Carbon tax out of Ottawa’s jurisdiction: APAS

Agricultural Producers Association of Saskatchewan makes argument during province’s court challenge of carbon tax

Lawyers for the Agricultural Producers Association of Saskatchewan told a Regina courtroom last week that Ottawa is overstepping its bounds by imposing a carbon tax.

They support the Saskatchewan argument that the provinces have traditionally had jurisdiction over natural resources and industrial regulation and agreed that while, under Section 91 of the constitution, the federal government does have the power to step in if there is concern for “peace, order and good government,” the provinces can deal with greenhouse gas emissions.

“The provincial inability test has not been met,” said the factum submitted by APAS lawyers. “The provinces, including Saskatchewan, are able to and have taken action to address climate change and GHGs. The test is not satisfied simply because a province declines to take action in a very specific way dictated by Canada.”

A panel of five Saskatchewan Court of Appeal justices heard two days of arguments for and against the constitutionality of the carbon-pricing plan from the province and 16 intervenors including APAS, Ontario, New Brunswick, British Columbia and organizations such as the Canadian Taxpayers Federation and environmental groups.

A decision could take months, and is expected to be appealed, but the $20-per-tonne carbon price in Saskatchewan, Manitoba, Ontario and New Brunswick will begin April 1 and show up through a five-cent-per-litre increase at gas pumps.

Although on-farm fuel use is exempt, APAS said the tax would have a significant negative effect on agriculture because of its export dependence.

Transportation of farm products, such as via truck, rail and ship, will be subject to the tax and that increase could be passed back to farmers in increased fees.

“Farmers are clearly still going to be paying for the emissions of others by virtue of the fact that farmers are price takers,” said the APAS documents.

And, it said that increasing input costs, for which there are no viable alternatives, would not lead to behavioural change. Ottawa has said carbon pricing will cause people to make changes to reduce their carbon footprints.

It imposed the tax in the four provinces that don’t have carbon-pricing plans that meet its standards.

Lawyers for Canada argued Feb. 14 that under the peace, order and good government clause it has the power to impose its plan, and that the plan sets a national benchmark but provinces are free to regulate emissions within their borders.

However, one of the justices asked why Ottawa hadn’t set a national price rather than a “half-measure.”

Federal lawyer Sharlene Telles-Langdon said that would be less respectful of the provinces.

She said there are grave risks from climate change and urgent action is needed.

Saskatchewan lawyer Mitch McAdam said the province doesn’t dispute that climate change is real and should be addressed.

“The government of Saskatchewan is not made up of a bunch of climate-change deniers,” he said.

He said the case is about federalism and jurisdiction, not about climate change.

“You don’t need to destroy the federation to save the planet,” he said.

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