include a long list of powers which include power over property and civil rights s. 92 (13) “the Crown jewel,” but with the Constitution of 1982 there was an addition, s. 92A (Reference re Greenhouse Gas Pollution Pricing Act, 2020, paras. 8-9). In 1980, the federal and provincial governments finally reached a compromise regarding provincial powers over natural resources. That compromise, which was part of the repatriation package signed April 17, 1982, was the inclusion in the Constitution Act, 1982 of s. 92A (sometimes called the “Resource Amendment”) (Reference re Greenhouse Gas Pollution Pricing Act, 2020, para. 59).

Saskatchewan and Alberta were the lead negotiators for s. 92A which gave provinces the power over non-renewable natural resources (Reference re Greenhouse Gas Pollution Pricing Act, 2020, para. 9). The ABCA included s. 92A closely in their reasoning, “[t]hese are distinct from the provinces’ legislative powers under the division of powers. Hence, the provinces’ proprietary rights as owners of their natural resources must also be taken into account in assessing the constitutionality of the Act” (Reference re Greenhouse Gas Pollution Pricing Act, 2020, para. 10). Alberta argues that its financial and social situations are unique compared to other areas, that it is “heavily dependent on its oil and gas industry” and that “it is unwilling to have the federal government impose carbon pricing measures that fail to account for the unique nature of Alberta industries, lest the province suffer severe damage to its economy” (Orland, 2020).

I believe that the SCC judges reasoning is also going to play a crucial role in an argument for the First Nations Peoples of Canada. If the ABCA can conclude that the GGPPA is unconstitutional based on the argument of the division of powers which Alberta has relayed upon using s. 92 (13), 92A and also 109 that provinces have ownership flowing from these laws, then the SCC must take a closer look at the arguments in favour to the division of powers for First Nations Peoples using and implementing s. 35 of the Constitution Act, 1982, because clearly Alberta and ABCA did not.

Although the ABCA makes no analysis or comment in regard to the First Nations Peoples and their relationship with the GGPPA, the dissenting judge does. In his dissent, Justice Feehan states “[w]hile the undoubted importance of these constitutional duties and responsibilities is acknowledged, I query their direct impact on the quite specific issues to be resolved in this reference” (Reference re Greenhouse Gas Pollution Pricing Act, 2020, para. 1054). Furthermore, as interveners, the Assembly of First Nations (AFN) and the Athabasca Chipewyan First Nation (ACFN) were both in support of the Act on the basis of honour of the Crown and s. 35(1) of the Constitution 1982 (Assembly of First Nations, 2020; Athabasca Chipewyan First Nation, 2020).

ACFN states in their factum that GHG emissions and climate change play a detrimental role in the natural environment for many First Nations. It argues that if not for the GGPPA, GHG emissions would increase so much that it would/could be seen to infringe upon First Nations rights or possibly extinguish First Nations Peoples, all together (Athabasca Chipewyan First Nation, 2020). University of Ottawa professor Amir Attaran who is representing the ACFN said “that hunting and fishing and trapping are “existential” to the nations culture, and climate change is now threatening that way of life”. He continues to say that by the end of the century Vancouver will be just as hot as Mexico City (Meyer, 2020). ACFN reminded the ABCA that it was Alberta’s onus to prove the unconstitutionality of the GGPPA (Athabasca Chipewyan First Nation, 2020, para. 19). Alberta’s reference question is “broad and asks if the GGPPA is unconstitutional in whole or in part” (Athabasca Chipewyan First Nation, 2020, para. 23). That wording implicates not only the Constitution Act, 1867, but also the Constitution Act, 1982 (Athabasca Chipewyan First Nation, 2020). It is clear in R v Badger and R v Horseman that ACFN have rights under the constitution to hunt, fish, and preserve the “Indians” traditional way of life within Treaty 8. If GHG emissions threatens that way of life the Crown has a duty to the ACFN peoples and there is an infringement on their Rights by the government of Alberta to not consult with the ACFN, making the Constitution Act 1982 very relevant (Athabasca Chipewyan First Nation, 2020, para. 24).

There cannot be any actions or inactions without discussing with the peoples of Treaty 8, as set out in Haida Nation that the Crown has a duty to “consult” and also the government must get “consent” when trying to extinguish a Treaty right which was established by the SCC in R v Sioui. In both of those court cases, it was found that the Crown has a legal obligation, and a fiduciary responsibility to make Aboriginal interest a constitutional duty (Athabasca Chipewyan First Nation, 2020, para. 25). Giving rise that the ABCA judges in the majority neglected to do so when answering the reference question posed to them making an error of law in reading the Constitution of 1982. When GHG emissions put Indigenous Peoples’ Treaty rights at risk, s. 35 adds to the “classical” federalism balance of powers in the Constitution Act, 1867. The SCC wrote in the Quebec Veto Reference the Constitution Act, 1982 that the reference directly affects federal-provincial relationships.” Therefore, when federal legislation, such as the GGPPA, mitigates a threat to s. 35 Aboriginal or Treaty rights, the Court must strive to conduct its ss. 91 and 92 federalism analysis in a way that helps uphold those s. 35 rights (Athabasca Chipewyan First Nation, 2020, para. 26). ACFN does not suggest that s. 35 be viewed equal to the division of powers of ss. 91 and 92. Rather, if GHG emissions infringe on Treaty rights, s. 35 requires that the court give the Federal government the ability to make legislation to protect the rights of Indigenous peoples (Athabasca Chipewyan First Nation, 2020, para. 27).

ACFN argues that GGPPA also fits under the third branch of POGG, the “New Matter” in addition to the national concern branch of POGG. ACFN submits that because the science of climate change was only discovered in the 20th century, after Confederation, GHG emissions are a “New Matter” (Athabasca Chipewyan First Nation, 2020, para. 34). ACFN also claims that the GGPPA is a new matter because of Treaty. The courts found that aeronautics and radio were new in their day and placed the power within s. 91 partially because Canada entered into treaties about them, and Canada has entered into treaties with UN framework on Climate Change and the Paris Agreement. Making room and arguments with case law that allows for treaties to be considered when analyzing the three branches of POGG powers.

ACFN discusses that the court should also consider that the “nation” in both branches of national concern and national emergency is not just Canada but also First Nations. There was so much mention even from the ABCA that the constitution and the characteristic of the constitution are about the “living tree”. So, shouldn’t it be necessary to give the same weight and arguments to s. 35, when s. 35 became a very big part of the “Canadian legal landscape?” (Athabasca Chipewyan First Nation, 2020, para. 42). Since time immoral Indigenous peoples occupied the land that we now know as Canada. We and the courts now know and recognize through jurisprudence, that Indigenous peoples prior to European contact were the first peoples of this land (R. v. Van der Peet, 1996). These Nations controlled their own land and had their own laws, traditions, orders and culture and should be factored into the analysis of the division of powers framework.

Additionally, ACFN argues that because Alberta fails to consult and accommodate the ACFN this proves the “provincial inability” test. As stated earlier, the provincial inability test established in Zellerbach requires that Alberta’s regulating measures have to avoid “an adverse effect on extra-provincial interests,” and if Alberta fails to cooperate, Alberta would carry grave consequences for residents of other provinces (R v. Crown Zellerbach Canada Ltd., 1988). The negative extra-provincial effects should be extended to First Nations both in Alberta and across Canada. This argument speaks to the “indivisibility and the national dimensions of the legislative matter” (Athabasca Chipewyan First Nation, 2020, para. 51). Alberta did not consult the First Nations peoples in their province when they made their own GHG emissions regulations. The ACFN argues that “[w]ithout consultation, Alberta has no way of knowing how its GHG emissions and regulatory approach adversely affect the extra-provincial interests of ACFN people in their extended Treaty 8 territory, and cannot possibly accommodate those interests, as it must” (Athabasca Chipewyan First Nation, 2020, para. 58). In addition, the ACFN states in their factum:

However, in Grassy Narrows First Nations v Ontario the SCC found in favor of Ontario relying on the division of powers in “ss. 109, 92(5) and 92A of the constitution Act of 1867 that Ontario and only Ontario has the power to “take up” lands under Treaty 3” (Grassy Narrows First Nation v Ontario [Natural Resources], 2014, para. 51). Although, Ontario has the same obligations as the Federal government and has to honour the Crown, Ontario is subjected to the fiduciary duties when dealing with the Aboriginal interests. The courts continue to say that when a province seeks land for a project within its jurisdiction, the Crown must inform itself of the impact it will have on the First Nations peoples right to hunt, fish and trap (Grassy Narrows First Nation v Ontario [Natural Resources], 2014). Furthermore, the province must communicate these finding to the First Nations and deal with them in good faith and addressing their concerns, which was established in Mikisew and Delgamuukw (Mikisew Cree First Nation v Canada [Minister of Canadian Heritage], 2005, para. 55; Delgamuukw v British Columbia, 1997, para. 168). The SCC continues to say that if the taking up leaves the Ojibway peoples with no meaningful right to fish, hunt, and trap in relation to the territories over which they historically did so, this would be a “potential action for treaty infringement” (Grassy Narrows First Nation v Ontario [Natural Resources], 2014, para. 52).

In Mikisew Cree First Nation v Canada, the SCC held that the honour of the Crown is a foundational principle of Aboriginal law governing the relationship between the Frist Nations peoples and the Crown (Mikisew Cree First Nation v Canada [Minister of Canadian Heritage], 2005, para. 21). In all dealings with the Indigenous peoples from the assertion of sovereignty and the resolutions of claims, the Crown must act honourably and nothing less of reconciliation will be achieved (Haida Nation v British Columbia, 2004, para. 17). Alberta did not do this. The majority ABCA decision did not mention any jurisprudence or didn’t feel the need to address the First Nations concerns because that wasn’t a question that was posed to them at that time. In this sense, the ABCA failed to fully address the national concern doctrine in light of the impacts GHG emissions have on First Nation rights under s. 35. Both levels of government have a duty to uphold the honour of the Crown and honour treaties such a Treaty 8. There is evidence to show that GHG emissions is of national and international crisis. ACFN brought forth scientific evidence to prove that their traditional way of life will be extinct by 2080 (Athabasca Chipewyan First Nation, 2020). Thus, treaty rights of hunting, fishing and trapping will be infringed upon without cause by the province of Alberta. I believe that ABCA erred in their conclusion by not even mentioning First Nations at all in their decision and Alberta not consulting.

AFN’s position was that Canada be allowed to implement a minimum standard of GHG emission regulations under the Act to the provinces and territories that do not comply using its authority under the national concern branch of POGG. However, AFN’s position also states that the Canadian government has a legal obligation to recognize Indigenous and Treaty rights and that these rights include the right for First Nations communities to participate in environmental matters and any economic benefits that come of the GHG emissions tax within their respective territories (Assembly of First Nations, 2020). Council for AFN points out that the provinces do not owe any obligations to First Nations which would leave First Nations communities very vulnerable to GHG emissions if the provinces are not held accountable. AFN council also argues that remote First Nations rely on traditional means of substance, including hunting and fishing and the increased costs of basic needs such as food and shelter (Assembly of First Nations, 2020). This national and international crisis would put a greater need for First Nations communities to depend almost solely on natural ways of life to sustain and live. GHG emissions reduce the availability and reliability on natures recourses (Assembly of First Nations, 2020).

AFN argues that a minimum national standard for the regulation of GHG emissions also meets the three-prong test of the national concern doctrine. It sets out the decision from the SCC in R v Hydro-Quebec, that it was clear that the discreet areas of environmental legislative power can fall within the doctrine provided it meets the criteria established in Zellerbach (Assembly of First Nations, 2020, para. 25). GHG emissions are a distinct form of pollution meeting the test of singleness, distinctiveness and distinguishment matters of merely provincial concern and one of both an international and interprovincial impact. AFN also argues that at a minimum the modern evolution of the honour of the Crown and the role of s. 35 in the Canadian legal landscape make a suggestion that Zellerbach is a decade old decision and should be read how the effects of the Act will also impact First Nations peoples as a factor when applying the requisite of singleness, distinctiveness and indivisibility of the test (Assembly of First Nations, 2020, para. 39). The AFN supports that the Zellerbach test should be modified to incorporate a First Nations component on the basis of s. 35, the obligations imposed by the Crown and how the individual elements of the constitution are linked (Reference re Secession of Quebec, 1998), how they should “be interpretated by reference to the structure of the constitution as a whole” (Assembly of First Nations, 2020, para. 40). The reference question broadly asks if the GGPPA is “unconstitutional in whole or in part” and as such the AFN suggests that the reference question not only be about ss. 91 and 92 but also a complete analysis of the entire Constitution Acts of 1867 and 1982 and therefore consider s. 35 in their analysis (Assembly of First Nations, 2020, para. 41). Like Alberta, and the ACFN arguments that the Constitution be read in its entirety and that the foundation of the constitution is the “living tree” doctrine, the AFN also supports the “living tree” doctrine argument and suggest that if reconciliation of First Nations is going to happen the construction of s. 35 must be grounded in the “living tree” doctrine. The “Constitution is a living tree which by way of a progressive interpretation, it accommodates and addresses the realities of modern life” (Assembly of First Nations, 2020, para. 44).