Climate accountability’s very Canadian problem
To have a meaningful impact, Bill C-12 will require Ottawa getting buy-in from the provinces.
The federal government's climate accountability legislation that lays out its framework toward net-zero emissions by 2050 has widely been lauded as a significant first step for Canada in the fight against the global climate crisis. But while it would set legally binding five-year targets on Ottawa, and impose progress reports, there remains a missing and crucial piece of the puzzle – provincial action.
Jurisdiction over the environment is shared between the federal and provincial governments. Where to draw the line between the two remains a flashpoint of contention, as the country awaits the Supreme Court of Canada to render its decision on a trio of carbon price reference cases that were heard earlier in the fall.
"Because of the nature of federal and provincial overlapping and complementing jurisdiction with respect to greenhouse gas emissions, there's only so much that a bill like this can do," says David Wright, a professor at the University of Calgary's law school. "While the federal government has strong authority to engage in direct regulation as they have in coal-fired power plants, tailpipe emissions or methane emissions, they don't have this broad plenary power to dictate to the provinces what their greenhouse gas targets must be."
Wright says that even if the Supreme Court rules in favour of Ottawa, it's unlikely to emerge with such comprehensive powers.
"What we really need is some kind of formal agreement – not just an arrangement or memorandum of understanding – with provinces, wherein and through which the provinces agree to binding emission reduction targets over the long term," says Wright.
Alan Andrews, the Climate Program Director at Ecojustice, says provincial engagement is one of the most critical parts to get right if Canada is to avoid repeating its dismal history of missed climate targets. He says that Ecojustice has been thinking about how climate accountability laws in the United Kingdom and New Zealand could be adapted to Canada's complex constitutional challenges.
He would like to see the bill amended to force our governments to engage in "difficult conversations that need to take place." But it has to be done in such a way that" the politics of climate policy and the science are kept as two distinct processes, and there's a clear, bright line between them," says Andrews. "That's why we focused on the importance of having a strong, independent expert advisory body. That model has worked well in the UK in helping to de-politicize climate policy."
Andrews acknowledges that climate policy is far more politicized in Canada because of the importance of the oil and gas sector to the economy. Even so, the advisory body would be helpful to explain the science of what emission reductions are needed for Canada to fulfil its obligations under the Paris Agreement. It would also make recommendations on which policies are needed to reach those targets.
Dianne Saxe, Ontario's former Environment Commissioner, also points to the UK's Climate Change Act model as one that Canada should follow. She recommended it for Ontario in her 2018 report.
"There are two key things about how the [climate change] committee works that really helps," says Saxe. "The first is that the carbon budgets are set 12 years ahead, so that allows the government today to not take too much heat." In time, a future government can then blame their predecessors for tying their hands.
"The second thing they've done to make this easier is that they have this independent climate change committee, which has well-respected experts, and they are required by law to carefully study what actually can be done," says Saxe. "They have this target, the committee's job is to look at what they can do in the five-year period that they're studying, and they have a really good set of computerized models, and they can map out [reduction plans]."
From there, the committee's report goes to Parliament before they vote on what the target for those five-year periods will be. That way, lawmakers know that set targets can be met, rather than merely making them aspirational, says Saxe
Saxe says that Bill C-12 could follow the UK's model, which appears to have worked for twelve years, and survived a change of government.
Andrews acknowledges that Canada's constitution makes it uniquely challenging to address climate change through a top-down approach. Still, the idea behind climate accountability is that first and foremost, there is enough transparency to push the political process into playing its part.
"For it to work, there needs to be transparency as to which level of government is taking what action, and what it will achieve," he says. "As well as the advisory body, it's really important that the provisions around climate planning and reporting are strengthened so that climate plans will set out the entirety of measures that are needed to deliver the reductions that will get to each of these five-year targets and will eventually get to that net-zero by 2050 target."
Wright notes that the pan-Canadian framework on climate change was difficult enough to achieve when there were mostly NDP and Liberal premiers across the country. Today's politics are vastly different, and a future agreement may more closely resemble the European Union's burden-sharing agreement.
"Basically, you would take an aggregate federal target and disaggregate it across the different sub-national jurisdictions," says Wright. "It's not hard to do that in theory, but that's where the politics become so fundamentally challenging."
Wright says that it would require starting with a principled approach and applying those principles to translate them into quantitative emissions reduction targets, which is essentially a version of carbon budgeting on a provincial basis. However, it could also be applied on a sector-specific basis.
One positive outcome of Bill C-12 is that it would bring everything under one law, says Wright. That way, people can see it and understand it, which is helpful for Canadians, investor certainty, and international cooperation and trust.
Wright recommends amending Bill C-12 to include a provision that formally directs the federal government to engage in negotiation or dialogue with the provinces to develop a comprehensive carbon budgeting approach to achieve the targets. That would fit within the flavour and tone of the statute.
Environment Minister Jonathan Wilkinson's office did not respond to a request for comment.