Since Alberta Premier Danielle Smith first introduced the Alberta Sovereignty Within a United Canada Act over two years ago, the bill has generally provoked two conflicting reactions.
The first is an alarmist outcry among the press and from some constitutional scholars. One scholar went so far as to call it “the most unconstitutional bill in Canada’s modern history.”
The second is that it is an empty expression of populism—a case of performative politics over substance. Columnist Andrew Coyne for instance has contended that the law is nothing more than “a sham.”
We disagree with both of these viewpoints. At the time, we argued in The Hub that the law appeared facially valid. We also envisioned that though every use of the law wouldn’t necessarily be advisable, it didn’t just need to be a paper tiger either. It could prove to have legal and political utility.
After two years, it’s fair to say that our analysis has held up. The big picture is that Smith has so far used the law in constitutional and constrained ways and that far from being “pointless,” it’s served as an instrument for Alberta to advertise its opinion about the constitutionality of certain federal policies and signal its determination to refuse to cooperate.
This approach appears to have paid off because the federal government has been forced to compromise on some policies. And the potential trade war with the U.S. has once again brought to the fore the fact that there is an ongoing debate about whether Alberta’s restraint is warranted in the circumstances.
The genesis and evolution of the Sovereignty Act
In 2021, the Supreme Court issued an advisory opinion in the References re Greenhouse Gas Pollution Pricing Act, which featured a dissent from Justice Russell Brown predicting that it would lead to “serious tensions in the federation.” In response, the Alberta Institute published the “Free Alberta Strategy.”
Within the document, there was a proposal for an Alberta Sovereignty Act. Part of it contemplated ousting the role of courts. Smith campaigned on this proposal during the United Conservative Party’s leadership race.
Despite its origins, Smith’s website framed it as focusing on “provincial non-enforcement of specific federal laws or policies.” The language about preventing “judicial interference” didn’t appear on the website, but concern remained about whether Alberta would respect court decisions. Following her election as UCP leader, Smith indicated that Alberta would do so.
The day after the premier’s maiden speech on the bill, we explained that this version of the proposal appeared to be legally valid. But we acknowledged that the text was potentially susceptible to a different interpretation. We also made clear that its constitutionality depended in part on how it was operationalized in practice.We were joined in that assessment by former Supreme Court Justice Jack Major. We explain our position in further detail in a recent podcast.
To be fair, some critics joined us in criticizing Henry VIII clauses, which allow the executive to amend laws passed by the legislature. This was amended, but it did not satisfy the critics.
Alberta’s application of the Sovereignty Act
Alberta’s use of the Sovereignty Act so far is consistent with our view of its constitutionality. It has been invoked with respect to the proposed Clean Electricity Regulations in 2023 and the proposed Emissions Cap Regulations in 2024.
In both cases, the legislature expressed its opinion that the federal initiatives were unconstitutional as intrusions into provincial jurisdiction and proposed measures to take in response. In support, members of the Legislative Assembly cited the Supreme Court’s decision striking down the federal Impact Assessment Act.
That said, there’s no indication that Alberta seeks to prevent the courts from deciding constitutional issues or that it will defy a court ruling. Indeed, it will even continue to challenge federal policies in court itself.
Alberta’s decisions to decline aid in the execution of federal laws are less likely to be reviewed on constitutional grounds. This is Alberta indicating that it will decline to cooperate with the federal government to the extent that it is doing so and that it will decline further cooperation if asked.
Alberta’s measures regulating certain issues may be subject to challenge, however. These proposals, to the extent that they conflict with federal law, may be declared without legal effect. And if the federal government does pursue a challenge, Alberta may argue that no conflict can arise because the federal laws are themselves unconstitutional.
These moves also appear to be far from pointless, as the promise of uncooperative conduct in the 2023 resolution seems to have helped Alberta push Ottawa to move its net-zero targets from 2030 to 2050. If this is “performative,” then it’s a performance that appears to be getting some results.
More fundamentally, the manner in which Alberta has proceeded so far is broadly consistent with deeper constitutional principles. This means that, while the Supreme Court has held that there’s no general legal obligation to cooperate, Alberta has maintained a minimum threshold of constitutional norms of behaviour in undertaking its actions. It hasn’t rushed to engage in uncooperative conduct or done so indiscriminately.
Both uses of the Sovereignty Act come after a year of Alberta warning Ottawa about its policies and attempting to cooperate. The motions were then debated and passed, albeit more quickly with respect to the 2024 resolution. Further actions will be needed to implement them.
That said, the potential trade war with the U.S. seems to have led some to once again question whether Alberta’s restraint is called for.
We recall that political scientist Barry Cooper argued that the Sovereignty Act in its original form was justified in light of the political context in which Alberta finds itself. Part of the argument was as follows: someone has to guard the guardians. If the federal government defies the Constitution and the Supreme Court is incapable of reining it in or unwilling to do so, someone has to step in. In other words, there is no need to be nice in these circumstances, and severe forms of retaliation, such as ignoring court decisions or secession, may be warranted.
While the proposal shifted over time, the reasons that animate it seemingly have not.Similar reasons have been advanced by former Alberta Finance Minister Ted Morton in relation to the reformed proposal. Therefore, if Alberta takes more aggressive actions, it could act in ways that are inconsistent with deeper constitutional principles. But such moves may also be contextually warranted as a way of contesting federal aggression.
Recent suggestions that the federal government may create a tax (and perhaps even a ban) on oil and gas in response to any tariffs imposed by the U.S. seem to have given additional munitions to those advancing this position. This has led Smith to announce that Alberta will find ways to “shield the province from Ottawa as much as from Donald Trump and his tariffs.” She has also implied, in a manner reminiscent of the Sovereignty Act in its original form, that “Albertans” may go further.
In sum, the use of the Sovereignty Act is consistent with our view that the law, as written, is legally valid. We note as well that the federal government has not sent a reference to the Supreme Court on the question of its constitutionality. Particular uses of the law may be challenged in the future, but this contestation can be legitimate. Legislation can be constitutional even when particular uses of it are not.
Whatever contestation lies in store, we fail to see how Alberta’s actions to date are inconsistent with Canadian law or incompatible with deeper constitutional principles. And even the conversations the Sovereignty Act has prompted, not to mention the compromises it has generated, assure us that it has been far from pointless.
