Is the new Sovereignty Act in Alberta legal?

The constitutionality of Danielle Smith’s new bill is already being debated, with one legal expert seeing a “Henry VIII clause” (‘it’s not a compliment) in its new cabinet powers.

CALGARY—At long last, Danielle Smith’s Alberta government has unveiled its long-awaited bill to counter Ottawa — and grant the provincial cabinet sweeping new powers in the process — but there are arguably more questions than answers so far.

Top of the list: Is this legal?

So far, the Sovereignty Act appears to have caused widespread consternation.

Smith made a law aimed at retaliating against the federal government on behalf of what she sees as an unfairly treated Alberta, a centerpiece of her leadership campaign, which saw her replace Jason Kenney as United Conservative Party leader and become Alberta premier in October.

“We are finally saying ‘no more,'” Smith said Tuesday, as the bill was unveiled at the start of a new legislative session.

The bill had been softened in some ways since it was first proposed. Perhaps to allay separatist fears, the title had been lengthened to “Sovereignty Within a United Canada Act,” and an earlier proposal to ignore court rulings with which the province disagreed had been dropped.

However, the bill appears to do two things: it allows the Alberta legislature to pass motions declaring a federal law or policy unconstitutional or otherwise harmful to the province. The motion would then, in a twist that appears to have surprised political observers, give the cabinet the “extraordinary” power to change provincial legislation if necessary to fight back.

This process, critics say, raises eyebrows because it appears to put Alberta in charge of deciding what is constitutional — a role typically played by the courts — and it would concentrate democratic power in the hands of a small group of politicians who are not required to listen to the larger elected legislature.

“We’ve never seen anything like this from any Canadian province,” Lisa Young, a political science professor at the University of Calgary, said.

The government issued a statement Wednesday, less than a day after the bill was introduced, seeking to dispel some of the criticism that had already gained traction, raising further concerns about the legislation’s readiness.

“In no way does (the act) authorize the cabinet to unilaterally amend legislation without first obtaining authorization from the legislative assembly,” the statement said. In other words, before the cabinet can start tweaking laws, the legislature must first give it the go-ahead and some direction.

The bill explicitly states that “nothing in this Act is to be construed as authorizing any order that would be contrary to the Constitution.”

But, despite those assurances, critics say it is unclear whether the legislature will have to approve every word and line of a potential amendment, or if it will simply give the cabinet a blank check to make any changes to a specific provincial law in response to federal government action.

According to Eric Adams, a law professor at the University of Alberta, the risk of allowing an executive to bypass the legislature is at the heart of the problem. These laws are known as Henry VIII clauses, after the monarch who was famously unconcerned about the rules that would have prevented him from marrying his six wives. (“It’s not a compliment,” Adams clarifies.)

He expressed concern that the bill might end up on the courthouse steps.

To be clear, he sees no problem with the government expressing displeasure with a federal law. However, the law also allows the cabinet to direct provincial entities, such as cities or police forces, not to enforce certain federal laws or policies.

“Once that step is taken, the issue becomes one of power distribution,” Adams says.

“That is, can a provincial law direct something within its own jurisdiction to disregard a law outside its own jurisdiction?” When does that become an infringement on the authority of the other level of government? ”

The connective tissue of Canada’s federal system is the fact that, while multiple levels of government oversee the same territory, they each focus on their own areas of responsibility and generally avoid interfering with other governments’ jurisdiction.

Prime Minister Justin Trudeau told reporters on Wednesday that he was “not looking for a fight” over the new legislation, but that he wasn’t “going to take anything off the table.”

The federal government does have the power to “disallow” provincial law, but it hasn’t been used in decades, according to Young, and they’re unlikely to use it here. (To add to the confusion, some reports stated that Opposition Leader Rachel Notley would support the federal government repealing this law, but she later clarified that she meant the provincial government repealing it.)

Adams predicts a legal challenge, though it’s unclear what that might look like — once the law is invoked, the federal government could refer a reference case to the Supreme Court, or Alberta could do the same to its Court of Appeal.

He adds that it may be challenged based on its fundamental premise.

“When you’re off the map, it’s difficult to see the road signs,” he says. “We’ve vanished from the map.”