Moe may have already won with carbon stand

Those now playing the guessing game of whether the provincial or federal government will win next week’s carbon tax fight may be missing a more pertinent point.

Premier Scott Moe has likely already won big by taking on Liberal Prime Minister Justin Trudeau on the carbon tax.

As for who actually wins the constitutional reference case on the carbon tax, who can say?

For starters, whichever party loses after the Saskatchewan Court of Appeal hears the case next week is likely to appeal to the Supreme Court, anyway. A loss at this stage would not be as good for Moe and the Saskatchewan Party, but it would mean they would still be fighting Trudeau’s carbon tax going into the 2020 provincial election.

The question of whether or not it is actually a tax and whether or not Ottawa has a right to unevenly impose it on different provincial governments is where some think Moe may win.

When the province first announced last April it was taking Ottawa to court over this, not all that many thought Saskatchewan could win.

Many thought the Liberals’ Greenhouse Pollution Pricing Act — introduced March 28 and challenged by the Saskatchewan government before it could even be passed into law — would simply fall under the category of the federal government’s right to tax and its constitutional role as the provider of peace, order and good government.

After all, what is more in Ottawa’s purview than providing a clean, safe environment?

However, Saskatchewan’s challenge of the bill has always been based on the notion that, while the federal government has a right to tax, it also has a requirement to impose taxes evenly on provinces. The federal government’s imposition of carbon pricing is roughly determined by whether or not Ottawa thinks a province already has implemented an effective carbon pricing scheme. (Saskatchewan passed its own carbon pricing act on industry back in 2010, but has not implemented it.)

“A tax is simply a tax. The GST has got a fixed rate all the way across Canada. It’s clear and unambiguous,” Saskatchewan Justice Minister Don Morgan said last April. “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.”

Adding to the mix is that the federal submission to the court chooses not to call it a tax — a puzzlement to some legal observers who suggest calling it such would have at least brought added clarity.

Moe stated it “does not make sense according to our Constitution” for Ottawa to think that it can override provincial government autonomy. One Saskatchewan lawyer not attached to the government said this becomes an interesting argument, given the decentralization of authority to the provinces on critical matters like health care. The lawyer also suggests the quality of Saskatchewan’s submission may also become a surprising factor. “It’s a thing of beauty.”

But as intriguing as the case and the legal arguments may be to lawyers and constitutional experts, the more intriguing aspect may be the politics already emerging.

“If the provincial government wins, Scott Moe becomes a folk hero,” said one political observer neither associated with the Sask. Party government nor inclined to share its view. “He takes down Justin Trudeau.”

Besides the fact no one likes paying taxes, many in Saskatchewan and elsewhere resent the federal Liberal government’s “religious fervour” — using words like climate change “deniers” — in imposing carbon pricing, the observer said. There is now equal fervour among those who oppose carbon pricing, which drives people’s desire to see Moe win over Trudeau even more.

If Moe does win, it will solidify the Sask. Party’s rural base and may even help him in the cities in 2020, said the observer.

But just by taking on this issue, it’s quite possible Moe has already won.