Now that Canada has ratified the Kyoto Protocol, the real fights begin. Not only will private industry contend with the federal government, Ottawa must also brace itself for major battles with provincial governments. In opposing ratification, provincial spokesmen have denied the federal government's right to carry into law the widely sweeping obligations that Canada must accept under the deal.

Gwyn Morgan, chief executive officer of EnCana Corp., has observed that whatever may be said at the political level, ultimately the issue is going to wind up in the Supreme Court of Canada. We predict that the court is going to be called upon to consider a number of constitutional issues, including how Canadian governments should deal with an international agreement of the sweeping nature of the Kyoto Protocol. Thus, the court's decision matters not only in terms of the fate of Kyoto, but it also could affect many other international agreements Canada is asked to ratify.

We know what the Kyoto Protocol asks of Canada. We don't know what legislative means the Canadian government proposes to use to carry it into law.

Just as Ottawa has provided no specifics about the economic consequences, so it remains vague about the legal means. What we can already say, however, is that at the political level, spokesmen on each side of the question, both for Ottawa and the Alberta government, have asserted authorities for their courses of action -- propositions that we think to be wrong.

The federal Minister of the Environment has been quoted as saying Ottawa is entitled to carry the Kyoto agreement into law because the federal government has exclusive responsibility for making international treaties. True, Ottawa does have exclusive authority to enter into international treaties for Canada -- but in doing so, it cannot give itself the right to enact laws in areas given by the Constitution to provincial authority.

That has been Canadian law and practice since a 1930s court decision known as the "Labour Conventions" case (in which the court directed Canada's different levels of government to co-operate when bringing in statutes to meet treaty obligations). Ever since, Ottawa has been careful about ratifying an international convention that might involve interference with provincial law without securing the assent of provincial authorities.

Let's assume that the legislation to carry out Kyoto within Canada would be of a sweeping nature and would deal with the jurisdiction both of federal and provincial governments. The amending legislation to carry Kyoto into effect would either have to be assented to by provincial government action -- or the federal government would have to persuade the Supreme Court of Canada that the law fell within one or more of the specific powers given to Ottawa under Section 91 of the Constitution Act, 1867, or else under the broader authority, given to the government in Ottawa to legislate "for the peace, order and good government of Canada."

Alberta spokesmen, on the other hand, have asserted that because of Section 92(a), inserted into the Constitution in 1982 to recognize exclusive provincial powers over some aspects of the petroleum and forest-products industries, the federal government would not be able to act on the protocol. The 1982 addition is certainly specific about what it applies to. But does it apply to other aspects covered by Kyoto that are not expressly within its terms? Section 92(a) makes no reference to the subject matter of "the environment."

There are several specific heads of jurisdiction under Section 91. There's the federal jurisdiction, which might justify action on Kyoto -- but probably constitutional support for the legislation will have to rest on the broader federal power to legislate for peace, order and good government.

This brings to mind the last time a major federal program affecting the economy was before the Supreme Court -- the reference to the court of the Anti-Inflation Act, the federal prices and incomes program of 1975. (One of the authors of this article was minister of finance at the time and had a key role in that proposal, and therefore an interest in the outcome of the court's decision.) Bora Laskin, then chief justice of the court, gave the majority decision, concluding: "I would hold that the Anti-Inflation Act is valid legislation for the peace, order and good government of Canada and does not, in the circumstances under which it was enacted and having regard to its temporary character, invade provincial legislative jurisdiction."

In his reasons leading up to that final judgment, the chief justice found that there was a rational basis for the anti-inflation legislation in the economic circumstances. He found that it was legislation of a temporary character necessary to meet an economic crisis imperilling the well-being of Canadians, and that it therefore fitted into a category of cases that had been decided over the previous century, authorizing extraordinary federal action on a temporary basis in very critical circumstances.

Clearly, the environmental issues behind Kyoto aren't of a temporary nature, and not merely confined to Canada. They're of worldwide concern. The federal government will undoubtedly argue that the court should recognize the need to extend its residual power to support its actions.

In certain cases, the courts have determined that a problem calling for government action is of such a magnitude that it has become a national concern with a national dimension going beyond the existing distribution of powers, and requiring Ottawa's action.

Judges are wary about recognizing such an overriding power in the national government, lest they upset the balance our federal system tries to maintain between local and national interest. And they may be concerned about creating a precedent that may further erode the autonomy of local decision-making.

However just the distribution of federal-provincial powers was in 1867, it's now obsolete. Canada, and its courts and politicians, will inevitably be driven more and more to think in terms of "national" concerns. Which, when it comes to global climate change, may not be a bad thing.
Donald Macdonald, a former federal finance minister, is senior adviser, public policy, with the Toronto law firm Lang Michener. Natasha Lakoseljac is an associate at the firm.