Separation of Powers in Canada: An Introduction

When we hear about climate policy, we are often presented with information seemingly rooting from a single unified body of government. In almost all countries, especially Canada, this is not the case. Canada is a federation, meaning that official powers are vested in both the provincial and federal governments (1). This system, known as devolved governance, has both advantages and disadvantages, and it is important for Canadians to understand exactly what powers both levels of government hold, particularly in issues of the environment where these powers have been challenged recently in the courts (2).

Article VI of the Constitution Act, 1867, lays out how legislative powers are divided between the Federal Government and the provinces (3). The general principle of the separation of powers is that areas of government exclusive to a specific province are controlled by that province, while areas of government concerning multiple provinces or Canada as a whole would belong under federal jurisdiction. This means that for the environment and natural resources, provincial legislatures have the authority to make laws regarding the:

(a) exploration for non-renewable natural resources in the province;

(b) development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; and

(c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy (3).

In comparison, the Federal Government has jurisdiction over a broad range of policies as well as any areas that are not specifically in the constitution, stating that, “It shall be lawful for [the Federal Government], to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces (3).” In practice, these legal principles form the basis for two major court cases with regard to Canadian climate policy; targeting the building of pipelines and other targeting the Federal Government’s imposition of a carbon tax on Canadian provinces (4, 6).

Beginning with pipelines, in 2018 the Government of British Columbia attempted to amend the province’s Environmental Management Act to all but ban heavy oil from being transported through pipelines throughout the province (4). However, both the Federal Court of Appeal and the Supreme Court sided against BC, citing that pipelines going through the province are “Works and Undertakings connecting [a] Province with any other or others of the Provinces, or extending beyond the Limits of [a] Province,” thus making them federal jurisdiction (5).

Secondly; Alberta, Saskatchewan, New Brunswick, and Ontario are currently suing the Federal Government over its imposition of a carbon tax (6). While the Supreme Court case is still pending, both Ontario and Saskatchewan have lost their challenges at the Court of Appeals, ruling that carbon pricing falls under federal jurisdiction because of the “peace, order, and good government,” clause of the Constitution (7).

At first glance, it may appear that there is a clear delineation between federal and provincial authority, but in reality (and particularly in regard to climate change), the situation is far more complex and far more controversial.