Climate Disruption in Canadian Constitutional Law: References Re Greenhouse Gas Pollution Pricing Act

2021 ◽  
Author(s):  
Jocelyn Stacey
Keyword(s):  
Climate Change ◽  
Decision Making ◽  
Supreme Court ◽  
Greenhouse Gas ◽  
Indigenous Peoples ◽  
Constitutional Law ◽  
Carbon Pricing ◽  
Legal Implications ◽  
Canadian Federalism ◽  
The Supreme Court

Abstract This analysis considers the Supreme Court of Canada’s decision in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, in which a majority of the Court upheld as constitutional national carbon pricing legislation. The decision presents an excellent illustration of the legally-disruptive nature of climate change. Illustrating that nothing is static in a climate disrupted world—including constitutional law—this article identifies three shifts the Court makes in relation to climate disruption. First, the decision represents a shift away from climate denialism towards a judicial willingness to confront the environmental, social and legal implications of climate change for Canada. Second, the majority embraces and perhaps strengthens a ‘culture of justification’ in climate decision-making. Third—and more tentatively—the majority moves beyond the erasure of Indigenous peoples from Canadian federalism but still yet fails to engage with Indigenous laws and jurisdiction as part of Canada’s constitutional response to climate change.

Part IV Federalism, A Federalism in Canada, Ch.18 From Dualism to Cooperative Federalism and Back?: Evolving and Competing Conceptions of Canadian Federalism

2017 ◽  
Author(s):  
Gaudreault-DesBiens Jean-François ◽  
Poirier et Johanne
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Case Law ◽  
Empirical Reality ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
The Law ◽  
Cooperative Federalism ◽  
The Impact

This chapter documents the evolution from a dualist—“watertight compartments”—conception of Canadian federalism, to one that must acknowledge an increased number of intergovernmental cooperative ventures. It first examines Canada’s fundamentally dualist federal architecture before looking at the empirical reality of cooperative federalism which frequently challenges this structural dualism. It then considers how the rise of cooperative federalism influenced the evolution of the interpretive doctrines underpinning the law of Canadian federalism. Finally, it analyses the normative strength and scope of cooperative federalism, concluding that the impact of cooperative federalism in Canadian constitutional law remains tamed by the dualist conception of federalism that still underlies the Supreme Court of Canada’s federalism case law.

scholarly journals Balancing Power: The Supreme Court of Canada’s Impartial Role in Federalism

Federalism-E ◽  
1969 ◽  
Vol 12 (1) ◽  
pp. 46-53
Author(s):  
Darcy Drury
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
Federal Government ◽  
Federal System ◽  
Privy Council ◽  
The Third ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
The Impact ◽  
Legal Theorist

The problem with Lord Acton’s state-ment is that it leaves out the third essential ingredient to a federal system of government: a supreme court. In Canada, like most federa-tions, the Supreme Court (SC) is responsible for articulating the constitution and serving as an independent mediator in intergovernmen-tal relations. Each decision made by the SC in regards to government jurisdiction changes the dynamics of Canadian federalism, and some critics fear it can be used as a centraliz-ing device by the federal government. This paper will discuss the nature of the SC by demonstrating its necessity, purpose, and the importance of its independence by examining its crucial role in Canadian federalism. Next, there will be a historical breakdown of the impact of2 the SC on the federal balance of powers through an examination of three es-sential eras: Judicial Committee of the Privy Council (decentralizing), Laskin (centralizing), and Charter (mixed), with analysis involving the attitudinal and legal theorist models of decision making in SC decisions. Finally, the SC’s impartiality towards provincial and feder-al preferences will be evaluated to show that justices have remained immune to direct po-litical pressures [...]

The State of the Netherlands v. Urgenda (Neth. Sup. Ct.)

2020 ◽  
Vol 59 (5) ◽  
pp. 811-848
Author(s):  
André Nollkaemper ◽  
Laura Burgers
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
The Netherlands ◽  
Supreme Court ◽  
International Law ◽  
Greenhouse Gas ◽  
Ghg Emissions ◽  
The State ◽  
European Convention ◽  
The Supreme Court

On December 20, 2019, the Supreme Court of the Netherlands published its judgment in The State of the Netherlands v. Urgenda. The judgment is largely a discussion of questions of Dutch law, but contains several conclusions that are relevant from an international law perspective. In particular, the Court held that on the basis of the European Convention on Human Rights (ECHR), the Netherlands has a positive obligation to take measures for the prevention of climate change and that it was required to reduce its greenhouse gas (GHG) emissions by at least 25 percent by the end of 2020, compared with 1990 levels.

The Israeli Unfinished Constitutional Revolution: Has the Time Come for Protecting Economic and Social Rights?

2004 ◽  
Vol 37 (2-3) ◽  
pp. 299-345 ◽  
Author(s):  
Yoram Rabin ◽  
Yuval Shany
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Hard Core ◽  
Social Rights ◽  
Cultural Rights ◽  
Basic Law ◽  
The Supreme Court ◽  
The Status ◽  
Interpretive Strategies ◽  
The Right

AbstractThis article addresses the constitutional discourse surrounding the status of economic and social rights in Israel. It examines the principal interpretive strategies adopted by the Supreme Court with regard to the 1992 basic laws (in particular, with respect to the right to human dignity) and criticizes the Court's reluctance to apply analogous strategies to incorporate economic and social rights into Israeli constitutional law. Potential explanations for this biased approach are also critically discussed. The ensuing outcome is a constitutional imbalance in Israeli law, which perpetuates the unjustified view that economic and social rights are inherently inferior to their civil and political counterparts, and puts in question Israel's compliance with its obligations under the International Covenant of Economic, Social and Cultural Rights. At the same time, encouraging recent Supreme Court decisions, particularly the YATED and Marciano judgments, indicate growing acceptance on the part of the Court of the role of economic and social rights in Israeli constitutional law, and raise hopes for a belated judicial change of heart concerning the need to protect at least a ‘hard core’ of economic and social rights. Still, the article posits that the possibilities of promoting the constitutional status of economic and social rights through case-to-case litigation are limited and calls for the renewal of the legislation procedures of draft Basic Law: Social Rights in the Knesset.

Introduction

2018 ◽  
Author(s):  
Lucas A. Powe
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Local State ◽  
Court Cases ◽  
Law And Politics ◽  
The Supreme Court ◽  
Entire Nation ◽  
Constitutional Adjudication ◽  
The Impact

This book examines the impact of Supreme Court cases from Texas on the entire nation. It argues that the most important Supreme Court cases have originated in Texas, which help explain why it is Texas and not California that provides breadth and depth to constitutional adjudication. Texas litigants, lawyers, politicians, and judges all play important roles in the underlying interplay of law and politics at the local, state, and national levels. In all its facets, Texas offers a window to all constitutional law and the Supreme Court. The book shows that Texas's impact literally started at the beginning by precipitating a debate over national powers and then a war with Mexico, and that the fraught relationship between Texas, the nation, the Constitution, and the Supreme Court in the century and a half since Texas v. White has produced more constitutional law than any other state.

Constitutionalizing Public Participation in Kenya

2018 ◽  
pp. 189-216
Author(s):  
Jill Cottrell
Keyword(s):  
Decision Making ◽  
Public Participation ◽  
Supreme Court ◽  
National Level ◽  
Active Form ◽  
Preliminary Assessment ◽  
Public Input ◽  
The Supreme Court ◽  
History Of ◽  
Decision Making Processes

Examining the Constitution of Kenya 2010, the chapter picks up its concept of public participation in decision-making and a more active form of democracy than simply voting once in five years. In Kenya, Parliament and other legislatures, as well as executive bodies and the judiciary’s administration regularly invite public input into their decision-making processes. The courts have held some legislation, though not at the national level, invalid for want of adequate participation, while the Supreme Court, rather the chief justice, has set out principles of participation in a major judgment. The chapter traces the rationale and the history of this development, and attempts a preliminary assessment of its impact on Kenyan democracy. Suggestions are also made for making public participation more effective.

The Supreme Court in the Era of Bifurcated Review I

2019 ◽  
pp. 400-443
Author(s):  
G. Edward White
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
The State ◽  
Individual Rights ◽  
The Supreme Court

Volume 2 of this series devoted several chapters to the emergence of what it called “guardian review” on the Supreme Court, a posture in which justices acted as guardians of individual rights against restrictions by the state. This volume contains several chapters exploring the replacement of that posture with “bifurcated review,” featuring a deferential attitude toward some restriction of individual rights and aggressive scrutiny of others. This chapter describes the evolution from guardian to bifurcated review on the Court and matches it to changes in the Court’s internal decision-making protocols from the 1940s through to the 1970s.

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