Kyoto, Constitutional Law and Alberta's Proposals

Abstract

This article examines Alberta’s Bill 37, a provincial plan to reduce greenhouse gases and climate change, and explores the constitutionality of such legislation. Its main focus revolves around a constitutional analysis of Alberta's proposed legislation and its potential incompatibility with federal initiatives used to meet the Government of Canada's commitments under the Kyoto Protocol. In this discussion, the authors conclude that Bill 37 would likely be constitutionally valid under the provincial subject matter of property and civil rights, and possibly local undertakings and ownership of provincial public lands. However, the authors dismiss the argument that Alberta's legal position over any federal initiative would be bolstered by the Crown's ownership of provincial resources. The article then looks to the federal government's Kyoto commitments and analyzes the constitutionality of possible federal initiatives under the federal subject matters of taxation, criminal law, trade and commerce and POGG. With both the Alberta and federal plans analyzed, the authors then discuss the potential incompatibility of the plans through three possible scenarios. The article concludes with a brief discussion of the other cooperative measures, such as equivalency agreements and incorporation by reference, which the federal and provincial governments may use to combat the issue of climate change.