Front Burner - A ‘sovereignty act’ for Alberta?

Episode Date: September 20, 2022

In Alberta, the centrepiece of United Conservative Party leadership hopeful Danielle Smith’s campaign is a controversial proposal called the Alberta Sovereignty Act. Smith says the act would allow the Alberta legislature to choose not to enforce any federal law or court order it believed ran counter to its interests. But many legal experts have decried the proposal as unconstitutional, and some critics — including members of her own party — have claimed that it would unleash economic chaos in the province. While Smith’s proposal is new, resentment with Ottawa is not — and for decades, provincial politicians have been promising action to protect Alberta’s interests from federal political intervention. Today, we speak to the CBC’s Jason Markusoff about the Alberta Sovereignty Act and the enduring appeal of that concept.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hi, I'm Jamie Poisson. So there's this great news clip our producer Ali stumbled on the other day from the CBC Archives. It's from 1980, and it's about these two guys in Edmonton who are printing state of Alberta passports with a little picture of an oil pump jack on the front. They're printed in English and Ukrainian, cost $2.50, and orders are brisk. An ad says, Albertans, are you mad as hell? Then show your feelings. That was the same year that

a separatist party, the Western Canada Concept, was formed. Mr. Kessler is not riding as hard against his opponents in this by-election as he is against Ottawa and Prime Minister Pierre Trudeau. Metrification, bilingualism. He was involved with Pearson when they destroyed the flag of the country and gave us a maple leaf flag. There's no maple leaves west of the Manitoba borders. Why do we have a maple leaf by unilateral decision? And also the same year that Grant Notley, leader of the Alberta NDP at the time, and current NDP leader Rachel Notley's father, was so concerned about the dangers of Alberta separatism that he launched a provincial tour to preach national unity. We've got some

pretty powerful people who are now jumping on the separatist bandwagon and somebody has to state the case for Canada and make it clear that we oppose separatism. The idea of Alberta actually separating from Canada was and remains very fringe. But resentment with Ottawa is definitely not. And for decades, provincial politicians have been promising to do more about it. The latest is a controversial proposal by UCP leadership hopeful Danielle Smith. Something she's calling the Alberta Sovereignty Act. That's what the Sovereignty Act is. It's putting the federal government on notice. We intend to defend our constitutional jurisdiction

and defend the rights of our citizens through the Charter of Rights and Freedoms. And I believe we already have a mandate. Smith says this would be the first piece of legislation she would introduce as premier, and that it would allow Alberta to decline to enforce any federal law or court decision it decides is counter to its interests. But experts and critics, including some in her own party, have called it unconstitutional and illegal and say it would unleash economic chaos in the province. Today, we've got our pal Jason Markosoff back. He's a CBC Calgary opinion and analysis producer. And we're going to talk about the Alberta Sovereignty Act and this general concept's enduring appeal. Jason, hi.

Hello. Thank you very much for being here. So what exactly is Danielle Smith proposing here? She is proposing the Alberta Sovereignty Act. I don't know why I think that's a hard question. And the reason I may be hesitating is because it's not completely clear what it's going to be at the end of the day. There are a few different versions of it or iterations. There is the version that was proposed by this organization that she's allied with called the Free Alberta Strategy. There's the version that she's talked about, which is mostly similar to that. And then there would be the version that appears as a piece of legislation

should she win sometime this fall in the legislature. and who knows what that's going to be. If it is indeed as constitutional as she maintains it will be, it may resemble barely anything. It may look nothing like what she's talking about. And theoretically, do any of these versions give any kind of examples about what this act would or wouldn't allow the provincial government to do? In basic terms, what she proposes to do with the Alberta Sovereignty Act is, if the Alberta legislature determines that a federal bill, law, or policy goes against Alberta jurisdiction, interferes on what is supposed to be Alberta's role constitutionally, then Alberta provincial officials will refuse to enforce this law. I don't think if you asked Albertans,

do you want Ottawa to keep invading your jurisdiction? Do you want them to impose vaccine mandates and invade health? Do you want them to shut down our energy industry? Do you want them to invade our jurisdiction on fertilizer? I must tell you, I have a pretty good gauge on Albertans. I doubt very much they would say yes to that. And that's all we're saying is that we know these aggressive actions are coming from the federal government. We're going to put them on notice. Don't do it because we won't enforce them here. One example that she's given is incredibly hypothetical because it's never happened and probably would never happen. But her big example is if the federal government declared the Emergencies Act because of the pandemic and mandated that

children be vaccinated before going to school, then Alberta Health and other agencies like schools would refuse to enforce that rule. Okay. That's quite the red herring, though, because the federal government has not used the Emergencies Act for anything relating to the pandemic in that way. And it's clearly provincial jurisdiction. I mean, it was the provinces that were requiring having vaccine passports. And education is clearly a provincial jurisdiction. So it's a bit of a red herring. Is she giving any examples that are not a red herring?

Like would be more conceivable than that? One of the ones she's talked about is Bill C-69. This bill has already passed into law. It determines how the federal government regulates and oversees and assesses major resource or environmental projects. It governs some oil sands projects, it governs interprovincial pipelines, other major resource projects. And this isn't clear because Danielle Smith hasn't submitted her ideas for much questioning from the press, so we can't really test her on this for clarity. But it seems like she would suggest that Alberta would not accept this law and somehow greenlight projects on its own and say that they don't have to go

through the federal process. Why does she say this Sovereignty Act is necessary? Like, why even need it? It's been leading to this for a while in Alberta politics. There's a long history of distemper and frustration with Ottawa. Jason Kenney, as premier, certainly ratcheted it up. If Justin Trudeau is a friend of Alberta, I'd hate to see an enemy of this process. Considering some ideas that had seemed to be third rails in Alberta politics, things you just don't go that far, like looking actively at getting Alberta's own provincial police, Alberta's own pension, this, and I think we've talked about this before on this show,

the last fall's referendum to remove equalization as an idea from the Constitution of Canada. A clear majority, 62% of Albertans, have rejected the fundamentally unfair equalization program. In other words, 62% of Albertans are demanding a fair deal in the Canadian Federation. Something that passed, and of course, it was meaningless because Alberta doesn't control the constitution. But there's been more and more frustration. And Danielle Smith has certainly harnessed that frustration, given voice and amplified the frustration that Albertans have with Ottawa, specifically the Trudeau liberals. And so what she's said is that we've hit the breaking point.

We can't just do what Jason Kenney did and write letters and try to litigate our way to a better deal. We need to do something very, very firm and insist that the federal government has to keep on its own turf, not to interfere in provincial areas of jurisdiction, such as resource resources, environment, education. And this is basically the most drastic act that Alberta would take. We really do need to get rolling on trying to find a way to follow on Quebec's path of taking more control over our own areas of provincial jurisdiction. People are wanting to see us push back against Ottawa's intrusion in our affairs. The premier was not seen to be pushing back hard enough. And I can tell you that that will be one of the core things I campaign on. And I suspect it will be one of the

factors in this upcoming race. You know, this sentiment that she's tapping into fair for me to say that, that it goes back even further than recent years with Jason Kenney, right? Like we're talking over the past 40 years or so all the way back to senior Trudeau, Pierre Trudeau. over the past 40 years or so, all the way back to Senior Trudeau, Pierre Trudeau. Absolutely. The frustration stems from the National Energy Program of the 1980s that Senior Trudeau implemented, which would heavily regulate and federal control the oil sector, which is constitutionally provincial.

I think that the Eastern Power Base has sucked us so dry for so long that it's 115 years. It has been designed that way, and they want to bring us down to the level of poverty. We're getting shafted. How are you getting shafted? Well, just that our vote doesn't count. Who's doing the shafting? Federal government as well as our provincial. Mr. Lougheed, he speaks out pretty strongly.

The shadow of that still hangs over, and certainly it colored how people thought of a Trudeau Jr., Justin Trudeau. Tell me about the firewall letter. So long after Pierre Trudeau was out and the Tories got rid of the National Energy Program, there was still frustration with Ottawa. I mean, we had the Reform Party in 1980s, Preston Manning's Reform Party, which deemed the progressive Conservatives too centrist, too central Canadian. You know, the West wants in. Much frustration. In the 90s, Jean Quintin comes in, and his government really gets people frustrated.

The Kyoto Accord, the first major climate change program that the federal government tried to commit to. And I want to say that're going to the United Nations and you say to them that Canada is a good citizen of the world. During that, in about 2001, several academics and conservative thinkers, including before he was Prime Minister, Stephen Harper,

penned a letter to Ralph Klein, who was Premier at the time, saying that Alberta is increasingly frustrated in its own agenda. It needs to set up its firewalls around itself to protect itself from federal interference. And some of the things this letter proposed were Alberta getting its own provincial police, Alberta getting its own pension plan, taking more steps to defy the Canada Health Act, pension plan, taking more steps to defy the Canada Health Act, collecting its own taxes.

It made several proposals that at the time Ralph Klein wanted nothing to do with. These were drastic steps. I think the sense was that Albertans, some Albertans were that angry, but not the mainstream Albertans. And up till recently, these ideas didn't have popular purchase. The far-right Wild Rose Party, which was always in opposition, preferred some of these ideas. In fact, Danielle Smith was supporting the pension and police ideas when she was running for the Wild Rose Party in 2012 against the Tories and would ultimately lose. But these never got close to government until Jason Kenney started studying them after the 2019 election. And now, Danielle Smith is proposing to walk them right into the Premier's Den, a simple pitch can lead to a life-changing connection.

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Is it fair for me to say that this proposal from Danielle Smith is like the most extreme version of what we've seen some people and politicians push for over the last four decades? It's the most drastic and alarming step that anybody's taken this close to the Premier's office, certainly. The Alberta sovereignty act goes farther than anything that's envisioned in the firewall letter, largely because it's, according to the authors of it, the people who designed the Free Alberta Strategy, whose act Daniel Smith is running with, it's designed to provoke a constitutional crisis. It's designed to be unconstitutional.

That's what the proponents say. It's designed to get the courts involved, make a huge constitutional dust-up, confuse people as to who is right, where the law stands, and then somehow get Ottawa to prostrate itself to Alberta and somehow change its deal drastically, itself to Alberta and somehow change its deal drastically. Maybe give Alberta much more rein to do its own thing on climate, on environment, on energy regulation, on resource development, do so many other things. And some of that stuff isn't clear. The end goals aren't clear, but certainly the frustration and the drastic step of the Alberta Sovereignty Act is clear. This is confusing to me, though, because I've seen Danielle Smith

talk about what she's proposing, and she says that none of what she's proposing is unconstitutional, and that it would, like, essentially give Alberta the same power within Confederation that Quebec has. So, like, how do you square that circle when you talk about how some of the people who created this act are doing it to kind of spur a constitutional crisis? It's been difficult to square that circle. And again, there haven't been many opportunities to ask Danielle Smith questions on this. opportunities to ask Danielle Smith questions on this. So it's tough to understand the difference between what the authors of the Alberta Sovereignty Act say and what the chief proponent now, the would-be premier who would implement this, say. That is very confusing. What we do hear from

her is some of the justifications about how other people are doing this, so why can't we? Yeah, and what about that argument, like, this is like Quebec? Is that a valid argument? If you ask constitutional experts and people in politics, no. What Quebec does has been constitutional. Quebec has never gone out and stated that they will not enforce federal law. Quebec has never gone out and stated that they will not enforce federal law. She often claims that when the Emergencies Act came out to stem the Freedom Convoy, that the Quebec Assembly passed a motion unanimously that it would not enforce the Emergencies Act.

That's not at all true. They passed a motion, but that's just a symbolic rejection of the Emergencies Act, not a, we're not going to enforce it should it come to this. Quebec also, of course, has used the Notwithstanding Clause several times on its language bills, on Bill 21, the law that regulates what people can and can't wear if they're in certain minorities and are in public service. But using the notwithstanding clause, that's part of the Constitution to exempt provincial rules from the Charter of Rights and Freedom. That's prescribed within our

system. What Danielle Smith proposes to do, have the legislature vote on whether or not Alberta would enforce or not enforce certain laws, that's totally extra constitutional. One of the country's leading conservative constitutional experts has characterized this as the Alberta Suicide Act.

Howard Englund says that the ideas included in the Sovereignty Act are, quotes, to use a technical term from constitutional law, nuttier than a squirrel turd. Beyond the constitutional criticisms, there are also financial ones here, right, that I want to talk to you about. Travis Taves, Alberta's former finance minister, who's also running to be UCP leader, has said that Smith's act would cause job-killing economic chaos.

And the province premier, Jason Kenney, hasized if Alberta decides to become a banana republic that refuses to respect the authority of the courts. What's the economic concern around the proposal? had a piece, an op-ed recently going even farther that this would be as bad as anything Justin Trudeau has done, which, you know, is a low blow for in conservative land in Alberta. The argument there, and we also hear business groups and other investment experts express concern about this, that do companies want to invest and commit to major projects? And when we're talking oil sands and the energy sector, we're talking multi-billion dollar projects. Do they want to commit to a jurisdiction where it's not clear who's in charge? If you have the federal government saying, we have this federal system of assessment, and the provincial government

saying, no, it's our jurisdiction, we reject that, And you can do what you want. You can go ahead and build this. Investors like certainty, goes the argument. And they want predictability and understanding what the rule of law is. And they won't invest in a region that is unstable legally or constitutionally. And companies generally aren't keen on getting in the middle of a constitutional crisis. I just came back from Korea talking to some of the largest companies in Asia about multi-billion dollar investments in Alberta. I can tell you that those investors, the Alberta Sovereignty Act would be like kryptonite for them. They're interested in political stability, not political chaos.

So obviously we know what people like Taves and Kenny are saying about it, but what about the rest of the UCP? Is there support for this? Like, do you, does the party or parts of the party like this? We'll find out definitively on October 6th when we find the results of the leadership. And given that Danielle Smith has made this the centerpiece of her campaign, very much the, you know, so much else of what she does would revolve around this. Some of her resource policy, her environmental ideas, her whole approach to Ottawa centers on this. How the police would work, whether we collect our own taxes.

This is the linchpin of her campaign. So this is now the referendum on this plan and Smith. You know, there are a lot of people in conservative land. I've traveled around the province a bit. They echo her frustration with Ottawa. They really don't trust Justin Trudeau, especially those who have firmly opposed his policies on COVID and vaccine mandates. And they feel this is the most incredible way to stick it to him and to say, back off, this is our turf.

And there are probably some people who want a little chaos, who feel like not injecting chaos, not being completely elbows out, hasn't worked. They were frustrated with Kenny, as Daniel Smith echoes. So for those people, this works. For other conservatives, they are worried about the business climate. They are worried about the chaos. There are quite a few UCP MLAs who say, we don't know what this is going to look like in legislation, but if there's a bill before us that's like this, that's unconstitutional, that goes against the rule of law, we're not going to look like in legislation. But if there's a bill before us that's like this, that's unconstitutional, that goes against the rule of law, we're not going to support it. So this could pose Danielle Smith a real challenge. She could win the leadership.

The grassroots of the party could endorse her and her sovereignty act. But if enough of caucus, maybe a third of caucus, bands together with the NDP, they can reject anything she puts forward. So it could well be that Danielle Smith has to really alter and defang this plan for it to pass the legislature and pass Muster. It also strikes me that it's one thing to win the leadership, but then she has to become premier. So she's going to have to appeal to a wider audience, right? That's right.

So we know that the Ottawa issues, Justin Trudeau, federalism, equalization formula, these really exercise and get riled up the United Conservatives. really exercise and get riled up the United Conservatives. But the general public, the general public is largely concerned about the adequacy of health care, education. Of course, inflation, like everywhere else, is a big, big issue. This hasn't been part of the conversation. So much of the oxygen in this leadership campaign has been taken up by the Sovereignty Act, thinking back about COVID vaccines and things like that. Right now, she's engrossed in a conversation with about 124,000 Albertans, the ones who are UCP members. Well, we're a province of more than 4.4 million.

So there could be a very, very different conversation that she has to engage in come October, should she win. And then, of course, we're not long away from next May, which is supposed to be the general election where she or whoever wins is going up against former Premier Rachel Notley, who still leads the NDP and has been remarkably stable during this long period of conservative instability. Jason, thank you so much for this. It's really interesting. It's great to chat. All right, that's all for today. I'm Jamie Poisson.

Thanks so much for listening. Talk to you tomorrow. For more CBC Podcasts, go to cbc.ca slash podcasts.