First Nations across Ontario are seeking a judicial review of the federal government’s carbon-pricing regime, arguing that Ottawa’s pollution policy unjustly and disproportionately burdens their communities that already face increased hardships because of climate change and poverty.
Chiefs of Ontario, an advocacy organization representing 133 Indigenous communities in the province, and the Attawapiskat First Nation, outlined their opposition to the Greenhouse Gas Pollution Pricing Act in a court document filed Thursday, shortly before Saskatchewan Premier Scott Moe ratcheted up his defiance of the carbon levy. Mr. Moe promised to stop applying the levy to residential electric heating costs in his province at the beginning of 2024.
National debate over carbon pricing has dramatically increased after Prime Minister Justin Trudeau carved out an exemption in October for home heating oil, which primarily applies to citizens in Atlantic Canada. The decision sparked accusations of regional favouritism and critics said it undermined the rationale for the levy. The First Nations court challenge highlights the Atlantic Canada decision and contends the legislation contained targeted relief for farmers, fishers and large greenhouse gas-emitters.
Thursday’s moves by Ontario First Nations and Saskatchewan, which challenge Ottawa’s consumer carbon-pricing regime that took effect in 2019, coincide with the start of COP28, the global conference on climate change. A significant Canadian delegation will be at the summit in the United Arab Emirates.
First Nations in Ontario allege in court documents that Canada’s carbon-pricing regime leaves their communities worse off than others in the country, violating the principles of reconciliation as well as their constitutional rights. The Chiefs of Ontario and Attawapiskat said they tried to negotiate with the federal government, to no avail.
“We don’t have any objection to climate action,” Abram Benedict, Grand Chief for the Mohawk Council of Akwesasne, said in an interview. “But we do have an objection to how this is being arbitrarily placed on our communities who are already in very difficult situations.”
The federal government has long argued that a majority of consumers recoup the costs of the carbon levy through an income-tax rebate. But many First Nations members living on reserves do not pay income tax and cannot access the rebates. This, the court document states, places an unfair burden on First Nations people.
First Nations administrations in Ontario receive a group rebate of 0.7 per cent of the carbon levy collected in the province, which the Chiefs of Ontario and Attawapiskat argue is not enough to offset what their members pay. Mr. Benedict, who oversees the environment portfolio for the Chiefs of Ontario, said First Nations should be reimbursed for every dollar they spend on federal carbon pricing.
The court document proposes a number of remedies, including increasing the group rebate to 2 per cent; exempting First Nations people or members living on reserves from paying the levy; or establishing a way for First Nations people to access individual rebates other than through the income-tax system.
“The environment, including the climate, cannot be healed at the expense of and by further injury to First Nations – the very peoples whose knowledge and laws may be able to most help us all lift out of the climate crisis,” the court document states.
The federal government has argued that the purpose of putting a price on carbon is to influence behaviour, prompting consumers to make choices that will, in turn, reduce emissions. The court document, however, notes First Nations communities are often remote or short on infrastructure, leaving them without viable alternatives, such as access to cleaner-burning fuels or public transportation.
“Choices that are not available to be made are not in fact choices at all,” the court filing says, adding this leaves First Nations people exposed to escalating costs as carbon pricing increases.
The filing notes “extreme poverty” plagues many remote and northern First Nations communities, where basic necessities cost more than in other parts of the country. This means residents do not have the money to install retrofits such as heat pumps, even if the cost of the technology would pay off over time.
Mr. Trudeau, speaking to reporters in Ajax, Ont., on Thursday, did not directly answer a question about whether he would exclude First Nations people from the carbon-pricing regime or negotiate a higher group rebate.
“We have worked with Indigenous communities on affordability, on supports and on the fight against climate change from the very beginning and we will continue to,” he said.
The Chiefs of Ontario said it sent a letter to Mr. Trudeau in January complaining about the federal government’s lack of engagement on the matter. In June, Ottawa responded, according to the court document, by rejecting the Chiefs of Ontario’s request for an exemption and saying Canada would not adjust the carbon levy.
After the announcement of an exemption for heating oil, Saskatchewan Premier Scott Moe said SaskEnergy, a Crown corporation, would stop collecting the federal carbon levy on residential natural gas bills on Jan. 1, 2024.
On Thursday, Mr. Moe said the province’s electrical utility, SaskPower, will take similar action with respect to electric heating bills.
Mr. Moe made the announcement on X, formerly Twitter, with Jim Lemaigre, Saskatchewan Party MLA for Athabasca. SaskEnergy and SaskPower are Crown corporations, under the province’s control.
“Unfortunately, in northern Saskatchewan – in communities like La Loche, Black Lake and Stony Rapids – people don’t use natural gas to heat their homes. Many still use electric heat,” Mr. Lemaigre said in the post.
About 85 per cent of Saskatchewan residents heat their homes with natural gas, and the other 15 per cent of residents rely on other sources, including electricity, Mr. Moe said.
Mr. Trudeau, when asked about Mr. Moe’s most recent round of defiance, said Canada is a country of the rule of law.
“We expect all Canadians to follow the law. That applies to provinces as much as it applies to individuals,” he said.
Carrie Tait
Wendy Stueck