Before You Vote: Provincial Legal Priority
A Nonprofit’s Guide to Alberta’s October Referendum: Whose laws win in a provincial-federal conflict?
We explore Question 9 in our series breaking down the 2026 Alberta referendum.
Recent changes to referendum laws removed the referendum pre-requisite for the government to pursue a constitutional amendment.
What the Government is Asking
This is the fourth question on amending the Canadian Constitution. Question 9 asks:
“Do you support the Government of Alberta working with the governments of other willing provinces to amend the Canadian Constitution to better protect provincial rights from federal interference by giving a province’s laws dealing with provincial or shared areas of constitutional jurisdiction priority over federal laws when the province’s laws and federal laws conflict?”
Voters will be asked to choose yes or no.
A ‘Yes’ vote supports pursuing a constitutional amendment that would give provincial law priority when in conflict with federal law in areas of shared authority. This means the government is required to propose the amendment but doesn’t guarantee its outcome.
A ‘No’ vote supports maintaining the current approach, where federal law takes priority when in conflict with provincial law in areas of shared jurisdiction. This means the government should not pursue the amendment, though they can still pursue it through a vote in the legislature.
When a valid federal law and a valid provincial law conflict in Canada, courts first try to find a way for both sets of laws to work together. If they can't, federal law usually takes priority. This rule is known as federal paramountcy. The referendum question asks whether Alberta should try and reverse that rule, through a constitutional amendment that would give provincial laws priority in areas of provincial or shared jurisdiction.
Question 9 is one of four constitutional questions on the October ballot, which means the result is binding: a majority “Yes” legally obligates the Alberta government to pursue this change, though it cannot force other provinces or the federal government to agree.
To make the amendment, Alberta needs to meet the 7/50 formula: approval by the House of Commons, the Senate, and at least seven provinces representing at least 50% of Canada’s population.
Getting approval for the proposed amendment in each of these bodies requires only majority support, not unanimity. A resolution passes with a majority vote, meaning not every Member of Parliament, Senator, or MLA in a participating province needs to agree – just a majority in each body.
Why the Government Has Proposed This Change
The provincial government is in support of a ‘yes’ vote, arguing that the current constitutional framework gives the federal government too much influence in areas it considers to be provincial jurisdiction. It says this is especially important in areas where federal and provincial laws can overlap, such as the environment, immigration, and agriculture.
The government’s position is that federal laws and regulations can sometimes effectively override what elected provincial legislatures are trying to accomplish, particularly on environmental matters.
The government says giving provincial laws priority when federal and provincial laws conflict would strengthen provincial autonomy and provide greater clarity about which laws apply.
For Nonprofits
Many nonprofit organizations work in areas where both the federal and provincial governments play a role, including housing, health care, social services, childcare, employment, the environment, and immigration. Decisions made by each order of government can shape who is eligible for services, how programs are delivered, and what standards organizations must meet. Examples range from environmental requirements to immigration rules affecting clients, to how health and social programs are regulated.
For example, a nonprofit running an environmental restoration or land stewardship program may need to meet both federal environmental assessment requirements and provincial regulatory standards – environmental protection is one of the areas where federal and provincial jurisdiction overlap. If provincial law were given priority, the province could set requirements that diverge from federal standards, potentially creating two sets of rules an organization must reconcile, or clarifying which rules apply – depending on how the conflict is resolved.
Some nonprofits may prefer federal law to remain paramount, since it currently guarantees a baseline standard across provinces in areas like environmental protection – a single federal rule applies even where provincial rules diverge. Giving provincial law priority could allow that baseline to shift, which may be a benefit for organizations seeking more local flexibility, but a concern for those relying on consistent national standards.
Question 9 is about which level of government has the final say when valid federal and provincial laws conflict. Depending on the issue, that could influence the rules nonprofits operate under, as well as which level of government organizations focus on when advocating for change.
Like several of the other constitutional questions, the practical consideration for nonprofits is whether greater provincial flexibility would lead to better outcomes than maintaining consistent national standards.
This blog is about conflicts between laws. Funding agreements, like those discussed in Question 8, are a separate way that both orders of government influence public policy.
Why Federal and Provincial Laws Sometimes Overlap
Question 9 is about situations where both the federal and provincial governments have the authority to make laws on the same issue.
Sometimes, the Constitution explicitly gives both governments law-making powers. For example, agriculture and immigration are formally shared under the Constitution, with federal laws taking priority if the two conflict. Old age pensions are also shared, but the Constitution gives provincial laws priority if they conflict.
Many other major policy areas are shared in practice, even though they are not identified as shared powers in the Constitution. This happens because each order of government has different constitutional powers that can apply to the same issue. For example, both governments make laws affecting the environment, health care, and criminal justice, but they do so under different constitutional authorities.
The examples below show how these overlaps play out in practice – including cases where federal law prevailed and federal paramountcy was applied, and cases where both laws were found able to coexist.
Examples of Paramountcy Cases
Case 1: When Federal Law Prevailed
Law Society of British Columbia v. Mangat
This case shows what happens when a provincial and federal law both apply to the same issue but cannot operate together.
British Columbia law required paid representatives of newcomers to be licensed lawyers, while federal immigration law allowed non-lawyers to represent people before the Immigration and Refugee Board. The Supreme Court found a genuine conflict between the two laws and held that federal paramountcy applied, making the provincial lawyer-only rule inoperative for immigration hearings. As a result, many newcomers can now be represented at immigration hearings by regulated immigration consultants rather than lawyers.
Case 2: When Laws Were Made to Coexist
Orphan Well Association v. Grant Thornton Ltd. (“Redwater”)
When an Alberta oil and gas company went bankrupt, its trustee tried to sell the company's valuable wells to pay creditors while walking away from worthless wells with costly cleanup obligations. The Alberta Energy Regulator argued that the environmental cleanup obligations had to be met before the company's assets could be distributed to creditors. The trustee argued that this provincial requirement conflicted with the federal bankruptcy payment scheme. Two Alberta courts agreed with the trustee, but the Supreme Court reversed that decision, finding the cleanup duties were public obligations that sat outside the bankruptcy payment scheme. Because there was no genuine legal conflict between the two laws, federal paramountcy did not apply, and Alberta's environmental rules remained in force.
The second case is the more common outcome. Courts start from the presumption that federal and provincial laws are meant to operate side by side, and treat the federal-wins rule as a last resort for genuine, unavoidable clashes – not the default for whenever two laws touch the same subject.
How Nonprofits Can Get Involved
Interested in learning more about how you and your organization can get involved? See our post on the rules of engaging with the referendum, so that you and your organization can advocate responsibly.
Stay tuned for the next post. If you have any questions, reach out to us - policy@thenonprofitchamber.org