Saskatchewan vs. Canada: The Carbon Tax Legal Dispute

Kirsten Ehlers - 1B Biomedical
Posted on: February 20, 2019

Recently, I have been discussing Doug Ford’s condemnation of the carbon tax. However, this issue extends beyond the border of Ontario.

Saskatchewan is arguing that the federally-imposed carbon tax is unconstitutional. The court challenge began on February 13th.

This case is not about the validity of climate change. Lawyer Mitch McAdam stated that “The government recognizes that climate change is a serious issue that has to be addressed and that effective measures are required to deal with greenhouse gas emissions”.

Instead, the province is concerned about whether or not Ottawa has the authority to impede on provincial jurisdiction of the carbon tax. The specific question asks if the entirety or part of the Greenhouse Gas Pollution Pricing Act is unconstitutional.

Saskatchewan, a province with large oil and energy sector, is being represented by lawyer Alan Jacobson. The province is requesting that the court rules that the Greenhouse Gas Pollution Act is unconstitutional and thus should be void. They cite that the policy treats provinces unequally because the policy changes depending on Ottawa’s approval of the province’s specific carbon- pricing plan. Furthermore, it “disregards the fundamental principles of Canadian constitutional law, in particular, the principles of federalism”.

Additionally, Saskatchewan argues that the federal government’s claims that the tax belongs to the responsibility of Ottawa for peace, order, and good government is “sweeping, radical and intrusive”. Moreover, he added that “Ottawa is not a big brother over provinces”.

In order for the federal government to use this peace, order, and good government clause from the Constitution, they must prove that the reduction of greenhouse gases is crucial to the safety of the nation.

Lawyer John Whyte who is the former deputy attorney general of Saskatchewan is concerned about the increased use of the peace, order, and good government clause which had been rare for nearly a century. However, he believes that provided that Ottawa can prove this clause, the federal government has a much stronger case than Saskatchewan.

There are 16 interveners on the carbon tax case.

Indigenous groups including Alberta’s Athabasca Chipewyan First Nation intervened on behalf of the federal government saying that the carbon tax impacts the treaty rights of Indigenous peoples. The carbon tax is necessary to reduce the impact of climate on Indigenous peoples and territories. Thus, Canada is constitutionally obligated to impose the tax so that provinces comply.

Attorney generals of Ontario and new Brunswick argue that carbon emissions do not comply with the criteria of national concern. They also suggest and an upsetting imbalance between the feral government and the provinces.

The United Conservative Party of Alberta agrees with the sentiment of the federal government that carbon emissions are a national concern. However, they argue that the federal government’s expanded jurisdiction will impede Alberta’s attempts to reduce emissions on their own.

The Attorney General of British Colombia advocates on behalf of the Government of Canada. They argue that without a federal carbon tax, B.C. would be at a competitive disadvantage because they have already priced carbon to combat the negative impact climate change has on the province. They cite B.C.’s cement industry as an example.

Canada’s EcoFiscal Commission and David Suzuki Foundation argue that carbon emissions are not only a national concern but a transboundary issue that needs immediate action.

A coalition of environmentalists advocates for the carbon tax because Canada is obligated to follow international commitments and uphold the Charter of Rights and Freedoms. Carbon emissions threaten the “right to life, liberty, and security of the person”.

The Canadian Taxpayers Federation argues against the carbon tax. They argue that the tax is ineffective and puts the affordability of energy at risk. Moreover, they insist the tax violates the not-so-original “no taxation without representation” principle.

The Agricultural Producers Association of Saskatchewan argues that the carbon tax puts unnecessary strain on farmers who have already made great lengths to reduce carbon emissions.

SaskPower and SaskEnergy are concerned about the added costs of energy for consumers.

Other interveners include the Canadian Public Health Association, Canadian Environmental Law Association and Environmental Defence Canada, International Emissions Trading Association, and Climate Justice.

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