The budget implementation bill, which was tabled on April 26, 2012 and is currently in the committee stage in the House of Commons, will make a number of significant changes to federal environmental legislation. Much of the commentary about the bill has focused on the complete overhaul of the environmental assessment regime (described in our last issue). Somewhat overlooked is a provision buried towards the end of the lengthy bill: the repeal of the Kyoto Protocol Implementation Act (KPIA).

The repeal of the KPIA hardly comes as a surprise. After all, Canada gave formal notice of its withdrawal from the Kyoto Protocol last December (the withdrawal takes effect one year later). Even before the withdrawal notification, Canada had announced that it would not meet its greenhouse gas reduction targets under the protocol. The KPIA had therefore become somewhat of an anachronism.

The KPIA started out in 2007 as a private member’s bill, sponsored by an opposition MP and passed despite the objections of the (then minority) government. These unusual beginnings help explain why the KPIA’s time on the statute books was both tumultuous and short.

The KPIA requires the government to prepare an annual Climate Change Plan describing the measures to be taken to ensure that Canada meets its obligations under the protocol. It also tasks the National Round Table on the Environment and the Economy (NRTEE) – an independent advisory body established by Parliament – with preparing a response to each Climate Charge Plan. (Incidentally, the NRTEE will suffer the same fate under the budget bill as the KPIA: elimination.)

Every year since the KPIA was passed, the government has duly prepared a Climate Change Plan, and every year the NRTEE has reviewed it. But the government stated plainly that these plans would not actually achieve Canada’s emissions targets under the protocol.

In short, as a result of the KPIA, the government found itself in the awkward position of having to prepare plans to achieve targets it had renounced as unachievable. The government’s solution was to prepare the plans, but to concede openly that they would not really bring Canada into compliance with the protocol.

An environmental group, Friends of the Earth, took the government to court, arguing that the failure to take the Kyoto targets seriously amounted to a breach of the KPIA. The Federal Court disagreed, concluding that “the Court has no role to play reviewing the reasonableness of the government’s response to Canada’s Kyoto commitments”.22 The Federal Court of Appeal upheld the lower court’s decision that the government’s approach was a political question, not a legal one, and the Supreme Court of Canada refused to hear a further appeal.

When the Conservatives won a majority in the 2011 election, it seemed like only a matter of time before they would repeal the KPIA, and thereby cancel the rather odd annual ritual of unveiling a Kyoto “implementation” plan that was not designed to implement Kyoto. Now, with the budget bill, they have done so.

What is the moral of this strange story? It is hard to say, but it probably tells us more about political gamesmanship in a minority Parliament than about anything else. The KPIA never really had any practical impact on industrial emitters in Canada or other stakeholders. Ultimately the repeal of the KPIA may signify no more than that the law has finally caught up with the reality that the Kyoto Protocol has no bearing on Canadian climate change policy.