Danielle Smith’s Alberta ‘sovereignty’ act introduces sweeping new powers to resist Ottawa

The bill introduced Tuesday would let the cabinet order entities connected to the provincial government to ignore federal rules, but the new Alberta Sovereignty within a United Canada Act been a lightning rod for criticism.

Thestar.com
Nov. 30, 2022
Kieran Leavitt

Alberta Premier Danielle Smith’s government has proposed a bill that would enable her province to deem federal laws unconstitutional, allow it to make unilateral changes to provincial legislation, and direct provincial entities to ignore “harmful” federal policies.

The slate of broad, new asserted powers is part of Alberta Sovereignty within a United Canada Act, introduced Tuesday as the first bill to reach the legislature since Smith took over the governing United Conservative Party from Jason Kenney.

The bill has been a lightning rod for criticism since it was revealed as a cornerstone of Smith’s UCP leadership election platform. Critics and constitutional law experts have called it a step dangerously close to Alberta separatism, but Smith has said the bill would be constitutional and, according to her, strengthen Confederation.

On Tuesday, the bill was slammed by political scientists and the Opposition as appearing to be a power grab and an attack on the rule of law by Smith’s government.

“We’ve been ignored (by Ottawa) for 10 years,” Smith said at a Tuesday press conference.

“So now we’re going to try something new. I think we’ve got their attention.”

The act doesn’t give the provincial government the power to direct a private business or citizen to do anything, but it does let a minister issue a directive to a provincial entity -- like a municipal police force or non-governmental organization -- telling it to ignore a federal policy or law.

Such public entities could include public agencies, organizations controlled by the province, groups receiving public funds, regional health authorities, post-secondary institutions or school boards.

Examples of where this new legislation could be used, as given in a news release from the province, include federal laws regulating natural resources in Alberta; strings-attached social services funding, such as health-care and education transfers from Ottawa; and the federal gun buyback program.

In addition, the bill lets cabinet ministers directly change legislation without debate in the legislature, after following a specific process: First, the legislature would have to approve a motion stating that a particular federal law or policy is unconstitutional or harmful to Alberta; then, the new powers of the sovereignty act could be used to thwart Ottawa.

That could then be done by the province amending a provincial act without having to debate those changes in the provincial legislature. Cabinet could also direct changes to regulations or order a provincial entity to ignore a federal policy or law.

The new powers, if used, must end either two years after the motion is passed, or when it is rescinded by the legislature, whichever comes first. Cabinet can extend the powers to a maximum of four years, however, and the whole process could also be restarted under a reinvigorated motion.

The bill also says the government isn’t liable for anything done under the act. Those civil liability protections also extend to provincial entities following orders to ignore federal laws.

However, an unconstitutional order can’t be made under the act, according to the act itself, and it also can’t undermine constitutionally protected Indigenous rights. If someone wants to seek a judicial review in court, arguing that a government move under the act is unlawful, it has 30 days to do so, instead of the usual six-month window for such an application.

Alberta NDP MLA Sarah Hoffman said the act would effectively give Smith “dictatorial powers to ram through whatever legislation she wants.”

She added that Smith doesn’t have a mandate to “go behind closed doors and rewrite laws.”

Smith and her justice minister, Tyler Shandro, said the bill was needed in order to push back against Ottawa and that since a motion in the legislature was required prior to its powers being unlocked that legislative oversight was in place for it.

The premier said twice on Tuesday that she hopes the act never has to be used.

Lisa Young, a professor of political science at the University of Calgary, said she was surprised to see that the bill, instead of watering down some of Smith’s leadership-race rhetoric, actually exceeded it in some ways.

Young took particular notice of giving cabinet the power to change laws behind closed doors, which wasn’t something she said she was expecting to see, given that it’s akin to granting the government powers reserved for emergencies.

“This seems to me to be a pretty fundamental assault on rule of law,” she said. “It gives the Alberta legislature the authority to make a determination about the constitutionality of federal law, which is, again, unconstitutional.”

Four of Smith’s fellow UCP leadership candidates held a press conference at one point during the race specifically to condemn the idea for the sovereignty act. Three of them -- Brian Jean, Travis Toews and Rajan Sawhney -- now sit in cabinet.

This could be an issue for Smith given that the act, in its current form, doesn’t seem to back off the fiery rhetoric that appeared to spark that press conference in the first place, said Young.

“Is caucus going to vote for this?” said Young.

“How is this different from the sovereignty act that she was describing during the leadership that four candidates held a press conference to criticize and say they wouldn’t support?”

The ideas behind the legislation, once known simply as the Alberta Sovereignty Act, have changed over time. Last month, the First Nation Treaty 6, 7 and 8 leaders repeatedly pushed back against it, saying their treaty agreements were made with the Crown, not the province.

It was then given the new, longer name by Smith, who appeared to be waving away notions that she was pushing for Alberta separatism.

At one time during her UCP leadership bid, she suggested that the bill, which was always to be her first introduced, wouldn’t respect Supreme Court decisions, but that was walked back.

“I’m actually anticipating that this is going to start a very productive conversation with the federal level of government about our joint interests and how we can achieve them together,” said Smith.