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Since our last post on December 5, 2022, the Alberta Sovereignty Within a United Canada Act (the Sovereignty Act) was amended and passed by the Legislative Assembly. These amendments include:
- Adding a definition for the term “regulation”;
- Providing clarity on what constitutes “harm” to Albertans; and
- Revising the manner in which Cabinet may carry out its authority under the Sovereignty Act.
Under the amended Sovereignty Act, a federal initiative that “causes or is anticipated to cause harm to Albertans” has been clarified as being a federal initiative that:
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.
It remains unclear how a federal initiative would “affect or interfere with an area of provincial legislative jurisdiction” or “interfere” with rights granted under the Charter of Rights and Freedoms. The decision on that point remains entirely with the Legislative Assembly.
Cabinet’s authority under the Sovereignty Act was also amended slightly. In the previous version of the Act, Cabinet had the authority to suspend or modify the application or operation of all or part of an enactment where it was determined that a federal initiative would cause or was anticipated to cause harm to Albertans. Now, the Sovereignty Act gives Cabinet the authority to only suspend or modify the application or operation of a regulation. Regulation is defined in the Sovereignty Act as:
… 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 [Cabinet],
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.
Under the amended, and now passed, version of the Sovereignty Act, Cabinet is also only permitted to specify or set out provisions that apply instead of or in addition to a regulation authorized by an enactment as opposed to replacing provisions in the enactment itself.
Finally, the Sovereignty Act previously provided that Cabinet could 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. In the amended version of the Sovereignty Act, Cabinet can no longer make a regulation under an enactment for which a Minister is responsible, but can only direct that a Minister exercise a power, duty, or function of the Minister, which, under many pieces of legislation, includes making regulations. It is unclear whether this amendment has a practical effect because Cabinet could, in theory, direct a Minister to exercise their power to make a ministerial regulation under an enactment.
The Sovereignty Act awaits royal assent by the Lieutenant Governor.