No matter where you stand on Ottawa’s carbon tax, there is no denying that the principal mechanism Prime Minister Justin Trudeau’s government has chosen to fight greenhouse gases constitutes an unprecedented federal power grab. By asserting that climate change is a matter of such “national concern” that the provinces alone cannot be trusted to tackle it, the Liberal government has effectively sought to reorder the division of powers within Canada.
For Canadians who consider global warming an existential threat, the federal Greenhouse Gas Pollution Pricing Act may seem to be a justified override of provincial authority to regulate (or not) carbon emissions. The failure of any one province to take action in this area undermines Canada’s ability to honour its commitments under the Paris climate accord and leaves provinces that voluntarily put a price on carbon at a competitive disadvantage to the holdouts.
That is what Ottawa has argued before courts in Saskatchewan, Ontario and Alberta – the three provinces whose governments launched constitutional challenges to the tax. “The cumulative dimensions of [greenhouse gas] emissions is a matter of national concern that only Parliament can address,” federal lawyers asserted in presentations before appeal courts in each province.
If the gamble pays off – it is now up to the Supreme Court to determine whether the carbon tax is constitutional – it would enable this government and its successors to intrude further into provincial jurisdiction as they seek to make Canada’s economy carbon neutral by 2050. If it doesn’t, it would constrain federal action for decades to come.
So far, of the 15 provincial appeals court judges who have heard the case, eight have sided with Ottawa and seven against. So while the early odds in this case seemed to favour the Trudeau government, it is far from clear the Supreme Court will hand it a victory.
This week, the Alberta Court of Appeal rejected Ottawa’s arguments in a four-to-one ruling that labelled the federal tax “a constitutional Trojan horse.” Chief Justice Catherine Fraser wrote that, if the law was upheld, “almost every aspect of the provinces’ development and management of their natural resources, all provincial industries and every action of citizens in a province would be subject to federal regulation to reduce GHG emissions.”
Chief Justice Fraser’s conclusions dramatically contrast those of Chief Justice George Strathy of the Ontario Court of Appeal. In that court’s four-to-one ruling in favour of the federal law, Chief Justice Strathy wrote: “The need for a collective approach to a matter of national concern, and the risk of non-participation by one or more provinces, permits Canada to adopt minimum national standards to reduce GHG emissions. The Act does this and no more. It leaves ample scope for provincial legislation in relation to the environment, climate change and GHGs, while narrowly constraining federal jurisdiction to address the risk of provincial inaction.”
I wouldn’t dare predict how a majority of Supreme Court judges will rule on this matter. The top court will soon hear appeals of the Ontario and Alberta cases, as well as the Saskatchewan Court of Appeals three-to-two ruling in favour of Ottawa. Whatever it decides, the implications for Canadian federalism will be far-reaching.
Why else would Quebec, a strong supporter of carbon pricing with its own cap-and-trade program, be intervening on the side of Alberta? Premier François Legault’s government sees the Greenhouse Gas Pollution Pricing Act as a dangerous precedent that undermines Quebec’s ability to decide for itself how to develop its resources and economy.
Because when it comes down to it, what’s really at issue here is provincial control over natural resources, a sacrosanct principle of Canadian federalism. Even the Trudeau government recognizes that, at least tacitly. The Constitution grants the federal government virtually unlimited taxation powers – except for when it comes to provincial property. That is why the federal carbon tax is not formally called a tax by Ottawa at all.
By evoking the national concern argument, Ottawa is conceding that the Greenhouse Gas Pollution Pricing Act relies on an unprecedented – in peacetime – extension of federal power. Constitutionally speaking, that is typically a very high bar to clear at the Supreme Court.
“For generations, courts have been highly reluctant to use the national concern doctrine to create new judge-made heads of federal power,” Alberta’s Chief Justice Fraser wrote. “The federal and provincial governments are co-equals, each level of government being supreme within its sphere. [Ottawa] is not the parent; and the provincial governments are not its children.”
Whatever the Supreme Court decides in this case, it will be a very big deal.
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