Ottawa's Clean Electricity Regulations Are Unconstitutional

On Thursday, Canada’s Environment Minister, Steven Guilbeault, released the draft Clean Electricity Regulations - otherwise known as the much anticipated, incredibly expensive, and entirely unconstitutional net-zero 2035 electricity generation targets.

Ottawa is even threatening punitive measures for those who don't comply, with Energy and Natural Resources Minister Jonathan Wilkinson announcing that billions of dollars in tax credits and grants will be tied to a province's plan to reach net-zero.

Saskatchewan and Alberta have both pushed back strongly against the regulations already.

In a press conference yesterday, Alberta Premier Danielle Smith reiterated that Alberta “will never allow these regulations to be implemented here - full stop.”

This dispute, though, is almost certainly heading to court over constitutional jurisdiction.

When it comes to electricity generation, Section 92A (1)(c) states:

"In each province, the legislature may exclusively make laws in relation to ... development, conservation and management of sites and facilities in the province for the generation and production of electrical energy."

The environment, meanwhile, isn’t even mentioned in the Constitution - it's simply been determined by the Supreme Court that environmental issues are a "shared jurisdiction" between the federal and provincial governments.

Environmental jurisdiction was effectively hallucinated by the Supreme Court, after the fact, to give the federal government the power to regulate policy areas that they do not have existing constitutional powers to regulate.

This legal situation was outlined quite clearly in last year’s Alberta Court of Appeals ruling on the constitutionality of the controversial Impact Assessment Act - which we covered extensively at the time.

Under the heading “The Environment is a Constitutionally Abstruse Matter,” the ruling reads as follows:

“The environment has not been assigned to either Parliament or provincial Legislatures under the Constitution Act, 1867. Nor has the environment been allocated to the federal government under the national concern doctrine.”

It goes on to state that “Instead, the courts have recognized that the environment is ‘a constitutionally abstruse matter which does not comfortably fit within the existing division of powers without considerable overlap and uncertainty.’”

The ruling also points out that both federal and provincial governments “may affect the environment (either by acting or not acting) but only within the legislative powers specifically assigned to each.”  

On this point, there was an interesting interview on the Drive with Ted Henley, with University of Alberta professor Dr. Eric Adams as the guest.

Adams is well-known as a staunch federalist who regularly provides commentary that supports the centralization of federal powers against provincial wishes.

Off the top of the interview, the host commented that the environment was federal jurisdiction.

Interestingly, Dr. Adams did not bother correcting this, meaning the entire segment was painted as one part of the Constitution being pitched against another - simply a question of which will win out.

Dr. Adams did note, though, that when writing the Constitution, the framers did not consider the environment from a jurisdictional standpoint - either in the 1867 or 1982 documents. 

He even went as far as to imply that the federal government may be going too far with the new regulations in their current form.

“I wish this was an easy call, and frankly it isn’t,” said Dr. Adams.

The fact that even staunch federalists like Dr. Adams are pondering the constitutionality of the draft regulations and thinking they're at best borderline, should give you some idea of just how far outside their jurisdiction Ottawa is reaching this time around.

Unfortunately, the fact that the Constitution does not grant either the federal or provincial governments control over the environment has given the courts leeway to interpret jurisdictional boundaries in whatever way they choose.

That is fine with the federal government, of course.

They don't actually want to go through the trouble of changing the Constitution in the proper manner - by seeking an amendment through the legitimate process - because they know they probably would fail.

They know the provinces wouldn't grant them full control over environmental jurisdiction.

So, instead, Ottawa just keeps hammering through legislation that directly violates the Constitution in its current form, content in the knowledge that the Supreme Court will uphold it anyway.

Obviously, it’s legal for the courts to determine that the environment is a shared jurisdiction.

But that's simply because it is the courts themselves that determine whether it is legal or not, so by definition, if they say it is, it is.

And, let's not forget, that Supreme Court Justices are appointed by the Prime Minister, giving the federal government the ability to influence the makeup of the court.

Long story short, jurisdictional debates over the Constitution are a political issue, not a legal issue.

Any time the provinces take an action Ottawa doesn’t approve of (and vice versa), the case goes to a Supreme Court appointed by the Prime Minister.

Effectively, this means that the provinces have very little legal protections when the federal government wanders outside of its lane.

And each time this happens, fractures in federal-provincial relations grow larger.

With the clean energy regulations specifically, does the federally-appointed Supreme Court rule in favour of the federal government regulating electricity generation under environmental jurisdiction? 

Or will the court rule that the provinces have the sole, exclusive jurisdiction over electricity generation - as is outlined in the Constitution?

In his analysis, Dr. Adams makes a key point.

“Whether or not it's constitutional shouldn’t depend on whether some group of judges think that that’s the right way to fight climate change or not,” Adams said. 

“Really, they’re supposed to shut that off completely and say what does the Constitution give the level of government in terms of the power to do x or y, that’s the only question we should be answering.”

Week after week, we’ve been pointing out that the flaws in the legal framework of this country are contributing to a massive gap between federal and provincial priorities - and gives the federal government the ability to violate provincial jurisdiction on a regular basis.

The Constitution needs to be updated to reflect the fact that Canada is a vast, diverse country with unique regions that have unique needs.

Many have been hesitant to consider re-opening the Constitution for fear they may not like the changes that would result.

But we need to at least try.

The simple reality is that the Constitution is already being changed anyway - just by the courts, rather than by the people.

Project Confederation is working on a series of constitutional amendments that range from electoral structures to fiscal imbalances.

We're going to set out what a fair Canadian Constitution would look like, and then we're going to fight for those changes.

This is a massive undertaking, and we’re going to need all the help we can get.

If you have any suggestions on constitutional amendments to keep Ottawa in its lane, please respond to this email with your concept.

If you are in a position to support our efforts financially, please donate here.

Fixing the Constitution is a big job, but with your support we can do it!

Regards,

Josh Andrus
Executive Director
Project Confederation