A glimmer of hope

The Supreme Court of Canada’s recent decision confirming the constitutionality of national carbon pricing legislation was an important win for climate federalism, and a critical first step towards climate justice.  

But much more needs to be done – urgently – to ensure that climate change does not further worsen existing inequalities. The Supreme Court missed a perfect opportunity to send a clear signal that our Constitution has a vital role to play in safeguarding the rights of Indigenous Peoples, racialized minorities, women, children, seniors, and those living in poverty, all of whom shoulder a disproportionate share of the burdens caused by the climate crisis.

The GGPPA reference was fundamentally a division of powers case. The court rightly upheld well-designed national carbon pricing legislation as a legitimate exercise of Parliament’s authority to enact laws under the National Concern branch of the Peace, Order and Good Government (POGG) power.

While a win for climate federalism, this decision was also important to climate justice for four main reasons. First, the Supreme Court set the record straight on climate science by holding unequivocally that “climate change is real.” It described climate change as “an existential challenge,” and a “threat of the highest order to the country, and indeed to the world,” as well as a “threat to the future of humanity” that cannot be ignored. 

Second, it clarified that the federal government has the necessary jurisdiction to reduce nationwide emissions through carbon pricing. Bringing down emissions rapidly is critical for climate justice, since climate change exacerbates inequalities.

Third, the court clarified that provincial and federal climate laws can peacefully co-exist – jurisdiction over minimum national standards of carbon pricing is not an either-or proposition.  It rejected that claim by challenging provinces that upholding the federal law would remove provincial jurisdiction over similar matters.  It rightly confirmed that there is ample jurisdictional space for both levels of government to take measures to address climate change, and that some initiatives (such as carbon pricing) can have a double aspect, meaning they can legitimately co-exist. Interpreting the division of powers in a way that enables, rather than constrains, climate policies at multiple levels is critical for climate justice, since addressing the climate crisis requires a multi-faceted approach from all levels of government.

Finally, the court updated the national concern test to include consideration of climate justice.  According to the original test, courts must consider the scale of impact of upholding a federal law on the balance of powers in the federation.  The Supreme Court majority rightly expanded the analysis to consider the interests that would be harmed if Parliament was constitutionally unable to address the matter nationally. It cited the irreversible harm this would entail, and pointed specifically to the fact that these harms would be disproportionately borne by vulnerable communities and regions, with profound effects on Indigenous Peoples, concluding that these impacts justify “the limited constitutional impact on provincial jurisdiction.”

The acknowledgement that climate change can have disproportionate impacts on vulnerable groups is the first articulation of climate justice by the Supreme Court of Canada.  Judicial endorsement of climate injustice is crucial for Indigenous Peoples in Canada and members of equality-seeking groups who have long argued that they will be particularly harmed by the impacts of climate change. It sets the stage for the numerous constitutional challenges based on the Charter making their way through the courts seeking faster, more ambitious action on climate change.

While an important first step, the Supreme Court’s first articulation of climate justice fell short in several ways.  First, it was an implicit and incomplete formulation.  While the court rightly singled out Indigenous groups, it mentioned only vaguely other “vulnerable communities.”  Several interveners, including the National Association of Women and the Law, Friends of the Earth Canada, and Generation Squeeze, invited the court to recognize the implications of climate change for a range of people who face systemic discrimination, including Indigenous Peoples, women, racialized minorities, children and youth.  By reducing its comment to “vulnerable communities,” the court failed to make the essential connection to equality rights, and the fact that climate change will deepen inequalities for many, especially those who face intersecting and compounding forms of discrimination. It also failed to recognize the implications of climate change for future generations who will bear the brunt of this existential threat.

Second, the court missed an opportunity to clearly state that POGG must be interpreted in a manner that is equality affirming and aligned with climate justice. Former Chief Justice Dickson notably held that social justice and equality were essential to a free and democratic society. A statement by the highest court that the division of powers must be compatible with these Charter values would have set a precedent for future federalism cases where equality rights are at stake. 

Third, the court should also have acknowledged the existence of Indigenous jurisdiction alongside provincial and federal jurisdiction, as urged by many interveners. Its recognition of Canada’s multi-juridical nature would have contributed to advancing reconciliation without impacting the ultimate outcome of the case. The recognition of Indigenous jurisdiction by courts in Canada is an essential component of true and meaningful renewal of the Government of Canada’s relationship with Indigenous Peoples and vital for climate justice.

Fourth, the court could have been bolder given what is at stake from the climate crisis. It was extremely cautious in ensuring its interpretation of POGG was not overly broad, showing deep concern for federalism and the potential for federal overreach.  While respect for federalism is important, the consequences of climate change are unprecedented and existential, as the court rightly noted. It could have achieved its federalism objectives without being as cautious. It could have interpreted the pith and substance of the GGPPA as being about nationwide GHG emissions reductions, while confirming that this would not undermine provincial jurisdiction over intra-provincial GHGs any more than its current ruling did when the double aspect doctrine is appropriately applied. This broader interpretation would have given Parliament scope to enact other GHG reducing regulations needed to reduce nationwide emissions under POGG, should it need to do so in trying to meet its international climate targets, without limiting more ambitious provincial action.  

Finally, it should have been more courageous in the way it included climate justice considerations in its impact analysis. Its reasoning on this front suggests that climate injustices threatening the most vulnerable people and communities is something that can be counterbalanced against federalism concerns. Federalism is a core value in Canadian society, and we wholeheartedly agree with the court that potential impacts on vulnerable groups and regions justify an incursion on provincial autonomy.  However, a cynical reading could interpret the court’s reasons as meaning that the well-being of the most vulnerable members of society can be sacrificed in the name of federalism. Surely this was not the court’s intention, but to avoid ambiguity, it ought to have clarified that social justice and equality are primordial values that go hand-in-hand with federalism.

Climate change is a global and national emergency. The court's decision in the carbon pricing reference embraces a view of federalism that allows for all levels of governments in Canada to take action to respond to this unprecedented threat. Recognizing that members of certain marginalized communities will be disproportionately impacted by climate change also offers a glimmer of hope to those who have long sounded the alarm bells regarding the human rights implications of the climate crisis. As those whose rights to life, security and equality are threatened by climate change increasingly turn to the courts seeking redress, let’s hope that the decision will serve as a stepping stone for an interpretation of the Constitution, including the Charter, that not just permits, but also compels, government action to reduce GHG emissions.