The Decibel - What a more sovereign Alberta would mean for Canada

Episode Date: December 2, 2022

On Tuesday, Alberta Premier Danielle Smith introduced her sovereignty act, the Alberta Sovereignty Within a United Canada Act, which would give her cabinet powers to not enforce federal legislation, policies or programs it deems harmful to Alberta’s interests. Smith has referred to the proposed law as a shield against Ottawa.Today, we’re hearing from Alberta and Ottawa. Alanna Smith, a Globe reporter in Calgary, explains how this bill would work and what it means in Alberta. The Globe’s writer-at-large John Ibbitson discusses how Prime Minister Justin Trudeau and other federal officials might respond.Questions? Comments? Ideas? Email us at [e-mail]

Hi, I'm Maina Karaman-Welms, and you're listening to The Decibel. We need the power to reset the relationship with Ottawa. That's what this is all about. We've tried different things in the past and it hasn't worked. So we've got to try something new. That's Alberta Premier Danielle Smith talking about the proposed Sovereignty Act that she unveiled on Tuesday. It would give the province more power, and she says it will defend Alberta's interests from federal meddling. As for the federal government's reaction... I'm not going to take anything off the table, but I'm also not looking for a fight. We want to continue... Today, we get into what this all means, both from an Alberta perspective and a national political view.

The Globe's Alanna Smith joins us from Calgary. And then, The Globe's writer-at-large, John Ibbotson, joins us from Ottawa. This is The Decibel, from The Globe and Mail. Alana, thank you so much for speaking with me today. Thanks for having me. So what is the Alberta Sovereignty Act? What does it allow Alberta to do? So this act is a proposed piece of legislation which would essentially allow the Legislative Assembly to decide whether or not they believe a federal policy or federal piece of legislation is what they would consider harmful or unconstitutional. We don't have a definition for what's considered harmful, but if an act like this were to pass, it would basically allow cabinet to direct provincial entities, whether that be school boards, cities, police, to not follow a federal law or practice. And what kind of federal laws would Alberta be

looking at here? So some of the laws that Premier Smith has listed have to do with the environment. They have to do with natural resources and economic development. She has highlighted a few different things coming from the federal government that she hopes to address with a policy like this. And so that would be the firearms ban. That would include the fertilizer emissions target. That would also include the environmental assessment law from Ottawa. But it goes even broader than that because it also looks at anything that would penalize the province's energy and agricultural sector. It looks at the control of the delivery of health care, education, social programming, and very broadly, anything that they believe violates the charter rights for Albertans.

Essentially, it was the cornerstone of her successful leadership campaign to become the leader of the United Conservative Party and, of course, now premier of Alberta. Okay, so maybe we could just kind of walk through how practically how this would work. And I know it's just been introduced. It's not actually a law yet. But so if we can kind of work through, though, if it was a law, how this would actually go down. So if a government minister in Alberta thinks that a particular federal law is harmful to Albertans, what happens? What's the process that they go through then?

Right. So if this were to become law, then any member of the executive council, like a federal initiative as being, in their opinion, harmful to Albertans or unconstitutional. It would then give cabinet the power to direct any sort of provincial entity, and that's wide-ranging. That could be anything from a regional health authority, a public post-secondary institution, school boards, municipalities, regional police services, and even RCMP under provincial contract. So they can then direct them not to follow whatever federal legislation or policy that they've put forward through this act. And something else that this would also give the cabinet power to do is to amend legislation outside of the assembly. So this is interesting because the UCP put out a press release on Wednesday saying that this act doesn't allow cabinet to unilaterally amend legislation. So what's going on here?

So the press release that was put out Wednesday came after quite a few questions were put forward to Premier Smith and obviously the Justice Minister Tyler Shandrow at a press conference. Many journalists were asking, what exactly are those powers that are being given to cabinet? And so this was in response to those questions. And I was actually talking to an expert in constitutional law, and he said that it's attempting to suggest that there are these like boundaries in what the legislature is instructed to do, what kind of powers the cabinet would have,

but doesn't actually change the heart of the act, which is cabinet can still make changes to rewrite the law outside of the assembly. Is Alberta allowed to do this? Is this a constitutional thing that you can put forward? I mean, they're definitely allowed to introduce a bill like this into the legislative assembly. And for there to be a vote on the bill like this. There's obviously a lot of conversation on whether or not it's constitutional. That's probably a clear answer will come if it's actually used, if it's actually passed and then used towards specific federal initiatives. But they've said in their press briefing document, they said that this is likely to be deemed as constitutional. But we've talked to a couple of experts on it, and they say that there are actually parts of this act that

contradict that line and are actually not constitutional in itself because of the directives that this would allow cabinet to give. So there has been talk before of a so-called wexit of Alberta separation or Western separation from the rest of Canada. Is this bill signaling a move towards that? I think you can look at the formal name of the act, so the Alberta Sovereignty Within a United Canada Act. Premier Smith has made it really clear from her perspective that this act isn't supposed to be a blueprint for separation or anything like that.

She says it'll actually have the opposite effect. So what she's argued is that by restoring and respecting the constitutional rights of Albertans, it'll actually make them a stronger ally in the Federation. Okay. And I'm curious, Elena, how have people in Alberta responded to the introduction of this bill? So reaction to this bill was swift. You saw it everywhere on social media. We had press releases coming into our inbox at speeds I've never seen before. There are a lot of people that are concerned about what this act could mean for Alberta. There are people that are worried it's going to take away investments from Alberta because we won't look as if we're stable enough for people to come here and start businesses and whatnot. There's also been reaction from Indigenous groups here in Alberta.

For example, the chiefs in Treaty 6, they called the act self-centered. They called it short-sighted. And they also criticized the lack of consultation by the government with Indigenous communities. And they said that they're worried that the act will be used to ignore treaties. And this is despite the government insisting it won't. And does the bill have the support of Smith's party, the United Conservative Party? Yes. Everybody who was in the assembly yesterday with the United Conservative Party voted yes for it to be passed through the first round. So this is interesting because in the UCP leadership campaign, almost all of the candidates opposed the Sovereignty Act,

aside from Daniel Smith. So what happened since then? Right. So five of her six competitors opposed the Sovereignty Act. And there was a wide range of reasons. Some of them were that they thought there wouldn't be greater investments in Alberta because of uncertainty in the province. Some people went so far as calling it, you know, catastrophically stupid. And all of those candidates, at the exception of Lila here, actually now have seats in her cabinet. But they've been directed to toe the party line even before this act was introduced. Just lastly, Elena, from the people you're talking to, the experts that you're speaking with, do they think that this bill will actually pass and become law?

If things go as they've been going, then it's likely that it will pass. And you can even look at some of the directives that Premier Smith has given before introducing this act. And she had actually told her cabinet to take a hardline approach against the federal government and their policies. So this has been an ongoing move by Premier Smith to assert Alberta's power within Canada. And this is, I think, just the next step. And obviously a campaign promise that she hopes to fulfill. After the break, John Ibbotson on what this all means from a federal perspective.

John, it's great to see you again. Thanks so much for being here. Great to be here. So Danielle Smith is proposing a bill that would give the province a lot more power to essentially ignore federal laws there. Can the federal government do anything about that? Constitutionally, it could challenge the law in court. It could ask for a Supreme Court reference on whether this is a constitutional act or it could just wait and let others in civil society bring the act before the courts on their own. Sometimes in politics, when confronted with a challenge, the best thing to do is nothing. And this is that kind of situation. I think you'll see that the Trudeau government expresses its displeasure with the bill, but then waits for it to go through

the Alberta legislature, waits to see what kind of challenges it meets in court, waits most of all for the May 29th provincial election while quietly but devoutly hoping that the NDP wins that election and withdraws the bill. Only if Daniel Smith were to win re-election and that bill were to become entrenched in Canadian law, then he might have to do something. Then it might be a real issue. But I think he'll do as little as possible up until then. So can you just kind of break that down for me? Why is Justin Trudeau's best approach here to do nothing? What's the opposite, the alternative there? The alternative would be, for example, to take it to the Supreme Court for reference and say, is it constitutional for a province to announce that it will essentially disallow or fail to enforce federal laws within its jurisdiction and see what the Supreme Court has to say about that. But then you would have a big fight. You would have an Alberta versus Ottawa fight. And there's nothing that Danielle Smith wants more than a big Alberta versus Ottawa fight. She wants to go into the next election asking who governs Alberta. It would be

very much in Justin Trudeau's interest not to give her that issue to run on. And you use the term disallowance there. And that's actually a clause from the Constitution, correct? The disallowance clause? That's right. The disallowance clause in the Constitution permits the federal government to disallow any provincial act that it deems to be not in the national interest. There are some constitutional scholars who believe it has been so long, decades and decades, since the disallowance provision of the Constitution was invoked, that if you try to invoke it now, if a federal government tried to invoke it now, the Supreme Court might say it is moribund. It

doesn't really have any power. But it's there, and it could be used. There is no provincial disallowance power. No province can disallow a federal act. In every respect just about, the provinces and the federal government are co-equals. The crown resides in the provincial as well as the federal legislatures. But on this one area, the Fathers of Confederation clearly intended to give the federal government a senior role. Okay. And I'm wondering, too, about all of this happening at this specific point in time because Alberta isn't the only province that's trying to assert its autonomy here. The Saskatchewan First Act, one province over, was introduced at the beginning of November. And it's also aimed at more provincial independence. So what's going on here?

What is happening right now that both of these provinces are asserting themselves in this way? Part of it is longstanding since the days they were first made into provinces. The prairie provinces have felt aggrieved, have felt that they've been cut off from the federal government, that they don't have as much say as Ontario and Quebec does. Part of it is, I believe, due to the actions of this particular government. When Justin Trudeau won the 2015 election, federal-provincial relations were pretty much at peace. But his determination to set national standards in health care, to set national standards in child care, and set national standards in child care, and to impose on the provinces that would not agree to a carbon tax

or a carbon price, a carbon tax at the federal level, alienated a lot of people in a lot of provinces. You have, for example, the Bloc Québécois revived in Quebec. It was moribund up until 2015. This is a very activist, interventionist national government that wants to set national standards in key areas. And whenever you have that, inevitably, you're interfering in areas of provincial jurisdiction.

That's just the way the Constitution was built. And if you interfere too much in areas of provincial jurisdiction, the provinces start to fight back. And usually the first province to fight back is Quebec, and usually the second province to fight back. And usually the first province to fight back is Quebec. And usually the second province to fight back is in Alberta. And that's exactly what we're seeing. This is interesting. But I guess it makes me wonder, though, because don't all prime ministers have big national plans? Like this is what they do. They set the standard for the entire country. So why is it what Trudeau is doing here is different from others?

Generally speaking, and there have been exceptions, but generally speaking, conservative federal governments do not have big national plans. Generally speaking, conservative governments at the federal level will say, we'll do what the Constitution says we should do. So foreign affairs, defense, collecting tolls at the border, and things like that, justice. And we will let the provinces do what they're supposed to do, which is social policy, which is health care, which is education, which is welfare, and relations with the municipalities. Stephen Harper was prime minister for almost a decade, and he did very little that caused the provinces to say, wait a minute, you're interfering in our areas of jurisdiction. And as a result, we had a fairly quiet time.

You also would say if you're a progressive, well, that may be true. But also nothing got done on Stephen Harper's watch on the big national files. It's a push-pull thing that has been going on pretty much changing around once a decade ever since Pierre Trudeau was prime minister in the 70s and early 80s. OK, so this is making me wonder how Pierre Polyev, the leader of the federal conservatives, is approaching all of this. How has he responded to this situation? Well, so far he's kept quiet because it's sometimes just as well for opposition leaders as well to take a low profile. He's going to say when he finally gets cornered that he has no opinion on the legislation as such. He waits for the courts to render their verdict on it,

but he fully understands the frustrations that led to the bill being introduced in the first place and that when he is prime minister, he will respect the provincial rights and let the provinces work in the areas that they're supposed to be working in and everything will calm down. I'm guessing that's what he'll say. Okay. What does this all mean, John, for the relationship between Alberta and Ottawa? Does this fundamentally change anything between those two?

It doesn't if Danielle Smith loses the next election. If she does lose the next election and the NDP comes to power, and the polls suggest that the NDP is well ahead of the UCP right now, that I'm certain that Rachel Notley will withdraw the act and try to work more cooperatively with the liberals in Ottawa. If the UCP wins the next election and that act becomes entrenched, then we have an issue. In fact, if Danielle Smith wins the next election and that bill becomes entrenched, it would not surprise me

if Justin Trudeau called a federal election. This is just speculation on my part, but just as Danielle Smith might try to run on who governs Alberta against Justin Trudeau, Justin Trudeau might run on who governs Canada against Danielle Smith. And he would not be looking to win seats in Alberta. This is not fertile territory for the federal liberals.

But as we've talked about before in this program, it's my belief that the 905 elects the government. The band of suburban middle-class voters, many of them immigrants living in ridings around the city of Toronto, invariably vote for the party that forms the government. I could see Justin Trudeau going to those voters and saying, Danielle Smith in Alberta believes that the provinces run Canada.

I believe that the federal government has a role in the running of Canada. Who do you believe should govern Canada, me or Danielle Smith? It might be a very attractive election issue for Justin Trudeau. This all sounds incredibly divisive, frankly, John. And we talked a little bit there about Quebec. We saw Yves-Francois Blanchet come out earlier this week, too, and make statements about how he'd be jealous if Alberta got things going on this front. We talked about Saskatchewan's act as well. Other provinces are paying attention to what's happening in Alberta, clearly.

I guess back to this idea of division. If this Alberta bill does pass, what does this mean more broadly for the unity of Canada? It would look like a country in which you have Ontario more or less continuing to uphold the national interest as it sees it, which, of course, is always the Ontario interest. But you have a Quebec that is, as always, fundamentally disengaged from the rest of Canada. And you know how Alberta and Saskatchewan that are fundamentally disengaged from the rest of Canada.

This is why, and I speak here only as a columnist, I have always argued in favor of the conservative approach to federalism. Passive federalism works best. Yes, you don't get the grand sweeping national programs that you get under liberal administration, but you also don't get referendums on separation, sovereignty acts, and the kind of disengagement and antagonism that we are seeing right now after seven years of liberal rule. I worry about the country when it gets as fundamentally disengaged as it appears to be now. Canada doesn't work well when the provinces and the federal government are at each other's throat like this. John, thank you so much for taking the time to speak with me today. Been my pleasure.

Before you go, I want to let you know that the Globe's health columnist, Andre Picard, is hosting a webcast on Thursday, December 8th. Andre and a panel of healthcare experts will talk through vaccination and children's health during COVID-19 and beyond. Sign up for this free webcast at www.tgam.ca slash vaccines. That's it for today. I'm Mainika Raman-Wilms. Our producers are Madeline White, Cheryl Sutherland, and Rachel Levy-McLaughlin. David Crosby edits the show. Kasia Mihailovic is our senior producer and Angela Pichenza is our executive editor. Thanks so much for listening and I'll talk to you next week.