Federal Court backs government over Kyoto pullout
Government not obliged to consult Parliament before applying 'royal prerogative'
By Laura Payton, CBC News
Posted: Jul 17, 2012 12:43 PM ET
Last Updated: Jul 17, 2012 4:01 PM ET
The Conservative government's decision to pull out of the Kyoto Protocol was legal, and it wasn't obliged to consult Parliament before doing so, the Federal Court has ruled.
Daniel Turp, a former Bloc Québécois MP and former Parti Québécois member of the province's national assembly, went to Federal Court to challenge the government's withdrawal from the Kyoto Protocol.
Turp argued the pullout from the Kyoto Protocol was illegal, null and void, because it violated the law that said Canada would comply with the international agreement. He also argued the withdrawal breached the principle of the separation of powers, because the Conservative government should have consulted the House of Commons and the provinces first.
The ruling by Federal Court Justice Simon Noël said cabinet's royal prerogative — the power of cabinet to make decisions on foreign affairs and international relations — had not been abolished or limited by the law that brought the Kyoto Protocol into force in Canada, and that the government had acted in accordance with the rule of law.
The court also ruled that the withdrawal did not violate the separation of powers and democratic principles, because the government was not obliged to consult Parliament before "applying its royal prerogative."
Canada pulled out of 1997 agreement
Environment Minister Peter Kent said last December that Canada was withdrawing from the international accord. He made the announcement the day he returned from a United Nations summit on climate change in Durban, South Africa. He had promised the UN during the summit that Canada wouldn't announce its withdrawal during the conference.
The court decision says it's up to Parliament to try to limit the royal prerogative.
"It is up to Parliament to pass a law that would force the House of Commons to be consulted before a treaty is ratified or withdrawn from, but that was never done," Noël wrote.
It would have been surprising if the court had limited the royal prerogative, Emmett MacFarlane, an assistant professor of political science at the University of Waterloo, said Tuesday.
"The courts have always been very reluctant to delve into matters dealing with the royal prerogative powers," MacFarlane said.
"And although Parliament can limit or even theoretically abolish executive prerogative, it has to do so very clearly, very explicitly."
Kyoto repeal in omnibus budget bill
The omnibus budget bill, which passed into law before Parliament rose for the summer, officially repeals the Kyoto Protocol Implementation Act.
The court isn't the place to go to wage a lost political battle, MacFarlane said. Turp tried to argue there should be a separation of powers, but that principle works both ways.
While the budget bill had its share of critics for throwing dozens of measures into one bill, MacFarlane said the court showed restraint by leaving it up to the political sphere to decide whether that was right or wrong. Essentially, it's possible to disagree with what the government did while recognizing the decision was within its power.
"[An omnibus bill] really does remove the opportunity for good public debate, for accountability, for assessing the potential impact of all these various provisions, when the government is lumping everything into one big bill [and] imposing time allocation. There are still all those issues of democratic accountability that I think the government has to face up to quite independent of its very clear and obvious legal victory here," he said.
"We can really separate what the court has done here with any evaluation of whether this is good policy or not."
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