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Alan L. Ross KC, is the Calgary managing partner of Borden Ladner Gervais LLP and formerly Alberta’s provincial representative to Ottawa.

It has been a warm autumn in Alberta, but the province’s next political season will turn decidedly crisper. Incoming premier Danielle Smith’s leadership victory could usher in changes to the constitutional fabric of the country with remarkable scope and speed. The introduction of an Alberta sovereignty act, which Ms. Smith has promised to do quickly, would profoundly affect how the province – indeed the country – navigates the Constitution, jurisdiction and the rule of law.

The proposed legislation would give the Alberta legislature unprecedented power to declare that the province will not enforce federal law it believes encroaches on provincial jurisdiction or violates the Constitution. It would apply to federal legislation and regulations, as well as the authority of regulators such as the Canadian Energy Regulator and the Canadian Radio-television and Telecommunications Commission. The industries and sectors captured span everything from V-chips to vaccinations.

The act would provide provincial legislators with veto power over federal law. The effect would be a made-in-Alberta reverse notwithstanding clause. Under Section 33 of the Charter of Rights and Freedoms, Parliament and provincial legislatures can pass legislation that would be otherwise unconstitutional. The Alberta sovereignty act would create the unique ability to reject laws that Alberta legislators believe do not pass constitutional muster. It also could give the legislature further, more granular powers to challenge the federal government’s regulatory decisions and operational activities, such as safety and environmental oversight of telecommunications infrastructure or cross-border pipelines.

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The act would refashion the role of Canadian courts. The judiciary provides a remedy if governments overstep their jurisdiction. Alberta has sought previously to have courts declare laws unconstitutional; for example, respecting federal environmental impact assessments. However, the act would go beyond this to give Alberta legislators the quasi-judicial ability to declare laws unconstitutional. While the law often operates downstream of politics, this would be an exception under the Canadian political and legal framework.

The act could therefore trigger multiple court proceedings – on not only the constitutionality of federal laws the Alberta legislature seeks to reject, but also the constitutionality of the sovereignty act itself. These processes would be over and above litigation involving the powers of Alberta’s lieutenant-governor, who indicates she might take an unprecedented step of formally evaluating the constitutionality of the sovereignty act rather than giving it automatic royal assent.

While the act raises unsettled questions about the role of Alberta in Confederation and the rule of law in the province, conversation on the flexibility of modern Canadian federalism is inherently healthy. British Columbia’s exemptions from aspects of federal drug enforcement or Quebec’s ability to move away from the federal government on pensions and policing, for example, are arguably part of the modernization of the Canadian federation to address regional concerns. These are also potential models, with or without the act, for Alberta to navigate Confederation in areas where, as Ms. Smith states, there is “a need to protect all provinces from the destructive overreach of Ottawa.”

Ms. Smith’s political opponents, not least her predecessor Jason Kenney, have raised the economic risks of the act. For investors familiar with the challenges of energy development in Canada, strident Albertan legislative change is not likely to accelerate or preclude their capital flow. Most will have navigated a pancaking of regulatory risks, and many institutional investors in fossil fuels are skittish regardless of jurisdiction.

Of greater curiosity to investors may be what both levels of government do with the sovereignty act if it comes into existence. One assumes the intent is to apply it sparingly, lest the role of Alberta legislators be focused on rejecting federal laws rather than enacting provincial ones. The latter being, at least in principle, why they are elected.

It is entirely possible that the legislation, if enacted, is neither relied upon by the Alberta government nor challenged by Ottawa. Rather, it would exist as a nuclear option. The Alberta election in 2023 is shaping up to be competitive, as will the next federal election. While the Alberta NDP has opposed the proposed Alberta sovereignty act, the Conservative Party of Canada has not said much about it. In the topsy-turvy world of Canadian politics, the irony is that both may end up being less allergic to it than Ms. Smith’s predecessor.

Editor’s note: An earlier version of this column incorrectly said the Alberta NDP has not said much about the proposed Alberta sovereignty act. In fact, it has repeatedly voiced its opposition to the proposal.

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