I think you'll hear two different stories. I agree; I think it does fit that test very well. We talked earlier about the securities reference, which of course was focused on a different power.
Similar arguments, of course, were made by the federal government in support of the proposed securities act—that is, that it would be more efficient; uniform regulation is desirable in the area, for a number of reasons; and that if we don't have 13 different securities regulators in each province and territory but one national securities regulator, there are real advantages.
The court essentially said that arguments based on efficiency and the value of uniformity aren't sufficient to take a matter that's been within provincial jurisdiction for so long and pull it into federal jurisdiction. The test that the Supreme Court of Canada has articulated for determining whether federal legislation fits under what's known as the general regulation of trade branch of the trade and commerce power is different from the test for the national concern branch of POGG.
The courts have articulated a provincial inability test as something that's beyond the capacity of the provinces to address effectively. It doesn't weigh quite as powerfully in the POGG national concern jurisprudence. In fact, the way it was phrased in the Crown Zellerbach decision from 1988, which is the leading case, was that it is “relevant to consider” provincial inability; it didn't say that the federal government had to demonstrate that it is met.
As a relevant factor about whether this a matter that's truly of national concern, requires national leadership, has transcended provincial capacities, and has sufficient specificity to not upset the balance of the federation, I actually think that's a decent argument, but there are reasons to be cautious because of how careful the courts are about preserving the balance and the division of powers between Parliament and the provincial legislatures.