Last Friday the Saskatchewan Court of Appeal determined that the Federal Greenhouse Gas Pollution Pricing Act was constitutionally valid. Among other things, this Act established minimum standards for pricing carbon across Canada.
All judges agreed that climate change caused by anthropogenic greenhouse gases is one of the great existential issues of our times. Climate change has emerged as a major threat, not just to Canada, but to the planet itself.
Yet two Court of Appeal judges dissented, concluding that provincial authorities have the power to legislate over the subject matter and climate change more generally. The Federal Law did not, in their view, conform to the requirements under the Constitution regarding Taxation and Federal legislation on regulation of industry. The Saskatchewan Government has stated that it will appeal to the Supreme Court of Canada.
Here’s the risk that Canadians who support the decision should think about when they go to the polls on October 21 to elect a new Federal Government.
If elected, the Federal Conservative Party could adopt the opinions of the dissenting judgments and repeal the Federal Greenhouse Gas Pollution Pricing Act. If so, the Supreme Court of Canada could legitimately conclude that the appeal before the court was moot.
Mootness limits a court’s jurisdiction. A matter is considered moot if further legal proceedings with regard to the matter can have no effect. If the judgment of a court cannot operate to grant actual relief, the case is at moot and the court is without power to render a decision.
Which means that another five years may have to pass before the constitutional validity of Federal Legislation on Climate Change can be re-litigated.
The Federal Liberal Government has the power to submit the legitimacy of its Legislation directly to the Supreme Court. It has not done so to date as that manoeuvre could have been interpreted as an end run around the Provinces. A step that would be characterized as a shameful thing to do in an age of cooperative Federalism.