Court likely to up­hold price on car­bon: ex­pert

Lawyer says there’s lit­tle chance of win­ning chal­lenge against feds

Saskatoon StarPhoenix - - FRONT PAGE - ALEX MACPHER­SON

A law­suit aimed at stop­ping the fed­eral govern­ment from im­pos­ing a na­tion­wide price on car­bon — like the one pro­posed by Saskatchewan Premier Brad Wall and some of those vy­ing to re­place him — would be un­likely to suc­ceed, ac­cord­ing to an in­de­pen­dent le­gal opin­ion com­mis­sioned by the Man­i­toba govern­ment.

The Supreme Court of Canada can al­ways depart from ear­lier prece­dents, but there is a “strong like­li­hood” it would up­hold the pro­posed price on car­bon, prob­a­bly based on the fed­eral govern­ment’s broad tax­a­tion pow­ers, Win­nipeg-based lawyer Bryan P. Schwartz said in the 64-page le­gal opin­ion re­leased this week.

“The Supreme Court of Canada is wary of al­low­ing the di­vi­sion of pow­ers between the fed­eral and pro­vin­cial lev­els of govern­ment to stand in the way of ac­tivist govern­ment, in­clud­ing in the sub­ject mat­ter of the en­vi­ron­ment,” Schwartz said in the doc­u­ment, which cost Man­i­toba’s pro­gres­sive con­ser­va­tive govern­ment about $40,000.

Wall has been one of the fed­eral plan’s most out­spo­ken crit­ics, ar­gu­ing that it is con­sti­tu­tion­ally du­bi­ous and likely to cause sig­nif­i­cant harm to Saskatchewan’s car­bon-cen­tric econ­omy, which can lit­tle af­ford new taxes as it re­cov­ers from a col­lapse in nat­u­ral re­source prices.

He has said a po­ten­tial le­gal chal­lenge would con­cen­trate on Ottawa over­step­ping its author­ity.

“I’m go­ing to con­tinue to fight this fight. I’m not sure how much com­pany we’ll have, and I don’t re­ally care,” Wall said at the time. Three months later, he added: “When it comes to tax­a­tion that’s meant to gen­er­ate rev­enue ver­sus tax­a­tion that’s meant to reg­u­late or change be­hav­iour, th­ese are two dif­fer­ent things … We think there are op­tions, and if need be we will take the fed­eral govern­ment to court.”

Wall was not avail­able for an in­ter­view on Thurs­day.

Min­istry of Jus­tice spokesman Drew Wilby said in a state­ment that the Saskatchewan govern­ment will study the opin­ion closely but will not com­ment fur­ther on its plans “as that work is con­fi­den­tial and is be­ing done with a view to a pos­si­ble con­sti­tu­tional chal­lenge to the fed­eral car­bon back­stop pro­posal.”

Prime Min­is­ter Justin Trudeau’s Lib­eral govern­ment an­nounced in Oc­to­ber 2016 that it will im­pose a price on car­bon be­gin­ning next year with a “floor price” of $10 per tonne of green­house gas emis­sions, ris­ing to $50 per tonne by 2022. The fed­eral govern­ment has also said it will im­pose a “back­stop” price on any prov­ince that does not de­velop its own car­bon pric­ing scheme.

Schwartz said he would not com­ment beyond his writ­ten opin­ion. In the doc­u­ment, he wrote that the prov­inces could ar­gue that the fed­eral back­stop in­fringes their rights to de­velop their own car­bon taxes as the fed­eral govern­ment is not free to leg­is­late on the en­vi­ron­ment in any way it chooses. That ar­gu­ment, is untested but cred­i­ble, he wrote.

Man­i­toba Premier Brian Pal­lis­ter ac­cepted Schwartz’s opin­ion and said that while it ap­pears the fed­eral govern­ment has the right to force a car­bon tax on the prov­inces, Schwartz’s ar­gu­ment sug­gests there may be some wig­gle room when it comes to the ex­act amount. A doc­u­ment ob­tained last month by the Cana­dian Press said the prov­ince was eye­ing a $25-per­tonne car­bon levy. Pal­lis­ter re­fused to con­firm the amount.

“I can’t com­ment on leaked doc­u­ments. We’ll put out our plan when it’s put out and it’ll be one that will work bet­ter for Man­i­toba than the fed­eral plan,” he said.

Man­i­toba Jus­tice Min­is­ter Heather Ste­fan­son said in a state­ment that Schwartz’s opin­ion is clear, and that “Man­i­to­bans will soon be asked to con­sider a choice between an im­posed ‘made-in-Ottawa’ plan with high car­bon taxes and fed­eral spend­ing of Man­i­toba-raised rev­enue, or a ‘made-in-Man­i­toba’ cli­mate and green plan that fits Man­i­toba’s needs and pri­or­i­ties.”

Wall an­nounced his planned retirement in early Au­gust. He is ex­pected to re­sign as the MLA for Swift Cur­rent af­ter the Saskatchewan Party chooses a new leader, who will in­herit the premier­ship, in Jan­uary.

We’ll put out our plan when it’s put out and it’ll be one that will work bet­ter for Man­i­toba than the fed­eral plan.

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