Alberta's top court hears arguments on federal carbon tax

A lawyer for the Alberta government argued Monday before the province's top court that the federal carbon tax is an invasive overreach by Ottawa into provincial jurisdiction. 

The five judges on the Court of Appeal of Alberta will hear arguments over the next three days about the constitutionality of the Greenhouse Gas Pollution Pricing Act (GGPA). The case was referred to the court by the provincial government earlier this year. 

The argument focuses on the division of powers between provincial and federal governments as laid out in the Constitution. The federal government has argued climate change is an urgent national concern that requires action by Parliament. But Alberta believes it should be able to create its own legislation to reflect circumstances that differ from other Canadian provinces. 

Peter Gall, the lawyer for the government of Alberta, told the panel that through this legislation the federal government has taken away the province's power to create policy in this area, now and in the future. 

"[It has] taken it away because it believes it has the best policy approach," he said. "And they believe that they have the right and the ability to do that under the national concern doctrine.

"Does this mean any time there is some national, pressing concern identified by the federal government that they're able to impose national standards on the provinces on matters that clearly come within the exclusive jurisdiction of the provinces?"

Hearings set to run 3 days

Alberta's own carbon tax came into effect in Jan. 1, 2017, but was eliminated soon after the United Conservative Party formed government this spring. The end of the provincial tax means the federal tax of $30 per tonne will come into effect on Jan. 1, 2020. 

Last month,the  Alberta legislature passed carbon pricing legislation of $30 tonne on industrial heavy emitters. The federal government has accepted the law as meeting the standards for part of the GGPA as least for one year. It isn't known how the Alberta government will respond when the carbon price increases to $40 a tonne in 2021. 

The UCP government hopes the Alberta court of appeal will find the federal tax unconstitutional. Similar reference cases in Ontario and Saskatchewan resulted in split decisions. The matter has been appealed to the Supreme Court of Canada.

In addition to lawyers for the governments of Alberta and Canada, about dozen intervenors will make arguments before the court. 

The judge heard from the governments of Ontario and Saskatchewan, which argued in support of Alberta's position. 

Alan Jacobson, the lawyer for Saskatchewan, said the Greenhouse Gas Pricing Act is backstop legislation that encroaches on provincial territory. 

"It is a new form of federal overreach that has no accepted precedent," he said.

"It's deceptive to claim that mere backstoppism is modest and minimally intrusive. That's the attraction that's being proposed here. 'Oh, we're giving the provinces all this flexibility. 'We're only making national standards.' What we say is that provincial sovereignty is not sovereignty if it is pushed in a certain direction."

SaskEnergy Incorporated, Saskatchewan Power Corporation and the Canadian Taxpayers Federation are also appearing as intervenors on the Alberta side. 

The International Emissions Trading Association is listed as an intervenor supporting Alberta "in part."

British Columbia is intervening in support of the Government of Canada. Other intervenors on the federal side include the David Suzuki Foundation, the Canadian Public Health Association, Climate Justice Saskatoon, the Assembly of First Nations and Athabasca Chipewyan First Nation