In the final month of 2022, the Alberta government passed the so-called “Sovereignty” Act purporting to limit federal power and expand provincial jurisdiction within Alberta.
First Nations have already raised serious concerns that the Act will erode their treaty rights by concentrating legislative authority in the hands of the provincial government. The Act’s existence also highlights important, unanswered questions about the legitimacy of provincial governments’ assertion of jurisdiction over Indigenous Peoples and lands in Canada.
What is the Alberta “Sovereignty” Act?
The Alberta Sovereignty Within a United Canada Act came into force in December 2022.
The Act asserts the federal government is harming residents by passing laws which should be under the exclusive jurisdiction of the province. It provides a process for cabinet and the legislative assembly to deem federal initiatives unconstitutional or harmful and to identify measures that cabinet should take in response, including directing ministers to alter regulations under their authorizing statutes and issuing directives to provincial entities to disregard federal legislation.
The Act has been widely denounced by Indigenous groups and legal experts as being both unconstitutional and contrary to the Crown’s treaty promises. Despite these criticisms, the Saskatchewan government appears poised to follow in Alberta’s footsteps by enacting similar legislation aimed at expanding the scope of provincial decision-making powers.
Why It Matters
First and foremost, the term “Sovereignty Act” is a misnomer. The Act does not transform Alberta into a sovereign, self-governing nation-state. Instead, the Act is primarily about jurisdiction -- the ability to exercise legislative authority under the existing constitutional division of powers.
The Crown’s legislative authority in Canada is divided between federal and provincial governments under the Constitution Act, 1867. The Sovereignty Act attempts to expand provincial powers by authorizing provincial entities to disregard federal laws deemed contrary to the interests of Albertans.
As numerous experts have noted, this approach is contrary to core constitutional principles in Canadian law. It also disregards the fact that, as Canadian courts have confirmed, the Constitution Act, 1867 does not exhaust all law-making authority in Canada, and that Indigenous legal orders survived the assertion of Crown sovereignty and continue to have force today.
More fundamentally, the enactment of legislation based on the concept of provincial “sovereignty” also begs the question of how provincial governments came to exercise decision-making authority over Indigenous Peoples and lands in the first place.
Under international law, sovereignty over another nation is generally acquired either involuntarily by way of conquest, or voluntarily through a treaty or equivalent nation-to-nation agreement.
There is no clear explanation as to how the Crown acquired sovereignty over Indigenous Peoples in Canada under either of these processes. Instead, the Supreme Court of Canada continues to implicitly rely on the Doctrine of Discovery -- an outdated and racist legal principle which provides that European countries automatically acquired sovereignty and jurisdiction over Indigenous Peoples when they were ‘discovered.’
Paradoxically, the Court has also suggested that the Crown acquired sovereignty through the negotiation of treaties with Indigenous Nations in the decades prior to and following Confederation. However, Indigenous treaty parties – including the parties to Treaties 6, 7, and 8, which cover most of Alberta – have consistently and repeatedly held that the treaties were about sharing and peaceful co-existence, not the surrender of lands and authority.
The legal basis for the assumption of sovereignty and jurisdiction over Indigenous Peoples is even more precarious for provincial governments, many of which did not yet exist at the time the treaties were negotiated.
In Alberta, the majority of the treaties were negotiated between 1876 and 1899 between Indigenous Nations and the federal government on behalf of the British Crown. The Province of Alberta did not even exist until 1905, and did not obtain control over lands and resources in the province until 1930 through the Natural Resources Transfer Agreement, which itself has been subject to considerable criticism by First Nations on the basis that it represents an unlawful attempt to unilaterally alter the basis on which the treaties were negotiated.
In sum, the source of Alberta’s legal authority over Indigenous Peoples and their lands is far from clear, regardless of how the treaties are ultimately interpreted.
Looking Ahead
In December, Onion Lake Cree Nation filed a lawsuit challenging the Act on the basis that it infringes its rights under Treaty 6. Other First Nations are contemplating similar legal challenges. It remains to be seen whether the Act will withstand judicial scrutiny in the coming months, and whether other provinces will pass similar legislation.
In the interim, the Alberta Sovereignty Act stands as a reminder of the disconnect between the province’s stated commitments to reconciliation and its ongoing disregard for the Crown’s treaty obligations.
It should also serve as a reminder that, despite assertions to the contrary, provincial governments’ assertion of jurisdiction and authority over Indigenous Peoples and lands remains clouded in legal uncertainty.
Photo credit: WinterE229 (License)
First Peoples Law LLP is a law firm dedicated to defending and advancing the rights of Indigenous Peoples. We work exclusively with Indigenous Peoples to defend their inherent and constitutionally protected title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their current and future generations.
Kate Gunn is partner at First Peoples Law LLP. Kate completed her Master's of Law at the University of British Columbia. Her most recent academic essay, "Agreeing to Share: Treaty 3, History & the Courts," was published in the UBC Law Review.
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Cody O'Neil is an articled student at First Peoples Law LLP.
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