Klein has a point on Kyoto
by Ed Morgan
This commentary was first published in the National Post on November 21, 2003.
Ralph Klein's list of grievances addressed to Paul Martin this week contained a piece of advice that is unfathomable to many international and constitutional experts: Give the provinces a say in Canada's international commitments. One hardly dares say it within the halls of Central Canada's ivory tower, but the Alberta Premier has a point -- and a progressive one at that.
The catalyst for these comments is the Kyoto Protocol to the United Nations Convention on Climate Change. Prime Minister Jean ChrÈtien signed that agreement in late 2002 despite the failure to achieve any protection for the oil industry or, what might be equally helpful, any credit for Canada's "clean energy exports" of natural gas and hydroelectricity. Several provinces would stand to gain from a system that grants international credit for increased volumes of these exports, while one province in particular will suffer from a system that debits the country's account for every barrel of oil sold abroad. Premier Klein's protest against an unamended Kyoto Protocol was as predictable as George W. Bush's recoiling at this international initiative. The only difference is that the former Texas governor is in a position to conduct his country's foreign affairs, while the Alberta Premier has a few constitutional impediments to overcome on that score.
To be fair, a proposal to trade off fossil fuel reductions against clean energy exports was floated by the Department of Foreign Affairs and International Trade at the June, 2002, meeting of the Kyoto parties in Bonn, Germany, but it was received with no interest at all by the negotiating governments, many of whose delegates greeted the DFAIT officials sporting lapel pins proclaiming "Don't Cheat, Canada." For Canadians, multilateral institutionalists that we are, to be accused of cheating in an international environmental conference must have really hurt. After several years of saying that he would seek to add an "asterisk" to the Protocol to protect our economic interests, the Prime Minister quickly signed on the dotted line.
The problem with Kyoto is that it is an agreement to which no "reservations" are permitted. By its own terms it requires each country to consider it on a take-it-or-leave-it basis. The Americans have rejected this out of hand, with constitutional scholars noting that it is the Senate that typically adds reservations to the country's international commitments in order to provide some protection for domestic concerns. In prohibiting the Senate from giving what the U.S. Constitution calls its "advice and consent" to a treaty, Kyoto undermines one of the fundamental checks and balances in the U.S. system. As Alexander Hamilton admonished in The Federalist Papers, "the joint possession of the power [to approve treaties], by the President and the Senate, would afford a greater prospect of security than the separate possession of it by either of them."
In Canada, of course, the less said about the Senate the better. It has been apparent since the 1930s, when Mackenzie King tried to impose the International Labour Organization's employment law requirements from coast to coast, that the real check on the executive's treaty-making power lies not in any federal government institution but in the provinces. By removing the ability of the federal government to insist on a reservation to protect provincial economic interests, treaties like Kyoto take away one realistic check on absolute federal power. In the seminal words of the Privy Council, "if in the exercise of her new functions derived from her new international status Canada incurs obligations they must ... be dealt with by co-operation between the Dominion and the Provinces." Failing that, a federalist form of democracy threatens to give way to the centralized decision-making of an unchecked unitary state.
The Supreme Court has, in recent years, reiterated this notion, and has placed it squarely in the context of environmental protection. In a case brought against the town of Hudson, Que., in 2001, Madam Justice Claire L'Heureux-DubÈ upheld a local by-law regulating pesticide use based on the international law principle of "subsidiarity." She specifically noted that nothing in law requires national uniformity in the approach taken to international problems. In fact, echoing sentiments that could have been expressed by Ralph Klein, the court commented that even when internationally inspired, "law-making and implementation are often best achieved at a level of government that is not only effective, but also closest to the citizens affected and thus most responsive to their needs."
The cutting edge of international law, it turns out, is not located in the thin air of central governments, but rather is out in the regions and far closer to the ground. Premier Klein's musings may not be classically Liberal, but neither are they illiberal; they reflect the constitutional balance between power and democracy in a diverse country like this one.
