Much ink, digital and audio content has been accumulated in the nearly two weeks that has elapsed from the Throne Speech and introduction of Bill 1. the Alberta Sovereignty Within a United Canada Act (ASWUCA) became live. Pundits, learned professors, business people and the loyal opposition have weighed in. The reviews have been rather negative for the most part with much of the criticism aimed at the Henry VIII clauses embedded in the Bill.
I walk through the main portions of Bill 1 offering comments and opinions. From what Premier Smith tells us she is open to changes. These changes came a week later after heavy criticism from many quarters including the Calgary Chamber of Commerce. At the end of the day, the Act may have all the huffing and puffing that went into the equalization referendum and confirm many Canadians’ derision of Alberta politicians. Why Danielle Smith went along with the draconian plans to emasculate Alberta’s Legislative Assembly is unclear particularly given her criticisms of Kenney’s COVID management which gave extraordinary powers to Cabinet. Still, as discussed below, the amendments do little to disguise the ultimate goal of a sovereign Alberta within a divided Canada.
The Whereases
Before getting into the legislation itself, major or signature legislation often have what are called recitals which begin with a “whereas.” The purpose of the whereas clause is to provide context for the Bill. This context could include political statements. statements of fact, intent, opinion, law, and reasons for or about the proposed act. Alberta’s Interpretation Act states that preambles or recitals are “a part of the enactment intended to assist in explaining the enactment.” Courts use the preamble’s whereas clauses to determine the intent of the Legislature. Courts do not interpret the preamble in the same way as a section of the Act. The individual court concerned can decide the weight it accords the preamble or recitals.
WHEREAS Albertans possess a unique culture and shared identity within Canada;
Comment- what does this even mean? If Albertans have a unique culture what does a “shared identity” really mean? Both concepts are in the eye of the beholder, have limited empirical value, and are constantly changing given a highly mobile population.
WHEREAS it is the role of the Legislative Assembly of Alberta and the Government of Alberta to preserve and promote this unique culture and shared identity;
Comment: What does this mean? Why is culture and identity so important? What about the “economy” or the “well-being” of Albertans? These notions are imitative of Quebec’s “distinct” society which have been used by successive Quebec governments to challenge the federal government in the realm of language and international relations.
WHEREAS the Constitution Act, 1867, the Constitution Act, 1930 and the Constitution Act, 1982 are foundational documents that establish the rights and freedoms of Albertans and the relationship between the provincial and federal orders of government, including the division of legislative powers between them;
Comment: Statement of fact
WHEREAS the Province of Alberta is granted rights and powers under the Constitution Act, 1867, the Constitution Act, 1930 and the Constitution Act, 1982 and is not subordinate to the Government of Canada;
Comment: The provincial legislature is subordinate to federal executive power. The Constitution affords the federal cabinet the power to disallow provincial legislation. The Lieutenant-governors of provinces, appointed by the federal government, also may reserve bills. While these powers of disallowance or reservation are rarely used, they remain within the constitution. Jurisprudence has given the federal laws paramountcy in the event of a conflict with provincial law.
WHEREAS actions taken by the Parliament of Canada and the Government of Canada have infringed on these sovereign provincial rights and powers with increasing frequency and have unfairly prejudiced Albertans;
Comment: this statement is a political opinion and is perhaps an opinion on recent Supreme Court’s judgments being more supportive of federal powers (Carbon pricing legislation).
WHEREAS actions taken by the Parliament of Canada and the Government of Canada have infringed on the rights and freedoms of Albertans enshrined in the Canadian Charter of Rights and Freedoms in an unjustified and unconstitutional manner;
Comment: This is an opinion not a fact. Presumably this refers to infringements arising from COVID and the “No Pipelines law.” Courts however have been reluctant to concede that during public emergencies individual rights and freedoms are inviolate. This recital is taken from Smith’s libertarian playbook. Individual rights trump collective rights of safety and security of the person. It would be very hard for courts to be overly sympathetic to the view that Albertans deserve more rights and freedoms than other Canadians. Further, it’s doubtful the courts would second-guess the federal government’s actions in an international health emergency.
WHEREAS the people of Alberta expect the Parliament of Canada and the Government of Canada to respect the Constitution Act, 1867, the Constitution Act, 1930 and the Constitution Act, 1982 as the governing documents of the relationship between Canada and Alberta and to abide by the division of powers and other provisions set out in those documents;
Comment: This is gratuitous and rhetorical.
WHEREAS the people of Alberta expect the Parliament of Canada and the Government of Canada to respect the rights and freedoms of Albertans enshrined in the Canadian Charter of Rights and Freedoms; and
Comment: This is gratuitous and rhetorical.
WHEREAS it is necessary and appropriate for the Legislative Assembly of Alberta to set out measures that the Lieutenant Governor in Council should consider taking in respect of actions of the Parliament of Canada and the Government of Canada that are unconstitutional or harmful to Albertans and for Members of the Legislative Assembly of Alberta to have a free vote on such measures according to their individual judgment;
Comment: This recital purports to be the logical conclusion of the previous clauses. Given the federal government’s alleged violation of the Constitution Act, it flows that Alberta’s Legislative Assembly would be rendered impotent if breaches of the constitutional division of powers were not resisted by the provincial cabinet and sanctioned by the Assembly..
Section 1 defines terms used in the Act. The key terms are set out below:
“federal initiative” is defined very broadly to include “a federal law, program, policy, agreement or action, or a proposed or anticipated federal law, program, policy, agreement or action; (emphasis added)
Comment: By including “proposed” or “anticipated” this might mean something that the provincial cabinet imagines is coming that might be “harmful” to Alberta based on a speech of a federal minister containing some vague intention.
Harm or harmful is not defined in the Act so this would be determined entirely by the cabinet minister bringing forward a motion to the House.
Provincial entity includes a long-shopping list of legislative creatures of the Alberta legislature including provincial agencies, entities which can levy fines, a post-secondary institution, school boards, police services, and municipalities.
Section 2, the interpretation section claims:
2 Nothing in this Act is to be construed as
(a) authorizing any order that would be contrary to the Constitution of Canada,
(b) authorizing any directive to a person, other than a provincial entity, that would compel the person to act contrary to or otherwise in violation of any federal law, or
(c) abrogating or derogating from any existing aboriginal and treaty rights of the aboriginal peoples of Canada that are recognized and affirmed by section 35 of the Constitution Act, 1982.
Comment: Section 2 appears to exculpate the whole Act from constitutional scrutiny. This little piece of interpretive jargon will not immunize the ASWUCA from constitutional challenge and the section is meaningless. A legislative body under our system of government cannot pretend that what they do is in accordance with the Constitution. What would the point be of having an independent judiciary if legislatures can tell them the legislation they passed has an interpretation section with immunizes the legislative branch from judicial oversight. Legislative Counsel drafting the bill know this. Already Alberta treaty chiefs have condemned the Act on the basis 1) they weren’t consulted and 2) the province has no jurisdiction over treaty lands.
Section 3 initiates the legislative process which requires a member of Executive Council to move a resolution that states that,
“in the opinion of the Legislative Assembly, a federal initiative
(i) is unconstitutional on the basis that it
(A) intrudes into an area of provincial legislative jurisdiction under the Constitution of Canada, or
(B) violates the rights and freedoms of one or more Albertans under the Canadian Charter of Rights and Freedoms,
or
(ii) causes or is anticipated to cause harm to Albertans.”
The resolution must set out the “nature of harm. if the resolution states that in the opinion of the Legislative Assembly, the federal government causes or is anticipated to cause harm to Albertans.” The Assembly “must also identify measure or measures that the Lieutenant Governor in Council should consider taking in respect of the federal initiative.”
Section 4 which sets out extraordinary powers of the provincial cabinet (Lieutenant Governor in Council) is likely to be amended since this section purports to give cabinet the authority to amend legislation without the consent of the legislative assembly. These extraordinary powers include the suspension or modification of all or part of an Act and issuing directives to a provincial entity and its members, officers and agents, and the Crown and its Ministers and agents, in respect of the federal initiative. The latter means municipalities or universities, who may receive direct federal funding, may be told to do something contrary to federal law.
These extraordinary measures may last up to two years and may be extended for two more years.
Section 8 provides a broad indemnity or no cause of action
a) against the Crown or its Ministers, agents, appointees or employees, or against the Legislative Assembly, the Speaker of the Legislative Assembly, an office of the Legislature, or any agents, appointees or employees of the Legislative Assembly or an office of the Legislature, in respect of any act or thing done or omitted to be done under or in relation to this Act or a resolution or order under this Act, including, without limitation, any failure to do something when that person has discretionary authority to do something but does not do it, or
(b) any other person or entity in respect of any act or thing done or omitted to be done in good faith under a directive issued under this Act, including, without limitation, any failure to do something when that person has discretionary authority to do something but does not do it (emphasis added).
In addition to protecting the framers of this Bill, application for judicial review (court challenge) must be filed within 30 days after the act or decision taken under the ASWUCA. The standard used by the courts to adjudicate the actions of the Alberta government or prescribed entity is “patent unreasonableness” a higher bar. So the party challenging the legislation must convince a court that the impugned legislation is not just “unreasonable” but “patently unreasonable.” This provision appears to nullify the ability of an Alberta corporation to sue the Crown or a minister, if the corporation faces financial penalties in complying with the Act yet in defiance of a federal law.
Section 9(3) bizarrely states that “Nothing in this section is to be construed as making a decision or act of the Legislative Assembly subject to judicial review.” While section 9(1) makes allowance for judicial review and narrows the court’s ability to decide against the Alberta Crown, in the next sub-section it purports to make judicial review inoperative.
Much has been written on Bill 1 and much more commentary will ensue. My reading of the Bill as originally tabled is consistent with many critics. It is an overreach both from the point of view of Westminster parliamentary democracy and pretends that Alberta’s legislative assembly knows when the federal law or regulations are unconstitutional and therefore is of no force or effect. Besides these faults, there is confusing drafting suggesting the drafting process was more political than normal.
Premier Smith brought several amendments forward a week after the Bill was tabled. These amendments will take away the cabinet’s ability to amend or modify acts.
The first amendment adds a definition for “regulation.” The definition of regulation is identical to the Interpretation Ac. The definition is as follows:
“means a regulation, order, rule, form, tariff of costs or fees, proclamation, bylaw or resolution enacted
(i) in the execution of a power conferred by or under the authority of an Act, or
(ii) by or under the authority of the Lieutenant Governor in Council,
but does not include an order of a court made in the course of an action or an order made by a public officer or administrative tribunal in a dispute between 2 or more persons;”
This amendment presumably was necessary to ensure that regulation-making authorities under the ASWUCA are the same, that is no wider than what is considered to be a regulation under the Interpretation Act.
Ms. Smith- would also clarify that the harms addressed by the act are limited to federal initiatives that, in the opinion of the Legislative Assembly, are unconstitutional, affect or interfere with constitutional areas of provincial jurisdiction, or interfere or violate the Charter rights of Albertans.
Alberta Hansard, 6 December 2022, p. 178.
The second amendment strikes out clause (b)(ii) substituting the following
(ii) causes or is anticipated to cause harm to Albertans on the basis that it
(A) affects or interferes with an area of provincial legislative jurisdiction under the Constitution of Canada, or
(B) interferes with the rights and freedoms of one or more Albertans under the Canadian Charter of Rights and Freedoms,
This change adds more detail to what was previously phrased as “causes or is anticipated to cause harm to Albertans.” This change provides more clarity although it is unlikely the Province would build its case against Ottawa on flimsy grounds. A key to public approval of this legislation is for the Alberta government to create a resolution which will resonate with Albertans. Firearms is not likely to do this. Fertilizer is another environmental issue unlikely to consume a lot of Alberta bandwidth. “Freedom” is too vague in the minds of Albertans to generate much enthusiasm with most Albertans. The issue will be probably be the trade-off between the economy, jobs versus the environment.
Ms. Smith- before us tonight is simply ensuring what was the intent of the bill all along, that if a law needs to be amended in order to protect the constitutional powers or rights of Albertans from a federal bill, then any amendments to a piece of legislation coming from Bill 1 would be done as part of the full democratic practice of this House
Hansard, 6 December 2022
The final amendment repeals the “first draft” version of the bill dealing with the powers of cabinet.
The new section 4 reads
Powers of the Lieutenant Governor in Council
4(1) If the Legislative Assembly approves a resolution described in section 3, the Lieutenant Governor in Council, to the extent that it is necessary or advisable in order to carry out a measure that is identified in the resolution, may, by order,
(a) if the Lieutenant Governor in Council is satisfied that doing so is in the public interest, direct a Minister responsible for an enactment as designated under section 16 of the Government Organization Act to, by
order,
(i) suspend or modify the application or operation of all or part of a regulation authorized by that enactment, subject to the terms and conditions that the Lieutenant Governor in Council may prescribe,
or
(ii) specify or set out provisions that apply in addition to, or instead of, any provision in a regulation authorized by that enactment, subject to the approval of the Lieutenant Governor in Council,
(b) direct a Minister to exercise a power, duty or function of the Minister,
including by making a regulation under an enactment for which the minister is responsible)or(c) issue directives to a provincial entity and its members, officers and agents, and the Crown and its Ministers and agents, in respect of the federal initiative.
(2) A directive issued in accordance with subsection (1)(c) may be general or particular in its application.
(3) Where there is a conflict or inconsistency between
(a) an order made or an order that is directed to be made under subsection (1), and
(b) a provision of a regulation
(an enactment) to which the order relates,the order prevails to the extent of the conflict or inconsistency.
(4) For greater certainty, a regulation as referred to in this section does not include an Act of the Legislative Assembly. (new)
(5) Nothing in this Act abrogates any authority or power vested in the Legislative Assembly or the Lieutenant Governor in Council by any other enactment or by operation of law, including any authority or power of the Lieutenant Governor in Council to take action with respect to the federal initiative.
These amendments were more carefully considered by Smith’s inner sanctum. Section 4 is marginally rewritten to give Cabinet the authority behind closed doors to amend regulations, not enactments by the Legislative Assembly.
Is Smith a separatist?
While Smith has been chastened by the clumsy drafting and introduction of the legislation, she expected that a chorus of objection would arise. Going into an election less than 6 months away, she believes she needs more than a generous spending budget to win by bribing people with their own money. She understands that what motivates people are emotions, fears and not ideas (like the merits or not of a sales tax!) Rather she needs an issue which confirms to Albertans that “Ottawa” is running Alberta’s economic future. The crux of the conflict must be very obvious that Ottawa “has a knife on Alberta’s throat.” Such a scenario requires the federal government to decide on whether to grant Alberta a separation card- much like given to Quebec and Ontario, or to finally stand up for Canada as a whole and not a collection of industrial fiefdoms.
If done successfully, this will put Rachel Notley in a terrible position. As the issue will likely be fossil fuels- emissions reductions related, seats in Calgary that were in play for Notley may be more difficult to turn into NDP wins. Smith’s rhetoric leaves open a path to a more radical path mapped out in great detail in 
the 2020 book Moment of Truth edited by Jack Mintz, Ted Morton and Tom Flanagan. This book should be required reading for first year university politics and economics’ students and those following Alberta politics. This serious book lays out processes and mechanisms which offer paths toward annexation and separation. It is not for the faint of heart but reminds one of the fight against an enemy within our midst.
Political pulse
On Thursday Angus Reid Institute reported the NDP and UCP in a statistical heat but the real story was that its popularity grew because of defections from the other separatist parties lime the Wildrose Independence Party. This party is the union of Wexit Alberta and the Freedom Conservative Party of Alberta. For the NDP this may not be a problem because most of the 10 per cent hail from ridings that the NDP could not contest (5-30 rural ridings). The concern for the NDP however would be if these new UCPer were not UCP voters in the last election. If they were, these are not additional voters and never would be NDP voters. In the drill down. The NDP leads the UCP in both Calgary (51 to 40) and in Edmonton (50 to 43).