Division of powers focus of case, lawyers suggest
Federal side warns of ‘grave risks’ stemming from climate change
REGINA In a church across the street from the Saskatchewan Court of Appeal, a group of environmental activists are sipping coffee and trying to read the tea leaves.
They’re watching a live feed of the province’s constitutional challenge of Ottawa’s carbon backstop, and parsing every question posed by Chief Justice Robert Richards.
“I found myself wondering, ‘is he asking more questions today than yesterday?’” Envirocollective founder Shanon Zachidniak said Thursday.
“What does that mean?” She’s seated beside a table stocked with chicken vegetable soup and cinnamon buns. Here, interveners on Ottawa’s side of the battle stop in to discuss a case that will help decide the fate of Canada’s carbon pricing plan.
Mitch Mcadam, counsel for Saskatchewan, called it “significant.” He cited another lawyer who called it the kind of case that comes along once every generation.
Back in the courthouse, Richards repeatedly questioned Canada’s arguments for the constitutionality of its Greenhouse Gas Pollution Pricing Act.
“I’m having a bit of trouble putting the puzzle together here,” Richards said of federal lawyer Sharlene Telles-langdon’s address to the court.
Telles-langdon dove into issues that Saskatchewan lawyers had called “irrelevant” on Wednesday, the first day of proceedings in Regina. Provincial lawyers argued the reality of climate change has nothing to do with the case.
They said it’s about division of powers, and whether Canada can survive as a federation.
“You don’t need to destroy the federation in order to save the planet,” Mcadam reiterated Thursday.
But Telles-langdon spoke of the “grave risks” of rising seas, melting permafrost and shrinking sea ice. She warned of heat waves causing “illness and death.”
She drew on the scientific consensus around the “urgency” of action, using it to defend a federal right to deal with the “cumulative dimensions” of climate change.
“One province’s refusal or failure to sufficiently regulate greenhouse gas emissions impacts Canada as a whole,” Telles-langdon said.
Ottawa is trying to make use of its authority over matters of national concern. But it’s a tough battle, and Saskatchewan, Ontario and New Brunswick are fighting back.
Telles-langdon argued that provinces can’t meet Canada’s international commitments alone. She noted that Saskatchewan’s emissions have gone up 10.7 per cent since 2005, hindering the efforts of other provinces like British Columbia.
But Richards said he was struggling with one “key difficulty.” He quizzed Telles-langdon again and again about what “cumulative” meant, and wondered whether her argument would allow Ottawa to occupy the entire space of greenhouse gas regulation for itself.
What, he wondered, would be left for the provinces to do?
Telles-langdon said the federal government only seeks to regulate the “national aspects” of greenhouse gases. Ottawa wants to run the big picture, not the minutiae.
“The provinces can enact carbon pricing, but they can’t enact a national carbon price scheme,” she said.
A lawyer for British Columbia backed up those arguments with an analogy. Gareth Morley compared Ottawa’s attempt to wrest control of “cumulative dimensions” with the authority parents might wield over the family entertainment budget.
The provinces can devise a climate plan, just like the kids are free to decide which movies they want to watch.
“What they can’t do is they can’t set a budget for the whole family,” he said.
But Mcadam cast doubt on Canada and B.C.’S attempt to square federal regulations with provincial autonomy.
He said it’s impossible to separate gases of national concern from those of merely provincial interest. The molecules are all the same, and they don’t stop at Saskatchewan’s borders.
If the court sides with Canada, Mcadam said there would be no way to limit federal regulation over emissions. It would expand and expand, like a gas. He said greenhouse gases are emitted by virtually every human activity; from the time we turn on the lights in the morning.
That could empower Ottawa to pass a whole slew of laws to “eviscerate” what’s now Saskatchewan’s jurisdiction, he warned.
“They’d have the jurisdiction to set vehicle emissions standards. They could set a national speed limit for our highways,” Mcadam said.
“The reach of the jurisdiction is unlimited.”
He took issue with another federal argument. Telles-langdon had warned that provinces opting for a low carbon price or none at all would be able to poach businesses from their neighbours, raising competitiveness concerns.
But Mcadam pointed out that families from Saskatchewan already travel to Alberta to buy cheap school supplies. That doesn’t give the federal government the right to level out sales tax differences across the country, he said.
After the court reserved its decision, Mcadam said he hopes the five-judge panel will have a ruling by April 1, the date the carbon tax on fuel comes into effect. But given the amount of material in a hearing involving more than three dozen lawyers, he said six months to a year would be more likely.
Nine interveners followed Canada and B.C. to defend the carbon tax on Thursday, countering Saskatchewan’s allies the day before.
A lawyer for the Canadian Public Health Association called climate change the “biggest global health threat of this century.” Counsel for the David Suzuki Foundation called it a “national emergency.”
One of the day’s most interesting arguments came from Amir Attaran, a lawyer representing the Athabasca Chipewyan First Nation (ACFN). He said climate change could mean the “existential end” of the northern band and violate treaty rights protected by the constitution.
“Their knowledge of hunting and fishing and trapping is what sustains them,” Attaran said.
“Climate change now threatens these rights, and with them, the cultural survival of these people.”
Back at the church across the street, Lisa Tssessaze and Sue Deranger were watching. They’re both members of the ACFN, and agree warming is already wreaking havoc on their ancestral territory.
“It’s already hitting us hard,” said Tssessaze. Caribou and moose are getting harder to find.
Deranger, like many in this church, said watching Richards’s reactions have left her unable to predict the outcome. “I don’t know where it’s going to go.” Zachidniak feels the same way. “Neither side should be taking anything for granted,” she said, “but I feel like, whatever the ruling is, the implications are huge.”