The Alberta Sovereignty Act is Under Way

Commentary, Alberta, Public Sector, Marco Navarro-Genie

In mid-September, Premier Jason Kenney openly disagreed with UCP leadership hopeful Danielle Smith over Smith’s proposed Alberta Sovereignty Act (ASA). Kenney said the legislation would be destabilising, unconstitutional, and a disaster for Alberta. Kenney’s former principal secretary levelled similar accusations, which Kenney happily quoted: it should be called “the Alberta suicide act.” Kenney went as far as to besmirch the original authors of the idea for a sovereignty act, calling them an extreme right-wing group. Himself accused of meddling in the selection of his successor, Kenney reminded everyone that as premier his job is “to defend the vital interests” of Alberta, thereby suggesting that the proposed ASA would do the opposite.

A week later, Alberta Solicitor General Tylor Shandro gave notice to the federal government and to the RCMP of Edmonton’s intention not to cooperate with Ottawa’s plan to dispossess Albertans of lawfully procured firearms. Shandro dismissed the harmful federal policy as politically motivated. He ordered the RCMP, under the authority of the 2011 Provincial Police Service Agreement (PPSA), to disregard Ottawa’s instructions for the “buyback.” Ottawa’s plan, Shandro said, did not follow Alberta priorities. Under (section D) the PPSA, the federal cops are bound to “respect Alberta’s constitutional jurisdiction over the administration of justice,” and (G) to implement “the provincial policing objectives, priorities and goals.” Shandro also announced Alberta’s intentions to intervene in the relevant court cases against Ottawa.

With this move, Alberta uses its jurisdictional authority to push back against Ottawa when Ottawa is perceived to be acting against the interests of Albertans. In a sense, the Alberta government is stepping into a line of fire to shield the rights of individual Albertans. Such spirited defense is in significant part what Smith’s proposed ASA aims to do. The announcement surprisingly represents Kenney’s tacit endorsement of Smith’s proposal.

Albertans wondering about the rationale and virtue of implementing the ASA now have a concrete example for an answer. In a nutshell, the ASA is a response to the Ottawa problem, which is its tendency to hinder provincial authority and development. It has several manifestations. Ottawa hinders provinces through a combination of inaction, obstruction, and intrusion. In recent examples, Ottawa’s inaction allowed unconstitutional blockades to Alberta’s exports; Ottawa obstructed new energy developments such as Teck Frontier; and Ottawa intruded in Alberta’s jurisdiction with its desire to grab the lawful property of Albertans.

The ASA would thus assert Alberta’s authority to refuse provincial enforcement of specific federal policies or laws that violate the jurisdictional rights of Alberta under the Constitution, or which breach the Charter rights of Albertans.

The ASA is not an instrument for “independence” as some have wrongly suggested. Alberta has every right to occupy the fullness of the jurisdictional spaces that the Constitution confers to provinces. In federal arrangements, the sovereignty of the state is intentionally divided, and Canada’s Constitution divides the country’s sovereignty into specific jurisdictions. Some of these jurisdictions are the exclusive domain of each government and some are shared. Education is an exclusive provincial jurisdiction, for instance, and Ottawa has zero authority to make laws regarding education. Whether or not a prime minister is interested, foreign and monetary policies are Ottawa’s exclusively. Immigration and transportation are examples of shared areas, adding even more tension to the mix.

Inherent tensions exist in federal structures. They are magnified in Canada when Ottawa is hostile to a province. For example, Pierre Trudeau’s open hostility to both Quebec and Alberta, and now his son’s hostility to Alberta and Saskatchewan make matter worse. In such situations, it is imperative for Western provinces to be proactive in shielding themselves against intrusions or punitive abuses from Laurentian rulers.

The history of Western Canada is painted with jurisdictional transgressions, punitive violations, and over-reaches from Ottawa to the detriment of provinces. The ASA is thus meant to defend the constitutional authority that Canada’s Constitution gives to provinces under sections 92-95 of the 1982 Constitution. All provinces enjoy such sovereignty portions to govern their own affairs without external interference. And doing so is lawful, constitutional, and a “vital interest” of each jurisdiction, to re-take Kenney’s language.

Kenney’s move is without a doubt the most interesting development in Canadian constitutional affairs in decades. Already emulated by Saskatchewan and Manitoba (NB may be next), it sets a precedent for provinces to defend their constitutionally-apportioned sovereignty. It lays the ground for Danielle Smith to introduce her legislation, should she win as expected.

How Ottawa reacts will have significant implications for the federation. Specifically, how the RCMP responds may determine the future of the federal police acting in provincial spaces in Western Canada.

 

Marco Navarro-Génie is senior fellow at the Frontier Centre and president of the Haultain Research Institute. He is co-author, with Barry Cooper, of COVID-19: The Politics of a Pandemic Moral Panic (2020).