Whither Kyoto?

Over at Staples' place there's an interesting debate occurring in the comments to this post, which turns on the question posed by this Toronto Star piece, namely: what are the options of the Conservative government if Bill C-288 becomes law?

A bit of background.  Bill C-288 (the current draft of which can be found here) is a federal private member's bill introduced by Liberal MP Pablo Rodriguez.  The Bill, which carries the title "An Act to ensure Canada meets its global climate change obligations under the Kyoto Protocol", has passed second reading in the Commons and gone through committee, and is scheduled for third reading on February 14, 2007.  Assuming it passes third reading (which is likely, since each of the Liberals, the NDP and the Bloc support it), it will then go to the Senate, where its prospects remain uncertain (since the upper chamber is dominated by Liberal appointees, it would likely pass, but it's an open question how long it will be before the bill goes to a vote).

Before going further, I'll indulge in some political analysis.  I'll take the time to note that Bill C-288 is a startlingly cynical bill, coming as it is from a member of a party that did approximately nothing to implement the Kyoto Protocol.  As a result of the lack of efforts under successive Liberal governments, Canada was in violation of its obligations pursuant to Article 3, Paragraph 2 of the Kyoto Protocol (the full English text of the Protocol can be found here) - Art. 3, Para. 2 obliged each signatory to "by 2005, have made demonstrable progress in achieving its commitments under this Protocol".  As shown by this Sierra Club report from December 2004, the Liberal governments had made little to no progress.  I will also note that this is the kind of legislation which, if played correctly by the Conservatives, could be parlayed into a majority government.  The commercials practically write themselves: somber music plays as images of dreary, empty offices and shops flicker by, forlorn owners hungrily eyeing the vacant streets for customers; wide-angle shots of endless highways devoid of vehicles but populated by huge lines of shuffling pedestrians, prohibited from using their cars to get anywhere; fast-cut shots of masked and armed government agents storming factories as they nationalize polluting industries... and then the ominous voice-over: "the Liberals and NDP want to shut down more than 30% of the Canadian economy in order to meet the Kyoto targets, targets which no other country is close to meeting."  Close-up on a shivering, sad-eyed child, buried in blankets in a desperate attempt to stay warm after it has become illegal to heat your home.  "Choose your Canada - Vote Conservative".  I'm not saying it's accurate, but I'm sure it would be tempting for Tory strategists.  A six-week campaign of commercials like that, and Stephen Harper would be rolling into the Saddledome to celebrate his majority victory, heralded by Stephane Dion's yipping dog "Kyoto" and riding a bucking Mark Holland, while using Holland's eyebrows as reins.

Whatever.  What has prompted the debate is the intimation from the Star article that the government would not abide by Bill C-288 if it became law (even assuming it passes third reading in the Commons, it still would need to be passed by the Senate and then receive royal assent from the Governor-General before "becoming law").  It's a bit of spin by the Star, prompting Rodriguez to quail about a "coup d'etat" - if you read the article, though, even the Star is forced to admit that the Tories "did not explicitly say they would ignore the law", it's just taht some MPs have just called it "useless" and predicted that "their government’s fate was not bound to it", which is more of a political prediction than a proposal.  That didn't stop the Star from breathlessly repeating the "coup d'etat" line and calling up some law professors to get their reactions ("they'd be breaking the law"!).

But what does Bill C-288, as presently drafted (and it could still be revised by the Senate), actually require the government to do?  The answer ranges from "not an awful lot" to "it's not quite clear".

Sections 5(1) and 7 are really the heart of the bill.  Section 5(1) requires the Minister of the Environment to table a "Climate Change Plan" within 60 days of the bill becoming law, which is to include a "description of the measures to be taken to ensure that Canada meets its obligations under Article 3, Paragraph 1 of the Kyoto Protocol".  Article 3, Paragraph 1 of the Kyoto Protocol is the one which provides that signatories must reduce "their overall emissions of [greenhouse] gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012".

Section 7 is the more bizarre section, so it warrants quotation:

(1) Within 180 days after this Act comes into force, the Governor in Council shall ensure that Canada fully meets its obligations under Article 3, paragraph 1, of the Kyoto Protocol by making, amending or repealing the necessary regulations under this or any other Act.

(2) At all times after the period referred to in subsection (1), the Governor in Council shall ensure that Canada fully meets its obligations under Article 3, paragraph 1, of the Kyoto Protocol by making, amending or repealing the necessary regulations under this or any other Act.

On its face, the section doesn't actually make much sense: how can the Governor in Council (i.e., the federal Cabinet) ensure that Canada "fully meets its obligations under Article 3, paragraph 1, of the Kyoto Protocol" within 180 days, when Article 3, Paragraph 1 of the Kyoto Protocol doesn't require or measure results until 2012?  Is the country supposed to cut its emissions by hundreds of megatonnes in the space of six months?  How?

Setting aside any quibbles about the wording, though, let's say the Star's torqued description of the Tory reaction is accurate, and they simply refuse to do anything - they don't table a "Climate Change Report" or table one which is prima facie nonsensical (e.g., it consists of three words: "Go F**k Yourselves"), and explicitly say they won't do anything to abide by Section 7.  Can anyone do anything about that?

I'm not sure of the answer, but on first blush I don't think there's much that anyone could do.  The Star quotes University of Ottawa professor Stewart Elgie as saying "someone could take them to court and get a court order", but I'm not sure that's the case - I'm not sure what that court order could possibly say.  "Breach of statute" is not a cause of action under Canadian law (see the Supreme Court of Canada decision in The Queen (Can.) v Saskatchewan Wheat Pool).  If someone wanted to sue, they would have to argue that they had suffered damages arising from the negligence of the Cabinet (i.e., a tort claim) - but even on my limited knowledge of tort law, that seems like it would be a fantastically hard case to make.  What about a claim that the failure to abide by the act is a violation of someone's Charter rights?  The Operation Dismantle case (text of the Supreme Court decision is available here) would seem to be authority against the viability of such a claim.  Okay, sez you, but what about a "court order", pace Elgie, that instructs the Cabinet to abide by the law?  No dice: Section 22(1) of the federal Crown Liability and Proceedings Act provides that "a court shall not, as against the Crown, grant an injunction or make an order for specific performance" - in other words, a court can't force the government to do something or refrain from doing something (hat tip to "Alan", Staples' comments, who I assume is the ex-Occam).  Query whether someone can sue "Cabinet" or individual ministers as distinct from the Crown.

Of course, this is almost entirely speculation on my part since it is well outside my area of practice, but it's an interesting question: when can you force the government to abide by its own laws?  Absent any measurable damages or a violation of the Charter, I'm not sure you can.  Anyone out there have any other ideas on the matter?

Comments

[Robert McClelland]

The commercials practically write themselves

So do the counter commercials: cue ominous music as clip after clip of weather related disaster plays (ie. the recent nastiness in BC or last month's blizzards and white outs in Saskatchewan). Cue voiceover. "The Conservatives don't want to take action on global warming by meeting our Kyoto targets. Not doing so will shut down more than 30% of our economy."

A 6 week campaign of that and Harper would be lucky to win half of Alberta's seats.

[Robert McClelland]

Anyone out there have any other ideas on the matter?

It looks to me like its basically just a re-affirmation of Canada's committment to the Kyoto protocol. Does that make sense? The closest analogy I can think of is that it would be like a second wedding. What really changes if you marry your spouse again? Not much.

[stephen.reeves]

Harpers commercials would be better, bad weather is bad weather, large numbers of unemployed that is another matter.!

[Alan]

"Canada's committment to the Kyoto protocol."

Canada's so-called "commitment" to the Kyoto wealth redistribution scheme isn't worth the paper it's written on. The Liberals never intended to live up to it, as is clearly shown by their utter failure to do anything to, well, live up to it. Furthermore, there is an opt out clause written into the Protocol, one we should exercise immediately.

Whiteouts, blizzards, storms, oh my! If that sort of thing were likely to shut down 30% of our economy, our economy would already be approximately 30% smaller. One can only assume you plucked that figure from, if not a location on your person that shall remain unnamed, then the histrionic and widely criticized Stern report?

http://www.opinionjournal.com/extra/?id=110009182

[ebt]

If there's no enforcement mechanism in the Act, then presumably it's a matter for Parliament to determine whether the government or any agent of it is in contempt of Parliament.

In other words, the same majority that passed this bill could pass a no-confidence motion in the goevernmnent. Given that they passed this bill when they could have passed a non-confidence motion in the first place, it tells me that this is not a preparation for action but a substitute for it.

Or, they've prepared an elaborate scheme for a coup d'etat by the judiciary. An order of mandamus requiring the government to do as the Liberal leadership dicates. Hey, no matter how illegal it's in force until it's appealed, and if the Chief Justice gives it herself, there won't be much point in appealing, will there?

[Dalton]

Go to this site.

http://www.nrsp.com/news.html

Look for this entry

May 16, 2006: Dr. Tim Ball's presentation "Climate Change in an age of Misinformation" delivered to the public at the Westin Hotel, Ottawa.

. . .

Right click the video presentation and download . . . use the “Save page as” option to download the file

it’s a big one so it will take a bit of time depending on your connection.

Right click the PowerPoint presentation and download . . . use the “Save page as” option to download the file

If you don’t have the PowerPoint App, go here

http://www.microsoft.com/downloa...&displaylang=en

and download Microsoft’s free PowerPoint viewer.

Play the video of the presentation, start up the PowerPoint and watch the slides as Dr. Ball’s explains each one.

Certainly not a slick willy/al gore presentation, but unlike Gore’s film, this presentation is factually correct, free of the scaremongering hyperbole and should be given fair consideration.

[Chris]

Well, we're obligated to a plan. I'd be tempted to table a plan that read "By shutting down the Canadian economy we can meet our Kyoto targets." Then do precisely nothing else about it.

[neo]

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File this one under, "St David steps on his dick."

Come feed the monster... Bernie, in the comments at SDA, has posted a link to the "disappeared" poll that has David Suzuki gnashing his teeth and wetting his bed.

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