Sovereignty bills are symbols of discontent in today’s Canada
The Alberta legislature recently passed the Alberta Sovereignty within a United Canada Act, which empowers the Alberta cabinet, when authorized by the legislature, to order provincial agencies and officers not to enforce federal laws that interfere with provincial jurisdiction or Charter rights. And the Saskatchewan First Act, which recently passed second reading in the Saskatchewan legislature, asserts Saskatchewan’s exclusive jurisdiction by repeating the language found in Canada’s Constitution.
As legal instruments, these Acts will be of limited utility. The Saskatchewan bill won’t change the way the Constitution is interpreted. The Alberta statute could create administrative tangles for the federal government but will not block its jurisdictional reach. These sovereignty bills cannot legislate new constitutional bulwarks against federal intrusion. But that is not their purpose. They are not primarily legal tools but political moves in a culture war waged by Ottawa. At the top of the federal agenda sits Net Zero, the project to end the use of fossil fuels. The feds have moved aggressively to occupy the field on climate change and thus restrict the development of Alberta’s and Saskatchewan’s natural resources.
Fights with the federal government over natural resources, of course, are not new. In 1980 Pierre Trudeau’s National Energy Program sought to seize the rewards of oil development for federal coffers. But Trudeau Sr. wanted patriation of the Constitution more badly than he wanted provincial oil resources, and largely thanks to the work of Peter Lougheed, then premier of Alberta, the 1982 constitutional deal that included the Charter of Rights and Freedoms also added a new section 92A to the Constitution Act 1867. Thanks to that section, in combination with provincial powers in the original British North America Act, few matters are more clearly laid out in the Canadian Constitution than jurisdiction over oil and gas resources, whose exploration, development, conservation and management are reserved exclusively to the provinces.
Yet in 2020, Parliament passed a carbon-pricing regime establishing a minimum national carbon tax to reduce greenhouse gas emissions. When the governments of Alberta, Saskatchewan and Ontario challenged its constitutionality, the Alberta Court of Appeal was the only provincial appeal court to strike it down. “The Act is a constitutional Trojan horse,” the majority wrote, “Almost every aspect of the provinces’ development and management of their natural resources, all provincial industries and every action of citizens in a province would be subject to federal regulation to reduce greenhouse gas emissions. It would substantially override ss 92A, 92(13) and 109 of the Constitution.”
But a majority at the Supreme Court of Canada disagreed, overturning the Alberta decision and instead confirming decisions from the Ontario and Saskatchewan courts of appeal that held the carbon tax a permissible exercise of the federal government’s “Peace, Order, and good Government” power under section 91 of the Constitution Act 1867. That power is residuary and exists “in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.” According to the Supreme Court judgment, establishing a minimum national carbon tax constituted a “national concern” allowing the exercise of the POGG power because climate change was “an existential threat to human life in Canada and around the world.”
The feds next aspire to impose their own Impact Assessment Act on oilsands developments. A majority at the Alberta Court of Appeal has again declared the federal regime to be “a breathtaking pre-emption of provincial legislative authority.” That decision has been appealed, and the Supreme Court of Canada will again be the final arbiter. Provincial legislation cannot dislodge the Supreme Court’s power nor dictate its interpretation of the Constitution.
When faced with the dual powers of the federal government and the Supreme Court, what should dissenting provinces do?
The most potent weapon for Alberta and Saskatchewan is broad political dissent. Their new enactments are an important step in that direction and are rightly perceived to represent a challenge to the prevailing order. The federal political establishment remains predominantly Laurentian but is also now steadfastly progressive. The Trudeau government is Canada’s first fully woke regime. Alberta and Saskatchewan, with oil, guns, populism and a culture of self-reliance, are the federal government’s enemies all rolled into one. While during COVID, the Alberta government under Jason Kenney sang from the same authoritarian songbook as the feds and other provinces, Danielle Smith has disavowed that approach and apologized to the unvaccinated for their treatment. Climate change will be the next “crisis” and Smith’s political repudiation of Net Zero is as much a threat to the federal agenda as the text of the Sovereignty Act.
That threat explains, in part, the hysterical scorn heaped upon the bill when it was introduced. “Danielle Smith’s Sovereignty Act is a silly political dare, written in crayon” snorted columnist Robyn Urback in the Globe and Mail while her colleague Andrew Coyne called for “alpha federalism” to put down growing provincial insurrection. Don Braid in the National Post called the bill possibly the worst legislation in Alberta history while Calgary Mayor Jyoti Gondek told the CBC that not enforcing federal law was dangerous.
The Alberta and Saskatchewan bills reflect our winter of discontent in this country. When Gary Mason wrote in the Globe that “Danielle Smith and her acolytes in the United Conservative Party want to fundamentally change the way Canada works,” he did not mean it as a good thing. But unwoke Canadians from across the country hope that she succeeds.