Danielle Smith’s stupid constitutional game could have a very special prize

For months, Danielle Smith promised Alberta’s United Conservative Party members that she would take the fight to Ottawa with her Alberta Sovereignty Act. That fight included disregarding federal laws and refusing to adhere to court rulings that didn’t flatter Alberta’s interests, which apparently revolve entirely around vaccine mandates and pipelines. But less than 72 hours after winning the leadership of her party, she was forced to make a concession to reality.

Rob Anderson, her campaign chair and executive director of her transition team, told CBC the proposed legislation wouldn’t actually empower Alberta to disregard Canada’s Supreme Court, as almost every constitutional expert in Alberta had tried to tell her campaign. One of them, University of Calgary law professor Martin Olszynski, told the Canadian Press’s Dean Bennett that “if suddenly now the premier-designate and her office are prepared to say, 'Of course, we're bound by the courts,' then the sovereignty act goes nowhere."

This wouldn’t be the first time Smith has disappointed her supporters. Back in 2014, after all, she crossed the floor as the leader of the Wildrose Party along with eight other MLAs to join Jim Prentice’s Tories, which went on to lose to the NDP in 2015. But the biggest disappointment may be yet to come. That’s because she still plans to wage war on Ottawa, and her method of choice could end up costing Alberta the very thing it values the most: market access for its oil and gas.

Smith’s government still intends to pass some watered-down version of her Alberta Sovereignty Act, one Anderson said will “have a whole head of very sharp teeth” and “change the dynamic” with the federal government. But those teeth could easily end up biting Alberta in the ass, and perhaps much sooner than anyone in the Smith camp seems to understand. If Alberta can somehow pick and choose which aspects of federal authority it wants to recognize and chooses to use the legal system to frustrate the federal government with frivolous appeals and actions, so can other provinces.

British Columbia, for example, just happens to be in the midst of a leadership race of its own by the governing party, one that could yield a new premier who’s the yin to Smith’s constitutional yang. Anjali Appadurai, the 32-year-old director of campaigns for the David Suzuki Institute’s Climate Emergency Unit, is mounting a major challenge to the presumed coronation of David Eby as the BC NDP’s next leader. If Appadurai wins and becomes the next premier of British Columbia in December, finding a way to stop the Trans Mountain pipeline expansion will almost certainly be one of her first priorities.

Back in 2021 when Appadurai was running for federal office in Vancouver-Granville, she signed a pledge committing that she would “do everything in my power as MP to cancel #TMX if I am in office.” Just last month, she spoke at an anti-TMX rally in Burnaby, telling the approximately 150 attendees that she was “so grateful to be here among friends, among movement, among allies.”

Smith’s Alberta Sovereignty Act, and the precedent it would set, would give Appadurai an easy way to continue her long-standing resistance to the project. Appadurai could proceed with the proposed provincial regulations on the transportation of bitumen and other hydrocarbons that John Horgan’s government referred to the British Columbia Court of Appeal, and which seemed designed to stop the flow of heavy oil from Alberta. Those regulations were rejected unanimously by both the BC Court of Appeal and the Supreme Court of Canada, with Justice Michael Moldaver describing the bill as an attempt to “throw up barriers that will, at a minimum, delay or obstruct” pipeline projects like TMX.

But as University of Saskatchewan law professor Jason MacLean wrote in a 2018 op-ed for the Globe and Mail, there’s a way to write those regulations that doesn’t interfere with the federal government’s jurisdiction. “As a matter of constitutional law, so long as B.C.'s safety regulations are enacted in a bona fide manner to protect British Columbia's environment and economy from bitumen spills, and not as an indirect way of usurping the federal government's approval of Trans Mountain, the courts should uphold them.” Appadurai may be eager to find out if a revised version of these regulations can pass constitutional muster — more eager, perhaps, than Horgan ever was.

Then there’s Smith’s promise to rechallenge the Supreme Court of Canada’s 2021 decision upholding the constitutionality of the federal government’s Greenhouse Gas Pollution Pricing Act. “Supreme Court rulings also can be challenged on the basis of new evidence,” she said last week. “When you look at the carbon tax as an example, that’s one I would like to re-litigate. It was argued on very narrow grounds, and I think the world has changed since that decision came down.”

None of the changes Smith cites, from inflation to affordability issues to the war in Ukraine, have any bearing on the constitutional merits of the federal government’s carbon tax. The case would almost certainly be dismissed out of hand. But if she can cite world events as a reason why constitutional arguments need to be reassessed, so could a Premier Appadurai. She might point to the massive cost overruns on TMX or the ever more urgent necessity of decarbonization in defence of her own frivolous appeal and demand the reassessment of some key decision or ruling.

She could, in short, pursue the same sort of constitutional malarkey Smith has promised to inflict on Canada. The federal government, for its part, may have no choice but to suspend the construction of TMX until these new legal issues are settled. Yes, that would damage Alberta’s oil and gas industry and interfere with its government’s desire to see more pipelines built. But as Premier Smith said, “Unity comes from respecting that each jurisdiction likes to do things in its own way, and that’s the conversation that we’re going to force.” One wonders if she’ll be able to appreciate the irony when that conversation gets forced back on her.

This is the problem with playing stupid games: sometimes, you end up winning a really stupid prize. In Alberta, there might be nothing stupider than sabotaging the one pipeline to tidewater that’s managed to get approved and built. Even former premier Jason Kenney, for all of his well-documented short-sightedness, could see this one coming a mile away. “Wait until B.C. gets the idea that they can play the same game to block our pipelines,” he said back in September.

Smith, who has yet to be elected to the legislature, still has time to change her mind here. But after already doing it once on her signature piece of legislation, the odds are against it happening again.