IN-DEPTH: How the Feds Have Pushed Jurisdictional Boundaries With Environmental Policies

Environment is one of the grey areas in federal-provincial jurisdiction, say experts

Minister of Environment and Climate Change Steven Guilbeault rises during question period in the House of Commons on Parliament Hill in Ottawa on Oct. 30, 2023. The Canadian Press/Sean Kilpatrick

Canadian courts have recently identified federal overreach in two pieces of environmental legislation, raising questions about where federal jurisdiction ends and how politicians may try to expand its boundaries.

On Nov. 16, a Federal Court judge ruled that the government’s classification of all plastic products as toxic—which would bring them under the jurisdiction of the Canadian Environmental Protection Act—was “unreasonable and unconstitutional.”

The government made this classification in a cabinet order that provided the justification for its single-use plastics ban legislation. But that was likely just a “pretext,” says Scott Bennett, associate professor of political science at Carleton University.

The “toxic” designation gives the government control not only over single-use plastics, such as straws, but all manufactured plastic products.

“The judge saw through this and probably suspected that the real strategy was to appear to be making a limited ban while really trying to create a legal basis for a much wider ban in the future,” Mr. Bennett told The Epoch Times via email.

“The feds probably hoped no one would notice. This seems to be a big part of their approach in the environmental policy area.”

Federal Power Over Plastics, Natural Resources

Broad federal power over plastics could infringe on provincial jurisdiction over waste management, Justice Angela Furlanetto said in her ruling. She said the government hadn’t sufficiently proven that every plastic-manufactured item has the potential to cause harm.

Plastic industry companies had brought the matter to court, saying it could unduly restrict their businesses. With plastic being generally petroleum-based, some see this as another federal attempt to undermine the energy industry.

Tom Flanagan, professor emeritus of political science at the University of Calgary, said this jurisdictional tussle over plastics—and also the recent clash over the federal Impact Assessment Act (IAA) affecting natural resource and infrastructure projects—represent attempts by the Liberal government to quash the oil and gas industry.

“This is part of a very long campaign by the federal government to try and curb the oil and gas industry,” said Mr. Flanagan, who had served as campaign manager and chief of staff for the Conservative Party’s Stephen Harper.

“Many in the government“ really want to curtail this industry, he said, adding that gas ”some would like to put an end to it altogether, and they have said so publicly.”

The oil and gas industry falls largely under provincial jurisdiction, and the Liberals are trying to find ways to bring it under their control, he said. “These are two skirmishes in a much longer war.”

The IAA essentially gave the federal government power to step in and halt a project—such as projects related to Alberta’s oil industry—over the environmental or social impacts it may have. The reasoning is that these impacts fall under federal jurisdiction (for example, migratory birds, fisheries, or indigenous peoples).

On Oct. 13, the Supreme Court ruled that the IAA was largely “unconstitutional” because it infringes on provincial jurisdiction.

One of the key issues the Supreme Court raised is that the legislation is too broad. It allows the government to step in with very little proof that a project will impact an area of federal jurisdiction. For example, an impact assessment could be triggered based on “any comments received” from the public or “any other factor” that the feds consider “relevant.”

Similarly, the Federal Court found the “toxic” classification for all plastics too broad. Both rulings urged the federal government to more narrowly define the situations in which it can get involved.

Much remains uncertain about the IAA, the single-use plastics ban, and the limits of federal jurisdiction over the environment.

Uncertainties

Federal Environment Minister Steven Guilbeault has said the government will amend the IAA to address the problems highlighted by the Supreme Court. It’s yet to be seen what the redrafted legislation will look like and whether it will meet with further challenges from the provinces.

Mr. Guilbeault has also said the government will appeal the Federal Court decision invalidating the cabinet order underlying the plastics ban.

York University law professor Allan C. Hutchinson says there are grey areas in federal-provincial jurisdiction, and the environment is one.

It’s a “loaded issue,” with some provinces and the federal government not seeing eye-to-eye on carbon emissions policy in particular, he told The Epoch Times. Meanwhile, federal jurisdiction over carbon emissions is being tested in the courts.

In 2021, the Supreme Court ruled in favour of federal jurisdiction, saying the government could impose a carbon tax despite protest from the provinces. “That was a win for the feds,” Mr. Hutchinson said, but the recent IAA ruling says “you can’t overdo it.”

Chief Justice Richard Wagner said in the IAA decision that the 2021 decision applied only to the mechanism of carbon pricing.

“The matter is limited to GHG [greenhouse gas] pricing of GHG emissions—a narrow and specific regulatory mechanism,” he said. “Legislation with respect to roadways, building codes, public transit and home heating, for example—would not fall under the matter of national concern.”

So it seems Ottawa can’t easily cite climate change concerns to extend power over areas that fall under provincial jurisdiction. The decision said that if the federal government tries to “treat a project’s greenhouse gas emissions as an effect within federal jurisdiction,” those attempts would be subject to further judicial review.

“Constitutional law is a much more organic, fluid, changing idea than many people think,” Mr. Hutchinson said. The boundary between federal and provincial jurisdiction is “shifting,” he said. “It ebbs and flows.”

Law and Politics

Some Canadians see the courts as more impartial than the politicians, and thus a good place to work out jurisdictional boundaries, Mr. Hutchinson said, while adding that he doesn’t think it’s that simple.

“I‘d be one of those who say you can’t do law without doing politics. It’s a myth to imagine that there’s a world called ’law' that’s independent of politics,” he said.

“It’s a politics game,” he said, adding that it’s a game the provincial leaders play too.

Alberta’s Sovereignty Act, for example, is meant to give the province a way to quickly overcome perceived federal overreach. But it may be subject to lengthy judicial challenges as well. Mr. Flanagan said the federal government is likely to ask for an injunction if or when Alberta uses it.

It’s more about Alberta putting political pressure on the federal government, Mr. Hutchinson said, rather than the province asserting any definitive legal rights.

Ian Peach, a public policy expert who has held various positions in academia and government, says that determining federal-provincial boundaries on jurisdiction is not a precise science.

“It’s not algebra; it’s art,” he told The Epoch Times. Like Mr. Hutchinson, he said it’s a common misconception that “the division of powers is in any way, shape, or form, clear.”