By Sonya Savage and Heather Exner-Pirot
May 28, 2025
In the wake of the 2025 Canadian federal election, Western alienation – a sense of marginalization and disadvantage within Confederation felt by residents of the four Western provinces, in particular Alberta and Saskatchewan – has risen to generational highs. According to polling by Angus Reid conducted in May 2025, about half of those surveyed in the two Prairie provinces would support holding a referendum on independence, while about a third (36 per cent in Alberta and 33 per cent in Saskatchewan) support leaving Canada.
These numbers are stunning, particularly since there is currently no charismatic leader or well-organized movement advancing separatism. Separatist sentiment is simply based on a widespread exasperation with the status quo. Politically it cannot be ignored; healthy majorities of voters of both the governing Saskatchewan Party (59 per cent) and United Conservative Party in Alberta (65 per cent) support leaving Canada.
What accounts for this rise in Western discontent? The anger is largely fuelled by Ottawa’s decade-long legislative and regulatory agenda, which trampled on provincial jurisdiction while specifically targeting the oil and gas industry – a major source of Western Canada’s wealth.
A new federal government provides an opportunity for a reset – but it must first understand the source of some of the deep feelings of resentment and alienation in Western Canada. Ottawa’s climate and environmental laws have in fact overreached into provincial jurisdiction, causing real, tangible harm to the economies of Alberta and Saskatchewan.
The nation’s founders understood that a geographically large and culturally diverse country such as Canada requires a governance system that respects regional identities and distinctions. They designed the British North America Act (now the Constitution Act) of 1867 to accommodate differences in interests and priorities, creating a federal rather than unitary state.
In the past decade, Ottawa has seen fit to ride roughshod over provincial jurisdiction when it conflicted with its climate policy objectives. This has resulted in a burgeoning constitutional crisis. But the federation is not beyond repair. We believe simply aligning federal laws with the Constitution, and respecting it going forward, would go a long way to quelling Western frustrations.
Confederation and the Constitution
At the time of Confederation, s. 92 of The Constitution Act 1867 gave Canada’s provinces authority regarding natural resources through legislative powers covering property and civil rights, public lands, and local works and undertakings. Section 109 further granted ownership of land, mines, minerals, and royalties to the original four Eastern provinces, enabling proprietary powers flowing from that ownership. When British Columbia joined Confederation, the Government of Canada granted it similar ownership rights, except for lands needed for the railway.
When the Prairie provinces joined confederation, they weren’t immediately given the same ownership rights as the Eastern provinces. It wasn’t until 1930, in response to growing political pressure, that Ottawa entered into Natural Resources Transfer Agreements (NRTA), ultimately including them in the Constitution Act, 1930. This finally put Alberta and Saskatchewan on equal footing, 25 years after joining Canada, and enabled them to benefit from regulating resource developments and earning revenue from royalties and mineral leases.
For decades, the combination of resource ownership and enumerated powers under s.92 gave provinces the ability to manage resources without too much perceived interference by Ottawa, even though provincial ownership rights could still be impacted by laws legitimately passed by Ottawa under its jurisdiction as outlined in section 91 of The Constitution Act 1867. The Constitution grants the federal government authority to legislate in areas including interprovincial trade and commerce, interprovincial undertakings, taxation, criminal law, fisheries, and treaties, as well as general authority “to make Laws for the Peace, Order, and good Government of Canada” (POGG).
The jurisdictional divide is not always black and white. The broad federal POGG authority has enabled Ottawa to legislate in areas that would normally be considered provincial jurisdiction during emergencies or when there is a matter of national concern. Ottawa has leveraged its interprovincial trade and commerce powers to assert its authority to regulate energy projects that cross provincial borders. It has also used its taxation authority and has asserted criminal law powers to achieve environmental objectives.
In the 1970s and early ’80s, the delicate balance of powers regarding natural resources sparked significant conflicts between Alberta and Saskatchewan and the federal government in Ottawa. Disagreements regarding resource taxation, price controls, the National Energy Program (NEP), and a unilateral attempt by the federal government to repatriate the constitution, contributed to Western alienation and growing separatist sentiments in Alberta. It ultimately led to court challenges and a constitutional amendment in 1982 to fortify provincial authority over natural resources. Negotiated by Alberta Premier Peter Lougheed and Saskatchewan Premier Allan Blakeney and generally known as the “resource amendment,” s.92A(1) of The Constitution Act 1982 gave the provinces exclusive authority with respect to the development, management, and conservation of non-renewable natural resources, forestry resources, and electricity generation.
This long constitutional history has ingrained within Alberta and Saskatchewan a wariness and skepticism that they will be treated fairly by Ottawa. First, there was a sense of injustice in not being given the same ownership rights as other provinces until 1930, 25 years after joining Confederation. Second, despite fighting to achieve those rights under the NRTA, the Liberal government of Pierre Trudeau in the 1970s and early 1980s attempted to expropriate those rights with the National Energy Program, explicitly redistributing wealth from oil-producing provinces (primarily Alberta) to the federal treasury and consuming provinces.
Forty years later, the Liberal government of Justin Trudeau demonstrated an intent to subsume those rights altogether in service of its climate agenda. To the extent that oil and gas development conflicted with Canada’s international climate commitments, the Trudeau government did not hesitate to extend the federal government’s reach deep into provincial jurisdiction, using the federal government’s shared jurisdiction over the environment.
The long list of legislative and regulatory changes pursued by Ottawa over the past decade that substantially affected the oil and gas sector – and thus the development, management, and conservation of non-renewable natural resources as defined under s.92A(1) – include:
- Bill C- 69: The Impact Assessment Act 2019 (IAA) (a.k.a. the “No More Pipelines Act”).
- Bill C-48: Oil Tanker Moratorium Act, 2019 (a.k.a. the “Tanker Ban”).
- Carbon Tax: Greenhouse Gas Pollution Pricing Act (GGPPA), 2018.
- Emissions Cap: Oil and Gas Sector Greenhouse Emissions Cap Regulations, 2024, under the Canadian Environmental Protection Act.
- Clean Electricity Regulations: Clean Electricity Regulations, 2024, under the Canadian Environmental Protection Act.
- Plastics Ban: Single Use Plastics Prohibition Regulations, 2022, under the Canadian Environmental Protection Act.
- EV Mandate: Regulations Amending the Passenger Automobile and Light Truck Greenhouse Gas Emission Regulations, 2023, under the Canadian Environmental Protection Act.
- Clean Fuel Regulations: Clean Fuel Regulations, 2022, under the Canadian Environmental Protection Act.
- Methane Regulations: Regulations respecting Reducing in the Release of Methane and Certain Volatile Organic Compounds (Upstream Oil and Gas Sector), 2018 under the Canadian Environmental Protection Act.
- Greenwashing Legislation: Competition Act amendments, 2024.
- Just Transition: Canadian Sustainable Jobs Act, 2024.
When Alberta Premier Danielle Smith met with then-Liberal candidate Mark Carney in March 2025, she presented a list of nine “demands” that needed to be addressed within six months, lest Canada face an “unprecedented national unity crisis.” While derided by some corners of the Canadian commentariat, from the perspective of the UCP government the list largely consists of policies and legislation that violate aspects of provincial jurisdiction. Alberta has had to fight for more than a century to protect its constitutional rights; it has tired of doing so.
Federal overreach
Alberta has already constitutionally challenged pieces of the Trudeau government’s climate strategy, including the carbon tax and IAA, and an industry coalition successfully challenged the plastics ban at the Federal Court. Both the province and the federal government have seen wins and losses. The province successfully challenged the IAA, with the Supreme Court of Canada declaring it to be largely unconstitutional, and industry achieved success in the Federal Court challenging the plastics ban. However, Ottawa successfully maintained the carbon tax at the Supreme Court of Canada, relying on its constitutional authority under federal POGG powers.
Should Prime Minister Carney continue to push Trudeau’s climate agenda through legislative and regulatory measures, continuous acrimonious constitutional challenges are certain to dominate the landscape over the next several years. Compounded with growing separatist sentiment in Alberta, aimed squarely at many of these measures, it creates significant risk for national unity. Rather than exacerbating Western alienation with unilateral federal actions that could ultimately be deemed overreaching and unconstitutional, we need to explore alternative approaches to achieving climate objectives. The best approaches are incentive-based, like federal investment tax credits and provincially managed carbon pricing schemes such as Alberta’s Technology Innovation and Emissions Reduction Regulation (TIER). Both offer a less divisive way to reduce emissions and incent innovation.
If, however, these regulations and legislation remain unaltered, we can expect to see numerous challenges ahead, based on the success of previous court rulings and the main constitutional arguments that Alberta and Saskatchewan have already staked in court challenges of IAA and the Carbon Tax. These are summarized below.
Bill C-69 – The Impact Assessment Act 2019, 2024
The Impact Assessment Act (IAA 2019) created a federal regulatory regime that subjects all projects and activities designated by the Government of Canada to federal oversight and approval. This includes a list of activities designated by regulation under a Project List; as well as projects that aren’t on that list but can be added by the Minister of Environment and Climate Change under s. 9. Many of these activities fall primarily within provincial jurisdiction, under local works and undertakings and natural resources, including mines, oil sands projects, oil and gas processing and storage facilities, and electricity generation.
If a project is designated, it must undergo a broad federal assessment of all environmental, social, economic, cultural, and health impacts, including a climate test and sustainability test. The IAA replaced previous environmental assessment legislation, the Canadian Environmental Assessment Act (CEAA 2012). Passed in 2019 amidst widespread opposition and controversy, the legislation was commonly referred to as the “no more pipelines act” in Alberta and Saskatchewan.
Within two weeks of the IAA being proclaimed in force, Alberta’s UCP government filed a constitutional reference question with the Alberta Court of Appeal. On May 10, 2022, the Court found the act unconstitutional, a violation of s. 92A of the Constitution. Although previous federal environmental assessment had been ruled constitutional 30 years earlier in the Friends of the Oldman River Society v. Canada decision, the SCC at the time warned that federal environmental assessment legislation should not be used as “a constitutional Trojan horse enabling the federal government, on the pretext of some narrow ground of federal jurisdiction, to conduct a far-ranging inquiry into matters that are exclusively within provincial jurisdiction.” Thirty years later, the Alberta Court of Appeal found the IAA to be that constitutional Trojan Horse because it allowed federal overreach into provincial resource projects along with a federal veto power based on federal policies and priorities, even if there were no adverse effects on areas of federal jurisdiction. The majority stated: “Were the courts to uphold the validity of the IAA, all provincial industries… from forestry to ski hills, would be subject to federal regulation, including an effective federal veto.”
As the Alberta government celebrated its constitutional victory, the federal government appealed the decision to the Supreme Court of Canada (SCC). Almost every province joined Alberta as intervenors opposing the IAA, including British Columbia, Quebec, Saskatchewan, Manitoba, Newfoundland and Labrador, Ontario, and New Brunswick.
On October 13, 2023, the SCC ruled in a 5–2 decision that a significant part of the IAA, particularly its “designated projects” framework, was unconstitutional because it gave the federal government “a practically untrammeled power to regulate projects qua projects, regardless of whether Parliament has jurisdiction to regulate a given physical activity in its entirety.” The majority further asserted that “while the environment is an area of shared jurisdiction, Parliament’s authority is limited to enacting laws in relation to matters that fall within its legislative competence” i.e. federal laws must be grounded in its own constitutional heads of power and cannot extend to general oversight of provincial projects. The court also rejected Ottawa’s argument that the IAA was constitutionally grounded under the federal POGG power, stating that its previous decision in the GGPPA Reference (summarized below) does not enable the federal government to comprehensively regulate greenhouse gas emissions.
Rather than strike the law down, the court gave the federal government the opportunity to fix it. To address the Court’s concerns, the federal government made only modest changes to the IAA in the ironically numbered Bill C-69, Budget Implementation Act 2024. Critics argued the changes did not go far enough: the amended IAA used vague language, but still ultimately gave Ottawa control over projects that fall under exclusive provincial jurisdiction. This fuelled an overall sense in Alberta and Saskatchewan that Ottawa had no interest in bringing their legislation in line with the Constitution. Alberta has begun its appeal of the amended IAA, joined by Saskatchewan.
The Carbon Tax – Reference re Greenhouse Gas Pollution Pricing
As part of its commitment under the Paris Agreement to lower greenhouse gas emissions, the federal government passed the Greenhouse Gas Pollution Pricing Act (GGPPA) in 2018. Known as the “carbon tax,” the legislation established a federal regulatory regime by imposing a fuel charge on fuel producers and distributors (“the consumer carbon tax”) and by creating an output-based pricing system for large industrial emitters (“the industrial carbon tax”). The GGPPA also imposed minimum national standards for carbon pricing. If a province met this standard under its own carbon tax regime, it could be deemed equivalent and avoid the federal levy. If not, the federal scheme would be imposed.
Several provinces, including Ontario, Saskatchewan, Manitoba, and Alberta, challenged the law, arguing that it encroached into provincial jurisdiction, that it comprised an unconstitutional tax by raising revenues from activities under provincial control, and that it was an improper use of the Peace, Order and Good Government (POGG) provision.
In a series of split decisions, the majority in the appellate courts in Ontario and Saskatchewan deemed the GGPPA constitutional, while in Alberta the majority found it unconstitutional. The Supreme Court of Canada heard the case in March 2021, where in a 6–3 decision, the majority of the SCC upheld the law on the basis of federal jurisdiction under the national concern branch of the “peace, order and good government” (POGG) clause of s. 91 of the Canadian Constitution.
The court found that, although the carbon tax scheme intruded into provincial jurisdiction, its impact was minimal. On the other hand, a failure to act to reduce emissions could result in irreversible consequences. In allowing federal incursion, the Court found the provinces individually are unable to implement a system of minimum national pricing for GHG emissions, and the failure of one province to implement would not only hinder the ability of Canada to meet its international obligations, but would jeopardize the success of the plan in other provinces leading to grave consequences for their residents.
In upholding the carbon tax under the federal POGG power, the SCC stated that “there is broad consensus among expert international bodies … that carbon pricing is a critical measure for the reduction of GHG emissions” and that the matter of the GGPPA “is critical to our response to an existential threat to human life in Canada and around the world.”
With that, a minimum federal carbon pollution pricing benchmark was set, and provinces were compelled to comply.
That would have been the end of the discussion, except that the federal government itself proceeded to undermine the legal rationale for the GGPPA. In particular, Ottawa granted Atlantic Canada an exemption for home heating oil in November 2023, a policy that explicitly favoured residents of in that region, who disproportionately use heating oil, and disadvantaged residents in Alberta and Saskatchewan, who use more natural gas. Alberta announced its intent to sue the federal government over the exemptions, arguing the carve-out unfairly advantaged some parts of the country, thus rendering the entire levy unconstitutional.
Then, Prime Minister Carney – on the first day in government – eliminated the entire consumer carbon tax (distinct from the industrial carbon tax on large-emitters), declaring it to be too “divisive.”
These two policy decisions together, with their basis in politics and public support rather than any legal and constitutional principle, have undermined the argument that GGPPA is necessary to avoid irreversible climate consequences, thus justifying an intrusion into provincial jurisdiction under the federal POGG power.
The provinces would surely like to return to developing and implementing their own carbon pricing and other emissions reductions schemes. Whether the GGPPA could legally preclude that is once again an open question.
Clean Electricity Regulations and Emissions Cap
In its 2023 decision on the IAA, the Supreme Court of Canada explicitly called for co-operative solutions to address cross-jurisdictional issues like the environment. It also held that the federal power under POGG could not be used to regulate greenhouse gas emissions, but only narrowly applied to carbon pricing. Despite this advice, Ottawa has continued to advance the Clean Electricity Regulations and the Emissions Cap, against the implorations of Alberta and Saskatchewan that the policies violate their jurisdiction and would have devastating economic consequences.
Both regulations are unilateral federal attempts to regulate GHG emissions at their source: electricity generation and oil and gas production. Both directly intrude upon provincial exclusive jurisdiction under s. 92A of the Constitution over the development, management and conservation of non-renewable natural resources and electricity generation. Further, the SCC has already stated that the federal POGG power does not give Ottawa general authority to regulate resource projects based on their greenhouse gas emissions.
That leaves Ottawa to rely on its criminal law power. But it is not obvious that Canada has a successful argument there, either. In previous cases, courts have warned that laws authorized under the criminal law power cannot be “so broad or all-encompassing as to be found to be, in pith and substance, really aimed at regulating an area falling within the provincial domain”(R. v. Hydro-Québec). The regulations appear to be aimed squarely at that – regulating electricity generation and oil and gas production, both within the exclusive jurisdiction of the provinces.
Unless the Carney government withdraws these regulations, more constitutional drama can be expected, along with growing frustration in western provinces that constitutional protections, negotiated in good faith over the past hundred years, are meaningless and worthless, tossed aside by Ottawa’s climate policy. Those same climate policies were deemed perfectly disposable in order to appease voters in Atlantic Canada in 2023 and to address voter discontent over the consumer carbon tax ahead of the 2025 federal election.
Resetting the relationship by staying in jurisdictional lanes
Many of the climate policies advanced by the Trudeau Liberal government have already been ruled, or are likely to be ruled, unconstitutional. Significant time and taxpayer dollars have been devoted to legal challenges, and an adversarial relationship between the provinces and the federal government, in particular Alberta and Saskatchewan with their largely resource focused economies, has been fomented.
One must not lose sight of the fact the suite of environmental regulations and legislation listed above are also bad policy. They have undeniably weakened the Canadian economy, prevented the building of interprovincial and export infrastructure, deterred investment, and raised the costs of energy for Canadian business and households. Canadians elected Prime Minister Carney in part because of his pledge to remove regulatory barriers and build big things. His task is made impossible with these policies in place.
The Prime Minister has an opportunity to mitigate constitutional risks, quiet the discontent in the West, build new projects, expand new markets, tear down interprovincial trade barriers and lower emissions. Continuing down the former government’s road will not get him there. At a minimum, the new government must abide by the Constitution and stay in its jurisdictional lane.
But there is also a path to genuine co-operative federalism, especially on the environment file. This will require finding solutions with and for Alberta and Saskatchewan – addressing their political and economic circumstances, rather than imposing top-down federal priorities in a heavy-handed manner.
About the authors
Hon. Sonya Savage is a senior fellow at the Macdonald-Laurier Institute and former Alberta minister of both energy and environment.
Heather Exner-Pirot is director of energy, natural resources, and environment at the Macdonald-Laurier Institute.
