Proposed sovereignty act would be scrutinized before given royal assent, says Alberta Lt.-Gov.

Alberta Lieutenant-Governor Salma Lakhani says her office would independently evaluate whether a proposed Alberta Sovereignty Act was constitutional before signing it into law.

Salma Lakhani's comments come as UCP leadership contender proposes contentious legislation

A woman stands in a park.
Alberta Lieutenant-Governor Salma Lakhani speaks to reporters on the legislature grounds in Edmonton about UCP leadership candidate Danielle Smith's proposed Alberta Sovereignty Act. Lakhani says she would not give royal assent to any bill that is unconstitutional. (Janet French/CBC)

Alberta Lieutenant-Governor Salma Lakhani says her office would independently evaluate whether a proposed Alberta Sovereignty Act was constitutional before signing it into law.

Her remarks come as Danielle Smith, the perceived front-runner to become the next leader of the United Conservative Party and premier of Alberta, has proposed legislation permitting the province to refuse to enforce federal laws it believes are against Alberta's best interests.

Lakhani said Thursday her constitutional role is the most important part of her job and that Alberta must follow the rule of law.

"This is where we keep checks and balances," she told reporters at an unrelated event outside the Alberta legislature.

"I'm what I would call a constitutional fire extinguisher. We don't have to use it a lot, but sometimes we do have to use it."

But first, she must see the bill before she can assess whether it is legal, she said.

Governments keep the wording of bills under embargo until they are tabled in the legislature. Smith has not released a draft of the proposed bill or the details of how it would work. CBC News has reached out to Smith for comment.

Lakhani says growing up in Uganda gave her unique respect for the necessity of governments adhering to the rule of law. Her family and other South Asians were forced out of the country by a totalitarian leader, she said.

"I appreciate very much the rule of law," Lakhani said. "I think we all have to guard it. We have to respect it, and we have to also guard democracy. These are gifts."

Lakhani said she's attending a vice-regal conference in Newfoundland next month and intends to get advice from her counterparts about how to handle the receipt of a bill that may be offside with the constitution.

She said she's prepared for any backlash from people who believe she should solely play a ceremonial role.

Lt.-Gov. should consider other approaches first: prof.

Before a bill passed by the legislature becomes law, it needs royal assent from the lieutenant-governor.

This step is almost always a formality, said Eric Adams. a University of Alberta law professor with a focus on constitutional law. Usually the courts decide whether a law is unconstitutional.

A lieutenant-governor is empowered to reserve royal assent if a bill endangers the constitutional working of the province, he said.

In Alberta, Lt.-Gov. John Bowen was the last to exercise the power in 1937 when the William Aberhart government passed three bills he believed were unconstitutional. Although the supreme court later confirmed the bills were unconstitutional, it prompted a lengthy rift between the Crown and the Alberta government.

Before taking this dramatic step, a lieutenant-governor should consult with legal experts, other vice-regals across the country, and warn the government privately of their concerns, Adams said.

"It should be avoided at almost all costs," he said, adding it would lead to controversy and open the lieutenant-governor up to criticism.

It's hard to know if the Alberta Sovereignty Act would warrant such measures until Albertans can see the proposed wording of the bill, he said. But based on some of the ideas being floated around, it's not beyond the unthinkable.

"If an act of the legislature of Alberta is suddenly claiming it has the power to no longer follow federal laws, for example, we may be getting pretty close [to] — if we're not in — a constitutional crisis," Adams said. "That's a bad place to be."

Premier Jason Kenney, Finance Minister Jason Nixon and constitutional scholars are among those who have said Smith's proposed sovereignty bill sounds illegal.

Danielle Smith speaks to reporters after the final 2022 UCP leadership debate in Edmonton Thursday. She has proposed a sovereignty act that some scholars and critics have said is likely unconstitutional. (Janet French/CBC)

Smith has said all it would do is reinforce the constitutional powers already afforded to Alberta and other provinces.

If elected premier, Smith would work with government caucus "to ensure the Sovereignty Act is drafted in accordance with sound constitutional language and principles,"said a spokesperson on behalf of Smith in a brief statement Thursday.

Most of her six opponents in the UCP leadership race have panned the idea and said Smith has been inconsistent in describing what the proposed law would do, how it would work and when it could be used. They also say such a law would create instability and drive skittish investors away from Alberta.

The UCP will select a new leader on Oct. 6.


Janet French

Provincial affairs reporter

Janet French covers the Alberta Legislature for CBC Edmonton. She previously spent 15 years working at newspapers, including the Edmonton Journal and Saskatoon StarPhoenix. You can reach her at janet.french@cbc.ca.