Making Federalism Work for Climate Change : Canada's Division of Powers Over Carbon Taxes

There is increasing agreement in Canada that we need carbon pricing policies. Indeed, Quebec and British Columbia have forged ahead with carbon taxes, and the Liberal opposition has included a carbon tax in its most recent platform. One is tempted to simply point to the respective federal and provincial taxation powers for jurisdictional authority.However, and perhaps surprisingly, the taxation powers are not the optimal source of authority. This paper shows that both levels of government have authority to implement carbon taxes under various heads of power, depending on the measure's design. Federally, carbon taxes could be justified under the national concern branch of the POGG power, and possibly under the criminal law, trade and commerce and taxation powers. While the property and civil rights power, taxation power and authority over natural resources might justify carbon taxes provincially, the licensing power offers the strongest source of authority. Analysis of Quebec and B.C.'s measures show that they were likely designed to fit within this licensing power