The Danielle Smith Exposition and Protest
Alberta political thought has married American nullificationist thought to early 21st century anti-elitist populism.
“It’s not like Ottawa is a national government. The way our country works is that we are a federation of sovereign, independent jurisdictions. They are one of those signatories to the constitution and the rest of us, as signatories to the constitution, have a right to exercise our sovereign powers in our own areas of jurisdiction.” – Premier Danielle Smith
“For any given situation, Canadian politics will tend toward the least exciting possible outcome.” – Paul Wells
Alberta Premier Danielle Smith’s proposal for and enactment of an “Alberta Sovereignty Act” in late 2022 caused consternation for the Canadian political class and excitement for observers who enjoy a political throwdown. The Sovereignty Act was a counterpoint to the approach taken by the Quebec sovereignty movement between the late 1960s and the 1995 referendum, which was intended to be consensual, deliberate, and in conformity with existing law while changing the law democratically. The Alberta Sovereignty Act, on the other hand, was going to be a wrecking ball run through the Canadian constitution. It was a purely unilateral act, and according to political scientist Barry Cooper, one of the thought leaders behind the Free Alberta Strategy, said that Act would be “unconstitutional on purpose,” and that Alberta should ignore the Constitution Acts going forward because “the Canadian Constitution has never worked in favour of Albertans” and “law exists downstream from politics.” According to the Free Alberta Strategy, the Sovereignty Act would “grant the Alberta Legislature absolute discretion to refuse any piece of federal legislation.”
While this is a drastic undertaking politically, one that is easy to read as the latest installment in the spitting war between the Alberta political class and the Trudeau family, the Sovereignty Act is a revisiting of old questions in Canadian politics. The Alberta Sovereignty Within a United Canada Act has its roots in the “compact theory of Confederation,” an argument made around the time of the British North America Act in 1867 positing that Confederation is the result of a “treaty” among sovereign provinces who delegate some of their own power to a central government. Those provinces at the least have a veto over constitutional change, but at the outside, have the power to reject any federal legislation (provinces being the actual sovereign bodies) or even to leave the federation unilaterally. The compact theory becomes married to a series of Alberta grievances against federal policy since the creation of Alberta as a province in 1905, including delays in Alberta receiving full jurisdiction over its natural resources, federal intervention in the energy industry, especially the 1980 National Energy Program, the circumstances of patriation of the constitution in 1982, and federal fiscal policy, including the equalization program. Most of Alberta’s grievances are economic in nature, and connected to the energy sector in particular. The economist Jack Mintz recognizes that Alberta-related tensions in Canadian federalism are largely a matter of “conflict of claim,” a question of distribution of income among the provinces, rather than “conflict of taste,” meaning the identity questions underlying the Quebec sovereignty movement.
Connected to the conflict of claim is a partisan ideological conflict between the political parties of the center-right and the right that have governed Alberta, and the federal Liberal Party, whose electoral base has long been in Quebec and Ontario, and often has held no seats in Alberta at all.
However, there is another intellectual source of the Alberta Sovereignty Act, and as is often the case in Alberta, those roots are in the United States. The idea that states are the ultimate sovereign body has deep roots in debates over American federalism. The Tenth Amendment to the United States Constitution hints at federal powers originating in the “several states,” and the Confederate Constitution of 1861 stated the idea more bluntly that the federal union was the creation of “states acting in their sovereign and independent character.” Most American historians deal with nullification in the context of the Civil War, or the civil rights movement–there are even echoes of it over Obamacare–but the first mention of it came from Thomas Jefferson and James Madison in the Virginia and Kentucky Resolutions of 1798, which claimed that federal law is only operative with the consent of the states. The nullification issue came to a head in 1833, when the South Carolina legislature attempted to nullify (and prevent the collection of) federal “Tariff of Abominations” on imported manufactured goods destined for the state. The case for nullification was laid out in John Calhoun’s “South Carolina Exposition and Protest,” which said that “the sovereign power is divided between the states and general government, and that the former holds its reserved rights, in the same high sovereign capacity, which the latter does its delegated rights; it will be impossible to deny to the states the right of deciding on the infraction of their rights, and the proper remedy to be applied for the correction.” Note the similarity to Alberta Sovereignty Act’s language, claiming a right to nullify legislation when “the Legislative Assembly approves a resolution that states that, in the opinion of the Legislative Assembly, a federal initiative is unconstitutional.”
Alberta political thought has married American nullificationist thought to early 21st century anti-elitist populism. The rhetoric of Western Canadian alienation has long been replete with criticism of “Laurentian elites” and when pressed, readily dismisses the constitution as the product of a Central Canadian elite obsessed with managing Quebec and English-French relations. As we have noted, there is a partisan angle to this. Much of the rhetorical heat would go away if the Conservative Party formed a government federally.
However, the Alberta Sovereignty Act carries enormous political and legal risk. As Cooper noted, it has elements that approach blatant unconstitutionality. When Smith initially proposed the Act, she called for suggestions for federal laws that might be nullified. One suggestion was interdicting the collection of federal taxes, especially the Goods and Services Tax, the latter because it violated the Alberta “value” of not taxing consumption. It is therefore not surprising that both Ottawa and the Smith government have avoided provocations since theAct was passed. This law may have been the best test case for reviving the federal power of disallowance, but the Trudeau government passed on the opportunity, and had not referred the Act to the Supreme Court of Canada for a ruling on its constitutionality. Similarly, Alberta has not invoked the Act (which would enable a court case to be filed against the province) and has not gone beyond using it as a rhetorical took to criticize the federal Liberals’ “Just Transition” paper, which at the moment contains no law Alberta might nullify. For the moment, political junkies can put their popcorn down, because Wells’ law of Canadian politics tending to be boring is proving true in the case of the Alberta Sovereignty Act.
The rapid cooling of the rhetoric over the Sovereignty Act shows that it is a political rather than a legal device. If it were even invoked, it would be found unconstitutional, forcing Smith either to ignore a court ruling or to back down in a humiliating way. The Smith government seems to be aware of this, and for the moment, and likely beyond if it remains in office, knows that its only purpose is to goad the Trudeau government into doing things to help the United Conservative Party to win reelection this May.
References:
https://www.assembly.ab.ca/assembly-business/bills/bill?billinfoid=11984&from=bills
https://www.cbc.ca/news/canada/edmonton/alberta-sovereignty-act-1.6678407
https://www.cbc.ca/news/canada/calgary/smith-just-transition-jobs-claim-lies-beyond-truth-1.6720064
https://dc.statelibrary.sc.gov/handle/10827/21911
https://digitalcommons.osgoode.yorku.ca/olsrps/189/
https://www.freealbertastrategy.com/the_strategy
https://journalhosting.ucalgary.ca/index.php/sppp/article/view/56878
https://www.jstor.org/stable/3232771
https://macleans.ca/politics/ottawa/wellss-rules-annotated/
https://open.canada.ca/data/en/dataset/24ae60ef-359d-4c67-aa31-a71e5e7aa88d
https://open.library.ubc.ca/soa/cIRcle/collections/ubctheses/24/items/1.0340644
https://policyoptions.irpp.org/magazines/november-2019/the-trudeaus-and-western-alienation/
https://policyoptions.irpp.org/magazines/october-2022/is-the-alberta-sovereignty-act-constitutional/
https://publications.gc.ca/collections/collection_2020/bcp-pco/Z1-1963-1-1/Z1-1963-1-1-4-eng.pdf
https://rotunda.upress.virginia.edu/founders/default.xqy?keys=FOEA-print-02-02-02-3065
https://www.theglobeandmail.com/canada/alberta/article-danielle-smith-sovereignty-act-legislation/
https://www.theguardian.com/world/2022/dec/08/sovereignty-act-passed-alberta-canada