Carbon tax and TMX pipeline dominate top court’s winter session

The Supreme Court of Canada building, located in downtown Ottawa. Jan. 3, 2020. Jolson Lim/iPolitics

Just as it did when it ruled on Senate reform, prostitution and medically assisted death, the Supreme Court of Canada, as it begins its winter session, will take a leadership role on nation-building issues that could profoundly change Canada.

If dealing with climate change is the imminent crisis of the next decade, then three major cases are pivotal in determining how Canada manages emissions reduction and deals with the threat of a warming globe in the years to come.

Two of the cases, to be heard in March, are about the federal government’s carbon pricing scheme, a law that some say has already deeply divided the country.

Saskatchewan and Ontario are arguing that the federal government’s 2018 Greenhouse Gas Pollution Pricing Act is unconstitutional.

The top court will have to determine if the so-called carbon tax is such an issue of national concern that it falls under Parliament’s constitutional authority to ensure peace, order and good government.

Saskatchewan, in its brief to the top court, states its own plan — a provincial responsibility, it says — is based on reducing emissions from its largest industrial emitters. The federal law imposes a fuel surcharge on consumers and producers

Saskatchewan lost at court of appeal in a 3-2 decision that found the federal law didn’t impose taxes, but regulatory charges meant to regulate behaviour, not raise revenues.

Ontario also lost at the Ontario Court of Appeal. Alberta is waiting for its own appeal court’s decision.

“The provinces are fully capable of regulating greenhouse gas emissions themselves, have already done so, and continue to do so,” Ontario’s brief says.

The third case about the conflict between environmental regulation and federal-provincial jurisdiction is to be heard next week at the top court.

British Columbia is asking whether it can regulate aspects of the environmental impact of the proposed Trans Mountain pipeline extension, designed to transport oil from Alberta through B.C. to the coast for export to other countries.

A pipeline has existed for almost 40 years and has been pumping about 300,000 barrels of oil a day, an amount that will nearly triple with the expansion.

At the B.C. court of appeal, B.C. lost as that court unanimously ruled the proposed amendments by the B.C. government were aimed more at stopping the pipeline than regulating the environment. MORE


Plastic offensive: Several B.C. municipalities eager for bag bans as province conducts review

Plastics industry remains steadfast that bags are being unfairly targeted

Promotional materials for the City of Victoria’s plastic bag bylaw that was approved in 2018, but has since been struck down by the Court of Appeal of British Columbia. (City of Victoria/Lisa Helps/Twitter)

As 2020 begins, at least 20 B.C. municipalities have either put in place a bylaw that prohibits plastic bags at check-outs, or are drafting legislation in consultation with residents about how to come up with one.

In the meantime, the province is reviewing single-use plastics to come up with a potential provincewide ban, while the plastics industry remains steadfast that the bags are being unfairly targeted.

On June 8, 2019 Tofino and Uclulet prohibited businesses from giving out conventional plastic bags and restaurants providing plastic straws. Instead customers can pay a fee for a paper bag or, better yet, bring their own reusable bags.

The bans are meant to reduce the number of bags ending up in landfills or, worse, in the ocean. Tofino Mayor Josie Osborne said the ban has been good for her community.

“People want to effect change in the environment and the way we use things,” she said.

By July, several other municipalities joined Tofino and Ucluelet with similarly structured bylaws based on one in Victoria that was passed in 2018. They included Courtenay, Salmon Arm, Qualicum Beach, and Cumberland.

But the movement suffered a blow on July 10 when the Court of Appeal for British Columbia struck down Victoria’s bag bylaw, which struggled to get going due to court challenges

The court ruled that the implementation of a ban was provincial jurisdiction.

Lisa Helps – Victoria Mayor@lisahelps

City to Ask Supreme Court of Canada to Rule on Municipal Power to Regulate Business Use of Plastic Bags 

View image on Twitter

They include Chilliwack, Colwood, Port Moody, Richmond, Rossland, Esquimalt, North Vancouver, Saanich, Sooke, Kamloops, and Nanaimo.

Many of the municipalities are looking to the province for leadership on the issue. For two months ending in September it collected feedback about single-use plastics as part of a provincewide review.

Provincial ban coming?

It’s called the CleanBC Plastics Action Plan and it will include several ways to reduce plastic pollution, including bans, said a ministry official. Results from the outreach are expected sometime this winter.

In the meantime, the federal government has committed to banning single-use plastic items as early as 2021.

The plastics industry says the focus on banning plastic bags is misguided and ignores that plastic bags are often reused, can be recycled, and use less energy and water to make than something like a cotton bag.

Craig Foster, speaks for the Canadian Plastics Industry Association from B.C. It represents 300 companies and around 80,000 workers.

He says a Danish study from 2018 and a Quebec one from 2017 show the significant number of times reusable bags would have to be used in order to bring their environmental or climate impacts in line with plastic bags.

‘Not a win’

“We’re not only changing from recyclable to non-recyclable, we’re changing from domestic production to imports,” Foster said about alternatives to plastic bags. “It doesn’t matter how you look at this thing … there is not a win for us here at all.”

As for the New Year, Gibsons appears to be the only municipality in B.C. willing to push through a bag ban. Its chief administrative officer says councillors are still working out the details, but implementation is planned for March.

The City of Vancouver implemented a ban on polystyrene foam containers on Jan. 1, but its plastic bag ban, which it says will withstand legal challenge because it is governed by a different charter than Victoria, won’t come into effect until 2021. SOURCE



Civil rights groups want to challenge Quebec religious symbols ban in Supreme Court

Muslims to contest religious law at Canada’s top court

Civil rights groups challenging Quebec’s controversial ban on religious symbols want to take their case to Canada’s top court.

Quebec’s Court of Appeal last week rejected a request to suspend portions of the law, known as Bill 21, pending a ruling on its constitutionality.

In a statement Wednesday, the National Council of Canadian Muslims (NCCM) and the Canadian Civil Liberties Association, along with plaintiff Ichrak Nourel Hak, said they will seek permission to appeal at the Supreme Court of Canada.

“We told Quebecers and Canadians that we would not stop our work until this unjust law has been defeated,” said Mustafa Farooq, executive director of the NCCM.

“While teachers and other public sector workers are being forced out of their jobs, we will seek leave from the SCC to halt the serious and irreparable harm that Bill 21 causes.”

In a 2-1 decision, the appeals court said last Thursday the law should be allowed to stand until the challenges are heard in Quebec Superior Court.

All three justices, however, said there is evidence the law is causing harm to Quebecers who wear religious symbols.

The law is being challenged in four separate lawsuits, three of which are expected to be heard together in October 2020.

It bans public school teachers, government lawyers and police officers, among other civil servants, from wearing religious symbols at work.

Premier François Legault has argued the law protects secularism in Quebec and will put an end to long-running debates about how to accommodate minority cultural practices.

Legault has repeatedly told Prime Minister Justin Trudeau to stay out of the legal battle.

“I can understand that he’s against Bill 21, but I’m asking him to respect a decision that has been taken by a majority of Quebecers, by a nation,” he said last week.

Trudeau hasn’t ruled out the possibility of federal intervention in the case but has so far stayed on the sidelines. SOURCE


Muslims to contest religious law at Canada’s top court
Rights groups want to take Bill 21 to Supreme Court after ‘harsh blow’

The Drilldown: Redwater ruling poses threat to the energy sector

The Supreme Court of Canada in Ottawa. (iPolitics/Matthew Usherwood)

The Supreme Court of Canada passed the Redwater ruling earlier this year requiring energy companies to complete their environmental commitments before repaying financiers to avoid bankruptcy or insolvency repercussions. Before this ruling, financial experts vocalized that this decision could negatively impact the financial backing of the oil and gas sector, which is proving to be true.

“We also will be focusing in the next few weeks on doing everything we possibly can to mitigate the unintended consequences of the Redwater decision, which has done so much to restrict access to both capital and credit, equity and credit, for this industry,” said Alberta Premier Jason Kenney at a Canadian Association of Oilwell Drilling Contractors (CAODC) hosted luncheon on Wednesday, reported CBC News.

The Redwater ruling repealed two previous Supreme Court decisions that said bankruptcy law superseded the environmental obligations of the province. This allowed energy producers to refund their financiers before cleaning old oil and gas wells, which often led to companies abandoning oilfields without taking environmental responsibility.

Representatives from the oil and gas sector claimed they were content with the court’s decision as it was happening, but the ruling has had a “significant” effect on the sector, said Tristan Goodman, the president of the Explorers and Producers Association of Canada, on Thursday.

The number of abandoned wells in Alberta has increase substantially over the last five years. According to the Orphan Well Association, orphaned well numbers were lower than 200 in 2014, and as of November 1, 2019, totalled 3,406.

CAODC projections show stagnant activity in drilling, and as companies continue to move to the U.S., layoffs in the sector are expected to continue. SOURCE


Alberta seeks to lessen financial hit of Supreme Court ruling on orphan wells


15 Canadian youths to sue Ottawa for not acting on climate change

They say young people will be more affected than other groups

People hold signs as thousands gather outside Vancouver City Hall before marching downtown during a climate strike in Vancouver on Friday, Sept. 27, 2019. THE CANADIAN PRESS/Darryl Dyck

A group of young people from across the country are suing the Canadian government for not acting on climate change, according to the David Suzuki Foundation.

In a statement issued Wednesday morning, the foundation said the youths have each suffered “specific, individualized injuries due to climate change.”

The lawsuit, which is expected to be filed Friday in the Supreme Court of Canada, will allege Ottawa is violating their rights to life, liberty and security of person under section seven of the Charter of Rights and Freedoms.

The youth will also claim the government’s actions violate section 15, which deals with equality, as they say young people are disproportionately affected by climate change.

They will be represented by Arvay Finlay LLP and Tollefson Law Corporation, and partner with the Pacific Centre for Environmental Law and Litigation and the David Suzuki Foundation.

“The lawsuit calls on Canada to cease its conduct that is violating the youth’s Charter and public trust rights and prepare and implement a plan that reduces Canada’s GHG emissions in a manner consistent with what best available science indicates is needed for the federal government to protect young Canadians, do its fair share to stabilize the climate system, and avert the catastrophic consequences of climate change,” the foundation said in a statement.

The youth will also take part in a march and rally at the northern steps of the Vancouver Art Gallery Friday, coinciding with Greta Thunberg’s arrival and climate strike in the city.



 Greta Thunberg to attend post-election climate strike in Vancouver
Students skip school, join climate strikes across B.C.



Carbon Pricing: Ontario Court Of Appeal Delivers Constitutional Endorsement

Image result for carbon pricing

The Ontario Court of Appeal has found that the Greenhouse Gas Pollution Pricing Act is valid federal legislation. The Act implements national minimum pricing standards to reduce greenhouse gas (“GHG”) emissions. In a divided 4-1 opinion, the Ontario Court of Appeal concluded that the Act is constitutional and falls within the authority granted to Parliament to make laws for the peace, order, and good government of Canada. The impact of this decision for the Atlantic provinces is discussed below.

Overview of the Act

The Act places a price on carbon pollution:

  • Part 1 of the Act establishes a charge on fuels producing GHGs.4 The charge applies to carbon-based fuels that are produced, delivered or used in a listed province, brought into a listed province from another place in Canada, or imported into Canada at a location in a listed province. The charge is presently $20 per tonne of CO2 emitted and will rise annually until 2022 when it reaches $50 per tonne.
  • Part 2 of the Act creates an output-based regulatory system for GHG emissions by industrial facilities.5 The system places annual limits on emissions, extends credits to facilities operating below those limits, and establishes charges for facilities whose emissions exceed the prescribed limits. While facilities subject to the system are exempt from the fuel charge, they are required to pay compensation for GHG emissions that exceed the annual limits. This compensation may take the form of credits earned or acquired by the facility, payments by the facility, or a combination of both.

The Act does not apply in all provinces. Rather, the Act operates as a “backstop” by extending into provinces without a sufficiently stringent system to reduce GHG emissions. This determination as to stringency is made by the federal Cabinet.6 Provinces may opt into the federal system voluntarily, adopt the national minimum standards as their own, or enact their own system that meets or exceeds the national standards for reducing GHG emissions. The fuel charge and trading system prescribed by the Act therefore only apply in provinces that do not satisfy the national standard for stringency.

Constitutional questions

Constitutional responsibility for the environment is not assigned exclusively to the federal government or the provinces.


Election not public consultation, court tells Ford government in repeal of cap-and-trade

Burnaby joins B.C.’s appeal for oil flow restriction powers

B.C. Court of Appeal ruled against the province in May. B.C. taking appeal to Supreme Court of Canada

westridge tanker
A tanker at Westridge Marine Terminal in Burnaby.

The Supreme Court of Canada has granted the City of Burnaby permission to take part in B.C.’s upcoming challenge of the B.C. Court of Appeal ruling that found the province did not have the authority to stop the flow of Albertan crude oil through the Trans Mountain pipeline.

In a unanimous May 24 decision, the court’s five judges ruled the province’s amendments to the Environmental Management Act that would have granted it the power to restrict the flow of diluted bitumen (also known as dilbit) were aimed at the proposed expansion of the pipeline.

At the time, the NDP government’s attorney general, David Eby, vowed to appeal the ruling to the country’s highest court. The Supreme Court is scheduled to hear the appeal on Jan. 16, 2020.

Now, the City of Burnaby has been granted leave to intervene in the case.

“This court case will allow Burnaby and other governments, First Nations and non-government organizations – all committed to protecting our shared environment and communities – to again demonstrate the critical need for new regulations that address critical environmental protection and public health issues,” Burnaby Mayor Mike Hurley said in a statement. SOURCE