Danielle Smith and the United Conservative Party passed the Alberta Sovereignty Within A United Canada Act last December despite a storm of protests from critics. Some of those critics called on the federal Liberal government to disallow the act using the Constitution’s ‘disallowance’ power, which permits the federal government to abolish provincial laws. Alberta’s Lieutenant-Governor Salma Lakhani also said that her office would review the act to determine if it was constitutional before giving it the Royal Assent it needed to become law. Several Alberta First Nations chiefs also called on Lakhani to refuse to sign the bill, citing what they consider the act’s violations of their treaty rights.
Thankfully, none of this happened.
The problem with such measures is that they don’t take into account how the Constitution is supposed to work. Constitutional conventions are the various unwritten rules and expectations about how the written text of the Constitution works in practice. One of those conventions is that the federal government shouldn’t use its disallowance powers anymore. The last time the federal government disallowed a provincial law was in 1943. Prime Minister Louis St. Laurent nixed an Alberta law that prohibited land sales to Hutterites and citizens of enemy countries during World War II on the grounds that it conflicted with Ottawa’s jurisdiction over dealing with people considered ‘enemy aliens.’ While Justin Trudeau could use his disallowance powers to kill the act, it’d cause a massive political crisis and be seen as a gross violation of democracy and federalism.
As for a lieutenant-governor refusing to sign a bill, Lakhani would’ve grossly overstepped her bounds if she did it. Alberta Lieutenant-Governor John C. Bowen refused to sign several of Premier Bill Aberhart’s bills in 1937 because he thought they were unconstitutional. The federal government eventually referred the bills to the courts, which confirmed Bowen’s opinion and declared the bills unconstitutional.
All our lieutenant-governors have signed the bills they’re given since then, and with good reason. For one thing, the lieutenant-governor is not elected, and it’s hard to justify their overruling an elected premier’s legislation. Even if they do, lieutenant-governors don’t necessarily have the legal training to decide whether a bill is constitutional. That’s one of the reasons political power is split between the executive (premier and cabinet), the legislative (the MLAs of the legislature) and the judicial (the courts) branches of government. The judicial branch’s job is to be a constitutional ‘referee’ that decides whether a law is constitutional. The judges that work in it have the necessary legal training.
That’s why the approach taken by the Onion Lake Cree Nation is the right one. Onion Lake has filed a lawsuit to declare the act unconstitutional, saying that it violates their treaty rights. This is how laws are supposed to be reviewed in Canada. If the act is struck down this way, it’ll avoid all the dangers of breaking Constitutional conventions or public officials like lieutenant-governors overstepping their office’s authority.
