In a 4-1 majority decision, the Alberta Court of Appeal has deemed the federal Liberals’ carbon tax to be unconstitutional.
The federal backstop came into effect in Alberta on Jan. 1, and applies to gasoline, diesel and home heating fuels.
In its findings, three of the justices, including Chief Justice Catherine Fraser, agreed with Alberta’s argument that the carbon tax interferes with the province’s exclusive jurisdiction to manage its natural resources, as laid out in section 92(a) of the Constitution.
“The division of powers remains key to our federal state,” wrote Chief Justice Fraser, and Justices Jack Watson and Elizabeth Hughes in their ruling.
“The federal government is not the parent; and the provincial governments are not its children.”
Justice Thomas Wakeling wrote a separate decision in favour of Alberta’s position.
During the three-day hearing in December, the federal government argued that climate change is an urgent threat to humanity, and that emissions aren’t confined by provincial borders, making this issue a national concern.
Justice Kevin Feehan agreed with those arguments in a dissenting opinion.
“The act accomplishes the goal of having as small a scale as possible of impact on provincial jurisdiction,” Justice Feehan wrote in his decision.
“Effective and stringent carbon pricing cannot be realistically satisfied by cooperative provincial action, due to the failure, or unwillingness, of a province to adequately address greenhouse gas emissions, with resulting adverse effect on other provinces.”
In a message on Twitter, Kenney said he was very pleased with the ruling and urged the Trudeau government to “respect the ruling of the court” and scrap the federal carbon tax on Albertans.
“This is a great victory for Alberta and a great victory for Canadian federalism,” Alberta Premier Jason Kenney said. “We will take this decision with us as we stand up for our allies in Ontario, Saskatchewan and Quebec at the Supreme Court of Canada next month,” Kenney said.
“The provinces are best situated to make policy decisions for their own citizens. The ‘Ottawa-knows-best’ attitude of the federal government disrupts the constitutional balance of our federation and undermines our right to manage our own affairs.”
This decision will not have any immediate impact on the carbon tax in Alberta. These findings will now be put before the Supreme Court as it hears an appeal to the decision in Saskatchewan, which the federal government won in a 3-2 majority ruling.
Ontario also launched a court challenge to the carbon tax, the court there ruled in favour of the Liberal government 4-1.
Federal Minister of Environment and Climate Change Jonathan Wilkinson said the Alberta Court of Appeal’s decision is “one step in the process.” He said it’s time for governments at all levels to work together to combat climate change.
“It is more important than ever for provinces and the federal government to work together on climate action to provide business certainty and to achieve our commitments to reduce pollution,” he said Monday afternoon.
“While we would prefer to work with provinces outside of the court, we have no choice but to defend practical climate action in court.”
Wilkinson said Canada is in a good position to be a leader if governments can agree on climate policy.
“Fighting climate change is a priority for all Canadians and our government is committed to moving forward with all Canadians, including the interveners who participated in this case — from doctors to youth to economists to Indigenous peoples,” he said.
“It is time for politicians of all political stripes to stop fighting climate action and start fighting climate change.”
The minister said the Liberals are confident the price of pollution is within federal jurisdiction and he’s looking forward to the Supreme Court of Canada’s decision. He would not speculate what the government might do if the ruling doesn’t go in its favour.
“We feel confident that the federal position will be upheld.”
Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74 by Emily Mertz on Scribd