Carbon tax threatened with more legal action

The federal government could soon face another court challenge over the carbon price from the Confederacy of Treaty Six First Nations.

The Indian Resource Council of Canada (IRC) and some Treaty Six Chiefs held a news conference on Parliament Hill on Wednesday, indicating they intend to file a judicial review against the climate policy.

“The impact of this legislation in Alberta and Saskatchewan and Treaty Six territory is severe,” said Robert Black, legal counsel for the IRC.

“The nations in Alberta and Saskatchewan are often remote, and there is a reliance upon high carbon fuels because there's simply no alternatives. There's no process in those reserves to just make better choices, to use mass transportation, because there's a massive infrastructure deficit within community,” he said.

“Then, you combine that with the reality that the rebate system is through the Income Tax Act, and most folks that live and work on reserves are not filing income tax returns. They're essentially shut out from the system to secure their rebates.”

The fact that First Nations weren’t consulted on the federal carbon pricing system breaches the Crown’s duty to consult and, although the carbon price isn’t technically a tax, “it clearly violates the spirit and intent” of on-reserve tax exemptions in the Indian Act, said Gregg Desjarlais, Chief of Frog Lake First Nation and chairman of the IRC board.

The Indian Resource Council and many chiefs and nations have raised the carbon price issue with the federal government to no avail, so chiefs have decided to ask the courts for redress, said Stephen Buffalo, president and CEO of the council. The IRC represents First Nations that have direct interest in the oil and gas industry. Its mandate is to advocate for federal policies that will improve and increase economic development opportunities for First Nations and their members, Buffalo explained.

“We're not here to fight government, but we're here to defend our rights as Indigenous Peoples, as treaty people,” said Delbert Wapass, Chief of Thunderchild First Nation in Saskatchewan, at the press conference.

In the eight provinces that use the federal carbon pricing system, Environment and Climate Change Canada is currently engaging with the First Nations, Inuit and Métis about the process to transfer fuel-charge proceeds from 2021 to 2025, according to an emailed statement from Hermine Landry, press secretary to the minister. 

“We understand the concerns expressed and hope to be able to issue contributions in [the] very near future,” Landry said.

“Our priority has always been and will continue to be returning these proceeds in a way that provides flexibility to address self-determined priorities, including climate action.”

Wednesday’s announcement adds to a slew of ongoing court actions and provincial protests against the federal government’s carbon pricing system.

A month ago, Alberta applied for a judicial review of the federal government’s decision to exempt home heating oil from the consumer carbon price, and about this time last year, the Chiefs of Ontario and Attawapiskat First Nation also challenged the carbon pricing system, saying it disproportionately impacts First Nations communities. Also for the last year, Saskatchewan has refused to pay the consumer carbon levy to Ottawa and recently committed to tweaking legislation to keep the levy off home heating for another year. In July, the Canada Revenue Agency said it reached a deal with Saskatchewan to secure 50 per cent of what was owed until the dispute could be resolved.

The Chiefs of Ontario and Attawpiskat First Nation sought the Assembly of First Nations’ support before filing their judicial review. Now, the IRC is doing the same. A resolution asking for support to file a judicial review will hit the assembly floor on Dec. 5. 

Wapass, who is seconding the motion, has “no doubt” it will pass “but we do expect to have a real good discussion on it” to bring newer chiefs up to speed on the issue, he told media on Wednesday.

Isak Vaillancourt, Chiefs of Ontario communications manager, told Canada’s National Observer in an email, he has no new information on the judicial review to share at this time.

“We have an active dialogue going on with [the Chiefs of Ontario] and certainly the objective here is, to the greatest extent possible, to present a united front,” Robert Black, legal counsel for IRC, told the media.

Conservative Leader Pierre Poilievre issued a press release pointing to the IRC’s press conference and opposition to the carbon price, but when asked if the organization had any productive conversations with the federal Conservatives about the legal challenge, Wapass said they do not want “to get involved in the politics” of it all.

“Our intent is to make sure that … as treaty nations, First Nations, that we are standing up and defending our rights,” Wapass said.

In Budget 2024, Ottawa partially addressed the Chiefs of Ontario’s concerns by increasing the amount First Nations governments receive from carbon-pricing payouts from one to two per cent starting this year.

“We're already impoverished, dealing with high unemployment, homelessness and what have you,” Wapass said. Even the education system isn’t adequately funded, “so our kids can't even be taught the green energy plan and all these different good things that the rest of the world is on cue to do,” he added.

“Our kids are busy trying to survive with the trauma that they've gone through … we don't have the monies to deal with trauma, right? But yet, we're expected for our kids to be ready for the world that's coming. And then, here we are slammed with the carbon tax.”

— with files from Matteo Cimellaro and the Canadian Press

Natasha Bulowski / Local Journalism Initiative / Canada’s National Observer