Province Releases Expert Legal Opinion on Carbon Pricing – Government of MB
October 11, 2017
Justice Minister Heather Stefanson today released a 64-page independent expert legal opinion by Dr. Bryan Schwartz of the University of Manitoba on the constitutionality of the federal government’s carbon pricing benchmark and backstop proposals.
“I would like to thank Dr. Schwartz for his excellent scholarly work and independent legal opinion,” said Stefanson.
The legal opinion was commissioned in July 2017, to provide guidance to the Manitoba government on whether the federal government had the constitutional authority to impose its carbon pricing policy on provinces. It posed four specific questions to clarify the basis and scope of federal and provincial jurisdiction and authority to legislate in the area of carbon pricing and climate change policy.
Schwartz stated this with respect to the independence of the legal opinion sought:
“It was understood the opinion would be formed based strictly on independent judgment, and that the findings would be reported forthrightly. There was no suggestion whatsoever that the Government of Manitoba wished to obtain support for any particular policy position, rather than obtaining an independent assessment of the legal landscape in which it would make its policy choices.”
The legal opinion concludes the federal government does have the authority to legislate its ‘backstop’ proposal with a “…strong likelihood that the Supreme Court of Canada would uphold the proposed carbon tax/levy.” He further stated: “The ‘backstop’ nature of the proposed measure, in and of itself, is unlikely to render an otherwise valid federal carbon tax/levy unconstitutional.”
Federal authority to legislate in this area is not unfettered, however. The expert legal opinion states “The federal government likely cannot legislate in the area of GHG emissions in any way it chooses.” It is a shared area of activity between the federal and provincial governments, not “…an implied head of federal authority under its ‘peace, order, and good government’ power.”
Schwartz considered the authority of provinces to adopt their own carbon pricing measures. He concluded they “undoubtedly have the authority” to do so as, in fact, several provinces have already acted in this area.
With regard to the issue of whether a ‘made-in-Manitoba’ approach to carbon pricing and emissions might not be subject to the federal ‘backstop’, Schwartz concluded that “a credible” argument could be made about the discriminatory nature of the ‘backstop’ feature against provinces adopting their own carbon emissions reduction plans “…which would reduce GHG emissions just as effectively as the approved federal measures”.
Should the federal government seek to impose its ‘backstop’ in this instance, Schwartz noted a provincial government could argue that this discriminated against the provinces by denying them the right to develop their own equally effective approaches. Such an argument “…would likely be considered by the (Supreme) Court as being worthy of serious contemplation.”
Schwartz (LL.B. (Queen’s) LL.M. and J.S.D. Yale) holds an endowed chair at the University of Manitoba law school and has over 35 years of experience as a university professor and practicing lawyer. He is the author of 10 books and over 100 academic articles and numerous decisions as an independent arbitrator or adjudicator. He has won awards for teaching, scholarship and community service, and argued a number of cases at the Supreme Court of Canada. Areas in which he has written or served as counsel include constitutional, international, environmental, business and Indigenous law.
To view the legal opinion, go to www.gov.mb.ca/climateandgreenplan/index.html.
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