Does Albertan sovereignty align with being part of a united country?

Today, Alberta passed a law that would allow them to not participate in administering some federal laws and programs.

Photo by Hansjörg Keller on Unsplash

Today, Bill 1: Alberta Sovereignty Within A United Canada Act, colloquially known as the Alberta sovereignty law, passed into law in Alberta. The stated purpose of the law is to protect the people of Alberta from actions taken by the federal government which infringe on the rights and powers under provincial jurisdiction. While the law is very explicit about not authorizing actions that are contrary to the Constitution or violate federal laws, it also gives the power to the Executive Council of the Legislative Assembly to pass resolutions that suspend or modify the operation of a federal law, specify provisions that replace or add to those in a federal law, and otherwise modify the application of the federal law. The Legislature can approve such a resolution where it feels a law is Unconstitutional on the basis that it intrudes into an area of provincial jurisdiction, violates freedoms under Charter, or causes or is anticipated to cause harm to Albertans. 

To understand what is going on, it is important to understand some of the fundamentals of how the Canadian Constitution is structured and interpreted. Sections 91 and 92 of the Canadian Constitution of 1867 are essentially two lists setting out the powers of the federal government (section 91) and the provincial governments (section 92). One of the powers allocated to the federal government is the power for “peace, order, and good government” more commonly known as the POGG power. Under this power, when situations that arise have not been contemplated under the heads of power allocated in the 1867 Constitution or where there is a need for something to be controlled at a federal level, the federal government is able to legislate in that area. The Canadian Constitution was amended in 1982 to add the Canadian Charter of Rights and Freedoms. Section 1 of the Charter creates a caveat on the rights and freedoms contained therein by reserving the power to limit these rights by law as can be demonstrably justified in a free and democratic society. 

The complicated dynamics between the federal and provincial governments under the Constitution have created tensions off and on over the years, and have resulted in Quebec consistently invoking the notwithstanding clause to prevent the federal government from putting an end to their language laws, and has now prompted Alberta to pass a law allowing them to refuse to enforce designated federal laws. 

The practical power of this law is a little unclear. It does not give Alberta the power to tell people not to follow federal laws or to ignore rulings that provincial laws are unconstitutional. However, it does give the Alberta Legislature the power to not administer a federal law or program within the province until they are compelled to do so through a court decision that a law is constitutional. Where the province refuses to enforce a law on the basis that it believes it is unconstitutional, it would be for the federal government to bring court proceedings to have the law declared constitutional. 

While the text of the law puts forward a far milder program than many anticipated when word of the Alberta sovereignty law first went around, it still contains elements and themes that are concerning. The first, and most procedural, is the vagueness of the clause that Alberta can pass a resolution where they believe a law “causes or is anticipated to cause harm to Albertans.” While future judicial interpretation would likely set criteria or create a test for when a law is anticipated to cause harm to Albertans, taken on its face, this seems like a statement that could potentially be applicable to any federal law or program. It is also unclear whether it could be applied retroactively to programs and policies that Alberta has disagreed with and for which there is no existing Supreme Court guidance as to their constitutionality. 

The theme of a province wanting to assert its sovereignty is not unique to Alberta. Quebec has had two referendums over whether or not to secede from Canada, and teaches Quebec sovereignty as part of the standard Canadian history curriculum, which only includes the history of Quebec. Newfoundland, which only became part of Canada 1949, has also been home to a secessionist movement that experiences periodic resurgences. These movements have all been focused on breaking the country apart, and while the Alberta sovereignty law claims to be about declaring its sovereignty within a united Canada, and there are no whiffs of secession, it is difficult to see how asserting independence aligns with being part of a united country. 

In looking at the law, it is important, second, to consider the broader circumstances under which the law arose. In recent years, Alberta has been prominently opposed to the Greenhouse Gas Pollution Pricing Act, which sought to cap greenhouse gas emissions using the POGG power in an effort to mitigate the effects of climate change, and Covid-19 safety measures such as mask mandates and business closures. Given this trend, it makes it difficult to get on board with supporting Alberta’s efforts to assert their powers under section 92 of the Constitution, as it signals a potentially dangerous trend of actions that fail to take into account the broader context of the united Canada they are part of. 

Whether this new law will ultimately prove constitutional is yet to be seen when and if it is challenged in the Canadian court system.