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JIM VIBERT: Barebones cap-and-trade bill usurps legislative authority

A bill with sweeping economic impact is sliding through the Nova Scotia legislature toward its lofty perch as the law of the province. It’s a pig in a poke.

Nova Scotians send representatives to the legislature to make the laws we are expected to follow. Before a bill passes the House, those representatives should know the full effect of the law.

When a bill hands cabinet the power to determine, by regulation, the law’s impact, the rule of law is traded for rule by, currently, 17 people. That’s a deal that should not be taken lightly.

Opposition leader Jamie Baillie had it right when he said of the government’s cap-and-trade bill: “The final insult to Nova Scotians is the fact that so little of the future is actually written into the bill itself, that so much of this bill is now, we're told, to come in the future in the form of regulation.”

The bill in question is boiled down in one clause: “The Governor in Council (cabinet) may make regulations establishing a greenhouse gas emissions cap-and-trade program.”

The province and its lawyers recognized that one sentence is an embarrassingly thin contribution to saving the planet from climate change, so they wrote a couple of dozen more decisions cabinet will take to put cap-and-trade into practice.

Governments call this “enabling legislation,” when in fact it is one branch of government – the executive – usurping the legitimate authority of another branch, the legislative.

There are times when bills of this this type are reasonable. They are few, and the cap-and-trade program is not one of them.

Yes, the province’s cap-and-trade law will comply with federal emission reduction guidelines. And yes, the province has produced papers to explain its cap-and-trade plan.

Further consultations with “stakeholders” are planned as late as next spring before the regulations are finalized.

So, the law’s the frame, cabinet will paste in the picture later.

“It is more proper that law should govern than any . . . citizens. If it is advantageous to place the supreme power in some persons, they should be appointed to be only guardians and the servants of the laws.” This from Aristotle, so the supremacy of law over government is hardly a new concept.

There is nothing nefarious in the government’s action. But a law with the potential for immense economic impact, and which will help determine the collective effort of Nova Scotians’ to mitigate climate change, demands detailed scrutiny before it is passed.

Instead, the House will pass a bill that says cabinet will make the law.

If there is any doubt as to the significance of this bill, check out the penalties section. Contravention includes fines of up to a million bucks and two years in jail.

But cabinet will decide what constitutes contravention. Indeed, by regulation cabinet has the power to determine who, if anyone is exempt from the law.

The government will determine how and what information related to the emission of greenhouse gases is collected and publicly disclosed. There will be consultation related to reporting those data, but most of the decisions rest with cabinet.

“Being democratic is not enough, a majority cannot turn what is wrong into right. In order to be considered truly free, countries must have . . . an abiding respect for the rule of law,” said the autocratic British Prime Minister Margaret Thatcher.

The amendments to the Environment Act creating Nova Scotia’s cap-and-trade program does not respect the law. Rather, it vests all real power in cabinet, where the majority is free to turn right into wrong.

Some will suggest that, as a majority government, the Liberals have the right to govern as they see fit, so there is nothing wrong with the cap-and-trade bill.

Indeed, the majority party in the House has earned the right and responsibility to govern. Chief among those responsibilities is to deliver bills to the legislature for full consideration, prior to their implementation as the law of the province.

The cap-and-trade bill cannot be fully considered by the House. Critical elements are missing.

It may be a way to govern. It is not the right way.


Jim Vibert, a journalist and writer for longer than he cares to admit, consulted or worked for five Nova Scotia governments. He now keeps a close and critical eye on provincial and regional powers.



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