Supreme Court Appeal

The Saskatchewan government decided to appeal the Saskatchewan Court of Appeal’s decision upholding federal government’s jurisdiction to enact legislation to control greenhouse gas emissions. The Supreme Court of Canada heard this case September 22 – 23, 2020. Listen to the webcast here. The NFU is one of the groups jointly intervening at the Supreme Court as Climate Justice et al. Click here for our complete Factum. Table of contents is on page 13 of the PDF.

Why the NFU is in court supporting federal jurisdiction over greenhouse gas pollution pricing
Click here to read the NFU's affidavit - The NFU’s intervention in support of federal jurisdiction over greenhouse gas pollution pricing is not an endorsement of the current federal government’s measures. Rather, the NFU recognizes that a national framework needs to be created through the principles of co-operative federalism, and this requires federal leadership and enforcement powers.
NFU applies for Intervenor Status in Climate Change Constitutional Case
In April 2018 the government of Saskatchewan decided to challenge the federal government’s jurisdiction in regard to climate action measures, arguing its Greenhouse Gas Pollution Pricing Act reaches beyond federal

Affidavit of the National Farmers Union

The NFU has the status of Intervener in the Constitutional Reference Case regarding federal jurisdiction over climate change measures. The NFU submitted the affidavit below to the Saskatchewan Court of Appeal in December 2018. The case was heard in Regina, in February 2019. In May, the Court of Appeal released its decision: the majority of the Court is of the opinion that the Greenhouse Gas Pollution Pricing Act is not unconstitutional in whole or in part.  The NFU said  this polluter-pay decision was a small but important step

Docket: CACV3239

Download official version (PDF)

I, Glenn Wright, of the Rural Municipality of Vanscoy, #345, in the Province of Saskatchewan, MAKE OATH AND SAY THAT:

1. I am a primary producer (farmer) of grains and have been a member of the National Farmers Union (NFU) for 3 years. I have prepared this affidavit on behalf of the NFU to fulfill the requirements of a resolution of the NFU members present at the most recent NFU national convention held in Saskatoon, Saskatchewan November 22 – 24, 2018. The content of this affidavit has been reviewed an endorsed by the NFU Policy Committee and it is respectfully submitted to the Court as part of the joint intervention, of which the NFU is a party, lead by Mr. Larry Kowalchuk.

2. I have lived in Saskatchewan most of my life and have farmed in the Rural Municipality of Vanscoy, SK since 2006. I am a professional engineer and worked in various capacities in resource extraction within Saskatchewan and Alberta for nearly 20 years before retiring in 2016. I have an M.Sc. in Engineering and I am currently in the Juris Doctor program at the University of Saskatchewan.

3. Farmers are on the front lines of those who will be most affected by Climate Change. Farmers are wholly dependent on a stable climate in order to produce the food that feeds the world. Canadian farmers are already feeling the negative effects of Climate Change and these deleterious effects are expected to worsen in lock step with increased GHG emissions. It is a fact that increasing GHG emissions will intensify Climate Change. The science is clear that GHG emissions must be reduced immediately and that the world economy needs to become carbon neutral within the next 3-4 decades. The task of deep decarbonization is daunting and clearly Canada must embark on that path as soon as possible.

4. The NFU believes that this case is about the risks posed to the country by Climate Change and that it is the duty of the Federal government to implement policy and a regulatory framework to control the specific pollutants, namely GHGs, that cause Climate Change. The NFU is supportive of the argument prepared by the respondent, the Attorney General of Canada. In this affidavit, the NFU presents its perspective on how farmers across Canada will be affected by Climate Change and seeks to emphasize why national action must be taken to mitigate Climate Change as a matter of national concern.

5. The Attorney General of Saskatchewan (AGSK) argues that the provinces have autonomy within the realms of their jurisdictional authority without being obligated to policies set down by the central government . Surely this cannot be interpreted to mean that one province has the right to act in a manner that is detrimental to the nation and the rest of the world. Climate change is an issue of national concern and international concern that requires a coordinated and collaborative response. The NFU believes that the Federal government is compelled to address GHG emissions and Climate Change with national policy and regulation.

6. In this affidavit, the NFU aims to outlay the facts that demonstrate how farmers across Canada will be uniquely impacted by Climate Change. The NFU will explain the concerns of farmers and the NFU seeks to explain why mitigation of Climate Change requires a national approach, as proposed in (but not limited to) the Greenhouse Gas Pollution Pricing Act (GGPPA).

Saskatchewan’s Position

7. The AGSK argues that this case is not about the risks posed to the country caused by Climate Change. The AGSK further argues that this case is not about whether a carbon price is an effective mechanism to reduce greenhouse gas (GHG) emissions . The AGSK has tried to frame this case as a narrow issue of interpretation of the Canadian Constitution and the Division of Powers. But GHG emissions cross provincial boundaries freely and our collective emissions of GHGs are of national and international concern.

8. The AGSK argues that GHG pollution is a matter of local concern, much like smoke . Historically this argument may have been accepted, particularly when the term “SMOG” was coined in 19th century London as smoke and fog off the river Thames often created a very localized effect. However, GHG emissions are now understood to become dispersed evenly throughout the atmosphere very quickly, and jurisdictions where GHG pollution is emitted intensely are not necessarily going to feel the most significant impact. The effects of GHG emissions that may be more intensive in one province will cross provincial and national boundaries and have effects beyond those borders.

9. What complicates this situation is that Climate Change will affect all regions of Canada differently. Some have predicted benefits for prairie farmers including longer growing seasons, higher yields, and increased property values. The mixed messages received by prairie farmers has certainly given cause for confusion. Farmers are prudent business managers and we spend considerable time studying the economics of our operations. However, what must be recognized is that near term economic concerns (or near-term benefits being pursued by opportunism – see Appendix A) will be eclipsed by existential threats to farms across the nation. Though a minority of farms may benefit from Climate Change, most farms will endure increasing threats and harm directly caused by Climate Change. Without a national approach to Climate Change mitigation, inaction in some provinces facing less imminent threats would exacerbate the harm to other provinces.

The NFU Position

10. The National Farmers Union (NFU) demands that all levels of government acknowledge the need to massively and urgently reduce greenhouse gas (GHG) emissions . Rural people are particularly susceptible to a changing climate. Farmers will be hit hard in terms of water security, infrastructure damage, drought, erosion, wild fires, and other weather-related events caused by Climate Change. Farmers have always known that “we can’t control the weather”, but farmers have always depended on climate stability as they risk and hope for nature to provide weather that will allow crops and livestock to thrive. Climate science clearly shows that increasing GHG emissions is radically affecting the climate and that the relatively stable climate we have experienced in the past century is not our future.

The Importance of Water Security

11. The natural health and wealth of the prairies are intimately linked to the quantity and quality of water. Farmers depend on surface and groundwater sources to raise livestock and to provide their own domestic water. Agricultural production, more so than any other form of production, is impacted the most from the weather. All types of agriculture depend upon a suitable amount, quality and timing of water. Dryland farming is very much at risk because a warming climate will lead to more soil and water evaporation combined with more severe and intense rainfall events. As the demand for irrigation grows to offset soil evaporation, there will be increased conflict over water rights and water security. During the 2001-2003 drought in Alberta, the St. Mary River Irrigation Project in southern Alberta had insufficient water to meet annual allocations: in 2001 farms were only provided with 60% of their annual allocations. Obviously grain and vegetable crop production and large-scale livestock production are constrained by water availability.

12. Climate Change is expected to cause the glaciers in the Rocky Mountains to disappear within this century. Though glacier melt only accounts for 5% of the river flows in the Saskatchewan River basin for example, it has historically been the glacier melt contributions that keep the rivers flowing in the late summer months of August and September. The flow of rivers in the Saskatchewan River basin is predominantly influenced by snow melt. However, in low flow years such as 1998, glacier meltwater was found to account for 13% of the annual flow of the Bow River at Banff, with the maximum glacial melt contribution in August 1998 of 56%. Once the glaciers have melted, there will be serious consequences for water security in the Saskatchewan River Basin during drought years. Irrigation and municipal water supplies will likely require rationing. Obviously, this threatens the irrigation district of the prairies. It is noteworthy that nearly 90% of Canada’s irrigated farmland is within the prairie provinces. Much of that water supplied for irrigation is supplied by snow melt at the headwaters in the Rocky Mountains.

13. Unirrigated farmland is at more risk of water insecurity as a result of Climate Change. Approximately 1% of all prairie farmland is irrigated. The prairies contain 80% of Canada’s farmland; here dryland farm production and the landscape itself are sensitive to climate variability. The western interior of Canada is already warming faster than the rest of the world. As of 2015, air temperatures in the western Canadian interior have risen by approximately 2°C since 1950, exceeding the average global temperature rise in the same time period. Research shows that winter temperatures over the region have risen on average by about 4°C, and in some areas by as much as 6°C or more. Coinciding with this temperature increase, snow cover on the prairies has been in decline. Snow cover is important for many reasons – for example, snow stores water that is released in the spring and also regulates the ground thermal regime which has implications for vegetation, etc. Since 1950, there has been as much as a half a meter reduction in maximum snow depth. Further, studies show the period of snow cover is shorter by 1 to 2 months in the Western Canadian interior. Precipitation patterns are changing. The prairies are experiencing more precipitation in spring and less in winter: less snow and more rain. Since 1950, the western Canadian interior has overall received more precipitation; on average annual precipitation has increased by about 50 mm. Seasonal trends in precipitation change across regions and are mixed. In Saskatchewan and Alberta, winter precipitation has declined by about 20% to 30% and up to 50% in some regions since 1950. Warmer air temperatures have also resulted in an increasing proportion of precipitation falling as rain rather than snow particularly in the spring and autumn. To summarize anticipated future changes, winter and spring are expected to get warmer and wetter, while summer and fall will get warmer with slightly drier summers. Paired with the loss of glaciers (described above), this could create water supply issues in July and August.

14. Agricultural water use has shown steady growth since 1972. As the climate warms, soil evaporation rates increase along with transpiration from plants. Plants require more water during critical times of heat stress, particularly during flowering. Animals also require more water to cope with heat stress too. The demand for water in agriculture will increase as the climate warms. These interactions are non-linear and complex. The physics of air-water vapor interaction is well studied in terms of heating and ventilation design; this field is known as the study of psychrometrics. Engineers and Meteorologists use the psychrometric chart to help understand the interaction between air and water vapour. It is important to note that as air temperature rises, so does the water holding capacity. The psychrometric chart for air – water vapour is non-linear. A change in temperature from 5°C to 10°C increases the water holding capacity of 100% humid air from 5.5 grams per kg of dry air to 7.7 grams per kg of dry air. A similar 5°C increase from 25°C to 30°C increases the water holding capacity of 100% humid air from 20 grams per kg dry air to 27.5 grams per kg of dry air. This is significant because the prairies (as mentioned above) are experiencing air temperature rise more sharply than the global average.

15. Important work has been compiled by the Prairie Climate Center (PCC) at the University of Winnipeg. The PCC has compiled a comprehensive set of data to produce the Climate Atlas of Canada. The PCC project has created an interactive web-based tool to help Canadians understand the effects of Climate Change. The Climate Atlas also includes industry specific information. Resource tools for agriculture can be found here. Below is just one screenshot that exemplifies the anticipated changes to the climate of Regina for the period 2051-2080.

Figure 1: Projected number of +30°C days for Regina, SK Figure 1: Projected number of +30°C days for Regina, SK

16. The Climate Atlas image in Figure 1 is based on the “business as usual” scenario and shows the near future changes that Canadians can expect to see in the Regina region. The near future period of time begins in about 30 years, and we’ll be in the middle of it in about 45 years. Younger Canadians will likely experience all of these changes, and many older Canadians will at least see them begin. None of these changes is projected to happen in isolation: the positive likelihood of a longer growing season co-exists with possibly damaging changes in patterns of seasonal precipitation and very high heat. However, the aggregate effects point to increased risk for agricultural producers, particularly in terms of water security. As prairie agricultural production has been typically constrained by available water historically, the projected rise in very hot days along with the projected drier summers tend to indicate Climate Change will be harmful to farmers.

Extreme Weather Events

17. One of the principle limitations on the available evidence of the impacts of Climate Change on agriculture is that most impact studies do not consider impacts associated with extreme events. Infrastructure in rural settings is particularly at risk to Climate Change. Climate Change is expected to broaden the North American Tornado Alley and the increased frequency and severity of superstorms will mean more wind damage to buildings, grain bins, crops, and soil erosion. Farmers are the frontier people of Canada; a more violent climate will be felt by farmers with threats not only to their economic well being, but perhaps to their very lives themselves.

18. Heavy rains and flooding threaten public rural infrastructure such as roads, bridges, dykes, dams, and culverts. Often the loss of any one of these items can cut off access for farm families. Many farmers rely on a single main point of access to and from their property. Increased rainfall associated with more intense and severe storms will damage these public assets not only leading to public cost, but also threatening public safety. In the summer of 2014, as many as 96 communities had declared states of emergency due to flooding . Furthermore, flooding has increasingly become the most significant cause of crop damage in the prairie provinces . The anticipated increase in precipitation associated with Climate Change is not going to be more “gentle rains” that farmers need to grow crops. Climate Change induced precipitation is expected to bring more heavy rainfall events which will escalate the frequency of flooding and the associated crop and infrastructure damage.

19. Drought and high winds have caused numerous wild fires to spread quickly in Canada . Farmers are often nowhere near organized fire and protective services. Furthermore, volunteer fire departments often need to respond over large distances. Farmers are particularly susceptible to natural disasters such as wild fire and superstorms.

20. Climate Change presents a significant danger to farmers as we know these natural disasters will increase. There is the thorny problem of causation: Climate Change is generally not attributed to be the direct cause of any given superstorm, but it is well known that Climate Change is increasing the likelihood (frequency) and intensity of the energy in the atmospheric systems. Farmers know that we will experience increasing severity of extreme events. Recent history has already identified this trend. According to Public Safety Canada, the Disaster Financial Assistance Arrangement program (DFAA) has observed increasing frequency and costs of disasters, particularly floods. According to the documents reviewed by the department, natural disasters have become more prevalent in urban and rural Canadian communities. The average annual federal share of response and recovery costs of natural disasters paid under the DFAA has increased from $10 million in 1970-1995 to $110 million in 1996-2010 to $360 million in 2011-2016.

Sea Level Rise and Maritime Farms

21. It is well understood that Climate Change will bring sea level rise throughout the world. Though sea level rise may not be of concern to prairie farmers, farmers in PEI are facing direct threats from projected sea level rise. Perhaps the best way to illustrate this is by comparative aerial views. In Figure 2 there are comparative images of the farm of Randall and Jackie Affleck, a dairy operation in PEI. The top image shows the farm today and the bottom image shows the corresponding 3m rise in sea level. Several prominent climate scientists have suggested that a multi-meter sea level rise is foreseeable within a 50-150 year timeframe. It is also important to consider the peak storm surges. The images in Figure 2 are based upon calm seas. The median sea level rise is one thing, but high tides and storm surges can cover a larger area and cause more damage too.

22. The images presented in Figure 2 were produced by Dr. Adam Fenech, the research chair of the University of PEI Climate Lab. The Coastal Impact Visualization Environment (CLIVE) is a new analytical geovisualization tool created by researchers at the University of Prince Edward Island’s (UPEI) Climate Lab and Simon Fraser University’s (SFU) Spatial Interface Research Lab. The collaborative team is known as C2C. “Our study shows that Prince Edward Island lost 20 square kilometres of land to erosion between 1968 and 2010,” said Dr. Fenech. “At the current rate of erosion, as many as a thousand homes are vulnerable to erosion over the next 90 years.”

23. The importance of this from the perspective of Climate Change as an issue of national concern should be obvious. Carbon emissions in the prairie provinces will contribute to Climate Change but the effects of Climate Change will be disproportionately felt by PEI. This demonstrates the need for national policy to mitigate Climate Change in order to give meaning to Cooperative Federalism.

Figure 2: CLIVE Model, Affleck Farm present day Figure 2: CLIVE Model, Affleck Farm present day


Figure 2: CLIVE Model, Affleck Farm, 3m sea level rise Figure 2: CLIVE Model, Affleck Farm, 3m sea level rise


The NFU Perspective

24. The NFU has recognized the urgency to mitigate the effects of Climate Change. The NFU policy manual endorsed the ratification of the Kyoto Protocol in 2002 and has endorsed government policy to drive mitigation since 2011. The NFU knows that collective action is required across all provinces. In response to the Vancouver Declaration of 2016, the NFU urged all levels of government to create comprehensive agriculture rebate programs based on measurable on-farm carbon emission reductions and increased carbon sequestration . Farmers know that we must embrace the precautionary principle of sustainable development.

25. The NFU recognizes that farming is both a source of GHG emissions and that certain farming practices can also sequester GHGs. Reducing emissions is not about rewarding industry for the status quo, it’s about changing best practices to facilitate new reductions in greenhouse gas emissions. Farmers are inherently efficient in their operations – economics forces us to pinch every penny. The NFU recognizes that policy can create change.

26. The NFU has published many position papers that argue for a strategic price on pollution. The core of the argument has been that farmers could pay fees based on the carbon emissions related to their operations, but if so, they should receive carbon refunds based on the relative size and production of their farms. Farmers with below-average emissions for an operation of their size would come out ahead, while farms with above-average emissions would pay some net pollution fees. The NFU recognizes that we’re not going back to horses, and only a portion of our farms can be organic. Nonetheless, any low-emission food system will be a low-input food system. And reducing input use can increase net incomes. The point is that changes in behavior (and resulting emissions) can be driven by public policy. The NFU recognizes that a national strategy is needed to tackle the mitigation of Climate Change and that the Federal GGPPA is an important part of that strategy.

AFFIRMED by Glenn Wright before a duly qualified Commissioner of Oaths

Appendix A:

Appendix A: Real Estate Flyer distributed to rural Saskatchewan, summer 2016

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