‘A united Canada’

Federal-provincial relations are testy even in the best of times, but these are not the best of times. Pandemic, war, inflation and global supply-chain disruptions have affected us all, and it is scarcely surprising that they would also affect Canada’s federal system, as a new threat to national unity has recently demonstrated.

In early 1830s United States, a debate raged over nullification – that is, over whether individual states had the constitutional authority to nullify federal statutes harmful to their own interests. The crisis arose due to a protective tariff that favoured nascent industries in the north but hurt cotton farmers in the south. Outright secession was narrowly averted for another three decades, but, when it finally came, it tore the Union apart until the matter was settled on the battlefield.

Since our own rebellions of 1837, Canada has been at peace, although national unity has always been a precarious enterprise. For most of our history, the major issue has been linguistic, with French-speaking Québec being the most obvious candidate for separating from the rest of the country.

Since our own rebellions of 1837,
Canada has been at peace,
although national unity has always
been a precarious enterprise.

But now the government of Alberta, led by United Conservative Party Premier Danielle Smith, has passed something that smacks of René Levesque’s paradoxical 43-year-old goal of sovereignty-association: Alberta Sovereignty within a United Canada Act. According to the provincial government’s website, “The act allows Alberta to fight harmful federal laws and defend the constitutional federal-provincial division of powers.” Among other things, it allows Alberta’s legislature to debate and pass a motion to the effect that a particular federal policy violates the constitution or harms Alberta in some way. Once the legislature has approved such a motion, it will turn the matter over to the provincial cabinet to take appropriate action.

The website hastens to assure readers that the act does not permit Alberta to separate from Canada or to act against the country’s constitution. No American-style nullification crisis is looming, it seems. However, it does give new powers to cabinet, thus centralizing administration within the province’s jurisdiction.

Ottawa override?

Needless to say, the law is too new to have been tested in the courts, although some observers are already questioning its constitutionality. How it will be used remains to be seen, but its very existence portends an eventual showdown of some sort between Edmonton and Ottawa. Smith defended the law in these words:

“It’s not like Ottawa is a national government . . . . The way our country works is that we are a federation of sovereign, independent jurisdictions. They are one of those signatories to the constitution and the rest of us, as signatories to the constitution, have a right to exercise our sovereign powers in our own areas of jurisdiction.”

But what happens if Smith’s government determines that a federal law harms Alberta’s interests? And what if Ottawa declines to back down? If Alberta chooses to ignore or defy a federal statute, it is difficult to imagine that it could win if the case goes to court. What then?

Formally speaking, Canada’s constitution is top-heavy with the bulk of powers not explicitly delineated in the Constitution Act, 1867 going to Ottawa. Our Fathers of Confederation gave Ottawa three significant powers to use against the provinces. These are disallowance, reservation and the declaratory power, which, taken together, permit Ottawa to override provincial legislation of which it disapproves. However, because disallowance was last used in 1943, most constitutional scholars believe these last-resort federal powers are effectively dormant, and a federal government would be unwise to revive them today.

Discontent and disconnect

Nevertheless, the intention of the Fathers is enough to cast doubt on Premier Smith’s assertion that Canada is “a federation of sovereign, independent jurisdictions.” Unlike the members of the European Union, the original parties to Confederation were not previously sovereign states. They were dependent colonial provinces within a larger British Empire which London cajoled into a broader union.

Yet if Smith’s history is dubious, her government’s suspicion towards Ottawa is not without justification. Albertans have long memories of our Prime Minister’s late father’s National Energy Programme of 1980 which they believe lopsidedly benefitted central Canada at their expense. Discontent over the NEP led to the formation of the Reform Party in 1987. Although the Reform Party is gone, its support base continues in the Conservative Party of Canada and, of course, Alberta’s United Conservative Party.

Where will the Alberta Sovereignty Act lead? Is it a toothless warning to an apparently out of touch federal government? Or, like America’s nullification crisis, does it foreshadow a more serious danger to national unity? We shall see.