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(51) Further, Noel J held that a court could not question the reasonableness of the government's response to Canada's Protocol commitments, (52) nor were decisions made under the KPIA reviewable regarding "issues of substantive Kyoto compliance".
Notwithstanding his decision, Noel J conceded that the royal prerogative could be abolished or limited by a legislative provision, such as that found within the KPIA. (56) This followed Turp's argument that the royal prerogative had been withdrawn by necessary implication.
Although Noel J's reasoning is logical, the judge failed to adequately explore the argument that sections 3 and 4 of the KPIA, and the fact that the KPIA bound the Crown, withdrew or limited the royal prerogative.
As such, Noel J concluded that the government's decision to withdraw from the Protocol did not violate the KPIA or the rule of law.
Turp's second submission was that the withdrawal from the Protocol violated the principle of the separation of powers as it did not have regard for the KPIA and legislature.
Justice Noel held that since the government's decision to withdraw from the Protocol was not limited by the KPIA but instead decided by invoking the royal prerogative, the government's decision to withdraw from the Protocol did not offend the separation of powers principle.
Given the controversy surrounding GHG reductions generally, and Kyoto specifically, it seems all but inevitable that the KPIA will be the subject of a constitutional challenge, as have most other new federal environmental laws.
Because of these distinctive features, it is proposed that the KPIA raises at least four important and novel questions about the extent of federal constitutional powers, specifically:
First, from a doctrinal perspective, while the above four heads of power provide a reasonable basis for upholding the KPIA, doing so will require the courts to extend federal powers somewhat further than in previous cases, and to address important unanswered questions under the POGG, Criminal, and Trade and Commerce powers.
Part Two briefly addresses several essential background issues, namely: an overview of climate change and Kyoto; the requirements of the KPIA and proposed federal GHG regulations; a brief discussion about emissions trading; a summary of current constitutional doctrine and legal commentary in the area of the environment; and the judicial approach to constitutional analysis.
This regulatory announcement, and its abandonment of Canada's Kyoto target, set the stage for the passage of the KPIA in June 2007.
Given the fairly comprehensive nature of the powers under CEPA, it seems likely that that Act will be the main vehicle for developing regulations to meet the KPIA's mandate.
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- KPH (disambiguation)
- KPH (disambiguation)