Danielle Smith's legal 'sabre rattling' dismissed by analysts

Alberta’s latest pledge to fight the proposed federal emissions cap conflicts with existing and predicted federal laws — and experts doubt whether it will have an impact. 

On Nov. 26, Alberta Premier Danielle Smith announced a motion proposing a slew of measures to fight back against the oil and gas emissions cap, including requiring companies to hand their emissions data over to the province instead of reporting to the federal government as required by law. 

Political watchers say this is posturing from a premier intent on waging war with the federal government, noting many of the laws in question don’t exist yet in either jurisdiction. There are many unknowns but, if some of these measures proposed by Smith come to fruition, they could be challenged in court.

“It's sabre rattling, it's theatre, it's symbolism,” Lori Williams, an associate professor at Mount Royal University in Calgary, said in a phone interview with Canada’s National Observer.

As usual, with Smith, “it's about looking like she's being tough with the federal government. But it's unlikely to make any difference,” Williams said.

At this point, it's all hypothetical because the federal regulations to cap oil and gas emissions aren't in place yet and Williams thinks it is unlikely to happen before the next federal election.

Smith has long promised to take the federal government to court once its oil and gas emissions cap comes into force, but some of her latest pronouncements counter federal law, which will flip the script and invite Ottawa to challenge Alberta, said Jesse Hartery, a lawyer and Ph.D candidate at Melbourne Law School. 

Smith’s plan “creates a significant amount of issues” for people and companies who, for example, may have to choose between breaking federal or provincial law when it comes to reporting greenhouse gas emissions data, Hartery said.

“It's constitutionally legitimate in the sense that [Alberta] can always adopt laws like this, and then a court will intervene,” he said, but whether or not that's a good idea is a political question.

Details of Smith’s motion came as a surprise to Tristan Goodman, president and CEO of the Explorers and Producers Association of Canada, the Canadian Press reported.

"If the province wishes to ban certain types of other government officials from sites, we (the industry) are not going to get involved in that," he told the Canadian Press. "That would be up to the province to enforce that."

Enforcement uncertain

Energy and environmental economist Andrew Leach pointed out the Alberta Sovereignty Act cannot be used to direct individuals or companies (other than provincial entities) to violate federal law.

Smith said her motion, through the Alberta Sovereignty Act, will stop the federal oil and gas emissions cap from “infringing on the province’s distinct jurisdiction and killing good-paying jobs.” The resolution asks the legislative assembly for approval to “shield Alberta” by banning federal employees from oil and gas production facilities and ensuring provincial entities don’t help implement or enforce the cap, among other actions. At a press conference, Smith clarified that the province would collect greenhouse gas emissions data from companies and then publicly report it.

Smith’s motion raises a lot of questions, but doesn't look like it's going to make any difference, Williams said.

At this point it's not clear how anything would be enforced, she said, pointing to the action that would prohibit federal workers from entering oil and gas facilities in Alberta. 

“Would the provincial government stop the federal government from going on to these lands that are now declared essential infrastructure? How would they know when the federal government officials would be going onto the land? Who would do the enforcement of that? Like, what are the RCMP supposed to do in a case like this?” Williams asked.

Federal override

If a valid provincial law conflicts with a valid federal law, the federal law would supersede it in a court of law, but a court still has to make that call, Hartery said. He added that the Alberta Sovereignty Act does not grant new powers, it just gives the government a way to debate how it handles things like the emissions cap.

“The motion does absolutely nothing, “It's a, ‘Hey, look over here,’ thing that has no bearing on the enforcement of federal law,” Leach said, adding that Smith doesn’t need a special motion to take these actions; the government can already make laws and direct ministers to exercise their powers in a particular way. 

Leach said Smith’s action, which is designed to prevent provincial entities from enforcing or implementing the oil and gas emissions cap, makes no sense because these agencies are not involved with enforcing federal law. 

“It's like if Danielle Smith stood up and said no provincial entity will be involved in enforcing the payment of federal income taxes. Like, OK, that's the Canada Revenue Agency,” he said. 

To some extent, Hartery thinks Alberta might be trying to take a similar tack as Quebec did when it passed a law allowing people to request medical assistance in dying in advance and basically said, “if the federal government doesn't like it, bring us to court.” Last month, the federal government indicated it would not challenge the law. 

In Alberta’s case, Hartery noted that because Smith has promised to challenge the emissions cap in court once it’s in force, the outcome of that could potentially resolve some of the measures Smith proposed on Nov. 26.

— With files from the Canadian Press

Natasha Bulowski / Local Journalism Initiative / Canada’s National Observer