EDMONTON — As Saskatchewan prepares for a legal battle over the
federal carbon tax, Alberta’s opposition party is hoping to
join in more than just rhetoric,
having officially sought status as an intervener in the case on
Alberta’s United Conservative Party and the Ontario government,
which had previously applied to be an intervener, filed
documents opposing the carbon tax on Friday. British Columbia,
on the other hand, filed to be an intervener in support of the
tax. These documents provide hints of the legal lines that are
being drawn in advance of a court battle that will deeply
affect the future of one of Justin Trudeau’s signature
policies. The case, which will determine whether the federal
tax is constitutional, is scheduled to be heard by
Saskatchewan’s top court in February 2019.
The UCP is arguing that if the Liberal government is allowed to
impose a carbon tax on the provinces it would “fundamentally
alter the balance of Canadian federalism.”
“The UCP is uniquely to offer a perspective on how the Court’s
decision … affects Albertans,” the documents say.
Friday was the deadline to apply to be an intervener — an
interested party, not directly involved, that is granted
permission to raise issues for a court to consider in its
decision-making. The court will hear the applications on Dec.
The federal government had previously announced that it would
impose a carbon tax on any province without an emission pricing
plan of its own. It’s slated to take effect in Ontario,
Saskatchewan, Manitoba and New Brunswick in April 2019, and in
Yukon and Nunavut in July 2019.
But Alberta already has its own carbon pricing scheme,
implemented by the NDP government. Still, Jason Kenney’s
conservatives have promised to repeal that plan and fight
against any federal carbon tax in court, should his party win
the election, which will be held before the end of May 2019.
Kenney has said that even if his government lost the court
challenge, the federal carbon tax would be better than the
A spokesperson for the Alberta government defended its climate
plan and criticized Kenney’s decision to waste money fighting
the federal government.
Eric Adams, a law professor at the University of Alberta, said
it’s “very rare” for an opposition party to get involved in the
way the UCP has.
“It’s altogether possible that the court refuses” to grant
intervener status to the UCP, Adams said. If it does, other
provinces are making similar arguments.
On Thursday, New Brunswick’s conservative government filed
court documents seeking intervener status in the Saskatchewan
reference case. The federal government rejected a climate
change plan from New Brunswick’s former Liberal government in
October and the province said it would also join Ontario’s
court case, which is scheduled for spring 2019.
“Boy, when you get four or five provinces lined up, big
provinces, then it improves a whole lot. And especially with
the federal government going into an election year, I don’t
think they’ll be too anxious to put more taxes on the people of
Ontario,” said Premier Blaine Higgs. “I would say that carries
over to our province and so they shouldn’t be too keen on
putting taxes on our people either.”
Under Premier Doug Ford, Ontario scrapped the cap-and-trade
system put in place by his Liberal predecessors, though on
Thursday it released its own climate change plan consisting of
a taxpayer-funded “Ontario Carbon Trust” to finance the
development of green technologies.
The federal environment ministry said in an email that the
Ontario climate plan was “light on details,” and the government
is still planning to impose its carbon tax on the province.
“Any serious plan to tackle climate change has a price on
pollution,” a spokesperson said. “There will be a price on
pollution in Ontario starting next year.”
The gist of the UCP’s argument is that if the implementation of
a carbon tax under the POGG — peace, order and good government
— clause in the Constitution is found to be valid, it will
“upset the balance of federalism and the separation of powers
between the federal and provincial governments in a manner that
is detrimental to provincial efforts to develop policy
solutions that are particular and unique to the individual
It argues that using the POGG clause for reasons “other than an
emergency” requires “limited and specific subject matter,” and
that regulating greenhouse gas emissions is far too broad a
topic to justify the use of such sweeping government power. A
finding that the carbon tax is constitutional, the documents
argue, would give exclusive jurisdiction over
greenhouse-gas-limiting policy to the federal government, which
would render any provincial efforts unconstitutional.
Adams disputes the latter, because overlapping powers on, say,
traffic laws — criminal drunk driving charges versus provincial
administrative fees — are common in Canada, and courts are fine
“It’s not a zero-sum game,” Adams said.
But, “considerable debate” on Canadian constitutional law has
gone into the sweeping powers of the POGG clause. “The UCP
argument is tapping into an old set of concerns … that POGG has
the potential to undermine provincial jurisdiction and should
be approached cautiously,” he said. “So they are not making an
entirely new set of arguments in that regard, but bringing to
the fore old worries about POGG.”
In its factum, Ontario argues that the carbon tax does not fall
under “national concern doctrine” that would give the federal
government the power to impose a national carbon tax.
“The provinces are fully capable of regulating greenhouse gas
emissions themselves, have already done so, and continue to do
so,” the factum says. “The extremely wide variety of activities
that give rise to greenhouse gas emissions lack the singleness,
distinctiveness and indivisibility that must be present before
the federal government can regulate a matter under the national
Ontario also argues that even if this national doctrine applies
to the carbon tax, it’s unconstitutional because it is
regulation, not taxation, and, because the revenues raised are
not specifically intended to be spent on greenhouse gas
emissions reductions, it doesn’t count as “valid regulatory
British Columbia also filed documents on Friday seeking
intervener status in the Saskatchewan case, but this time in
support of the federal government.
“We think the court should hear a provincial perspective in
support of the federal government’s efforts,” Attorney General
David Eby said on Tuesday.
In its court documents, B.C. argues that the POGG clause in
fact does give the government power to impose a carbon tax
because of the “national dimensions” branch of that bit of the
Constitution. In essence, B.C. is arguing the opposite of what
Ontario and the UCP intend to argue.
The documents argue there are “specific, concrete harms that
have been and will be faced” by B.C. because of other provinces
rejecting a carbon tax, such as longer and drier fire seasons,
melting permafrost, ocean acidification, the effects of less
snow and more rain on hydroelectric generation, rising sea
levels, difficulty of B.C. industries in competing with
non-carbon-taxed industry from other provinces and the impact
of trade actions from abroad because Canada doesn’t meet
This, said Adams, is almost a direct answer to the concerns the
UCP raised about expansive federal jurisdiction, because it
argues that national powers should be extended when the issue
is one that is going to have “consequences beyond provincial
With files from The Canadian Press and the Regina
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