Even those of us who despise the notion of seeing politics played out in the courts see the value of the province’s court challenge of the carbon tax.
The issue that Premier Scott Moe is asking the Saskatchewan Court of Appeal to rule on is the right of the federal government to apply this tax – something that some constitutional experts say Ottawa is likely to win.
“I suspect they will not succeed,” said John Whyte, a constitutional scholar at the University of Regina and former deputy minister to NDP premier Roy Romanow. “They (the province) have got an argument that is intelligible, an argument that is plausible, but the federal arguments in each case are probably stronger.”
However, there are other reasons to pursue the case in the courts.
Certainly, it doesn’t hurt the Saskatchewan Party government’s political cause to be seen as going to battle with the federal Liberals and Prime Minister Justin Trudeau over the imposition of tax that could potentially hurt the Saskatchewan economy. After all, even if the court determines that Trudeau has the right to apply the tax that doesn’t mean the public has to like it. It wouldn’t be the first time the courts have been used to make a political point.
[emember_protected for=”2″ custom_msg=’For more on this story, please see the May 4 print edition of The Cross Roads.’]
But there area also happen to be valid legal and jurisdictional questions for raising this case.
“A tax is simply a tax. The GST has got a fixed rate all the way across Canada. It’s clear and unambiguous,” said Justice Minister Don Morgan when the legal challenge was unveiled late last month. “For them to do something where there are a variety of different things available for different provinces based on their approval of certain other methods, is something we do not think falls within the ability to tax and is not consistent with any form of federalism.”
Ironically, the thrust of the challenge is that the federal Greenhouse Gas Pollution Pricing Act is not a tax in the sense that it’s not being evenly applied to all Canadians. It’s instead a scheme to regulate natural resources – a matter of provincial jurisdiction. It’s here where Saskatchewan’s “sovereign jurisdiction” may be a winnable case.
However, any time you hear a Saskatchewan government getting on its high horse about “protecting” Saskatchewan’s natural and non-renewable resources, be suspicious that there is already a bit of politics in play. Or so history tells us.
It was then-opposition Sask. Party Leader Brad Wall who, in 2005, stood with not only the federal Conservatives but also Lorne Calvert’s provincial New Democrats in arguing the federal Liberal government should exclude non-renewable resources from the equalization formula. Wall and the Sask. Party even supported Calvert’s constitutional court challenge of the federal equalization formula, arguing it costs Saskatchewan $800 million a year.
Four years later, it was also Wall, as premier, who abandoned this court case when it became abundantly clear that the Stephen Harper-led Conservative government had no interest in making good on its 2006 election promise to remove natural resources from equalization.
Had the Harper Conservatives kept their promise, Saskatchewan would have reaped a minimum extra $800 million a year in equalization payments.
But not wanting to offend potential voters in Quebec, who would have been most affected by such a change in the formula, Harper and his Conservative MPs – including Saskatchewan MPs – caved on the matter.
Perhaps this is why it’s better to have such matters be decided in the court.
Whether Saskatchewan would have won its constitutional challenge on equalization is a matter of debate. This was also a questionable case.
But allowing political considerations to supersede the legal challenge has forever blemished Wall’s record. As such, maybe it’s best to have such matters settled in court.
[/emember_protected] 
