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I. INTRODUCTION
II. THE MAJORITY S ANALYSIS
(a) The GGPPA is Legislation in Relation to One or More Provincial Heads of Power
(b) The GGPPA Cannot Be Saved by the National Concern Doctrine
III. COMMENTARY
(a) Section 92A
(i) An Expansive Reading of Section 92A
(a) Section 92A
(ii) Classifying the GGPPA under Section 92A
(b) Subsidiarity
(c) Approach to Division of Powers
(d) The National Concern Doctrine
(i) Transfer Theory
(ii) The Provincial Residual Power
(iii) Provincial Inability
(iv) The Generality of Matters of National Concern
(e) Legal Analysis or Advocacy?
I. INTRODUCTION
The Alberta Court of Appeal released its decision in Reference re Greenhouse Gas Pollution Pricing Act,1 Alberta s challenge to the constitutionality of the federal government s Greenhouse Gas Pollution Pricing Act, on February 24, 2020.2 Writing for a majority of three judges, Chief Justice Catherine Fraser concluded that the GGPPA could not be upheld on the basis of Parliament s residual power over matters of "peace, order, and good government" (POGG), nor any other potentially relevant federal head of power. Concurring in the result but not the analysis, Justice Wakeling also held that the GGPPA was unconstitutional. Justice Feehan, dissenting, would have upheld the law on the basis of POGG, and the "national concern" branch of that power in particular. The Alberta Court of Appeal s decision thus stands in contrast to the earlier decisions of the Courts of Appeal of both Saskatchewan (Reference re Greenhouse Gas Pollution Pricing Act)3 and Ontario (Reference re Greenhouse Gas Pollution Pricing Act),4 where a majority of judges in each court upheld the law as a valid exercise of the national concern branch of the POGG power.
One of us has previously described the basic issues in the GGPPA references.5 Briefly, Canada s constitution divides authority for passing laws, often referred to as "heads of power," between the federal and provincial governments.6 Federal heads of power are set out in s. 91 and include powers with respect to taxation, interprovincial and international trade and commerce, navigation, seacoast and inland fisheries, and the criminal law, to name but a few. Provincial heads of power are set out in ss. 92 and 92A and include powers with respect to property and civil rights, public lands, and...