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On November 29, 2022, the Premier introduced Bill 1, the Alberta Sovereignty within a United Canada Act. The Act is more commonly referred to as the Sovereignty Act.
The Bill passed first reading on division and is in the early stages of becoming law. The Bill includes provisions that will impact municipalities, post-secondary institutions, school boards, provincial agencies, health authorities, police services, and other entities to the extent they receive grant funding or other public funds from the Province contingent on the provision of a public service.
Section 2 of Bill 1 states that nothing in the Sovereignty Act is to be construed as authorizing an order that is contrary to Canada’s Constitution, authorizing or compelling a person other than a provincial entity to act contrary to federal law, or abrogating or derogating from rights given to Indigenous people under section 35 of the Constitution Act, 1982.
The Sovereignty Act gives the Lieutenant Governor in Council (“Cabinet”) authority to:
- suspend or modify the application or operation of all or part of an enactment, or specify or set out provisions that apply in addition to, or instead of, any provision of an enactment (subject to the approval of the Cabinet);
- direct a Minister to exercise a power, duty or function of the Minister including making a regulation under an enactment for which the Minister is responsible; and
- issue directives to a provincial entity and its members, officers and agents in respect of a federal initiative.
These powers can only be exercised if the Legislative Assembly approves a resolution that:
- states the resolution is made in accordance with the Sovereignty Act;
- states that, in the opinion of the Legislative Assembly, a federal initiative is:
- unconstitutional, or
- causes or is anticipated to cause harm to Albertans;
- sets out the nature of the harm, if applicable; and
- identifies a measure or measures that the Cabinet should consider taking in respect of the federal initiative.
Any order made by Cabinet has the potential to last for up to four years, but may also expire on the date the Legislative Assembly rescinds the resolution that underlies the order or directive.
The Crown, the Legislative Assembly, and its members are all protected from liability in relation to anything done under the Sovereignty Act.
The only means to challenge a decision or act made under the Sovereignty Act is through a judicial review, which must be filed with the Court of King’s Bench and served on the Province within 30 days of the dates of the decision or act complained of. This does not apply to decisions or acts of the Legislative Assembly itself. According to Bill 1, the standard upon which the Court of King’s Bench would be required to review the decision or act is “patent unreasonableness”. This is a standard that typically requires the Court to be highly deferential to the decision or act under review and gives the Court limited ability to overturn the decision or act at issue.
While there are still two readings, much debate, and possible amendments to be done in relation to Bill 1, in its current form there are a number of impacts that will be felt by public bodies that receive and exercise their authority through statute. “Provincial entities” is defined in the Sovereignty Act to include:
- post-secondary institutions
- any entity that carries out a power, duty, or function under an enactment (including municipal commissions and boards)
- entities that receive grant funding or other public funds from the Government of Alberta that are contingent on the provision of a public service
- regional health authorities
- school boards
- municipal and regional police services
If the Legislative Assembly is of the view that a federal law, program, policy, agreement, or action is unconstitutional or harmful to Albertans, it would have the ability under the Sovereignty Act to issue a resolution that then gives Cabinet the authority to issue a directive to any provincial entity regarding the applicable federal law, program, policy, agreement or action. It is not clear what the extent of that directive would be, although the Sovereignty Act does state it should not be interpreted as a directive that would require a person “other than a provincial entity” to act contrary to or violate a federal law. The implication of this is that a directive issued by Cabinet could, in fact, require a provincial entity to act contrary to or contravene a law of Canada.
More controversially, however, is that the current version of Bill 1 says that once the Legislative Assembly passes a resolution (requiring only one vote), Cabinet can order that existing laws will not apply, or can add new sections to existing legislation. This unusual provision puts the law-making power in the hands of Cabinet, rather than in the hands of the members of the Legislative Assembly.
The current version of Bill 1 would also give Cabinet the power to direct provincial entities not to implement or adopt that federal “initiative” provided the Legislative Assembly views the federal initiative to be unconstitutional or harmful to Albertans.
“Harm” is not defined in the Sovereignty Act, which makes it challenging to determine what the Legislative Assembly would view to be harmful to Albertans at any given time. For that reason, it is not possible to predict what types of situations would cause provincial entities to receive a directive or order not to follow a certain enactment. Given that determination is entirely in the hands of the Legislative Assembly, it will be up to the Legislature’s members to determine what is and is not harmful to Albertans and then entirely in the hands of Cabinet to determine how to address that potential harm.
Ultimately, if a provincial entity is subject to an order or directive under the Sovereignty Act and it is opposed to that order or directive, its only recourse is to seek judicial review of the decision or action of Cabinet. If a provincial entity seeks judicial review, it must be cognizant of the 30-day timeline in the Sovereignty Act for filing and serving that application, as this is less time than what is typically provided. Like many Albertans, we will continue to watch the development of this Act with interest and will be available to provide updates and guidance to provincial entities as needed.