REGINA — Saskatchewan’s Court of Appeal has ruled in a split decision that a federally imposed carbon tax is constitutional.
The Saskatchewan Party government had asked the court for its opinion on the levy that came into effect April 1 in provinces without a carbon price of their own.
In a 155-page decision on the reference case, Chief Justice Robert Richards writes that establishing minimum national standards for a price on greenhouse gas emissions falls under federal jurisdiction.
He writes Ottawa has the power to impose its carbon tax under a section of the Constitution that states Parliament can pass laws in the name of peace, order and good government.
Two of the five Appeal Court justices differed in their opinion and ruled the federal government’s actions are not a valid use of that section of the Constitution.
Saskatchewan Premier Scott Moe, who has said a carbon tax hurts his province economically, said there will be an appeal.
“Though I am disappointed by today’s ruling, our fight will continue on behalf of Saskatchewan people — who oppose the ineffective, job-killing Trudeau carbon tax,” he said on Twitter. “It was a 3-2 split decision and we look to appeal to the Supreme Court of Canada.”
Over a two-day hearing in February, Saskatchewan argued that the question wasn’t one of climate change, but rather the division of power.
It argued a carbon tax is unconstitutional because it’s not applied evenly across the country and oversteps into provincial jurisdiction.
“There is no recognized constitutional requirement that laws enacted by Parliament must apply uniformly from coast to coast to coast,” Richards wrote in the decision released Friday.
“The environment is not a legislative subject matter that has been assigned to either Parliament or the provincial legislatures under the Constitution Act.”
Federal government lawyers suggested Ottawa has the power to put a price on pollution, because greenhouse gas emissions are a national concern.
“It’s the first word, it’s not necessarily the last word,” Dwight Newman, a University of Saskatchewan law professor, said before the ruling came down.
He said the decision will serve as “persuasive authority” that will be closely examined by other provinces waging their own legal battles against the federal tax.
Manitoba, New Brunswick and Ontario all became subject to a carbon price last month.
Manitoba recently filed papers in Federal Court for its challenge, while Ontario was in court last month to argue its case and is waiting for the outcome.
“If they (Saskatchewan Appeal Court justices) write a persuasive judgment it could impact on how other courts decide the matter,” suggested Newman.
“Of course, both sides could learn from the arguments made in this one — and how they fared — and even make adjustments in the other cases.”
New Alberta Premier Jason Kenney has promised he will scrap the carbon tax the former NDP government brought in and also fight in court if Ottawa tries to impose a national tax on his province.
Newman notes that given the complexity of the case, Saskatchewan’s Appeal Court arrived at a decision “surprisingly quick.”
Sixteen groups — including the attorney generals of British Columbia, Ontario and New Brunswick — intervened in the court case on both sides of the debate.
The federal government’s carbon price starts at a minimum of $20 a tonne and is to rise $10 each year until 2022.