Bad boy premier off to court
Saskatchewan’s Brad Wall, Canadian federalism and the environment heading for Supreme Court
It’s worth mentioning that the P.E.I. government is still working out the details — including the imposition of a carbon tax — of how exactly its going to meet its emissions obligations under the December 2016 pan-Canadian climate change accord. But Saskatchewan Premier Brad Wall, the notorious bad boy of Canadian intergovernmental affairs, is taking the federal government to court over its climate change plan to impose a carbon levy on those provinces that won’t implement a carbon pricing system.
Premier Wall views Ottawa’s carbon pricing plan as a blatant intrusion into provincial jurisdiction — particularly when it comes to its provincial Crown corporation SaskPower (which relies mostly on coal-fired power generation). Furthermore, he wants to challenge the legal validity of Ottawa’s standing to impose regulatory (as opposed to revenue-generating) tax changes on a provincial government.
“It’s the federal government saying, ‘Here’s what you are going to do from a public-policy perspective or this is what will be forced on the economy and taxpayers of Saskatchewan.’ And we’re going to fight it in court,” said a defiant Wall.
As far as the Trudeau government is concerned, environmental matters — especially those involving the reduction of cross-border pollution — fall within the constitutional purview of the feds.
In Canada, though, the final arbiter of federal-provincial jurisdictional disputes is the courts — specifically, the Supreme Court of Canada. As the final court of appeal, it will determine which level of government has the requisite constitutional authority or legislative competence.
Indeed, in many areas of exclusive federal and provincial constitutional responsibilities, there is considerable overlap in the environmental sphere. What has happened in the past is that a sort of federal-provincial diplomacy in Canadian environmental policy-making has emerged as the dominant trend.
The fact is that the courts have historically looked at the environmental policy field as one of cohabitation or joint authority under the rubric of a collaborative/co-operative model (and have openly discouraged federal unilateralism in this area.) In other words, judges have tended to interpret the protection of the environment as a concurrent jurisdiction where both levels of government in Canada have legislative responsibilities.
Overall, the record does show that the central government has been surprisingly restrained in exercising its authority in the environmental field. The reasons for Ottawa doing so have been threefold: concerns about serious constitutional over-reach, fears of invoking significant provincial resistance (especially in Quebec) and reservations about triggering a ferocious pushback from resource-based industries in Canada.
As was the case in the past, then, Ottawa has been reluctant to use its positive court rulings to effect substantial environmental change. But the Trudeau government, unlike the previous Stephen Harper government, does seem willing to take the provinces on in the environmental field.
In this particular case, the federal government is standing on fairly solid legal ground here. The Supremes have previously ruled that Ottawa has legislative competence over the control of pollution that extends beyond our borders.
Moreover, the Trudeau government is sure to invoke the Peace, Order and Good Government (POGG) clause and matters of “national concern” (when it comes to fighting climate change) and its considerable criminal law power to argue that it must protect (by singling out the reduction of greenhouse gases as a valid criminal purpose) human health and the environment.
The feds will also bolster their argument by saying that it needs to meet its international climate change obligations under the 2015 Paris Agreement and to reduce the negative impact on residents in other provinces from a single province that refuses to reduce its damaging carbon emissions.
There is a very good chance that, after a lengthy and costly process, Premier Wall will eventually lose in court. He probably already knows that. For him, it’s about making a political and ideological statement to his supporters.
So his legal challenge is less about blocking a troubling jurisdictional precedent and more about fed-bashing the Trudeau government and scoring some electoral points at home.
Of course, this all highlights once again the ugly side of federal-provincial relations in Canada. But Wall’s actions do precious little to strengthen the overall federation and to advance the interests of Canadians as a whole.