Chris Selley: Ottawa all but invited Alberta to flip the bird to federal laws

Polite Laurentian society is in outrage at news Alberta Premier Danielle Smith will try to block Ottawa from imposing an emissions cap on the oil industry. “We’re kind of at the end of the negotiation, compromise phase, and we’re now in protection of our jurisdiction and protection of our industry phase,” Smith said at a Monday news conference.

A new motion under the Sovereignty Act would “make it virtually impossible for Ottawa to impose the cap in Alberta,” a source told Calgary Herald columnist Don Braid, who broke the story. The motion, unveiled Tuesday, proposes to “ensure that no provincial entity participates in the enforcement or implementation of the federal cap.”

The primary complaint from the bien pensants is basically that Alberta isn’t allowed to do that. People are “pretending the Premier has a magic wand enabled by anger and resentment,” University of Alberta economics professor Andrew Leach complained.

“Alberta (is) playing with the ‘sovereignty’ fire that could ignite a secession threat (greater) than one likely to be triggered by Quebec separatists,” University of Ottawa law professor Errol Mendes warned.

“We’ve got a lawless lunatic to our south imposing tariffs inside a free trade zone, and a lawless lunatic in Alberta pretending to veto federal laws inside a federation,” Globe and Mail columnist Andrew Coyne complained. “I assume Quebec will be along in a few minutes to make the circus the full three rings.”

I’m pretty much with them — well, not the “sovereignty fire” part, but the rest. Fundamentally, the Sovereignty Act allows the Alberta government to direct “provincial entities to engage in an act that would be contrary to federal law,” as University of Calgary law professors Martin Olszynski and Nigel Bankes wrote in 2022. Even if you’re past caring about laws you don’t like — and there’s a lot of that going around — it’s a precedent that some future premier will probably use in a way you really don’t appreciate.

Alas, this particular ship set sail from Quebec City long ago. The National Assembly firmly set the “nuts to the Constitution” precedent in 2022 when it unilaterally — and unanimously — passed an amendment to the 1867 Constitution Act excusing MNAs from swearing allegiance to the Canadian monarch. Bill 4 simply read as follows: “Section 128 does not apply to Quebec.”

In my view (and the view of every constitutional expert I know of who isn’t a Quebecer), the National Assembly had roughly as much authority to do that as the Alberta legislature has to ignore federal legislation it doesn’t like — which is to say none.

The best evidence of this, I have argued in the past, was that Section 128 had not in fact been amended … because a province can’t amend the Constitution on its own. But now, I’m amazed to see, the federal Ministry of Justice has actually updated the online version of the 1867 Constitution Act to reflect the change. Tra-la-la, nothing matters. The monarchy is dumb anyway, right?

Recently, mayor-elect Stephen Johnson and the four-member council in Dawson City, Yukon, decided they wouldn’t swear allegiance to the King, as required under the territory’s Municipal Act. (Johnson cited “background history with (the) Crown and First Nations.”)

At last report, city governance was therefore at a standstill. “We can’t do anything legally required of us under the Municipal Act … so we are sort of, kind of council, and I’m sort of, kind of the mayor,” Johnson told The Canadian Press.

He’s hoping the territorial government might amend the requirement, and perhaps it will. But why be so precious about it? It’s 2024, not 1924. They should just ignore the law, take their seats, and pass a motion declaring sections 171 and 172 of the Yukon Municipal Act null and void in Dawson City. What are those monarchist creeps down in Whitehorse going to do about it, send the Mounties after the Dawson City Five? If no one stepped up to challenge Quebec’s law in court, you can be pretty certain no one would step up to challenge Dawson City’s or any other jurisdiction that decides laws don’t apply to them.

For years, it seemed like Ottawa just hoped the other provinces wouldn’t notice as it gave Quebec pretty much everything it wanted, with much (though certainly not universal) agreement from wise-owl Laurentian pundits. But the other provinces did notice. And Ottawa has no answer except that some members of the federation are more equal than others.

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