Saskatchewan Premier Scott Moe speaks to the media at the First Ministers conference in Montreal on December 7, 2018. Legal experts, government officials, industry leaders — and maybe even the public — will watch this week as Saskatchewan and Ottawa head to court over the constitutionality of a federally-imposed carbon tax. The federal government is set to impose a carbon tax on provinces that do not have one of their own starting in 2019. (Ryan Remiorz/The Canadian Press)

Saskatchewan Premier Scott Moe speaks to the media at the First Ministers conference in Montreal on December 7, 2018. Legal experts, government officials, industry leaders — and maybe even the public — will watch this week as Saskatchewan and Ottawa head to court over the constitutionality of a federally-imposed carbon tax. The federal government is set to impose a carbon tax on provinces that do not have one of their own starting in 2019. (Ryan Remiorz/The Canadian Press)

Saskatchewan, Ottawa carbon tax case ‘monumental’ for Constitution: expert

A legal expert said there’s a strong chance the Supreme Court of Canada would uphold a federal carbon tax

Legal experts, government officials and industry leaders will all watch this week as Saskatchewan and Ottawa head to court over the constitutionality of a federally imposed carbon tax.

The federal government is set to impose a carbon levy on provinces that do not have one of their own starting in April.

Ottawa’s price on pollution starts at a minimum of $20 a tonne and rises $10 annually until 2022.

The Saskatchewan Party government has always been opposed to the idea. The province says the tax would hurt the economy and feels its own plan for emissions reductions is sufficient.

Prime Minister Justin Trudeau has promised that most of the money from a national carbon price will be returned to Canadians through rebates and that it’s a necessary mechanism to fight climate change.

READ MORE: Federal carbon tax rebates will exceed the cost for most people affected

The Saskatchewan government has asked the province’s Appeal Court to rule on whether a federally imposed tax is constitutional and two days of hearings are to begin Wednesday.

“There’s no question that it’s a monumental decision in the life of the Canadian Constitution,” said University of Alberta law professor Eric Adams.

“The court hasn’t yet grappled explicitly with climate change as the background context to a constitutional question.”

In court filings, both Canada and Saskatchewan point to the Constitution to show that neither the province nor the federal government has explicit control over the environment, but that it overlaps both jurisdictions.

But Saskatchewan argues a federally imposed carbon tax is “constitutionally illegitimate” because it only applies to some provinces.

“Under our Constitution the federal government has no authority to second-guess provincial decisions with respect to matters within provincial jurisdiction,” court documents filed by the province say.

It also cites part of a 2017 legal opinion released by Manitoba, which last year pulled out of the federal plan. Legal expert Bryan Schwartz concluded that there’s a strong chance the Supreme Court of Canada would uphold a federal carbon tax.

But the law professor from the University of Manitoba said a “credible” yet “untested” argument could be made about how such a measure is applied. Schwartz wrote that a case could be made that Ottawa would be “arbitrarily denying” Manitoba authority to deal with emissions reductions in its own way.

Ottawa argues climate change is a national concern and the federal government’s power to impose a carbon tax comes from Section 91 of the Constitution, which states laws can be made ”for the peace, order and good government of Canada.”

Adams said that branch of jurisdiction is not often cited in constitutional disputes because it’s difficult for courts to define the limits of a “national concern.”

Arguments are to be heard before a panel of five judges. There are also submissions from 16 interveners representing both sides of the dispute.

Applicants in support of Canada’s position include the government of British Columbia, The David Suzuki Foundation and the Athabasca Chipewyan First Nation.

Amir Attaran, lawyer for the northern Alberta First Nation, argues a federal carbon price is “a constitutional necessity” because the effects of climate change have an impact on northern Indigenous peoples’ rights to hunt, fish and trap.

READ MORE: Doug Ford says the Liberals’ carbon tax will plunge Canada into recession

Interveners on Saskatchewan’s side include anti-carbon-tax allies such as Alberta’s United Conservative Party and the government of Ontario, which has filed its own legal challenge.

Todd Lewis, president of the Agricultural Producers Association of Saskatchewan, which also has intervener status, said he supports the province’s position because he feels a carbon tax would disproportionately affect farmers.

Adams said it’s inevitable the dispute will not be settled in Saskatchewan’s highest court and will ultimately be decided by the Supreme Court.

“I think everybody understands that we are not in Game 7 of the Stanley Cup final yet. We’re in a preliminary round of the playoffs.”

Stephanie Taylor, The Canadian Press


Like us on Facebook and follow us on Twitter.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Sooke residents can now report various crimes without going to the station themselves with Sooke RCMP’s online crime reporting tool. (File - Black Press Media)
Sooke RCMP online crime reporting ‘underutilized’

Tool introduced last year, but so far has little public uptake

Work is progressing on the new student housing building at the University of Victoria. The building will be home to 398 students when complete in September 2022. (Photo courtesy of UVic)
VIDEO: Mass timber installation begins at UVic student housing project

Green technology plays key role in building that will be home to 398 University of Victoria students

A family of ducks that lives near Saanich Municipal Hall recently welcomed 11 ducklings and took them for a swim in the koi pond outside the offices. (District of Saanich/Twitter)
Pair of ducks make Saanich Municipal Hall a nursery for 11 hatchlings

Family of ducks spent time in koi pond before heading down to Swan Lake

The Sooke Animal Food and Rescue Society (SAFARS) helps make a difference to more than 50 feral cats in the region. (Contributed - SAFARS)
Feral cat rescue group looking for support

SAFARS helps make a difference to abandoned cats in the region

Protesters attempt to stop clear-cutting of old-growth trees in Fairy Creek near Port Renfrew. (Will O’Connell photo)
VIDEO: Workers, activists clash at site of Vancouver Island logging operation

Forest license holders asking for independent investigation into incident

Jasmine Francoeur from Comox is an aviation technician for the Snowbirds air demonstration team. Photo by Canadian Forces/submitted
Island woman’s career comes full circle as she flies home with the Snowbirds

Jasmine Francoeur: “To fly out here, fly into my hometown, it’s very special and I feel very lucky”

Junior A team Coquitlam Express is offering all Tri-City residents who get vaccinated against COVID-19 a free ticket to one of their games. (Facebook/Coquitlam Express)
B.C. hockey team offering free tickets to hometown fans who get the COVID-19 vaccine

‘We know the only way to get fans back is people getting vaccinated,’ says Express’ general manager Tali Campbell

Jobs Minister Ravi Kahlon speaks in the B.C. legislature, describing work underway to make a small business and tourism aid package less restrictive, Dec. 10, 2020. (Hansard TV)
B.C.’s latest COVID-19 restrictions cost thousands of service jobs

Part-time workers set back again by spike in virus spread

A sign indicating face coverings are required by the establishment is pictured on the front door of a business in Vancouver, B.C., Friday, April 9, 2021. COVID-19 cases have been on a steady increase in the province of British Columbia over the past week. THE CANADIAN PRESS/Jonathan Hayward
A sign indicating face coverings are required by the establishment is pictured on the front door of a business in Vancouver, B.C., Friday, April 9, 2021. COVID-19 cases have been on a steady increase in the province of British Columbia over the past week. THE CANADIAN PRESS/Jonathan Hayward
Leaked report shows detailed B.C. COVID-19 data not being released to public

Documents obtained by the Vancouver Sun show cases broken down by neighbourhoods

Abbotsford school board trustee Phil Anderson has stepped down after sharing an offensive image on Facebook. (File photo)
Abbotsford trustee temporarily steps down after sharing post relating COVID masks to slavery

Phil Anderson to receive training to better understand provincial mask mandate after posting picture

B.C. announced the launch of an app May 7 that connects youth struggling with mental health and substance use with “life-saving” social services. (Screen grab)
5 years in the making: Mental health app for youth and children launches in B.C.

The province provided $1.6-million to fund a virtual care platform

Amazon has announced the creation of five new facilities in B.C., to employ about 2,000 people. (Amazon/Special to Black Press Media)
Amazon adds new facilities in Langley, Pitt Meadows, Delta, Vancouver

The Vancouver port centre will be the first Amazon centre to feature robotics in B.C.

Most Read