A Referendum That Wasn’t Needed: The Jurisdictional Problem at the Heart of Alberta’s Immigration Questions

Alberta has voted, on what appears to be a completely unnecessary referendum, and the immigration-related questions on the ballot did not produce the landslide many expected. For those of us who practise immigration law, the more interesting story is not the margin — it is the fact that these questions were put to a vote at all. Firm founder Raj Sharma, KC, discussed the referendum on a number of media outlets, including ace immigration reporter Nicholas Keung with the Toronto Star.

Here is the core issue. The questions fell into two buckets, and both buckets made the exercise puzzling.

First, the matters Ottawa controls. Who gets a work permit, a study permit, or permanent residence; which employers may hire temporary foreign workers through an LMIA — these are federal decisions, made by IRCC under exclusive federal jurisdiction. Provinces participate at the margins through their Provincial Nominee Programs. Alberta currently holds in the range of six thousand or so nominations (The province can select individuals on the basis of their economic/human capital, and IRCC then processes and grants PR.); Many will recall that not long ago the Premier was publicly asking for an increase of allotments, something like roughly twenty thousand and championing the “Alberta is Calling” campaign. This premier wanted a significant increase to immigration and Alberta’s population. That, of course, has changed.

A provincial referendum cannot rewrite the constitutional division of powers, and Alberta is not positioned to replicate Quebec’s carve-out and their near-concurrent jurisdiction with the feds over immigration to that province.

Second, the matters Alberta already controls. Healthcare eligibility is defined provincially under the Alberta Healthcare Act; residency requirements and eligibility can be adjusted by legislation /regulation. Social support eligibility is similarly provincial. Even a proof-of-citizenship requirement for provincial voting is within the province’s power. A majority government does not need a referendum “mandate” to do what it is already empowered to do tomorrow (yesterday). Manitoba, for instance, simply requires international students to carry their own health coverage — a straightforward policy choice, no ballot required and something Alberta can explore as well.

That is why the exercise looks, from a legal standpoint, like a solution in search of a problem: half the questions ask for powers the province cannot obtain, and the other half ask for permission the province never needed.

The deeper lesson or takeaway is about political engagement. Whatever the intent behind the ballot, the result has mobilized newcomer communities across Edmonton and Calgary to participate in the democratic process — to register, to vote, and to see themselves as stakeholders in Alberta’s future. That is a healthy outcome for any province built, as Alberta is, on people who came from somewhere else.

This post reflects general commentary on matters of public interest and is not legal advice.