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McKenna provided no constitutional basis for this claim. It could end up being the case that Supreme Court of Canada will ultimately decide that the Liberals’ proposed carbon taxation legislation is unconstitutional for the same reason it nixed Harper’s securities regulator ― because it is an infringement on the provinces’ exclusive jurisdiction over property and civil rights within their own provinces.

Section 91 of the Constitution Act sets out the subject matters over which the federal government has jurisdiction. There is no specific reference to the federal government having exclusive jurisdiction over the regulation of the entire Canadian environment.

Then, under Section 92, with respect to environmental issues, the provincial governments have jurisdiction over: Property and civil rights in the province, which gives the power to the provinces to regulate most companies, businesses, commercial activities and industrial activities within the provinces. It follows that such power includes regulating the emissions from such activities.

Likewise, when it comes to management of provincial Crown lands the power is given to the provinces to regulate mining and lumber activities and accordingly the emissions from such mining and lumber activities. The provinces are also responsible for all matters of a local or private nature within that province.

In determining whether the Liberals’ proposed carbon tax legislation is constitutional, the Supreme Court will look at the pith and substance of the legislation, in other words the actual purpose and effects of this legislation.