By Bruce Pardy for The Financial Post
The new year begins with Alberta and Saskatchewan on the warpath, thank goodness. In December, the Alberta Sovereignty within a United Canada Act received Royal Assent, while the Saskatchewan First Act recently passed second reading in the Saskatchewan legislature. These Acts will be of limited usefulness as legal instruments, and neither will change the Constitution. But that is not the game here. Alberta and Saskatchewan’s most potent defence against the dual threat of an interventionist federal government and legally imaginative Supreme Court of Canada is broad political dissent. These two bills signal a long winter of discontent with and challenge to the prevailing order.
The Sovereignty Act 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. It could create administrative tangles for the federal government but will not limit its constitutional jurisdiction. The Saskatchewan bill, which asserts that province’s exclusive jurisdiction by repeating the language found in the Constitution, can’t and won’t change the way the Constitution is interpreted. Provincial bills cannot unilaterally legislate new constitutional bulwarks against federal intrusion.
But that is not their purpose. They are not primarily legal tools but political instruments 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 and Saskatchewan’s natural resources.
Fights with Ottawa over resources are not new, of course. In 1980, Pierre Trudeau’s National Energy Program sought to seize the rewards of oil development. But Trudeau Sr. wanted patriation of the Constitution more badly than provincial oil and, largely thanks to the work of Peter Lougheed, then premier of Alberta, the 1982 deal that included the Charter of Rights and Freedoms also added a new section 92A to the Constitution Act 1867.
Though few parts of the Constitution are more clear than exclusive provincial jurisdiction over the exploration, development, conservation and management of oil and gas resources, the Alberta Court of Appeal was the only provincial appeal court to strike down Ottawa’s carbon-pricing regime. “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 (the relevant sections) of the Constitution.”
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 residuary “peace, order, and good government” power. Establishing a minimum national carbon tax constituted a “national concern” allowing the exercise of the POGG power, said the majority, because climate change was “an existential threat to human life in Canada and around the world.”
Ottawa now aspires to impose its own Impact Assessment Act on oilsands developments. A majority at the Alberta Court of Appeal has declared the federal regime to be “a breathtaking pre-emption of provincial legislative authority” and the Supreme Court will again be the final arbiter. Provincial legislation cannot dislodge the Court’s power nor dictate its interpretation of the Constitution. Is it really any wonder Western Canadians are frustrated and angry?
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 their oil, guns, populism, and a culture of self-reliance, are Ottawa’s adversaries all rolled into one. During COVID, Alberta’s government sang from the same authoritarian songbook as the feds and other provinces, but Danielle Smith has disavowed that approach and apologized to the unvaccinated for their treatment. Smith’s political repudiation of net zero is as much a threat to the federal agenda as the text of the Sovereignty Act — though just how much obviously depends on whether she wins this spring’s provincial election.
That threat she poses explains, in part, the hysterical scorn heaped upon the sovereignty 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.
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 Smith’s “silly political dare” succeeds.
Bruce Pardy is executive director of Rights Probe, senior fellow with the Fraser Institute and professor of law at Queen’s University.
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