Danielle Smith’s government tries to clarify Sovereignty Act powers — as former rivals unite behind her

EDMONTON—Confusion reigned over the Alberta legislature Wednesday, a day after Premier Danielle Smith introduced her cornerstone Sovereignty Act in the name of fighting back against perceived federal encroachment.

Amid a torrent of criticism from political scientists, legal experts and business leaders, the provincial government seemed to try to allay concerns about the amount of power the act will concentrate in the United Conservative Party’s cabinet.

But such reassurance was met with only more questions and criticism of a bill some say undermines the rule of law and that others contend could hurt the province’s economy.

The Alberta Sovereignty within a United Canada Act, as it is fully named, on Tuesday became the first bill tabled under the Smith government.

It would allow the UCP government to bring forward a motion in the provincial legislature identifying a federal initiative or law as unconstitutional or harmful to Alberta.

The motion, according to the bill, would identify “a measure or measures” that cabinet “should consider taking.” The motion is non-binding, and “measures” are not explicitly defined in the act.

If the motion were passed, the new powers of the Sovereignty Act would be unlocked, allowing cabinet ministers to begin changing provincial legislation that allowed them to fight back against the federal measure.

The act would further allow the province to issue directives to public entities — including police forces, school boards and universities — telling them to ignore federal laws deemed unconstitutional or “harmful” by the legislative assembly.

Political scientists have taken issue with what they have characterized as the extraordinary powers the act would give cabinet to change provincial legislation.

On Wednesday, the Alberta government put out a news release attempting to clear up what it suggested were misinterpretations about how the act would be used.

“In no way does the Sovereignty within a United Canada Act permit cabinet to unilaterally amend legislation without those amendments being first authorized by the legislative assembly,” the new statement said.

“The resolution, including any amendments to legislation, must first be introduced, debated, voted on and passed by the legislative assembly,” it added.

That seemed to fly in the face of the Alberta justice minister’s comments from a day prior. He was asked by a reporter: “Once the motion is debated in the legislature and a majority of MLAs vote on it, and then it goes to cabinet and there’s directives within that motion, then the cabinet ministers have the ability to unilaterally, if they so choose, change legislation. … Can you just say yes or no.”

“That is correct,” said Shandro during a news conference.

During a technical briefing on the bill, department officials on Tuesday laid out how the bill worked, and confirmed that cabinet ministers had the power to unilaterally change legislation following a motion being passed.

It may be that the government is suggesting it intends to include any and all potential amendments within the motions it brings to the legislature, but that’s not spelled out in the wording of the bill.

So the question seems to remain: If the Alberta legislature approves a motion targeting an “anti-Alberta” measure by Ottawa, will cabinet essentially get a blank cheque to change any legislation it sees fit in order to respond? Or will the legislature be voting on a detailed plan that includes any and all legislative changes cabinet may deem neccessary?

Lisa Young, a political science professor at the University of Calgary, said the clarifying statement seemed to be the UCP government trying to say: “Yeah, these are extraordinary powers, but don’t worry, we won’t use them to do big things or bad things.”

What matters is not what the intention of the government of the day is, said Young — what matters is what the law actually says.

“Those politicians might change their mind about what it is they want to do with this, they might decide to use the powers more expansively than they had intended in the first instance,” she added.

“If you have to put out a statement clarifying the legislation the day after it’s introduced, you probably haven’t written the legislation well enough.”

Meanwhile, the Alberta NDP — which can review any government bill introduced in the legislature — says it was told by the deputy minister of justice during a technical briefing that the statement attempting to clarify things was itself incorrect.

“What it shows me is that we now have a premier and a justice minister who are either lying or who are incredibly incompetent and don’t understand the legislation that they’ve just presented,” said Alberta NDP Leader Rachel Notley.

She suggested the government withdraw it and try again.

When asked if the deputy minister could clarify if the NDP had interpreted his remarks correctly, the justice ministry press secretary, Ethan Lecavalier-Kidney, told the Star that the NDP had not, but refused to comment further.

The Star asked for interviews with the minister of justice or the deputy minister of justice, but they were not made available.

Administrative law professor Martin Olszynski, who has written on the Sovereignty Act since Smith first proposed it in the spring, said if the government truly wanted to make sure cabinet had to directly and explicitly follow the wishes of the legislature, it should have made that clear in the bill — but it didn’t.

“There’s lots of room here for (cabinet) to exercise discretion,” Olszysnki said.

“What they’re asking is for Albertans to take them on faith that they will exercise (these powers) in a restraining manner, when they can’t even bring themselves to bind themselves using the language of the act.”

Meanwhile, three UCP cabinet ministers — who once held a news conference condemning Smith’s plan for the Sovreignty Act during the UCP leadership race in which they were all running — decided to stand arm-in-arm with her now that it’s been tabled.

Travis Toews, the Alberta finance minister who was considered the establishment, Jason Kenney-aligned candidate in the UCP leadership race, told reporters Wednesday that he now supported the new bill after spending weeks criticizing it while campaigning to lead the party.

“My concerns were that a bill like this needed to be constitutional,” he said during a media scrum. “It needed to respect the rule of law, and it needed to be implemented in a way that, again, continued to support the certainty and predictability of our economic environment.

“I can say that I’m supporting this bill because I believe those issues have been resolved.”

Similar defences of the act were rolled out by Rajan Sawhney and Brian Jean, both of whom stood as fellow leadership candidates alongside Toews during the UCP race to slam the idea championed by then front-runner Smith. Those two and Toews now serve in Smith’s cabinet.

“It’s constitutional,” Jean told reporters.

He said concerns the bill gave cabinet the power to change laws unilaterally were misplaced: “It says specifically that we’re going to have more democracy in this place than anywhere else in Canada.”

The bill doesn’t say that, but interpretations spun in different directions Wednesday as reporters, MLAs and the government itself tried to clarify how it may affect democracy in the province.

With files from The Canadian Press

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