The word “paramountcy” does not appear on Alberta’s referendum ballot. There is also an important distinction about the word itself. “Paramountcy” does not appear in the Constitution, but the legal concept has long been established by Canadian courts. It generally means that when valid federal and provincial laws conflict in an area of shared jurisdiction, federal law prevails. “Under the Canadian Constitution, under sections 91 and 92, if there are shared jurisdictions between the federal government and the provinces, the federal law does have paramountcy,” said Errol Mendes, a constitutional law professor at the University of Ottawa. The Alberta government wants to change that arrangement, despite constitutional conflicts between Ottawa and the provinces are relatively uncommon. “Typically, provincial laws and federal laws are read to be consistent to the extent possible and seldom are they actually a true conflict,” said David Wright, an environmental law professor at the University of Calgary. There have, however, been significant areas of conflict. “There has been a lot of tension between provinces, particularly Alberta and the federal government, in this legal space of environmental management, environmental governance and natural resources,” Wright said. Premier Danielle Smith has highlighted federal-provincial jurisdictional overlap on her list of what she calls Ottawa’s “nine bad laws.” Wright pointed to the federal Impact Assessment Act, formerly Bill C-69, as an example of the type of legislation that has drawn criticism in Alberta. “Bill 69 that became the Federal Impact Assessment Act has been a target for a lot of criticism for those who are interested in expanding oilsands extraction, expanding natural gas extraction and combustion, building more mines, also further expansion of coal mining and combustion and so on,” Wright said. But Wright also points to an example where federal paramountcy worked in Alberta’s favour. He cited British Columbia’s unsuccessful opposition to the original Trans Mountain pipeline as an example of federal law overriding provincial objections. “And so, in that context, perhaps ironically, in light of this referendum question, federal paramountcy was to the benefit of Alberta’s interests,” Wright said. Smith wants a mandate to ask other premiers to support an amendment to the Constitution. CTV News Calgary reached out to all nine other provinces to gauge their interest. Most did not respond or said the referendum was a matter for Albertans. Newfoundland and Labrador said in a statement that it would not speculate on hypothetical scenarios. The province said it “continues to focus on fostering constructive dialogue and strengthening partnerships among provinces, territories, and the federal government.” A ‘yes’ vote could be more symbolic than practical. Mendes said changing the constitutional framework would face a significant hurdle. “How is that ever going to happen? Well, I can tell you the chances that especially zero, because for something as massive as that, you would need to have under the amending formula, seven provinces representing 50 per cent of the population and pass through the federal Parliament.”
