Prime Minister Justin Trudeau says Ottawa is “not looking for a fight” with Alberta over the provincial government’s proposed sovereignty bill, but added that he will not “take anything off the table.”
His comment comes the morning after Alberta Premier Danielle Smith tabled legislation that, if approved, will give the provincial cabinet wide-ranging powers that have already faced fierce opposition criticism — and that are already raising constitutional questions.
Speaking on his way into a caucus meeting in Ottawa on Wednesday, Trudeau said the proposed “exceptional powers” in the bill are “causing a lot of eyebrows to raise in Alberta.”
“We’re going to see how this plays out,” Trudeau said, after being asked whether he intended to have the federal government step in and contest the bill.
“I’m not going to take anything off the table, but I’m also not looking for a fight.”
As the controversial legislation makes its way through the province’s legislature, Trudeau said the federal government will “focus on delivering for Albertans.”
“There’s going to be things that we agree with that government on, there’s going to things we disagree with them on,” he said.
“My focus is always going to be to be constructive in terms of delivering for people right across the country.”
If passed, Alberta’s United Conservative government says the proposed law could be used “to stand up to federal government overreach and interference in areas of provincial jurisdiction, including … private property, natural resources, agriculture, firearms, regulation of the economy and delivery of health, education and other social programs.”
The proposed act gives cabinet authority to “direct provincial entities to not enforce specific federal laws or policies with provincial resources.” Anyone subject to the bill must comply with it, but the bill does not outline enforcement measures.
When defining the provincial entities it would have power over, the bill casts a wide net. It includes provincial crown-controlled organizations and public agencies, regional health authorities, school boards and public post-secondary institutions, and municipalities, as well as municipal police services.
The act would give cabinet the power to change legislation by order in council. That means laws related to the resolution could be changed or amended without legislative debate.
The process would be: any minister or the premier introduces a motion in the legislative assembly, identifying a federal initiative believed to be harmful to Alberta. Then they’d present a motion that would include a response – or directives — to that initiative using the act. The motion would be debated in legislature and if the majority of MLAs vote for it, it would be passed and then would go to cabinet. Taking the motion and directives as guidance, cabinet ministers then would have the ability to unilaterally, if they so choose, change legislation.
Martin Olszynski, an associate law professor at the University of Calgary, said Wednesday the most concerning part of the proposed bill is “that the premier would have us believe that to succeed in her fight with Ottawa, she needs to kneecap democratic accountability here in Alberta.”
Olszynski said the premier needs to properly explain to Albertans why giving cabinet and ministers this sort of power is justified.
“It seems to restrict the ways in which we might hold this government accountable, whether through the democratic process or through the courts,” he said.
“It’s not clear, no one has explained to us — if this as constitutional as the premier says it is and if it’s about fighting Ottawa — why does she need to shield her actions from the normal scrutiny that they should be subjected to by our courts and by our legislators?
“There’s nothing she has said or the minister has said that explains why we would need this mechanism as opposed to simply being prepared to run the legislative process in an expedited way.”
He said laws can be passed quickly using the usual process.
“In this province, you can pass laws in days, if not within hours, if you’re really committed to it. So what is the reason for this legislation? And it’s not enough to say: ‘We haven’t tried that.’ There’s lot of things we haven’t tried. Why this legislation? What advantages does this give you?
“We’re entitled to know them because the cost is democratic accountability.”
With his experience in environmental law, Olszynski doesn’t see a context in which this legislation could be used in a fight with the feds.
“Whether it’s the Fisheries Act and concerns about water quality, whether it’s oil and gas emissions caps, whether it’s the federal Impact Assessment Act — the regime for reviewing major projects — all of those apply directly to private citizens in the province and private companies. And the (Sovereignty) Act states very clearly that it cannot compel and it will not compel private individuals to not comply with federal laws.
“So whether you’re Suncor or Syncrude or Imperial, or any other context, you’re still going to be bound by whether it’s the impact assessment act or the carbon price, or whatever.”
Olszynski said there’s enough concern about the legislation that it will likely be challenged if it passes third reading.
He said if the premier and justice minister believe it’s constitutional, they should refer it to the Alberta Court of Appeal to look over.
There are red flags in the legislation that will give the court pause, Olszynski said.
“This looks a lot like the legislature — and cabinet, frankly — giving itself court-like powers to pass judgement on the constitutionality of federal laws and court-like powers to strike down or interfere with the application of those laws, the implementation of those laws,” the law professor said. “Those are both core judicial functions, in my view.
“I think there’s a good argument to be made that that whole part of the bill is unconstitutional as an encroachment on the judicial branch of powers.”
Eric Adams, a constitutional law expert at the University of Alberta, calls the legislation “unprecedented” and an attempt to “rewrite the basic rules of federalism.”
But he doesn’t expect the federal government will engage.
“I think the more likely scenario here is that calm and cool heads will dictate that the federal response should be mostly a passive one — at least in the early days — and that they’ll be eager to wait for this matter to get in front of the courts and then they’ll decide how deeply involved they become,” he said Wednesday.
“My strong suspicion is they don’t want to be the main combatant.”
Adams said the federal government would be playing into Smith’s hands if it was seen to be singling out Alberta for different treatment given the largely hands-off approach it has used in its dealings with Quebec.
He said a case might be made before the courts that the bill is constitutional, but he doesn’t expect that will happen.
“I think it goes too far in suggesting that provinces have the authority to order entities within the province to refuse federal laws,” Adams said.
He said it also might make sense for Ottawa to wait until Alberta’s scheduled provincial election in May.
“The other possibility is this is legislation that is not long lived. Certainly, the NDP has indicated that they don’t support the bill and I imagine this will be one of the wedge issues in the election campaign to come.”
Federal NDP Leader Jagmeet Singh says Trudeau should begin preparing a possible legal challenge over a new sovereignty bill in Alberta.
Singh says the bill is a “threat” to health-care because it could be used to opt out of the Canada Health Act, in favour of asking residents to pay for services.
Conservatives in Ottawa were largely silent on the matter Wednesday, with two Alberta MPs saying they still needed to read the bill.
Garnett Genuis, another MP from the province, said the best way to allay Albertans’ frustrations with Ottawa is to replace Trudeau.
Genuis had more to say about the proposal during the provincial leadership race, when he backed Travis Toews, who is now a member of Smith’s cabinet.
In an opinion piece published in August, he called the prospective sovereignty act a “cheap trick” that violates the constitution and the rule of law.
“If asserting provincial authority were as easy as passing such a law, it would have been done already,” Genuis wrote.
— with files from Bill Graveland, Stephanie Taylor and Mia Rabson, The Canadian Press