Carbon tax court fight may offer clarity that’s not exactly wanted
Bear with the perverse logic here for a moment and consider that the best way to settle the carbon tax debate or move forward on meaningful environment policy is through Premier Scott Moe’s constitutional challenge unveiled Wednesday.
Of course, many see this Court of Appeal for Saskatchewan reference case as another political attempt by the Saskatchewan Party government to buy time until there is a larger lobby of conservative-minded governments supporting its case ... or until Liberal Prime Minister Justin Trudeau’s federal government is no longer in power.
Given the likelihood that whatever the Court of Appeal decides will be challenged in the Supreme Court of Canada by whichever side loses, either may be possible. And in the interim, the Saskatchewan Party government will keep up this political game of fighting the Trudeau carbon tax while appearing to be fighting a provincial jurisdictional question that Moe called a matter of provincial “sovereignty.”
After Wednesday morning ’s announcement, Justice Minister Don Morgan declared his government would no longer be discussing the case because it was before the court. Mere minutes later, Moe tweeted about it. His government hasn’t stopped talking about it since. Let us hope and pray Saskatchewan Court of Appeal justices are not swayed by Twitter.
But notwithstanding the politics and the ever-accompanying silliness — not to mention those who rightly note the potential of wasting tax dollars in court — there are a couple of good reasons why this needs to be settled by judges.
The court challenge will clarify jurisdictional/taxation questions. And it will open up the stalemated environment/carbon tax debate.
Notwithstanding whatever political games there are that might have helped motivate this court action, let us acknowledge that Moe and the Sask. Party government do bring forward a legitimate issue that might not necessarily be the slam dunk for the federal Liberal government that some believe it to be. At the very least, opinions do seem to be divided.
“I suspect they will not succeed,” said John Whyte, a constitutional scholar at the University of Regina and former deputy minister under the Roy Romanow NDP government. “They’ve got an argument that is intelligible, an argument that is plausible, but the federal arguments in each case are probably stronger.” Others are not so definitive. “Who is going to win this? The answer is: Nobody knows,” said Bob Hawkins, a former Saskatchewan Party candidate who also teaches constitutional law at the UofR.
The irony for the Sask. Party is that it’s essentially arguing that what’s in the federal Greenhouse Gas Pollution Pricing Act is not a “carbon tax” or tax at all (which, the Sask. Party government concedes, is the feds’ right to impose) but rather a scheme to regulate natural resources and economic activity (which are matters of provincial jurisdiction).
“A tax is simply a tax. The GST has got a fixed rate all the way across Canada. It’s clear and unambiguous,” Morgan explained Wednesday. “For them to do something where there are a variety of different things available for different provinces based on their approval of certain other methods, is something we do not think falls within the ability to tax and is not consistent with any form of federalism.”
But at stake for Moe’s government is another very real possibility — the conceivable notion that the appeal court will determine it has no interest in determining whether the Greenhouse Gas Pollution Pricing Act is being unfairly applied to Saskatchewan or whether the province’s Prairie Resilience: A Made-in- Saskatchewan Climate Change Strategy is a viable alternative.
The court may decide its only role is determining whether Ottawa can impose this tax, leaving the province stuck with this current carbon price and with no implementation plan.
However, that too will provide clarity.
It may even spur the province to come up with a better plan to reduce GHG emissions.
Either way, this court action will move things forward.