It is a case that most expected Premier Scott Moe and the Saskatchewan Party would lose.
But if wins are measured in political gain, Moe may have already won by challenging carbon pricing in the Court of Appeal.
After hearing from the provincial and federal governments and some 15 interveners, the five-member Saskatchewan court is now deliberating on whether the federal Liberal government had constitutional authority to implement its $10 a tonne carbon fee that rises to $50 a tonne by 2022.
One of the things the court is determining is whether the federal government’s Greenhouse Gas (GHG) Pollution Act is a regulator pricing on pollution or whether is, indeed, a tax as contended by the Saskatchewan government and its lawyers.
“If it looks like a duck and walks like a duck and it quacks like a duck, it’s a duck,” Mitch McAdam told the Court of Appeal.
This is important because the crux of the provincial argument is the federal regulatory industrial levy on polluters is not being applied evenly. Essentially, it was argued that the federal government made arbitrary decisions on which provinces’ industries are meeting standards and which aren’t. This is unfair to a jurisdiction like Saskatchewan that, by virtue of its oil, mining and farming sector and by the fact that we burn coal for electrical production, is hit disproportionally hard.
Moreover, it usually falls under the provincial authority to regular specific local businesses. Also, the province and federal government hold joint jurisdiction over the environment.
However, the thinking among most legal academics has been that regulating industrial pollution is a matter that is well within the constitutional jurisdiction of the federal government.
And even if it is deemed a tax as Saskatchewan has suggested federal government lawyer Sharlene Telles-Langdon argued it was still within the federal government’s authority to use taxation power or whatever tool it deemed necessary to address a matter of “national concern” under the Constitution’s “peace, order and good government” provision.
During her submission to the court, Telles-Langdon argued that greenhouse gas (GHG) emissions are “indivisible” particles that do not recognize international or provincial borders.
As such, only the federal government can deal with the “cumulative dimension” of climate change and the federal government is well within its authority to require provinces to meet “minimal national standards” to deal with this “threat to humanity.”
In a nutshell, that was the court argument we heard earlier this month.
Now, it’s up to the court to decide, although it’s highly likely that whichever side loses will likely appeal to the Supreme Court of Canada. So even if the province wins its case, we will still face a carbon tax.
But maybe seeing this fight carry on for couple more years is also a win for Moe and the Sask. Party, too.
After all, there is a win in simply fighting an unpopular tax imposed by another level of government.
There were plenty of overtones of politics in the provincial case, including calls for no taxation without representation. (Yes, there was a reference to the Boston tea party among the legal arguments.)
Of course, the province might very well lose its legal arguments that the federal government exceeded its jurisdiction by applying carbon pricing on local companies regulated by provinces and by unfairly applying its carbon prices to provinces like Saskatchewan simply because it didn’t like this province’s GHG-reduction efforts.
But its lawyers did outline a strong brief with strong legal arguments.
And what may be even stronger is the political argument that Ottawa is being unfair to the West and could have evenly applied any tax directly on fuel so that all Canadian consumers paid.
In that sense, Moe and Saskatchewan may have already won.
Murray Mandryk has been covering provincial politics for over 22 years.