Brian Zinchuk is editor and owner of Pipeline Online
From left: Glenn Wright, Justice Jerome Tholl, Justice Neal Caldwell, Justice Keith Kilback. Sketch by Brian Zinchuk
SASKATOON – The fate of Saskatchewan’s coal-fired power generation industry, including two mines and three power plants, comes down to one word: “justiciability.”
That was the focus of the three justices of the Saskatchewan Court of Appeals on Sept. 15, in hearing the appeal regarding an injunction that had been tossed by the Court of King’s Bench with respect to the “coal decision.”
Justiciability is the legal concept that determines whether a matter is appropriate for a court of law to hear and decide. If a case is non-justiciable, the court lacks the authority or institutional capacity to handle it and must dismiss it.
In other words, the this particular case comes down to whether courts get to decide a major matter of public policy, or elected governments.
The Court of Appeal decision is expected to be handed down Monday, Oct. 19.
So how did we get here?
On June 18, 2025, Minister of Crown Investments Corporation and Minister Responsible for SaskPower Jeremy Harrison had informed SaskPower workers of the province’s intention to refurbish and operate its coal-fired power fleet as a bridge to nuclear power. This would fly directly in the face of federal coal regulations, which required that all conventional coal-fired power (six of the seven coal-fired generating units) end operation Dec. 31, 2029. It meant a reprieve for the 1,400 people directly employed between the three power stations and two mines impacted, as well as the communities of Coronach, Estevan and Bienfait, plus numerous surrounding communities which are home to many coal workers.
This announcement would come to be referred to as the “coal decision.” Pipeline Online broke the story, which you can read in-depth here.
Within weeks, Saskatoon engineer-turned-lawyer Glenn Wright filed for an injunction. He had been looking for a way to challenge Saskatchewan government policy, having already initiated an ultimately unsuccessful legal challenge against natural gas-fired power generation. He gathered five parties, and the injunction was filed July 18.
Those five parties Citizens for Public Justice, Kike Duek (a minor by their litigation guardian Kris Duek, Sherry Olson, Matthew Wiens and the Saskatchewan Environmental Society.
Citizens for Public Justice and the Saskatchewan Environmental Society are both environmental organizations. Kike Duek was 12 at the time of filing, and had numerous stories in various media by that point about agitating for various causes. Sherry Olson is a Saskatoon podcaster. And Matthew Wiens is a Manitoba farmer activist, and not even a customer of SaskPower nor resident of Saskatchewan. Pipeline Online wrote extensive pieces on each of the parties, which you can read by clicking the links.
As for Wright, he has attempted and failed at running for public office five times in recent years. Wright has run as an New Democrat provincially and federally a total of three times from 2011 to 2016, an independent federally in 2019, and for the Green Party of Saskatchewan in 2020.
In an attempt to achieve what he was unsuccessful achieving at the ballot box, he had been waiting for an opportunity to take the government to court. The coal decision was his chance.
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High stakes
What’s at stake? A recently re-elected government, whose Saskatchewan First Act was passed unanimously and set the stage for this coal decision, has made the most significant energy policy decision in a decade. That decision, if carried out, will save three power plants, two coal mines, three communities (Estevan, Bienfait and Coronach), and 1,400 direct jobs most of which pay over $100,000 per year. If the injunction successfully stops coal’s revival, not only could those towns, mines, coal plants and workers be out of luck, Saskatchewan could find itself short of up to 44 per cent of the power it uses on cold winter nights in three years, two months and 11 days.
“Big Lou” digging south of Estevan on Feb. 7, 2026. Photo by Brian Zinchuk
Also at question is whether a very recently elected majority government can proceed on a policy path it had spent several years laying the groundwork for; or whether a then-12 year old student, a then-55 year old university student who hosts an environmental podcast, and a farmer activist who is neither an Saskatchewan resident nor a SaskPower customer, along with two environmental groups, can reverse a decision made by said democratically-elected government? And that decision is the most significant energy decision made by said government in a decade, with billions of dollars, over 1,400 jobs, and perhaps the fate of the planet at stake.
(Note, initially the Minister had referred to 1,100 jobs, but that number over the last year has been revised to 1,400).
Additionally at question is whether governments can change course when they find the current path untenable, as the Saskatchewan government has? If it follows current federal coal regulations, we could be short up to 44 per cent of our power needs on the coldest nights in winter come January 1, 2030, as there is not nearly enough baseload power generation available to replace the 1,500 megawatts of coal by then. SaskPower would have to start construction, today, on four additional 370 megawatt combined cycle plants like the one under construction at Lanigan, at a cost of $2.5 billion each (previously $1.7 billion each), to replace coal in that timeframe. And that natural gas plant is costing more than double the one commissioned in December, 2024.
When it comes to environmental lawfare, the stakes could hardly be higher. It really is a question of who gets to be in charge?
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Injunction failed at King’s Bench
Wright’s initial injunction, filed in Court of Kings Bench, failed, too. There, Justice Smith didn’t pull many punches. As Pipeline Online reported on Jan. 14:
The Jan. 12 decision, which you can download here in pdf form, 2026 01 12 KB Coal injunction decision, is in some ways brutal in its clarity, not only in describing the efforts of the applicants, but in relaying that governments need to govern and applicants can’t use the courts to force governments to do certain actions.
“In support of their arguments, each of the applicants have filed an affidavit averring to the sundry shibboleths of environmental activism. This is not to say they do not have cause for concern,” wrote Justice Smith in the 15 page decision.
Just what is a shibboleth? It’s a biblical term which Merrian-Webster Dictionary defines as, “a word or saying used by adherents of a party, sect, or belief and usually regarded by others as empty of real meaning.”
Justice Smith wrote in conclusion, “Not every dispute is justiciable. Climate change is real. Therapeutic steps should be taken. This is why it is important that all citizens of the body politic elect thoughtful and intelligent people to sit in our parliament, legislature and municipal councils.
“I respectfully posit, the Court’s role is to administer justice, resolve legal disputes and interpret the Constitution and laws, acting as the independent judicial branch of government that upholds the rule of law and protects rights. It is not for the Courts to sift through the granular details with a view to directing departments and government agencies as to the appropriate steps to be taken to reach a particular goal.
“The Courts are not designed to manipulate the nuts and bolts of government action with a view to achieving policy ends. Those steps should be taken by men and women who will be answerable to the body politic for their actions.
“The Courts should be cautious and exercise deference to those who are elected and thus accountable to the people who bear the impact of those decisions.
“In sum, Courts should not be dictating to the Government of Saskatchewan what its overarching environmental policy should be. Nor should the Courts purport to decide the multiple steps to be taken to combat climate change. In fact, the Courts should not be deciding the day-to-day steps of a government, like where to put the town dump or where the bicycle lanes should be situated.”
And with that, the justice threw out the injunction case, saying, “It is appropriate to grant the relief sought by the government, namely an order under Rule 7-9 of The King’s Bench Rules striking out and setting aside the application brought by the applicants in its entirety.”
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Saskatoon Court House
Appeal day in court
Wright appeared in court with two other lawyers on his side, Benjamin Ralston and Kelsey Sonntag, but he did all the talking.
The three justices had previously read the factums filed before the court, so they were already well-versed in what was being argued. Justice Neal Caldwell, Justice Jerome Tholl and Justice Keith Kilback were presiding, and Justice Caldwell did most of the talking from the bench.
The courtroom was packed, with overflow in another courtroom plus more people watching online, including Dueck. Wright said that Olson was present, as were members of the Saskatchewan Environmental Society (SES). Pipeline Online was sitting close to Peter Prebble, a former NDP cabinet minister and part of the SES leadership. Across the courtroom sat Bronwyn Eyre, the former Saskatchewan Party Minister of Justice who introduced the Saskatchewan First Act, at issue in the appeal. (Eyre is cohost of the Pipeline Online Podcast and a frequent contributor to this publication.)
Up front and centre in the gallery were about a half dozen coal workers and union representatives. Both International Brotherhood of Electrical Workers Local 2067 and United Mine Workers of America Local 7606 were present, and they had filed for intervenor status in the case. Their joint lawyer was Dan LeBlanc, in-house counsel for IBEW 2067.
Glenn Wright. Photo courtesy Glenn Wright
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Wright had six arguments laid out in his factum, but in the first few minutes of his presentation Justice Caldwell trimmed it all down to just one issue that was raised in two of the arguments – justiciability.
Wright started with a quote from Athenian leader Pericles, saying, “Ordinary citizens, though occupied with the pursuits of industry, are still fair judges of public matters. Instead of looking on discussion as a stumbling block in the way of action, we think it an indispensable preliminary to any wise action at all.
“What Pericles is saying here is that though this may seem like we’re slowing up the process, this is part of ensuring we have wise action going forward,” Wright said.
“So the sub themes of our case and the written materials we’ve provided; those sub themes that we’ve got here, I would say, are justiciability, access to justice, and climate litigation. What I intend to talk about today is to focus purely on the justiciability, the access to justice issues, and the rule of law.”
He continued, “The Government of Saskatchewan claims that the coal decision is nonjusticiable court policy, that the record is too difficult to produce, that any judicial review of the whole decision would amount to a constitutional reform in a manner inconsistent with the separation of powers.
“Respectfully, our position is the opposite. Dismissing this appeal would depart from the jurisprudence and statements of the Supreme Court of Canada, and it would curtail the constitutional role of the judiciary …
“The Government of Saskatchewan seeks for this court to effectively immunize the coal decision from judicial scrutiny. Such immunity would strip citizens from their right to seek judicial review of the coal decision, which is arguably one of the most important energy decisions affecting this province in a generation. The court should reject such immunity for the coal decision. The courts have a role to play to ensure citizens are not subjected to arbitrary decisions. The coal decision should be reviewed to ensure that it is reasonable, justified, and lawful.
“The Government of Saskatchewan’s main argument is that the application raises issues that are not justiciable. Truly non-justiciable cases are rare, and particularly so in administrative judicial review. This is not one of those rare cases that could be deemed justiciable, as I will elaborate on in my submissions today. And just as a reminder, the relief we’re seeking here is an order to set aside the judgment of the lower court in its entirety, an order for an interim stay of the coal decision pending a determination of this the appellant’s originating application. We’re also seeking an order that the respondent should produce the record of the proceedings pursuant to the decision, following Rule 357 of the King’s Bench rules, and we like that on an expedited basis. Also, we would seek an order that the Court of King’s Bench be directed to proceed with the hearing on the merits of the hearing, on an expedited basis.”
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Hitting a speedbump
Justice Caldwell shut down most of those right away, saying, “The judge here did not make or deny a stay of application. There’s no error there. He didn’t make that decision either way.”
Justice Caldwell added, “He didn’t make the decision because he thought it was non justiciable.”
He added that the Court of Appeals’ power is actually quite limited in what it can do. And when Wright asked about dealing with the matter in an expedited manner, the answer was, “We don’t do that.”
Wright soon found that his plans had derailed, as he thought he would be talking about the stay application, that is, the injunction to stop the coal refurbishments underway, but was limited to speak only on justiciability. He did so for two hours.
Wright said, “I will do my best to disregard the statements I was going to make with respect to stay application, because you instructed me here, that’s not properly reported. We’ll have to go back to the drawing board, I suppose, and re-strategize how to bring this back to the court.”
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Acknowledging coal workers
Wright acknowledged the presence of the intervenor coal workers, as represented by their unions, sitting behind him. “To them I would want to say directly that this case is not about immediately shutting down coal; it is about reviewing the coal decision to ensure that it is lawful and reasonable, and it’s also about ensuring that the minister has not exceeded his lawful authority, and that he is not imposing an arbitrary decision upon the citizens of our province.”
Wright reviewed the recent history of the coal-fired power industry, starting with the decision in 2011 to go ahead with carbon capture and sequestration on Boundary Dam Unit 3 (BD3). He pointed out in 2012 the Stephen Harper led federal government “proclaimed federal coal regulations, which signified an end to future coal generation.”
Wright said, “In October of 2014, carbon capture and sequestration of Boundary Dam No. 3 started up, and at the time there was still a lot of optimism that we would be installing carbon capture on Boundary Dam 4 and 5 to follow. Then, in 2016, Canada announced its plan to eliminate coal-fired power by 2030. … In 2017 Saskatchewan and Canada reached an agreement in principle to finalize an equivalency agreement, and Saskatchewan then proclaimed its own Management and Reduction of Greenhouse Gasses Act and the corresponding regulations.”
“In 2018, the federal government then amended the federal coal regulations to accelerate the timeline for coal phase out to 2030. And also in 2018, the Saskatchewan government canceled plans for CCS on Boundary Dam No. 4 and 5. … So, in the ensuing years that follow from 2018, we had this period where the federal government continued to tighten policy and legislation on emissions …. While at the same time, the provincial government was providing funding to support coal transition efforts in Estevan and Coronach.”
He said, “Ultimately, Boundary Dam No. 4 was placed on standby in December of 2021. Boundary Dam number five was placed on standby in December 2024.
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“What also happened from 2022 to 2024 was an extensive public consultation process that SaskPower conducted regarding our power future, and it’s because the need to transition away from coal and gas is such a significant undertaking. So SaskPower made these significant efforts to enroll and engage the entire province in its long-term supply planning process. But ultimately, that process was never finished, as the government directed SaskPower to follow the minister’s own direction on future supply. And the first meaningful disclosure we had about that supply plan was on June 18, 2025, with this coal decision letter.”
Wright spoke of that public consultation, which had over 25,000 responses from people across Saskatchewan, including “many members of the Saskatchewan Environmental Society, some of whom are here today, and Sherry Olson, one of our personal advocates. They directly participated in that public consultation process.”
Wright said, “The second point I would make is that the findings of that process were that people were most concerned with the affordability of their power, and that the vast majority of respondents agreed that reducing emissions and transitioning to net-zero greenhouse gas emissions was important.
“But probably the most important point I want to make about that whole consultation process is that there were four long-term future electricity supply plans that were put forward for consideration by everyone in the province. None of those four plans contemplated running coal beyond 2030, other than Boundary Dam Number 3, which was to run to 2034. The point being that none of the coal, the unabated coal, was going to run past 2030, and Boundary Dam Number 3 was scheduled to be shut down at the end of 2034. With all of the future supply planning that was done prior to the minister’s coal decision.”
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The decision to refurbish the coal fleet meant a reprieve for the coal workers, and the injunction Wright and his applicants sought to shut it down became the biggest threat to those workers’ jobs. Wright said the following without any hint of recognition of the irony, as his actions are the ones seeking to end their jobs in just over three years.
He said, “So what’s important here is the minds of the coal workers, because they they’ve been subjected to more than a decade of this on again, off again, ups and downs, with respect to their industry and their jobs. So I can imagine that when the coal decision was published on June 18 of 2025, that some of them may have felt some relief, but it’s important to note that even that decision still talks about coal being just a bridge to nuclear power. So it’s not a question of if coal will shut down, but when.”
“And so I’m trying to reiterate: this case is not about immediately shutting down coal; it’s about reviewing the decision to ensure it’s lawful and reasonable, and even if the coal decision was stayed or some implementation was paused, none of the coal plants are likely to be shut down prior to 2030. In fact, the government is already running more coal than was planned in any of those four scenarios, because Boundary Dam No. 4 was already restarted on April 22nd of this year, so they’re already implementing the coal decision. These administrative decisions are already being executed, and it’s already having an effect.
“But given this past history, this on again, off again support for coal, I expect these workers are very skeptical, even now, and probably full of anxiety, and they might may rightfully be questioning the rule of law, because they’re not experiencing the predictable, stable, and orderly society with respect to their industry that the rule of law is supposed to be.
“So turning back to my theme, review, we think that this review of the legality is in the public interest for everyone, because the coal decision is so important, it will impact so many and have such long-term consequences for our province.”
“And even if you dismiss this appeal today, there still is no certainty for the coal workers, because we are on a path to violating presumptively valid federal law, federal coal regs, and the electricity regs. So we should take the luxury of the more than three years, almost four years we have, to do this review now, so that we can provide predictability and stability, and an orderly transition for those coal workers.”
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Justice Neal Caldwell. Sketch by Brian Zinchuk
Not about coal, jobs or climate change
While that was why the five parties were pursuing the case, the arguments, themselves were not about whether or not we could continue to burn coal, or jobs, or climate change, or the futures of those power plants, mines of communities. The case hinged on whether there was even a case the courts could consider in the first place.
Justice Caldwell questioned if the prime minister was dealing with President Donald Trump, (who he referred to as “the individual south of the border”), would the prime minister be subject to a judicial review, in what he says and does?
Wright said, “I believe he is.”
Justice Caldwell replied, “So let me just let me give you a pertinent example. So in his dealings with the individual down south of the border, he’s subject to being reviewed. His decisions in that regard are subject to being reviewed by a by a general citizen who says, ‘I take issue with it?’”
Wright responded, “I think he’s only subject to being reviewed if there is a legal issue raised, and there is a legal standard that this court can analyze that for …”
Wright added, “I mean, this is an open question again that I think will be something discussed properly on the merits of the issue. But for the relatively low bar of justiciability, we’re putting forward that there are legal issues raised in our grounds, and we believe each of these grounds that we raise is a just dissident question pertaining to this decision that was made. So, although it is an executive decision made by the highest executive, Vavilov (a case cited, 2019 SCC 65) still tells us that decisions of high policy and decisions of energy policy are required.”
Wright said that cited case, Vavilov, “indicates the same principled approach to judicial review should be applied to a wide variety of decision makers and decisions, including energy policy, including ministerial decisions, and these matters of high policy, even though they may be complex and technical.”
Justic Caldwell pressed him further, asking why we even have a standard of justiciability, and at the highest level, what isn’t justiciable?
He said to Wright, “From our perspective, we are we are our duty is to take the decision below as being correct and to persuade it is not, and that’s your obligation.”
Wright said the strongest aspect of their case is “federal law being violated.”
The justice responded, “We’ve also talked about that, right? It’s not. It may be in the future, but it’s not right now.”
Wright said, “We can’t know that without having the record being provided by the respondent on the decision that’s being made.”
Justice Caldwell said, “But we have no evidence of it. You’re saying the flip on that is there’s no evidence that it’s being violated right now.”
“There’s no evidence it’s being violated right now, but it’s virtually certain to be violated in the next compliance period,” Wright replied.
“Unless there’s an agreement between the province and the federal government,” Justice Caldwell countered.
Wright asserted that implementing the coal decision would mean almost certainly violating emissions caps. But the justice pointed out, “There’s a lot of speculation in that,” and that the federal government’s policies could change.”
Justice Kilback, “If you were arguing the judicial review, not the justiciability question, but the actual judicial review, and you were saying, “Look, this decision is unreasonable because we think it’s going to probably violate these regulations’
“In those circumstances, could it ever be open to a judge to conclude that the decision is unreasonable on the basis that it violated the legal constraint? Like normally, a legal constraint, a decision can be unreasonable if it violates a legal constraint on the decision maker’s scope. But in this situation, we’re talking about a prospective violation that might occur. Could it ever be found to be unreasonable on that basis, because if the answer that question is no, doesn’t that come back to affect the justiciability analysis in a sense of saying that, well, okay, where’s the sufficient legal component here?”
Wright said, “Well, I think the answer to the question is yes. We see that all the time with respect to environmental assessments and judicial reviews of environmental assessments, because there we are talking prospectively about projects that have not yet been built. We’re talking about environmental impacts that that may happen. It is hypothetical, but this is part of what review is about. This is about turning our minds to the consequences of what’s going to happen and trying to make sure that we made a reasonable decision and made a lawful decision. And environmental assessment is not the only thing the courts do that looks prospectively. I talked about the duty to consult as well. When we’re when the duty to consult is engaged, we’re thinking hypothetically about if this action is taken, are these rights going to be infringed? What can we do to mitigate those infringements?”
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Sask First Act
As referenced above, former Justice Minister Bronwyn Eyre was sitting in the gallery to the left of Wright. She had introduced the Saskatchewan First Act. A key focus of that act was to reassert provincial authority over electrical power generation, as the Constitution Act specifies. Wright said, “I’m angry, and many of my clients are angry with the Saskatchewan First Act. We don’t think that act is constitutional, but we don’t have standing to bring a reference in that act. There’s nothing I can do about that.”
“But I think what’s telling here, though, is that you’ve got the federal coal rigs that have existed for more than eight years in the forum as they are today, and no one has challenged them. In fact, every province is complying with them. Saskatchewan is the lone province, the lone wolf here, the only one that is going to be trying to violate these regulations.”
Justice Caldwell pointed out the federal government agrees, and has taken action.
Over the course of over two hours of arguments, time and again the issue of justiciability appeared to be paramount in the eyes of the justices.
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Government response
Justice Jerome Tholl asked the Elaine Thompson, the Ministry of Justice lawyer representing the Government of Saskatchewan, about cost of setting aside the coal decision. She said, “The coal decision will entail many administrative decisions, engaging numerous policy priorities, working with numerous statutory restrictions. Interprovincial power sharing arrangements will likely be considered in conjunction with federal and provincial negotiations about a host of federal and provincial policy objectives, international engagement with other countries in regard to power sharing and environmental concerns are also likely to impact the coal decision’s implementation.
“What I am saying, Justice Tholl, in response to your question, is that this is not one decision. It is many, many administrative decisions and many statutory decisions, and many of them are also policy decisions.
“A number of policy considerations undertaken in the coming to the coal extension decision, are outlined in Minister Harrison’s letter, and are summarized at paragraph nine of the government’s factum.
“In light of the polycentric nature of the considerations the government undertook in arriving at the decision to extend coal power, a question arises about whether the reasonability of these deliberations is amenable to judicial review, as a matter of the capacity of the courts, and in view of the legitimacy of the court’s role in political controversy.
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“The appellants are people who care about the environment and the future of this province. Their decision to challenge the coal decision is understandable in that regard, the problem is that for a political question to be justiciable, a legal component is required to ground the judicial analysis of that question.”
Here’s where Thompson made the argument that governments need to be able to govern, and make decisions.
Referring to the Vavilov framework, Thompson said, “If we apply this framework to Minister Harrison’s letter, the first question is: What delegated authority governs the coal extension decision?
“The answer is that the coal decision is a decision of government that has not been made under delegated authority. There is no legal authority identified in the claim that identifies a delegated authority to extend coal power production by Minister Harrison.
“There is authority under the Constitution Act, 1867, to make laws for the generation and production of electrical energy, but constitutional authority is not delegated authority within the meaning of Vavilov.
“The government has broken no law. The government has the authority to make laws governing the generation of electrical energy, as noted in paragraph 115 of the government’s factum, section 92(A) of the Constitution Act, vests exclusive authority in the provincial legislatures to make laws in relation to the development, conservation, and management of sites and facilities in the province for the generation and production of electrical energy. The appellants have not sought judicial review of the government’s authority over generation and production of electrical energy under the Constitution.”
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The solution the appellant seeks lies in the ballot box
She added, “Government actors are required to act under legal authority consistent with applicable legal requirements. And the rule of law does not mean that courts have the authority to determine the course of provincial policy decisions for the generation and production of electrical energy. It means that courts are required to ensure that governments comply with the laws and the constitution. The appellants are unhappy with the government’s decision. They propose that this court should assist them by quashing the decision to extend coal power.
“The proposition is not cognizably a legal one, and the claim provides no cognizable way for the court to undertake this assessment. The problem for the appellants is that courts do not tell governments how to make policy decisions.”
“Governments are elected to make policy decisions for the electorate. Judges ensure governments act legally. They are appointed to ensure compliance with laws and to settle legal disputes according to legal frameworks and legal rights. In proposing that the court assist the claimants in foreclosing on the direction of the government’s energy production policies, this claim proposes a role for the court that is not consistent with Canada’s democratic constitutional structure.
“The government submits that there is a solution for the appellants, but it is not a legal one. If there is sufficient support for the appellant’s policy objectives, then the solution the appellant seeks lies in the ballot box.”
Thompson said the letter was akin to an announcement, and to open up this type of announcement to review could lead to any ministerial announcement being reviewed.
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In the Government’s factum, it said, “The Government submits that the constitutional Separation of Powers between the branches of government does not contemplate a judicial role over the direction of the executive government’s policy-making function in Canada.”
It notes, “The Coal Decision contemplates refurbishing coal power generation facilities in Saskatchewan with a view to extending their productive life.
“The Coal Decision will undoubtedly be implemented by way of a plethora of administrative decisions, influenced by numerous policy priorities, a web of statutory restrictions, interprovincial power-sharing arrangements, federal-provincial negotiations, and international considerations.
“Some specific policy considerations the Government considered are identified in an extract of the letter, cited in the reasons of Justice Smith, including: a projected increase in power demands over the next two decades; renewable power generation potential; natural gas plants, and biomass; the impact of existing hydro and other assets; the Government’s commitment to a goal of net zero grid by 2050; the need for responsible deployment of nuclear generating assets to replace coal based production; partnerships with the governments of Ontario, Alberta, and New Brunswick on small modular reactor development; reliability, affordability, and security of the power grid for people in Saskatchewan; and, Saskatchewan’s positioning at the center of the North American energy grid.”
It goes into depth about the appellants’ desire for the government to produce a “record” of deliberations leading up to the decision. The factum states, “Numerous complicated questions arise about what could constitute a “record” of deliberations. How did the Government ascertain that there would be projected increased power demands over the next two decades? What specialists did it consult? What were their qualifications? What analysis did the Government consider in assessing expert conclusions concerning the impact of renewable power? What is the role of natural gas power plants and existing electrical generation assets in the province, and how should it be weighed? What experts are required to keep electricity supplies adequate and affordable across the province during the winter? What weight did the Government give concerns about affordability, adequacy or public safety in assessing the priority of reliable and affordable power generation and energy security? How do the answers to these questions contemplate meeting the goal of net zero grid by 2050? What is involved in establishing the infrastructure to deliver responsible nuclear generating assets? How will the decision to use coal power or bridge to nuclear power impact partnerships with the governments of Ontario, Alberta, and New Brunswick on small modular reactor development? What is “affordable and secure” in terms of a power grid? What is meant by Saskatchewan’s position at the centre of the North American energy grid? What international considerations are at play? How did the Government balance all of these interpretations, expert reports and with other key policy objectives to conclude that coal power extension is in the best interests of the people in Saskatchewan? And so on.”
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It continued, “Despite serious questions concerning the three branches of government, the Claim and the Appellants insist that the courts ought to substitute the Coal Decision with their own policies and policy directions on what source of baseload electricity production is in the public interest.”
In conclusion, the Government said, “The Claim is not justiciable as a matter of legitimacy, because it fails to apprehend the constitutional Separation of Powers between the branches of government. The Claim is not justiciable as a matter of capacity, because it fails to plead the element of a specific delegation of authority as is required in all claims for judicial review. The Claim is not justiciable as a matter of capacity, because it fails to plead a legal component in the form of a manageable legal standard to ground the proposed review. The Claim is not justiciable as a matter of capacity, because it fails to allege material facts provable in a court of law in support of the claim.
“The Government submits that the claims in the Claim have no reasonable prospect of success.
“For the foregoing reasons, the Government submits that this Claim is not justiciable and seeks a ruling that upholds the King’s Bench decision in Citizens for Public Justice.”
In court, Justice Tholl asked if the government was seeking costs, noting it had been unclear. Awarding of costs means the loser of a legal decision has to pay the legal costs of the opposite party.
Thompson said, “We will seek costs.”
“This is now the fourth application that we’ve argued on a very similar matter, and it’s the time involved in preparing these submissions, and the resources of the court, the resources of the government, and the resources for court administration of these types of files is considerable, and the people of Saskatchewan are paying for this.”
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Dan LeBlanc. Sketch by Brian Zinchuk
Coal unions intervention
Dan LeBlanc, representing the coal unions as an intervenor, said, “Justices, as you know, justiciability is not about what decisions courts can and cannot make. It is about what decisions courts ought and ought not to make. It is constitutional judicial policy of the court. It is a discretionary decision, owed deference on appeal.
“We say that Justin Smith below reasonably exercised his discretion to not hear this matter.
“Saskatchewan’s chosen source of energy for power production is a matter for other branches of government and for the electorate. This is a policy decision at the highest level, as acknowledged at paragraph 78 of the appellant’s originating application.
“And the point here is not that it’s too political to be reviewed by the court; it’s that it’s insufficiently legal to be reviewed by the court. But it’s high-level political nature is, to some extent, an indicia of two things: one, the lack of a sufficient legal nature, and two, that the court is being invited certainly close to the appropriate boundaries between itself and the legislative and executive branches.
“So that is to respond to some of the arguments, as I understand them from the appellant. The argument is not it’s too political to consider quote shouldn’t be involved in highly political matters. Rather, it is it is insufficiently legal, as demonstrated in part by its overwhelmingly political nature.
“Given the court’s earlier comment, I want to address a single issue today, and that is: by what standard did the appellant seek to review the court decision? I submit that the appellants have not argued that the coal decision breaches any existing legal obligation. That’s not part of their pleadings either below or here. This leaves the court to consider whether the coal decision is “quote reasonable” in the abstract that improperly invites the court to substitute its own assessment of energy policy for that of the elected government.”
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LeBlanc argued in his factum, “The Appellants invited Justice Smith to assess the reasonableness of Saskatchewan’s decision to extend coal, as “in some respect untenable in light of the relevant factual and legal constraints.” The Appellants invited the Court to second-guess the reasonableness – and the wisdom – of the Government’s choice of energy source for power in Saskatchewan. Here, they invite the Court to sanction breach of the important boundaries between itself and the legislative branch. Respectfully, Courts do not have “legitimacy” to review this Governmental decision as plead by the Appellants.
“The Appellants overstate the case law which they rely upon for their argument that “Judicial review is an appropriate tool for holding various levels of decision-makers to account, even for high-level and politically – infused decisions with broad import to the public as a whole…”
Additionally, LeBlanc wrote, “The problem for the Appellants is that they have not raised Charter arguments. They do not ask the Court to enforce the Charter as the supreme law of Canada. They instead ask the Court to review the wisdom – or reasonableness – of the Coal Decision. The decisions in Mahur, La Rose, and Operation Dismantle do not assist them in this argument.
“Without the Charter to ground its Originating Application, the Appellants lack a legitimate basis to ask the Court to review Saskatchewan’s policy decision.
“It is not enough that the Appellants impugn particularized state action, being the Coal Decision. Both the pure policy nature of the decision, and the sought standard against which the Appellants invite the Court to review it – reasonableness generally – highlight the non-justiciability of the matter.
“The Appellants do not impugn the Coal Decision for purported breach of the Charter. They do not impugn it for purported direct breach of statutes; the closest they come is arguing that the Coal Decision makes future breaches of statues more likely. Rather, the Appellants impugn the Coal Decision as being “unreasonable”. They ask the Court to assess the reasonableness of this political decision – to replace the legislature’s assessment of wise policy with its own.
“The concept of justiciability, and the separation of powers in Canada supports the Court exercising its discretion to not determine this matter.”
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LeBlanc concluded, “The Unions submit that the Coal Decision is governmental policy at the highest level. It is inappropriate for the Court to review the decision for “reasonableness” in a general sense.
“It was appropriate for Justice Smith to dismiss the Originating Application as not raising justiciable issues. He made no error of law in doing so, and his decision should be upheld on appeal.”
In LeBlanc’s conclusion before the justices, he said, “We submit, the unions submit that Justice Smith reasonably exercised his discretion to find the co decision nonjusticial. This is a policy decision at the highest level.”
He added, “They say the decision is in some respect unreasonable in light of the facts and law, but here there’s not really a legal standard submitted, so the argument falls to you. It’s not reasonable in light of the facts. I would have done something different if I was in charge of the provincial government, and that’s not a basis on which the court ought to intervene to substitute its own decision for that of Minister Harrison or the provincial government, depending how you frame it.
“Review of the court decision fall as play in this matter falls into the relatively narrow, but supremely important, in my submission, category of decisions which are not justiciable. As a matter of constitutional judicial policy, the matter is properly left to other branches of government.
The justices reserved their decision, and that decision is expected to be released on Oct. 19.
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Peter Prebble of the Saskatchewan Environmental Society. Photo by Brian Zinchuk
Reaction on the courthouse steps
On the courthouse steps, Peter Prebble of the Saskatchewan Environmental Society said, “It’s about justiciability, and we think this is such a major decision that it that clearly plans to violate government of Canada laws. It’s going to violate the Clean Electricity Regulations. It’s going to violate the federal law that is in place that requires all conventional coal plants in Canada to be shut down by January 1st, 2030.
“So, the rule of law in Canada is about to be violated in a flagrant way by the Government of Saskatchewan. It hasn’t been violated yet, but it’s going to be violated, and the provincial government has been very clear about that, and the federal government has the authority to regulate greenhouse gas pollution under the Canadian Environmental Protection Act. That’s not being challenged, and it’s very clear that the greenhouse gas emission problems associated with coal are extremely serious, and every other province in Canada is following federal direction, and Saskatchewan is choosing not to.
“That’s why we’re challenging those decisions.”
Pipeline Online asked about Alberta’s recent exemption from the Clean Electricity Regulations due to a memorandum of understanding with the federal government. If they’re no longer applicable to Alberta, why should they be applicable to Saskatchewan?
Prebble said, “Well, I mean that that matter hasn’t been dealt with yet. But what’s very clear is that the federal law requiring all conventional coal plants to be phased out by 2030 is applicable to Saskatchewan, and every other province is following the directive, except the government of Saskatchewan.”
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Just a week before the court date, the federal government quietly removed coal-fired power generation from the Impact Assessment Act. Asked about that, Prebble said, “Well, listen, we’ll see how that resolves itself.
“I haven’t seen any indication that the government of Canada is planning to change federal laws that applies to the coal phase-out deadline. And the other important thing to consider is that Canada, the Government of Canada, is leading the Clean Coal Alliance internationally, under which a great many industrialized countries are promising to phase out their coal-fired power stations by 2030. So, if Saskatchewan fails to do that, it is undermining Canada’s commitment to the international community.”
Pipeline asked, “If you were successful in shutting down coal, how do we keep the lights on January one st, 2030? When right now it’s anywhere from 20 to 40 per cent of our power generation?”
Prebble responded, “First of all, the Government of Saskatchewan has been has known about this decision, this federal regulation, for eight years, and has chosen to do nothing about complying with it. A responsible provincial government would have begun planning an alternative route, which SaskPower, by the way, was planning. I mean, SaskPower had four other scenarios for achieving future clean electricity generation in this province, and Minister Harrison chose not to implement any of them. That there were four alternatives being presented to the people of Saskatchewan by SaskPower.”
Pipeline Online asked, “Wasn’t your group also fighting against natural gas expansion as well? So if we don’t have natural gas and we don’t have coal, how do we keep the lights on?
Prebble said, “The Saskatchewan Environmental Society applied to intervene in the gas case, but we have not been an applicant in the gas case, and we did not. And our ability to make a presentation was turned down by the courts.”
Prebble said Alberta converted some of its coal-fired power plants to natural gas. But he said the much better option would be to invest heavily in electricity conservation. He also spoke of more cogeneration of electricity with potash mines.
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Prebble said, “Of course, you know, wind and solar, which are intermittent, but when combined together can have increased reliability, was especially an option, particularly useful in the spring, summer, and fall months. I agree, not always available in in winter, and obviously going with wind and solar in combination with battery storage.
“And then we have the option of importing more hydro from Manitoba and improving our interconnections with Manitoba. All of these things could have been pursued by the Government of Saskatchewan for years, and they weren’t. And now our provincial government, because it has failed to act in a responsible manner, has put us in a very, very awkward position.”
While the SES’s lawyer was addressing the court, Pipeline Online received an email saying that Alberta’s wind generation fell to less than 1 per cent of capacity at that moment. And in recent years, Manitoba has cut back on its exports of power to the United States. SaskPower has also been told Manitoba will be cutting back its exports to Saskatchewan in future years.
If the appeal is dismissed, Prebble said, “I think we’ll have to make a decision about whether we choose to appeal to the Supreme Court of Canada or whether we let you know the case, just respect the decision of the court and accept it. I’m hoping that we will get a judicial review of this case.”
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Jody Dukart of the United Mine Workers of America Local 7606. Photo by Brian Zinchuk
Unions respond
Jody Dukart, International Auditor/Teller with UMWA, said, “As a union, I think it’s our responsibility to be here, protect our members. You know, and families, communities. That’s a that’s a major thing”
He added that Judge Smith had made the correct ruling in saying that this case shouldn’t be before the courts to decide.
Ashley Johnson of the United Mine Workers of America Local 7606. Photo by Brian Zinchuk
Ashley Johnson of UMWA said, “I guess probably the biggest thing that I noticed today compared to when we were here approximately a year ago for the first hearing is that their legal is no more prepared than that day than he was today. Still, he didn’t have documents. He had no paper the time before.”
Ken Hoste of IBEW Local 2067 said, “On behalf of IBEW 2067 coal workers, I want to thank the Government of Saskatchewan’s legal team for their hard work on this case, our staff lawyer Dan LeBlanc for ensuring the coal workers of Estevan and Coronach had a seat at the table, and former MLA Bronwyn Eyre for her advocacy and support in court. The voices of coal workers, their families and communities affected by the future of coal are finally being heard. I hope our presence at the appeal reminds those who seek to unemploy coal workers that they are trying to destroy a community and a culture, not just an industry.”
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https://pipelineonline.ca/saskatchewan-to-rebuild-its-coal-fleet/