Ottawa, Sask. head to court over carbon tax

REGINA • 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.

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.

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.