Alberta’s ‘pointless’, ‘performative’ sovereignty act move won’t see court anytime toon: Expert

A legal challenge through the courts is a foregone conclusion. But although the motion is a required procedural step, Nigel Bankes, University of Calgary Emeritus Professor of Law told The Energy Mix he doesn’t expect to see any action “anytime soon.”

“This is performative, and part of a pattern of Premier Smith’s behaviour, which is to be deliberately confrontational,” he said.

The federal cap would require the oil and gas sector to reduce its emissions by about 35 per cent below 2019 levels by 2030—a pledge environmental groups have said is not enough to meet national targets.

Smith’s motion proposes seven ways the province should respond to the “intrusion.” These include banning federal employees and contractors from oil and gas facilities, taking government control of company emissions data, and expanding the province’s role in selling oil and gas internationally.

Alberta’s Dec. 2 motion is the second it has made under the sovereignty act since it was passed two years ago. The strategy, timing, and tone this time around are reminiscent of the province’s reaction to Ottawa’s Clean Electricity Regulations, even repeating some of the same language.

In the nine months since that motion passed, the province has not released any details on how it would be implemented. Nor has Ottawa released the final regulations.

Both Alberta motions called for legal challenges, repeating claims the federal government’s actions are unconstitutional, but Bankes said court cases won’t likely proceed “until we see the final form of the regulations. Because otherwise a court might just say, ‘This is premature, why would we deal with a set of drafts?’ ”

Some pundits had praise for Smith’s confrontational strategy. Multiple op-eds appeared across Postmedia outlets last week, confident Alberta’s challenges would protect the oil and gas industry. One columnist claimed the province’s move was “designed to impede incoming (emissions cap) policy from the get-go.” Another said “Alberta plans to build a wall of steel around its oil and gas industry.” Yet another cast the new motion as “a pragmatic, multi-layered, clever approach.”

But several experts disagreed as they weighed in last week. Richard Masson, an executive fellow at the University of Calgary’s School of Public Policy and former CEO of the Alberta Petroleum Marketing Commission, told CBC he wasn’t sure the province’s legal challenge would have the “desired effect of getting the federal government to back off.

“It just looks like more fighting, more risk, and to companies, will probably look like another example of governments who can’t get their act together to try to come up with some kind of attractive investment environment in our country,” Masson said.

It also became clear that Alberta had included a few surprises in the new motion. Oil and gas industry representatives said while they agreed the emissions cap should be challenged, they hadn’t been consulted.

Alberta Environment Minister Rebecca Schulz told CBC the government “absolutely will be consulting with industry.”

The motion introduced this week included seven different strategies, one of which involved taking ownership of individual company emissions data and preventing them from being submitted directly to the federal government.

That idea generated an immediate reaction from Federal Environment and Climate Change Minister Stephen Guilbeault, who told reporters: “If companies stopped reporting (their emissions) to the federal government, they would be in violation of federal laws.”

When reporters then asked Schulz about Guilbeault’s statement, she said: “He is lying because he has to lie. Because if he says anything else, he knows what we know, which is that his oil and gas production cap will be found unconstitutional when we challenge it in court.”

But Emmett Macfarlane, a constitutional expert and political science professor at the University of Waterloo, said the constitutionality of a federal emissions cap “can only come from a judicial determination.”

A province “cannot interfere in the exercise of valid federal authority, even if it perceives an ‘intrusion’ by the incidental effects of such law,” he explained in his newsletter.

Macfarlane called the Alberta measure a “symbolic attack on the division of powers as a whole. Pointless and anti-constitutional at the same time.”

Tristan Goodman, president and CEO of the Explorers and Producers Association of Canada, told CBC that industry needs to see more detail, particularly around Alberta taking exclusive control and ownership of the province’s emissions data.

“That’s where we would like to be collaborated with. We would like to be talked to, to see how that would specifically work,” he said.

Bankes said the province can make laws in relation to property. It and can move to expropriate a company’s intellectual property if it wants to, but “the province can’t use that as a shield to prevent the company from fulfilling its lawful obligations under a valid federal statute.”

He said the federal government has an arguable case for regulating emissions under the criminal law power to protect human health and the environment, which is the approach Ottawa is proposing.

“What’s absurd is that this legislation cannot in any way better the province’s case,” Bankes said. “The federal regulations are either valid or invalid, and this is like throwing sand in the air.”