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Saskatchewan carbon tax case heads to court — province argues it’s unconstitutional

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WATCH: Representing the attorney general of Saskatchewan, Mitch McAdam argued that the federal backstop on carbon pricing goes against Canada’s Constitution. David Baxter reports – Feb 13, 2019

Lawyers packed a Regina courtroom Wednesday to argue the constitutionality of a federally imposed carbon tax.

A panel of five judges is listening to arguments from both the Saskatchewan and federal governments as well as from 16 interveners on both sides of the dispute.

READ MORE: Saskatchewan’s justice minister says carbon case likely headed to Supreme Court

Saskatchewan opposes the federal government’s plan to force a carbon tax on the province and plans to argue it is unconstitutional because it’s not applied evenly in all jurisdictions.

Ottawa says the constitution gives it the power to impose a carbon price because climate change and greenhouse gas emissions are national concerns.

Representing the attorney general of Saskatchewan, Mitch McAdam argued that the federal backstop on carbon pricing goes against Canada’s Constitution.

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WATCH: Saskatchewan argues constitutionality of federal carbon tax

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Saskatchewan argues constitutionality of federal carbon tax – Feb 13, 2019

McAdam opened his statements saying this case is not about arguing whether climate change is real, all parties agree it is real and a threat, or what is the best policy for addressing that issue.

He said it is about determining whether the federal government has the power to impose tax regimes in some jurisdictions and not others.

“Is it legislation that falls under section 91 of the Constitution Act, 1867 and in particular does it fall under the federal government’s power under the peace order and good government?” McAdam asked.

McAdam called the idea of applying separate federal tax legislation “unprecedented in Canadian history.”

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“Are provinces sovereign and autonomous within the areas of their jurisdiction, set out under section 92 of the Constitution Act, 1867, or under our constitution can the federal government step in whenever the provinces aren’t exercising their jurisdiction appropriately and act for them,”McAdam said.

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“Because that’s really what this case is about.”

He went on to say this is a case where the federal government is saying provincial legislation is not good enough and stepping in to apply their own standards.

McAdam said both the provinces and federal government have degrees of authority over the environment and pollution. It will be up to the courts to decide who has the stronger claim.

WATCH: McAdam says it’s about determining if the federal government can impose tax rules in some jurisdictions and not others.

Click to play video: 'Saskatchewan carbon tax case heads to court — province argues it’s unconstitutional' Saskatchewan carbon tax case heads to court — province argues it’s unconstitutional
Saskatchewan carbon tax case heads to court — province argues it’s unconstitutional – Feb 13, 2019

“It’s a case about the nature of our federation. It’s a case about the kind of country we live in,” he stated.

“The issue at the heart of this case is whether the divisions of power really mean anything.”

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McAdam also raised the inability of one level of government to tax another. He used the example of SaskPower and SaskEnergy being provincially owned Crown corporations.

When looking at the breakdown of power in federalism, McAdam highlighted two main points: the provinces are not subordinates of the federal government, and provinces have autonomy on areas where they have jurisdiction.

READ MORE: Saskatchewan, Ottawa carbon tax case ‘monumental’ for Constitution, expert says

While on this note, McAdam said that the federal carbon backstop, currently set at $20 per tonne and rising to $50 per tonne in 2022, goes against the nature of federalism.

He said this is because it is being applied by the federal government in some provinces and not others. He added that logic would dictate if different laws are needed in different provinces, logic would dictate this is the realm of provincial jurisdiction.

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Other parties making their case Wednesday include the provinces of New Brunswick and Ontario, SaskPower, SaskEnergy, the Canadian Taxpayers Federation, United Conservative Association, Agricultural Producers Association of Saskatchewan, and the International Emissions Trading Association.

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In Ontario’s submission, attorney Joshua Hunter said that while climate change and emissions can be considered a national concern, that doesn’t automatically mean it is a constitutional national concern that can override provincial jurisdiction.

Saskatchewan Justice Minister and Attorney General Don Morgan also described climate change as a national concern Tuesday.

Intervening lawyers supporting the federal government side took note of that wording, saying it reinforces the power of the federal government to apply their carbon pricing benchmark.

“So Saskatchewan confirmed today that the federal government does have jurisdiction to respond to a national emergency and that’s exactly what climate change is. We know that the effects of climate change are hitting Canada faster and harder than other places,” Joshua Ginsberg, a lawyer with the David Suzuki Foundation said.

“The melting of the Greenland ice-sheet threatens our coastal cities- Halifax is in jeopardy, Victoria is in jeopardy. In those circumstances it is clear the federal government has to intervene to save the nation from disaster.”

The federal government, British Columbia, and eight other intervenors, including the David Suzuki Foundation, will present Thursday. The proceedings will close with government of Saskatchewan lawyers McAdam and Alan Jacobson providing a rebuttal. ​

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“I would put this case on a short list of important federalism decisions that courts have grappled with,” said University of Alberta law professor Eric Adams.

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He said there are merits to both arguments.

Where Saskatchewan will want to keep the court focused on the federal-provincial division of powers, Ottawa is likely to steer its argument towards the issue of climate change itself, Adams said.

Saskatchewan Attorney General Don Morgan has said challenging the constitutionality of Ottawa’s carbon tax is the right thing to do for his province’s residents and its energy sector.

Saskatchewan is one of four provinces without a carbon pricing plan that will be subject to Ottawa’s fuel charge starting in April.

New Brunswick, Ontario and Manitoba are the others.

The federal government’s carbon price starts at a minimum at $20 a tonne and rises $10 each year until 2022.

– With files from The Canadian Press

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