Ontario taxpayers footed the bill for a well-heeled anti-pipeline group to fight against their own province and Saskatchewan in two provincial court of appeal challenges of the federal carbon tax.
Environmental Defence appeared as an intervenor in both cases and was represented by the Canadian Environmental Law Association, whose annual funding—$1.5 million last year – is provided through Legal Aid Ontario.
Meanwhile, Environmental Defence raked in more than $3.8 million in donations and grants in 2018 and among its contributors was the City of Toronto.
In press releases announcing its intervenor status, the organization praised the federal government for “showing some backbone … to ensure that carbon pricing will be in place in every province and territory in Canada.”
Earlier this year, before appeals court justices in Saskatchewan and Ontario, CELA’s legal counsel delivered Environmental Defence’s central argument: that carbon dioxide is a toxic substance and pollutant, therefore something “parliament can seek to suppress.”
Environmental Defence has long history of protesting the expansion of the country’s pipeline network and capacity and receives significant funding from Tides Foundation, a group linked to foreign efforts aimed at halting Alberta oil sands’ production.
WATCH: CELA lawyers Jacqueline Wilson and Theresa McClenaghan make Environmental Defence’s case in Saskatchewan:
The Saskatchewan Court of Appeal since sided with the federal government in a 3-2 split-decision, while the Ontario Court of Appeal remains in deliberation.
Either province asked for a ruling on the legality of such taxation, believing Ottawa has overreached its constitutional powers—both have also vowed to take the matter to the Supreme Court, as Saskatchewan premier Scott Moe reiterated after his first-round loss in April.
Regarding Legal Aid Ontario’s funding of CELA, in a statement to The Post Millennial, spokesperson Dominic Ali said the association “operates under the terms of a Memorandum of Understanding that specifically mandates independence in our work.”
While Legal Aid Ontario primarily provides assistance to low-income people through 73 non-profit legal clinics across the province, CELA is among 17 “specialty legal clinics” that operate under the government agency’s umbrella.
“Our work has had, and continues to have, positive impacts on Ontarians throughout the province by supporting efforts to clean and protect our land, air and water,” writes Ali. “Independence has been crucial to each these successes.”
Notable CELA interventions include representing Walkerton Ontario residents at a 2001 public inquiry into a shoddy treatment facility that caused seven E. coli-related fatalities. The association was also instrumental in closing the Richmond Landfill in Napanee in 2012 over water table and local well contamination that jeopardized residents’ health.
But understanding how CELA and Environmental Defence can wield carbon dioxide as an existential threat the likes of an E. coli outbreak or the toxic smorgasbord of heavy metal contamination, requires a trip down Kyoto Accord-memory lane.
In 2005, then-Environment minister Stephane Dion was charged with implementing the federal government’s UN’s 1992 framework on climate change and after substantial pressure from organizations like CELA, declared carbon dioxide a “toxic substance” by way of cabinet directive.
In her arguments to the Saskatchewan Court of Appeal, CELA lawyer Jacqueline Wilson cited 1997’s Supreme Court decision on Hydro Québec, which was found in violation of the Canadian Environmental Protection Act (CEPA) for dumping PCBs into a watercourse.
Wilson told Saskatchewan’s appeals court that there is “no right for the provinces to choose not to cooperate with the (federal) carbon pricing regime.”
“‘Pollution is an evil that parliament can seek to suppress through the criminal law power”,” she said, quoting from the 1997 ruling. “(The Hydro Québec) case dealt with PCBs, but greenhouse gases are also listed as toxic substances in schedule one of CEPA.”
Environment minister Rod Phillips declined comment and forwarded TPM queries to Ontario’s Justice minister Caroline Mulroney, whose department oversees Legal Aid Ontario.
A statement from her office, received shortly after publication of this article said the following:
“Our government is working to restore accountability and trust in our province’s public finances and protect front-line services and important programming, including legal aid services for our most vulnerable people. Following the Auditor General’s 2018 Annual Report, and her recommendations concerning the community legal clinics, the government committed to conducting a comprehensive review of the legislation and the service delivery model that will ensure legal aid services and supports are responsive and easy to navigate, and will also look at ways to create a more integrated and effective legal aid system, while eliminating unnecessary duplication and overlap.”