ANALYSIS: Alberta Has Invoked the Sovereignty Act—Now What?

A legal expert says Alberta can decline to enforce federal laws even if the courts rule that the 2035 net-zero electricity plans are constitutionally compliant.

Alberta Premier Danielle Smith speaks to media in Winnipeg, on July 11, 2023. The Canadian Press/John Woods

Testing her newly passed sovereignty act, Alberta Premier Danielle Smith is asking the Alberta legislature to join her in requiring provincial officials and agencies to ignore the feds’ 2035 net-zero electricity plans “to the extent legally permissible.” But what that phrase will mean in practical terms is uncertain.

“Who decides what the extent of the law is?” asks Nelson Wiseman, professor emeritus of political science at the University of Toronto. His answer is: “The courts.”

So the question becomes, would the federal government take Alberta to court over the issue?

“It depends,” Mr. Wiseman told The Epoch Times. “It depends on whether it’s sufficiently critical to [Ottawa].”

Tom Flanagan, political science professor emeritus at the University of Calgary and former chief of staff to Stephen Harper, thinks the feds would challenge the legality of Alberta’s move and argue officials are going beyond what’s legally permissible.

“The courts will have the last word,” Mr. Flanagan said in an email.

In November last year, ahead of Ms. Smith’s unveiling of the Sovereignty Act, Prime Minister Justin Trudeau said he wasn’t keen to “pick a fight” on the issue. When asked how he would respond to the law, he told reporters: “I’m not going to take anything off the table, but I’m also not looking for a fight.”

Meanwhile, the main person on the file on the federal side is Environment Minister Steven Guilbeault, whom Ms. Smith has singled out as not being as cooperative as other federal cabinet ministers when it comes to her province.

For his part, Mr. Guilbeault issued a joint statement with Minister of Energy and Natural Resources Jonathan Wilkinson on Nov. 27, accusing Ms. Smith of not being cooperative, and insisting that the proposed regulations are to the benefit of the province and the country.

The next day, he said the sovereignty act is “a largely symbolic gesture,” and rejected the idea of challenging the decision to invoke the act in court.

“You don’t take someone to court for something that’s symbolic,” Mr. Guilbeault said.

But it might be a different story if the province doesn’t follow regulations imposed by the feds, and legal battles may ensue.

Ottawa wants all provinces to have net-zero electrical grids by 2035—that’s the timeline laid out in the draft Clean Electricity Regulations (CER). Ms. Smith says that’s not realistic for her province, saying it jeopardizes the reliability of the electrical grid, which she says can’t only rely on renewable sources.

In a motion tabled in the legislature under the Alberta Sovereignty Within a United Canada Act on Nov. 27, Ms. Smith’s government is asking legislators to reject the constitutional validity of the CER, saying the province will achieve a “carbon neutral power grid and economy” by 2050 instead.

‘Uncharted Territory’

The sovereignty act was a campaign promise Ms. Smith made last year, saying it would help Alberta’s legislature reject federal laws its sees as unconstitutional because they infringe on provincial jurisdiction. Ms. Smith’s majority government passed it into law after she won the UCP leadership race and became premier in 2022.

The act shows that the federal government shouldn’t take cooperation from the provinces for granted, Bruce Pardy, executive director of Rights Probe and a professor of law at Queen’s University, previously told The Epoch Times.

Environment Minister Steven Guilbeault speaks to reporters in the foyer of the House of Commons on Nov. 7, 2023. The Canadian Press/Sean Kilpatrick

“Some policy matters are traditionally dealt with in a cooperative manner, but this act signals that the federal government should not take that cooperation from Alberta for granted,” he said.

While any legal action against Alberta’s move are yet to be tested, legal experts Jesse Hartery and Geoffrey Sigalet say that the province can still refuse to help enforce federal law even if a court rules against its case.

“The province can even decline to enforce federal laws if the courts rule that those laws are constitutionally compliant,” they wrote in an op-ed for The Hub last year. “[Alberta] could express its disagreement with the courts and require the federal executive to enforce the laws itself, with its own funds.”

This is what the province chose to do last year when the feds expanded the definition of prohibited weapons, and the Alberta government said it wouldn’t be asking its provincially contracted RCMP officers to collect the newly prohibited weapons.

But as it stands, the Alberta government is adamant that the law is on its side. And given that the provincial government believes the province will experience blackouts if it complies with the 2035 regulations, it doesn’t appear that it would be content with not having a part in enforcement, but still being subject to the regulations by federal power.

“The Constitution is clear: electricity is a provincial responsibility,” Ms. Smith said at a press conference in announcing her new motion under the act on Nov. 27. “Albertans must have access to affordable and reliable power when and where they need it. It’s a matter of health and safety, and a matter of financial reality.”

The federal government recently lost two court cases that dealt with jurisdictional issues.

The Supreme Court of Canada ruled in October that the federal Impact Assessment Act—dubbed by former Alberta Premier Jason Kenney as the “no more pipelines act” due to the regulatory burden it placed on energy projects—is largely unconstitutional. The federal government has said it will reintroduce the legislation after making some changes for compliance.

In mid-November, a Federal Court judge said a cabinet order to classify plastic products as toxic was “unreasonable and unconstitutional.” The federal government intended to use the classification to ban some types of single-use plastic products such as straws and shopping bags. Ottawa has said it will be appealing the ruling.

Yet, two years ago, the Supreme Court granted a victory to the feds in the provincial challenge to the carbon tax, saying a nationally coordinated approach was needed on climate-change policies.

Again, the courts may be asked to rule on a jurisdictional tussle. But this time, it could be the feds claiming Alberta is out of bounds. It remains to be seen how far the province can go while keeping its response under the sovereignty act within “the extent legally permissible,” as it aims to do.

“This is uncharted territory,” Mr. Flanagan said.