EDMONTON — The federal government is arguing that Alberta’s opposition United Conservative Party should not be allowed to join the government of Saskatchewan in its legal challenge against the imposition of a carbon tax.
“Their interest in this reference is both political and speculative,” Department of Justice lawyers wrote in court documents filed Wednesday. “Their intervention will not assist the Court in dealing with the legal issues.”
As well as arguing against the UCP’s intervention, the federal government took issue with a handful of other would-be interveners. It argued against the admissibility of some portions of submissions from the Canadian Taxpayers Federation and the Assembly of First Nations, and that the Agricultural Producers Association of Saskatchewan should be refused status unless its arguments were “relevant to the legal issues.”
But it has no objection to applications to intervene from eight other organizations, including the David Suzuki Foundation, the Canada Ecofiscal Commission and the Athabasca Chipewyan First Nation, all expected to support the federal position. The federal government also did not challenge applications from the Saskatchewan Power Corporation and SaskEnergy Inc., both Saskatchewan Crown corporations seeking to intervene in support of the province.
“It’s telling that the Trudeau government is happy with foreign-funded groups … fighting for a carbon tax in Canadian courts, but not the Official Opposition in Alberta that represents a significant number of Albertans,” said UCP leader Jason Kenney in a statement.
In an emailed statement, Caroline Thériault, a spokeswoman with Environment Canada, said the government’s position was based upon the “legal rules for intervener application in reference cases.”
“It’s disappointing to see Conservative politicians across the country using taxpayer money and resources to oppose serious action on climate change,” she wrote.
Saskatchewan contends it is not constitutional for Ottawa to impose a carbon tax on provinces and territories that don’t implement carbon-pricing programs of their own, or that adopt programs the federal government considers inadequate. The Saskatchewan Court of Appeal will hear its case in February 2019. The UCP filed documents with the court last week claiming the party had a unique legal argument that it should get to present as an intervener.
In seeking leave to intervene — interveners raise issues to help courts decide cases, though they’re not direct parties to the court case — lawyers for the UCP argued that to allow the carbon tax would “upset the balance of federalism and the separation of powers between the federal and provincial governments in a manner that is detrimental to provincial efforts to develop policy solutions that are particular and unique to the individual provinces.”
The provinces and territories where the federal carbon tax looks likely to apply beginning in 2019 include Ontario, Manitoba, Saskatchewan, New Brunswick, Yukon and Nunavut. Alberta has a carbon tax at present, put in place by Premier Rachel Notley’s NDP government, but the UCP — which could take over after next spring’s election — has vowed to cancel it and fight the federal government tooth and nail should it impose one on Alberta.
Notley’s government, however, pulled out of the federal carbon plan on Aug. 31 over delays to the Trans Mountain pipeline expansion; the federal tax would likely have replaced the provincial one in 2021. Asked for comment Wednesday on the federal government’s filing, the Alberta government did not respond directly, instead offering a statement that “there is no national climate plan without Alberta.”
The federal government’s filing also declares its opposition to the Canadian Taxpayers Federation’s request to file affidavit evidence. “It is inadmissible opinion evidence from an affiant that has not established any special expertise in general economics or the economics of carbon pricing,” the Department of Justice argued. It does not, however, oppose more generally the CTF’s application to intervene.
Aaron Wudrick, the federal director of the CTF, said “we’re not surprised” that an intervener opposing one side would get pushback.
“It also suggests that they’re aware that we’ve been fairly effective politically fighting their carbon tax and they simply want to throw up as many roadblocks as they can to help with the legal fight,” Wudrick said Wednesday.
Ottawa’s opposes submissions from the Agricultural Producers Association of Saskatchewan because, it said, they don’t address the legal questions. The association’s president, Todd Lewis, said they wanted to raise issues about agriculture being affected by the carbon tax. “It’s just a puzzling situation, why they would not even want us in the room.”
The federal government filing also took issue with submissions from the Assembly of First Nations, saying they do not address the constitutional issues before the court.
The court will hear the applications to intervene on Dec. 12.
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