Legislature Passes Alberta Sovereignty Within A United Canada Act: Overview And Implications

• Published date: 13 December 2022
• Subject Matter: Environment, Government, Public Sector, Environmental Law, Constitutional & Administrative Law, Clean Air / Pollution
• Law Firm: Borden Ladner Gervais LLP
• Author: Mr Brett Carlson, Matti Lemmens, Tim Haggstrom and Alan Ross

Introduction

On Nov. 29, 2022, the newly elected Premier of Alberta tabled as her first Bill the anticipated Alberta Sovereignty within a United Canada Act (the Act), which was passed on Dec. 7, 2022.¹ The Act embodies one of the Premier's central campaign promises to "shield" Alberta from federal incursions into provincial jurisdiction. The initial version of the Act granted Cabinet sweeping powers to amend laws and direct provincial entities in response to federal initiatives deemed by the Alberta Legislature to be unconstitutional or to cause harm to Alberta's interests.

Prior to its passage, the Act was amended to mitigate concerns relating to Cabinet's ability to circumvent the ordinary legislative process.² Nonetheless, it is still expected that the Act will remain the subject of considerable analysis as stakeholders seek to understand its legal and practical impacts. This article is intended to provide a brief overview of the Act and its potential legal and practical implications.

Background: Political context and operation of the Act

The main precursor to the Act was a discussion report entitled the "Free Alberta Strategy", which advocated for, among other things, the passage of the "Alberta Sovereignty Act, granting the Alberta Legislature absolute discretion to refuse any provincial enforcement of federal legislation or judicial decisions that, in its view, interfere with provincial areas of jurisdiction or constitute an attack on the interests of Albertans. "Federal "nation-wide" initiatives, such as the federal Greenhouse Gas Pollution Pricing Act, the Impact Assessment Act, and a potential future legislative cap on carbon and methane emissions, appear to be primary catalysts of the Free Alberta Strategy and the eventual introduction of the Act.³

After nearly a year of spirited public debate, the Act was passed by the Legislative Assembly on Dec. 7, 2022. The Act's preamble embodies the general sentiment of the Free Alberta Strategy, stating that actions taken by Canada "have infringed on [Alberta's] sovereign provincial rights and powers with increasing frequency and have unfairly prejudiced Albertans". However, the Act departs significantly from the Free Alberta Strategy in many key respects, and excludes some of its more controversial elements such as the purported power to refuse to enforce "judicial decisions designated as unenforceable" by Alberta.

To summarize, key features of the Act are as follows:

• Legislative resolutions & federal threshold. The tabled version of the Act permits a member of Executive Council to introduce a resolution in the Legislative Assembly that deems a federal initiative as unconstitutional, in violation of the Charter, or which "causes or is anticipated to cause harm" to Alberta. Each such resolution must set out the basis for deeming the federal initiative unconstitutional, the nature of its harm to Alberta, and what measures Cabinet should consider in response.⁴ The Act has seen been amended to clarify that the "harm" threshold noted above pertains to federal legislation that is deemed to be unconstitutional.
• Cabinet orders. Once a resolution is ratified, Cabinet can make orders pursuant to that resolution "to the extent that it is necessary or advisable". This includes, among other things: (1) directing a Minister to suspend or modify, by passing regulation, the application or operation of provisions of an enabling law without returning to the Legislative Assembly (colloquially known as a "Henry VIII clause") and (2) directing a "provincial entity"to take various actions in respect of the federal initiative identified in the resolution. The tabled version of the Act controversially contained a Henry VIII clause which permitted Cabinet to...