Alberta, Ottawa argue before province’s Appeal Court over carbon tax dispute

By Bob Weber, The Canadian Press

Lawyers for the Alberta government have started arguments before the province’s top court against the federal carbon tax.

They are expected to tell the Alberta Court of Appeal that the reasons Ottawa is using to justify the tax will lead to an unnecessary expansion of federal power.

Federal documents say Ottawa is to argue that climate change is an urgent national concern and that only Parliament can deal with it adequately.

More than two dozen lawyers are sitting in rows in the Edmonton courtroom, where the attorneys-general of Ontario, New Brunswick, Saskatchewan and British Columbia are also to speak during the three-day hearing.

Eight First Nations, non-governmental groups and Crown corporations have also been granted intervener status.

Ontario and Saskatchewan lost challenges to the federal tax in their top courts, but are appealing to the Supreme Court of Canada.

Eric Adams, a University of Alberta law professor, said he doesn’t expect to hear any new arguments in the Alberta case.

“It’s just a new panel of judges to bring these arguments in front of,” he said.

“The argument is that justice on a local level requires judges who live in a jurisdiction and understand its peoples and its concerns. Sometimes, constitutional arguments made in a particular place can have the flavour of that particular place.”

Adams said he believes Alberta is unlikely to win. But if there’s a dissenting judge, that could bolster the government’s argument before the Supreme Court, which has already scheduled a January date for the Ontario and Saskatchewan appeals.

“If they don’t win, they hope for a judgment from some judges that lends weight and credibility, and maybe a new perspective to add to the dissenting opinions that have already been rendered in Saskatchewan and Ontario,” said Adams.

Ottawa argues that the peace, order and good government clause of the Constitution gives it power to pass legislation on matters of national concern. Establishing minimum national standards on greenhouse gas emissions “is a matter of national concern that only Parliament can address,” it argues.

Alberta says using that clause is an unwarranted expansion of a federal power that in the past has been used sparingly. It says provinces already have the power to deal with emissions and should be left to do so.

“The federal government made a gamble here that this was a case that was worth opening up that previously neglected box,” Adams said. “They’ve taken a bit of a risk here.”

Three out of five Saskatchewan appellate judges agreed with Ottawa, as did four out of five of their Ontario colleagues. Past judgments have recognized the environment as a matter of shared jurisdiction.

Either way, Adams cautions against putting too much weight on these cases. If current arguments for a national carbon tax are rejected, the federal Liberals have invested too much political capital not to try new ones, he suggested.

“If they lose the case, they’ll look at other ways to bring legislation that can deal with the climate crisis. No matter how this case goes, it won’t be the end of parliamentary attempts to deal with climate change.”

Alberta Premier Kenney ditched a consumer carbon tax that the previous NDP government had brought in soon after his party won the provincial election in April. He has established a $30-a-tonne carbon tax on industrial emitters, replacing somewhat stronger measures introduced by the former NDP government. The Trudeau Liberals have approved that tax.

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