Balancing Act: Navigating Federal and Provincial Roles in Canada’s Methane Emission Regulations

By: Doug Schweitzer, Courtney Burton, Stewart Maier

At COP28 UAE - United Nations Climate Change Conference, on Monday, December 4, 2023, the Federal Government (per Environmental Minister Steven Guilbeault) announced new proposed federal methane regulations that will seek to implement a new target to cut methane leaks and releases from the oil and gas industry by at least 75 percent over 2012 levels by 2030.  

Following this announcement, the Provincial Governments of Alberta and Saskatchewan have both signaled that this is another federal overstep into areas under provincial jurisdiction. Like many other recent provincial and federal disputes, the tension here isn't just about methane regulation but touches on the broader question of the balance of powers between the Federal Government and Provincial Governments.

So who has the authority to regulate methane emissions in Canada the Federal Government or the Provincial Governments?  The answer is not simple – but Alberta and Saskatchewan have stronger arguments. 

Government Jurisdiction on Methane Regulation in Canada

The division of powers regarding the regulation of methane emissions in Canada is grounded in the constitutional framework that delineates legislative jurisdiction between the Federal Government and the Provincial Governments. According to the Constitution Act, 1867, the Federal Government and Provincial Legislatures are granted exclusive powers over different areas of legislation, with each level of government excluded from enacting legislation relating to the powers of the other.

For the Federal Government, these powers include matters of national interest such as regulation of trade and commerce, navigation and shipping, and criminal law, among others. Conversely, Provincial Legislatures have exclusive powers over local matters, including direct taxation, management and sale of provincially owned public lands, and control over natural resources.

Environmental issues, including the regulation of methane emissions, do not fall neatly within this division of powers, as they can have both local and national implications. The concept of the "double aspect doctrine" applies here, where laws enacted by both federal and provincial levels of government may validly regulate the same fact scenario from different perspectives. This means that both levels of government can have legislative competence over environmental issues, but each within their respective jurisdictions.

Provinces hold the direct right to regulate emissions from specific industries within their jurisdiction. This includes the authority to manage emissions from oil and gas activities, which are significant sources of methane. Provinces can exercise this right under their powers to regulate property and civil rights within their territories. They also have the capacity to impose levies and establish emissions trading schemes as part of their strategy to control emissions from these industries. Historically, this provincial jurisdiction has been considered integral in the context of Canada's diverse and regionally specific oil and gas sector, allowing for tailored approaches to environmental management and regulatory practices that align with local economic and environmental needs. 

In contrast to provincial powers, the Federal Government holds constitutional authority to regulate industries through its powers over matters such as trade and commerce and criminal law. This means that methane emissions regulation in Canada falls under the purview of both federal and provincial jurisdiction, each exercising its constitutional powers in this domain. This shared jurisdiction theoretically requires a balance and cooperation between the Federal and Provincial Governments to effectively manage and regulate methane emissions while respecting the framework of Canada's constitutional division of powers.

Arguments for Federal vs. Provincial Regulation

Strong potential arguments in favour of the Provinces:

• Local Tailoring: Provinces are better positioned to tailor regulations to local conditions and industry characteristics, which may be more effective in addressing specific challenges and opportunities within their borders.

• Constitutional Autonomy: By managing methane regulations, provinces adhere to respecting the constitutional division of powers, where natural resource management is a provincial responsibility.

• Economic Concerns: Concern that federal regulations, with their blanket approach, could negatively impact local industries and economies, failing to consider unique regional factors.

Weaker arguments in favour of Federal Government:

• Unified Approach: A unified national approach is essential to meet international commitments and ensure consistency across the country.

• Standardized Framework: Federal regulations can provide a standardized framework, reducing complexity for industries operating across multiple provinces.

• Cross-Boundary Authority: The federal government has the authority to address environmental issues that cross provincial boundaries.

Conclusion

The debate over methane regulation in Canada reflects a larger tension between federal and provincial roles in environmental governance. Recent actions, such as Alberta’s invocation of the Sovereignty Act and Saskatchewan’s posture to refuse to enforce the federal carbon tax on electric heating, signal a growing trend of provinces asserting their authority. These developments suggest that the new federal methane regulations could incite further innovative responses from provinces. Another Court showdown is likely, and it seems that the provinces are well-positioned to assert their jurisdictional rights effectively in this arena.