Carbon Pricing, Pipelines, and the Constitution: B.C., Saskatchewan Seek References

Hamilton Ontario

Carbon Pricing, Pipelines, and the Constitution: B.C., Saskatchewan Seek References

UPDATED May 16, 2018 9:26amET


Two provinces at odds with Ottawa over energy policy and the environment are asking for court references to bolster their constitutional positions.

British Columbia has asked its Court of Appeal to review the province’s ability to regulate the flow of heavy oil and the response to potential spills, as the debate continues over Kinder Morgan’s Trans Mountain expansion project between Alberta and the Pacific coast.

Meanwhile, Saskatchewan announced a constitutional reference on the federal government’s carbon pricing plan.

Both disputes concern Canadian federalism and the powers of the federal government versus the provinces.

Here are details on the two reference questions — and how a similar process plays out in Ottawa:

British Columbia

B.C.’s government wants the Court of Appeal to analyze proposed amendments to the Environmental Management Act and answer constitutional questions on provincial jurisdiction, potential conflict with federal law on pipelines and railways, and whether B.C. law applies to substances coming from another province.

The proposed regulations “would apply to pipelines transporting any quantity of liquid petroleum products, as well as rail or truck operations transporting more than 10,000 litres of liquid petroleum products.”

B.C. Premier John Horgan told reporters in Victoria today that his government has jurisdiction to protect the economy and environment in case of a bitumen spill.

Here are the formal questions being sent to the B.C. Court of Appeal:

Is it within the legislative authority of the Legislature of British Columbia to enact legislation substantially in the form set out in the attached Appendix?

If the answer to question 1 is yes, would the attached legislation be applicable to hazardous substances brought into British Columbia by means of interprovincial undertakings?

If the answers to questions 1 and 2 are yes, would existing federal legislation render all or part of the attached legislation inoperative?

British Columbia’s Constitutional Question Act allows the government to refer any matter to the Court of Appeal or to the Supreme Court for hearing and consideration.

The federal government plans to intervene in the reference, having called the B.C. position unconstitutional, and the Saskatchewan and Alberta governments also hope to present arguments.

Saskatchewan

The Saskatchewan government has asked for a constitutional reference on the federal plan to implement a price on carbon on provinces or territories without a plan in place by Jan. 1, 2019.

Here’s the question sent to that province’s Court of Appeal:

The Greenhouse Gas Pollution Pricing Act was introduced into Parliament on March 28, 2018 as Part 5 of Bill C-74. If enacted, will this Act be unconstitutional in whole or in part?

The federal government included the 217-page legislation in this spring’s budget implementation bill. Ottawa calls it a “backstop” to implement in provinces and territories that fails to meet certain benchmarks in the 2016 Pan-Canadian Framework on Clean Growth and Climate Change.

The requirements include:

  • carbon pricing in place by 2018 that addresses greenhouse gas emissions across a common set of sectors and sources (i.e. energy, transportation);
  • a system that uses either a carbon tax (as in British Columbia) starting at $10 per tonne and rising to $50 per tonne by 2022, or;
  • a cap-and-trade system (as in Ontario and Quebec) that matches or exceeds the federal government’s 2030 target for reduced emissions;
  • a five-year review and regular reporting requirements.

Included is this language to justify the pricing plan:

The absence of greenhouse gas emissions pricing in some provinces and a lack of stringency in some provincial greenhouse gas emissions pricing systems could contribute to significant deleterious effects on the environment, including its biological diversity, on human health and safety and on economic prosperity … it is necessary to create a federal greenhouse gas emissions pricing scheme to ensure that, taking provincial greenhouse gas emissions pricing systems into account, greenhouse gas emissions pricing applies broadly in Canada

But former Saskatchewan premier Brad Wall did not sign the 2016 framework. And now his successor, Scott Moe, argues the federal plan is “contrary to the principles of federalism”:

As with B.C., the Saskatchewan Constitutional Questions Act gives the provincial government power to “refer any matter to the Court of Appeal for hearing and consideration.”

Federal References

Federal governments have used the Supreme Court of Canada for numerous constitutional references. The Supreme Court Act allows cabinet to refer questions on:

(a) the interpretation of the Constitution Acts;

(b) the constitutionality or interpretation of any federal or provincial legislation;

(c) the appellate jurisdiction respecting educational matters, by the Constitution Act, 1867, or by any other Act or law vested in the Governor in Council; or

(d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised.

A few historic examples from recent years:

2004

The Supreme Court advises the government that proposed same-sex marriage legislation would be constitutionally valid.

2014

The Supreme Court says Justice Marc Nadon is qualified but not eligible to sit among them, meaning the government needs to find a new representative from Quebec. The court also advised in a 6-1 decision that the government acted unconstitutionally in changing eligibility requirements without unanimous consent from the provinces.

2014

Fixed terms for senators and an election process for nominees will require constitutional negotiation with the provinces, according to a unanimous Supreme Court reference that limits Ottawa’s power to reform the Senate on its own. Abolishing the Senate outright, meanwhile, would require consent from all 10 provincial legislatures along with Parliament.

-Andrew Thomson