Alberta’s carbon tax challenge heads to province’s highest court

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Alberta’s constitutional challenge of the federal carbon tax heads to the province’s highest court this week, as the levy is set to take effect in the province on Jan. 1.

Lawyers for the Alberta government argue in documents filed with the Court of Appeal that the carbon-pricing regime gives Ottawa too much power, upending the constitutional balance between the provinces and the federal government.

Similar arguments were made by Ontario and Saskatchewan, which challenged the tax earlier this year. The top courts in both provinces upheld the levy as constitutional.

The arguments will be heard by a five-judge panel in an Edmonton courtroom only weeks before the federal government imposes a carbon tax on Alberta’s consumers. The federal carbon tax will replace a provincial plan Mr. Kenney scrapped earlier this year that had been written by his predecessor. Federal climate change legislation allows provinces to create their own climate plans but imposes a federal tax on those that fail to meet Ottawa’s requirements.

In its court filing, Alberta’s lawyers say that Parliament’s decision to legislate minimum national standards on carbon pricing “empowers the federal government to reach into and regulate almost every aspect of the economic and day-to-day lives of provincial residents and businesses.”

Ottawa argues that it has the authority to impose the carbon tax under Section 91 of the Constitution, which gives the federal government broad powers to make laws for “peace, order and good government.” A similar federal argument was accepted by Ontario and Saskatchewan’s top courts, which ruled that the creation of national standards falls within Ottawa’s jurisdiction.

While preparing to challenge the centrepiece of Justin Trudeau’s climate strategy in court, Jason Kenney’s government legislated a carbon tax on the province’s industry that was approved by the federal government in early December. However, Alberta’s conservatives have steadfastly refused to tax consumers.

Alberta Justice Minister Doug Schweitzer’s office declined an interview request about the court case and instead sent a statement from June when the province announced it would be going to the appeal court. In the statement, Mr. Schweitzer said Ottawa’s climate plan is a “tax grab” and will do nothing for the environment.

Federal Environment Minister Jonathan Wilkinson said in a statement that Mr. Trudeau’s government was re-elected in October to pursue an ambitious program to combat climate change.

“While we would prefer to work out differences away from courtrooms, we have no choice but to work with Canadians to defend practical action to tackle climate change,” he said.

Nearly a dozen groups have intervened in the case, including a number of provinces, First Nations and environmental groups. New Brunswick has submitted an argument with the court against the federal tax, but decided late last week not to send a lawyer to argue its case in Edmonton.

British Columbia, which adopted a carbon tax in 2008, has intervened in support of Ottawa in the two previous provincial challenges and is supporting the federal government in the Alberta reference case as well. The province has argued that it has lowered its income taxes over the past decade because of carbon tax revenues and has led the country in economic growth for much of that time.

Amir Attaran, a law professor at the University of Ottawa, said he sees no reason Alberta’s court won’t rule the same way courts have ruled in the two previous challenges to the federal law. Dr. Attaran is a lawyer for the Athabasca Chipewyan First Nation in the case, which is supporting the federal carbon tax.

“The lead question in Alberta is identical to the questions in Saskatchewan and Ontario. There’s no reason that the court should decide differently, although anti-environmentalist and anti-Liberal sentiment in Alberta is strong,” Dr. Attaran said.

The governments of Saskatchewan and Ontario are appealing their cases to the Supreme Court of Canada, which has scheduled hearings for mid-March.

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