Lawyers for the federal government and its supporters are laying out their case Thursday in Regina on why they believe Ottawa has the legal power to impose a carbon tax on Saskatchewan.
Sharlene Telles-Langdon, the lawyer for the attorney general of Canada, laid out the key part of the federal government’s argument: climate change is a matter of national concern, giving Ottawa the authority to enact legislation to address this concern.
Telles-Langdon said provinces can and to varying degrees already regulate greenhouse gas (GHG) emissions, but no province can do the job alone.
Since emissions affect the atmosphere in the same way regardless of origin, Telles-Langdon said, this gives Ottawa the authority to establish a minimum regulatory standard, in the form of their carbon backstop.
The current price of this backstop, which takes effect April 1, is $20 per tonne, rising to $50 per tonne in 2022.
WATCH: Saskatchewan argues the constitutionality of federal carbon tax
Lawyers from the Saskatchewan government and their supporters argued Wednesday this backstop is not a regulatory fee, as described by the federal government, but a tax.
They argued because that tax is being applied differently in different provinces, it is unconstitutional.
WATCH: Saskatchewan carbon tax case heads to court — province argues it’s unconstitutional.
Telles–Langdon defended the regulatory fee description, stating federal legislation creates a coherent regulatory system for pricing GHG emissions.
The act of paying for emissions creates an enforcement structure, making this a regulatory fee.
“Some provinces have achieved reductions, others have not,” Telles-Langdon said.
She added federal legislation results in minimal intrusion on provincial jurisdiction, as it does not cap emissions or dictate how provinces work to reduce their GHG emissions.
Under the constitutional provision “peace, order and good governance,” (POGG) Canada is arguing GHG emissions should be placed under national jurisdiction under the Constitution.
Opponents said this steps into the regulation of the environment and pollution, which is provincial jurisdiction.
Using POGG, the federal government has the power to pass legislation for matters of national concern.
This has been outlined in Supreme Court decisions around alcohol prohibition and ocean pollution, matters that did not exist in 1867.
It can also be read to include provincial matters that are seen to be national concerns, but not yet emergencies.
Telles-Langdon attempted to make this case that climate change, and aggravating GHG emissions, are a national concern.
Chief Justice Robert Richards extensively questioned Telles-Langdon on this matter.
Richards said this was to determine how the scientific arguments presented lined up with her legal arguments and existing precedent.
Canada is obliged to work on reducing overall emissions due to signing onto the Paris Agreement. One goal of the international treaty is to try and prevent global temperatures from rising two degrees above pre-industrial global temperatures.
The plan to achieve this goal is by regulating and reducing GHG emissions.
A third constitutional power was brought up in two sets of submissions – the treaty rights of First Nations people. This was presented by Amir Attaran, representing the Ahtabasca Chipewyan First Nation, and Stuart Wuttke for the Assembly of First Nations.
“Climate change now threatens those rights, and the cultural survival of these people,” Attaran said.
Most constitutional discussion in the proceedings dealt with the 1867 Act, but Attaran urged the court to consider the Constitution Act of 1982, and Article 35 – enshrining treaty rights.
Attaran argued that this reading shows that allowing global temperatures to continue to rise would be a violation of treaty rights. This is because shorelines will change, affecting fish stocks, more species of caribou may be classed as “threatened,” limiting traditional hunting rights in the northern First Nation.
Attaran added that the Saskatchewan government has acknowledged climate change can adversely affect ice roads. While that is not a significant matter for most Canadians, it can have dire consequences in remote northern communities.
On the POGG cases, Attaran said past cases do not address Article 35 of the Constitution. He said treaty rights should be considered in this case, and First Nations should be included in the decision as another level of power affected by the court’s eventual ruling.
On Wednesday, lawyers representing Saskatchewan and its allies in the fight against a carbon tax argued the case is not about climate change at all.
“The government of Saskatchewan is not made up of a bunch of climate change deniers,” Saskatchewan lawyer Mitch McAdam said.
Instead, he presented the case as a being about the balance of power between Ottawa and the provinces in a situation where the federal government is overstepping its jurisdiction.
A panel of judges also heard from the governments of Ontario and New Brunswick, which oppose the carbon tax. They argued that allowing Ottawa to justify its plan under the rationale of a “national concern” would threaten provincial sovereignty under the Constitution.
Saskatchewan is one of four provinces without a plan that will be subject to Ottawa’s fuel charge starting in April. New Brunswick, Ontario and Manitoba are the others.
Once the federal government and supporting interveners make their submissions, Saskatchewan’s legal representation will provide a rebuttal.
After that, the five-judge panel will consider the arguments.
– With files from The Canadian Presss