Hard Choices: Climate Change in Canada

9 Legal Constraints and Opportunities: Climate Change and the Law

Introduction C limate change law now consists almost exclusively of international law.To this point in Canada, little has been done at the national level either to implement international law obligations or to create additional legal rights and obligations to address climate change. Of course, for a federal country like Canada national must be understood as federal or provincial according to the constitutional distribution of powers to legislate . This chapter looks at climate change law by sketching the overall legal framework and identifying some more specific legal tools as well as potential legal constraints. At present, climate change law, particularly at the national level, is largely speculative. There is a range of possible policies, approaches, and instruments that can be used in relation to climate change. Policy and instrument choices will depend on federal and provincial processes that are now under way and that will ultimately be governed by political, economic, and technical factors.The law is relevant to this process primarily for the constraints that it may impose, including international law constraints, constitutional constraints, constraints in existing legislation that may point to necessary new legislation, and perhaps liability constraints . International law cannot be changed by Canadian governments, nor, apart from the difficult and unlikely possibility of amendment under the process prescribed by the constitution, can constitutional requirements be altered. Legislative constraints can be removed by amendment, but various policy, intergovernmental, and political factors may present barriers. Once made, climate change policy choices may then require leg179 9 5 Legal Contraints and Opportunities: Climate Change and the Law Alastair R. Lucas islation for implementation. Only then will climate change law have taken root in Canada. Thus, apart from fundamental legal norms that are constitutionalized or quasi-constitutionalized as part of international agreements , the law does not lead. It is essentially responsive so that legislation may be viewed as the formal authoritative expression of government policy. It is important, particularly for understanding the Kyoto Protocol debate, to clarify the nature of international climate change law and how this international law relates to Canadian national law and the Canadian legal system. The first part of the chapter will do this by focusing on the primary international law instruments, the UN Framework Convention on Climate Change (unfccc) and the Kyoto Protocol. The implications of another specific area of international law—international trade law—will also be assessed. The national legal framework will then be discussed, beginning with relevant constitutional law constraints. More specific elements of the legal framework at the federal and provincial level will be assessed to identify statutory provisions, primarily of a regulatory nature, that could be used as a basis for climate change initiatives and decisions. Some are specific statutory powers that may be used directly; most are enabling provisions that permit federal or provincial cabinets or ministers to make regulations or other subordinate legislation for climate change purposes. Finally, potential liability issues concerning climate change actions will be discussed. International Law and Canadian Law Canada’s signing of the Kyoto Protocol in December 1997 did not make it a law binding on Canadians; nor do the Protocol’s obligations become enforceable legal requirements for Canadian individuals and corporations through its ratification by the federal cabinet. Nonetheless, the Protocol does not lack legal force. Its foundation instrument, the unfccc, was rati fied by Canada in 1994. The Kyoto Protocol is therefore binding as it has been ratified (Kyoto Protocol, 1997, Art. 24.1); but, like the unfccc, it binds only Canada the nation state as party to the Protocol recognized by international law.1 However, the binding force in international law may itself be uncertain since it depends largely on the non-compliance provisions contained in the international agreement itself, and the Protocol merely authorizes the Conference of the Parties (cop) to “approve effective procedures and mechanisms” and adopt these by an amendment to the Protocol (Kyoto Protocol, 1997, Art. 18). It is a matter of negotiation by the cop, which has agreed2 on a Compliance Committee system for implementation and determination of non-compliance, with ultimate penalties of submis180 What Can We Do? sion and completion of a compliance plan, and suspension of emissions trading and international project emission credit rights. Ultimately, the legal force of the unfccc obligations and those of the Protocol is a matter of international relations and the expectations and pressures of the international community. Should...