Immigration, Equality & Mobility Rights Explained

By Lesley Ukwu (Articling Student):  

As part of Alberta’s 2026 referendum, Question 1 asks whether the Government of Alberta should take increased control over immigration, decrease immigration to more sustainable levels, prioritize economic migration, and give Albertans priority for new employment opportunities. Understanding the constitutional roles of the federal and provincial governments, as well as equality and mobility rights, can help put the question in context.

Elections Alberta states that the results of Question 1-9 are nonbinding. However, a “yes” vote may express support for the proposed direction.

1. Question 1 of the referendum: This question sets out three policy goals for Alberta:

• “Increased control over immigration”,
• “Decreasing immigration to more sustainable levels”;
• “Prioritizing economic migration and giving Albertans priority for new employment opportunities”.

What Could Increased Control over Immigration Mean:

Who Controls Immigration?

Section 91(25) of the Constitution Act, 1867 gives exclusive legislative authority to the federal government on matters concerning naturalization and aliens.

Section 95 of the Constitution Act, 1867 provides concurrent powers to both the Parliament and provincial legislatures over immigration into the province. Where valid federal and provincial laws conflict, federal paramountcy may apply, in which case the federal law will prevail.

The Agreement for Canada- Alberta Cooperation on immigration (“the Agreement”) operates within this constitutional framework and outlines the roles each government plays in the immigration policy and programs.

Federal government’s role is to:

• Map out national strategy and determine federal immigration objectives;
• Establish federal immigration classes and criteria;
• Determine admissibility and make decisions regarding admission, permanent residence and refugee protection under federal immigration law.

Provincial government’s role is to:

• Select and nominate immigrants through provincial programs;
• Research and develop provincial nominee programs around current regional or economic needs in Alberta.

Together, the Constitution and the agreement establish a shared model that encourages both the federal government and the province to consult each other when either government is contemplating a policy, program or legislative change that would have critical impact on the other party.

What Could Increased Control Look Like?

Currently federal and provincial governments already share immigration jurisdiction. Increased control could take different forms, including greater provincial influence over immigration levels, negotiating a larger role, a new or amended federal-provincial immigration agreement.

If the desired authority goes beyond what existing federal-provincial arrangements permit, legislative or constitutional changes could be required. Depending on how it is implemented, it could affect the number of permanent residents, temporary residents, international students, temporary foreign workers and nominees coming to Alberta.

Prioritizing Economic Migration

According to Section 5.1 of the Agreement, facilitating the entry of economic immigrants, temporary foreign workers and international students is an important element of Canada and Alberta’s immigration priorities. Both governments have a shared responsibility of championing this priority. If economic migration is given greater priority, how would this affect immigration streams based on other objectives, such as family reunification or humanitarian considerations?

Giving Albertans First Priority on New Employment Opportunities

The phrase “first priority” raises an important question: what would it mean in practice? Would it distinguish citizens from permanent residents? Would it distinguish Alberta residents from other citizens or people moving here from other provinces? Would it affect newcomers or foreign temporary workers legally entitled to participate in the workforce?

Section 32 of the Charter provides that the Charter applies to the Parliament and government of Canada and to the legislature and government of each province. This means that Alberta government action must comply with the Charter, including its mobility and equality protections.

Equality and Human Rights Concerns

This also raises questions about legal limits, what law would apply to provide guardrails when one group is given priority over another? Section 15(1) of the Canadian Charter of Rights and Freedoms guarantees equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin amongst other grounds. The Supreme Court of Canada has also recognized citizenship can constitute an analogous ground under Section. 15.

If the “Albertans first” policy gave some people preferential treatment over others in areas of employment, the Alberta Human Rights Act becomes highly relevant. Section 12 of the Act provides that these provisions apply to the Crown in right of Alberta, while Sections 7 and 8 of the Alberta Human Rights Act prohibit discrimination in employment on protected grounds including ancestry and place of origin.

The Act also contains exceptions and defences. For example, section 7(3) addresses preferences based on a bona fide occupational requirement, while section 11 provides an exception where a practice is reasonable and justifiable in the circumstances. Whether any particular policy could rely on these provisions would depend on how the policy was designed, the grounds of discrimination involved, and the circumstances.

Could the manner of implementing the “Albertans first” idea result in discrimination based on a protected ground such as place of origin or ancestry? For example, would a policy requiring employers to consider Canadian-born Albertans before applicants born outside Alberta raise human rights or Charter equality concerns?

Mobility Concerns

Could an “Albertans first” approach affect Canadians who are not currently in Alberta but moving from other provinces with relevant skills to apply for jobs? Section 6(2) of the Canadian Charter of Rights and Freedoms protects the right of Canadian citizens and permanent residents to move to and take up residence in any province, as well as the right to pursue a livelihood there.

The latter is particularly relevant to Question 1 because it refers to giving Albertans first priority for new employment opportunities. Section 6(3) sets out limits on these mobility rights. These include laws of general application in a province, other than laws that discriminate primarily on the basis of a person’s province of present or previous residence. Section 6(4) provides an exception for certain programs intended to improve conditions of individuals in a province who are socially or economically disadvantaged. However, this exception applies only where the rate of employment in the province is below the rate of employment in Canada.

Who is Affected?

Depending on how the proposal is implemented, Question 1 could affect immigrants, newcomers, workers, families already living in Alberta and Canadians who may wish to move here. Before voting, also consider the following to help guide informed decision making:

1. What additional powers is the government seeking?
2. Who would be affected?
3. What would “first priority” mean in practice?
4. What legal authority would Alberta need to make the proposed changes?
5. How does the proposal affect Charter equality and mobility rights?

Question 1 is not simply a question about how many people should come to Alberta. It is also a question about how power is divided between governments and what legal limits apply when governments make decisions that affect people’s ability to live, work and build their lives in Alberta.

Image credit: Alberta Civil Liberties Research Centre (ACLRC). Concept and prompts provided by ACLRC; image generated using ChatGPT.