United Conservative Party leader Jason Kenney speaks to supporters after being sworn in as MLA for Calgary-Lougheed, in Edmonton Alta, on Monday January 29, 2018. The Alberta Court of Appeal is to release its decision today in the province’s challenge of the federal government’s carbon tax. THE CANADIAN PRESS/Jason Franson

United Conservative Party leader Jason Kenney speaks to supporters after being sworn in as MLA for Calgary-Lougheed, in Edmonton Alta, on Monday January 29, 2018. The Alberta Court of Appeal is to release its decision today in the province’s challenge of the federal government’s carbon tax. THE CANADIAN PRESS/Jason Franson

VIDEO: Province’s top court sides with Alberta on federal carbon tax

Today’s decision is the first to side with a province against the federal government

The Alberta Court of Appeal gave opponents of the federal carbon tax their first win on Monday when it ruled that the levy is unconstitutional.

In a 4-1 decision, the Appeal Court said the legislation that brought in the tax erodes provincial jurisdiction.

“The act is a constitutional Trojan Horse,” said a portion of the decision written by three of the four majority justices.

“Almost every aspect of the provinces’ development and management of their natural resources … would be subject to federal regulation.”

A fourth judge filed a separate opinion in support of the majority.

The Alberta government had argued in its challenge of the tax that climate change isn’t a national concern requiring overriding federal intervention. A provincial lawyer said in hearings last December that if greenhouse gases could be considered such, then anything could.

The federal government countered by saying climate change is a national and global issue that can’t be left to each of the provinces to take on alone.

Alberta Premier Jason Kenney immediately welcomed the ruling.

“We will continue to stand with our allies in Ontario, Saskatchewan, Quebec and elsewhere in defending working families and defending our constitutional authority as a government,” he said. “We expect the government of Canada to comply with the order of the court today and to remove the federal carbon tax on Albertans.”

Saskatchewan Premier Scott Moe also called for the tax to be rescinded.

The court ruling is a constitutional reference and contains no orders.

Federal Environment Minister Jonathan Wilkinson pointed out that two other provincial Appeal Courts — Saskatchewan and Ontario — sided with the federal legislation.

The Supreme Court is to hear arguments next month when Saskatchewan appeals the ruling from its court.

“We look forward to the Supreme Court, which is the ultimate arbiter of issues around differing interpretations of jurisdiction, to be making the ultimate determination in March. We feel confident that the federal position will be upheld,” Wilkinson said in Ottawa.

“We need to work together, but we need to do it in thoughtful ways that are efficient, that are affordable for Canadians and one of those ways is a price on pollution.”

Kenney gave no indication of compromise.

“We do not believe Canadians in this cold northern country should be punished for simply living normal lives,” said the premier, who promised to defend Alberta’s interests from what he called “a hostile federal agenda.”

“If we didn’t do so, then provinces could see their inherent power usurped,” he said. “We would no longer be sovereign in our own constitutional sphere, but would become vassals of a federal government.”

The Appeal Court appeared to agree. It noted that the Supreme Court has only recognized the national concern argument three times since Confederation.

“Courts have been highly reluctant to use the national concern doctrine to create judge-made heads of power,” says the majority decision written by three justices, including Chief Justice Catherine Fraser.

It noted health care, minimum wages and justice are all national concerns but are administered by the provinces. The court ruled that, for something to be a national concern within federal jurisdiction, it would have to be beyond the scope of provincial powers.

The judges said the carbon tax law gives the federal cabinet “endlessly expansive” powers.

“Conspicuous for its breadth, the act allows the federal government to intrude further into more and different aspects of lawful daily life.”

One justice did side with Ottawa.

Kevin Feehan wrote that environmental concerns didn’t exist at the time of Confederation and, since then, jurisdiction has been found to be shared between the provinces and federal government.

“Effective and stringent carbon pricing cannot be realistically satisfied by co-operative provincial action, due to the failure or unwillingness of a province to adequately address greenhouse gas emissions, with resulting adverse effect on other provinces,” he wrote.

Joshua Ginsberg, a law professor at the University of Ottawa who represented the David Suzuki Foundation at the hearing, said the Alberta court’s reasoning may not jive with that of the Supreme Court.

“The majority decision is trying to (dodge) around the Supreme Court jurisprudence on this issue, which does confirm that if there’s significant provincial inability to deal with a problem, the federal government can step in.”

Alberta Opposition NDP Leader Rachel Notley said she hopes the Supreme Court rules quickly on the tax.

“As long as we have a government here in Alberta that resists significant, meaningful effort that can be consistently relied upon by international investors to address climate change, while setting out clear rules for how we grow our oil and gas resources in a responsible way, Alberta will be left behind.”

carbon tax

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Alberta Health reported two new COVID-19 deaths in Red Deer Friday. (Image courtesy CDC)
Two new COVID-19 deaths in Red Deer, active cases drop slightly

Province reported 356 additional COVID-19 cases Friday

Alberta Premier Jason Kenney speaks during a news conference in Edmonton on Feb. 24, 2020. It’s budget day in the province, and Kenney’s United Conservative government is promising more help in the fight against COVID, but more red ink on the bottom line. THE CANADIAN PRESS/Jason Franson
Alberta’s budget promises more help for COVID-19 with a hard deficit

Annual spending on debt interest is closing in on $3 billion

The Town of Sylvan Lake has launched a new contest to attract a new business. (File photo by Advocate staff)
Sylvan Lake offering rent-free storefront space to lure new businesses

Winning business proposal will get a storefront space rent-free for a year

Alberta reported an additional 399 cases of COVID-19 Thursday, on 9,217 tests, for a test positivity rate of 4.3 per cent. (Image courtesy CDC)
Red Deer down to 562 active COVID-19 cases

8 new COVID-19 deaths, 399 additional COVID-19 cases

Mike Ammeter (Photo by Rebecca Hadfield)
Sylvan Lake man elected chair of Canadian Canola Growers Association

Mike Ammeter is a local farmer located near the Town of Sylvan Lake

Bookings for COVID-19 vaccines for people age 75 or older start Wednesday. (File photo by THE CANADIAN PRESS)
Updated: Delays for seniors booking for vaccine appointments

By 9:20 a.m. Wednesday, 4,500 seniors had booked their appointments

A helicopter flies past a mountain near McBride, B.C., on Saturday January 30, 2016. THE CANADIAN PRESS/Darryl Dyck
Avalanche warning for backcountry users in North and South Rockies

Avalanche Canada is urging backcountry users to always check their regional avalanche forecasts

Supporters pray outside court in Stony Plain, Alta., on Wednesday, Feb. 24, 2021, as a trial date was set for Pastor James Coates of GraceLife Church. He is charged with holding Sunday services in violation of Alberta’s COVID-19 rules and with breaking conditions of his bail release. THE CANADIAN PRESS/Jason Franson
Trial date for jailed Alberta pastor charged with breaking COVID-19 health orders

The court says it will reconvene with lawyers on March 5 for a case management plan by teleconference

A pharmacist prepares a COVID-19 vaccine at Village Green Retirement Campus in Federal Way on Jan. 26. (Olivia Sullivan/Sound Publishing)
Canada approves use of AstraZeneca’s COVID-19 vaccine

The country joins more than a dozen others in giving the shot the green light

Emily Keeping of Wetaskiwin, Alta., was last seen at 4:20 p.m. on Feb. 25, 2021 at the FasGas on 49 St and 50 Ave in Wetaskiwin. Supplied/ Wetaskiwin RCMP.
UPDATE: Wetaskiwin RCMP seek assistance in locating missing 11-year-old

Emily Keeping was last seen on Feb. 25, 2021 at the FasGas on 49 St and 50 Ave in Wetaskiwin.

Alberta premier Jason Kenney, right and Doug Schweitzer, Minister of Justice and Solicitor General, provide details about Bill 13, the Alberta Senate Election Act., in Edmonton Alta, on Wednesday June 26, 2019. THE CANADIAN PRESS/Jason Franson
Minister Doug Schweitzer talks on Enhanced COVID-19 Business Benefit

Provincial government rolling out new benefit this April to better help small businesses.

NDP leader Jagmeet Singh holds a press conference on Parliament Hill in Ottawa on Wednesday, Feb. 24, 2021. THE CANADIAN PRESS/Sean Kilpatrick
NDP will not trigger election as long as pandemic continues: Singh

‘“We will vote to keep the government going’

Minister Rick Wilson poses with Katie at the Boys and Girls Club of Wetaskiwin, both wearing her Pink Shirt Day design. Facebook/ Boys and Girls Club of Wetaskiwin.
Wetaskiwin Boys and Girls club Pink Shirt day design focuses on kindness

Katie with the Boys and Girls Club of Wetaskiwin created this year’s Pink Shirt Day design.

Most Read