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Saskatchewan, Ontario have no constitutional case against Ottawa's carbon tax, only a political strategy

The Pincher Creek wind farm

By vowing to go to court to fight the federal government's carbon tax, Saskatchewan and now Ontario are rejecting the most cost effective way to reduce carbon pollution, the Pembina Institute complained Thursday.

"It is deeply irresponsible of the Saskatchewan and Ontario governments to reject carbon pricing," said Isabelle Turcotte, interim federal policy director of the Calgary-based energy policy think tank in a news release.

"Canadians expect their governments to address climate change, one of the most serious issues facing us today," she said. "It is a failure of leadership to reject the most cost effective way to reduce pollution."

"It is also disappointing to see Ontario and Saskatchewan walk away from the opportunity to design carbon pricing policies that work best for their unique economic realities and walk away from the global trends towards low carbon economies." She described this as a step backward.

All true, of course, although Turcotte's analysis misses some fairly important political points.

For one thing, Canadian Conservative parties have encouraged climate change skepticism and outright climate change denial among key elements of their supporters to achieve short-term political gain, and now they are the captives of the most paranoid and radical parts of their own base.

We have already seen where this leads with the Trump-era Republican Party in the United States. It is neither pretty nor particularly democratic. But it is a significant part of the new political reality of the non-European West, especially in provinces like Saskatchewan and Alberta that depend heavily on resource revenues just to keep the lights on.

For another, it's easy to put political advantage in the short term ahead of principle and the long term well-being of the commonwealth, a temptation to which all political parties occasionally succumb. So there's no way Canadian Conservatives are going to eschew any opportunity to sabotage a Liberal program, even if it's good for the country and good for the planet.

This explains why the conservative Brad Wall-Scott Moe government in Saskatchewan, now joined by the newly elected Doug Ford government in Ontario, are both prepared to pursue a constitutional case in the courts that, as the Pembina institute rightly points out, has no chance of success.

It certainly explains why Ford's new unprogressive Progressive Conservative government has jumped on the bandwagon that Wall got rolling before he resigned as Saskatchewan Party (viz., conservative) premier. Readers will recall that Wall thereupon decamped for a job in Calgary, where, despite stubbornly low international petroleum prices, the economy is doing much better than Saskatchewan's, thanks to the Alberta NDP government's stalwart refusal to engage in self-destructive austerity.

No chance of success, that is, unless some future Conservative government decided to take a Trump-style dive before the Supreme Court for a political gain that could be used to limit the democratic and policy choices available to Canadians. Getting Liberals out of government in Ottawa is certainly one of the goals of the Saskatchewan-Ontario "legal" strategy, which both governments and their United Conservative Party supporters in Alberta's Opposition have to know is otherwise a non-starter.

You don't need to read the Manitoba government's legal opinion cited by Turcotte in the Pembina news release to know a constitutional challenge of the federal carbon tax on jurisdictional grounds doesn't stand a ghost of a chance.

The words of the Canadian Constitution are unequivocal, and they're right there in black and white in the division of powers outlined in Section 91 of the Constitution Act 1867, formerly known as the British North America Act. Section 91 (3) assigns to Ottawa "the raising of Money by any Mode or System of Taxation." End of story.

The technical legal term, then, for Ottawa's right to levy a carbon tax, whether or not you happen to think it's a politically sound policy, is "slam-dunk."

For that reason, despite the wisdom of seeking legal advice, one hopes the good people of Manitoba didn't have to pay too much for the wise counsel PC Premier Brian Pallister referenced at the premiers’ conference in New Brunswick. Pallister noted it to explain his government's lack of enthusiasm for joining Moe and Ford in their legally pointless effort.

The outcome, as Turcotte advised, will be "nothing more than a waste of taxpayers' money and a delay in action to protect communities and improve the health and livability of these provinces."

However, seen from a political perspective, the effort may make sense. Every minute they are seen to be challenging the federal carbon tax, no matter how spurious their arguments, Moe and Ford can claim to be fighting for their base, and they have a convenient news hook on which they can hang misleading social media memes attacking the government of Prime Minister Justin Trudeau. And they get to use all taxpayers' contributions to do it!

Moreover, when they inevitably lose, they can wind up their base by assailing "elites," "activist judges," "eco-terrorists," the United Nations, liberal philanthropist George Soros and other favourite targets of cynical conservative strategists.

And one significant advantage Canadian conservatives enjoy in this effort is the willingness of many right-wing political parties in Canadian provinces to act in concert with their federal ideological counterpart, the Conservative Party of Canada.

Liberals haven't been able to do anything like this for a long time in Western Canada, where the only successful provincial Liberal Party, in British Columbia, is really a conservative coalition.

Nor can the NDP at the moment, now that a significant rift has opened between New Democrats on the Prairies and the federal party and provincial NDPers in other provinces.

So choosing either a reliable source of funding that benefits the environment while it provides funds for quality public services and economic growth, or the opportunity to sabotage a Liberal government, is really no choice at all for Canadian Conservatives.

This post also appears on David Climenhaga's blog, AlbertaPolitics.ca.

Image: Government of Alberta

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