Alberta Sovereignty Act
What is it?
The Alberta Sovereignty Within a United Canada Act (also known as the Sovereignty Act)[1] is a piece of legislation passed by the Legislative Assembly of Alberta on December 8, 2022.[2] It is a novel piece of legislation that provides a process for the Government of Alberta to suspend provincial enforcement of federal legislation or initiatives that the legislature regards as unconstitutional or potentially harmful to Albertans.[3] For example, if the federal government imposed a ban on a certain type of firearm, the provincial government could pass a resolution through the process outlined in the Sovereignty Act and direct the executive branch to cease enforcement of the ban.
What are experts saying about it?
Since the first draft of the Act was unveiled in November 2022, it has faced criticism from constitutional scholars in and outside of Alberta. The main concern that many of the Act’s critics share is that it arguably allows the Legislative Assembly to usurp the role of the courts. For example:
- Professors Martin Olszynski and Nigel Bankes at the University of Calgary suggested that the Act attempts to give legislatures the power to declare whether a federal law is constitutional, even though this is the duty of the courts.[4]
- Professor Emmett MacFarlane commented that, through the Act, the Alberta government claims to have the power to order provincial entities to violate valid federal law.[5]
- Professor Eric Adams has claimed that abandoning the exclusive role for the courts to adjudicate matters regarding constitutionality embraces a dysfunctional version of federalism.[6]
By contrast, some commentators have defended the constitutionality of the Act. For example, Geoffrey Sigalet and Jesse Hartery have argued that, as drafted, the Act appears to constitute legislative recognition of the province’s existing power to decline to enforce federal laws.[7] To quote Sigalet and Hartery: "the provincial executive branch is not required to co-operate in the administration of federal laws or programs."[8]
At the time of publishing, the Act has not yet been employed by the provincial government and the federal government has not raised constitutional challenge against it.
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[1] Alberta Sovereignty within a United Canada Act, SA 2022, c A-33.8 [Sovereignty Act].
[2] Alberta, Legislative Assembly, Hansard, 30th Leg, 4th Sess, No 6 (December 7, 2022).
[3] Sovereignty Act, supra note 1, s 3(b).
[4] Martin Olszynski & Nigel Bankes, “Running Afoul the Separation, Division, and Delegation of Powers: The Alberta Sovereignty Within a United Canada Act” (December 6, 2022), online: ABLawg <https://ablawg.ca/2022/12/06/running-afoul-the-separation-division-and-delegation-of-powers-the-alberta-sovereignty-within-a-united-canada-act/>.
[5] Emmett Macfarlane, “Alberta's Sovereignty Act passes after amendments — yes, it's still garbage” (December 8, 2022), online: Substack: Declarations of Invalidity <https://emmettmacfarlane.substack.com/p/albertas-sovereignty-act-passes-after>.
[6] Eric Adams, “Danielle Smith didn’t give us a watered-down version of Alberta’s Sovereignty Act” (November 29, 2022), online: CBC News <https://www.cbc.ca/news/canada/calgary/opinion-danielle-smith-breaking-down-alberta-sovereignty-act-1.6668760>.
[7] Geoffrey Sigalet & Jesse Hartery, “Opinion: The Alberta Sovereignty Act appears to be constitutional” (December 1, 2022), online: The Hub <https://thehub.ca/2022-12-01/opinion-the-alberta-sovereignty-act-appears-to-be-constitutional/>.
[8] Geoffrey Sigalet & Jesse Hartery, "Opinion: Alberta's Sovereignty Act is constitutional but needs nuance" (December 7, 2022), online: National Post <https://nationalpost.com/opinion/alberta-sovereignty-act-constitutional-but-needs-nuance>.
[9] Macfarlane, supra note 5.
[10] Ibid.