Federalism and energy policy are once again dominating the national discussion. The situation is complicated by the emergence of the environment as an important constitutional subject that cuts across both sides of the division of powers allocated between federal and provincial governments by the Constitution. Due to their complexity, courts frequently rely upon flexible constitutionalism and the doctrine of cooperative federalism to resolve disputes. This article considers whether the interpretive tools available to the judiciary are capable of resolving current issues while preserving the logic and purpose of the balance between federal and provincial powers. The authors argue that, absent changes to the division of powers analysis, they are not. Rather, the application of these tools has already resulted in a shift in the balance of power towards the federal government and led to conflict and uncertainty which undermines the purpose and effectiveness of federalism.
I. INTRODUCTION
The story of Canadian federalism is that of a constitutional tug-of-war that pulls and stretches at the logic of the division of powers allocated between Canada's federal and provincial governments. As this struggle evolves to answer novel constitutional questions and allocate new legislative matters to the appropriate legislative body, the potential consequences facing the provinces...
