In previous installments, we discussed what Thomas Jefferson, in the Declaration of Independence of the North American colonies from Great Britain, called "a long train of abuses and usurpations pursuing invariably the same object.".Attentive readers will note the applicability of Jefferson's words to Alberta. Ever since the land was acquired by Canada, the Dominion government pursued imperial policies to ensure dependency on Ottawa. The resources and the people who live here were fit only to serve Laurentian interests and, in the past generation, to pay for the demands of Quebec..The arc of exploitation, from the National Policy of Sir John A. Macdonald to the National Energy Program of Pierre Trudeau, has been continued by the son of the latter. Such continuity indicates that a deliberate strategy has become a tradition..The Laurentian concern for national unity was made most explicitly in the NEP, which was strongly supported by Ontario premier Bill Davis..The immediate cost to the Alberta economy approached $100 billion. The effects of the equalization formula between 2007 and 2018, which provided Quebec with $171 billion, cost Albertans $204 billion. Over the past 60 years it cost Albertans $600 billion. Eventually that starts to look like real money..Simultaneously stoking the latest moral panic about human-caused climate change, Ottawa initiated a plan to extinguish Alberta’s oil, gas, and petrochemical industries. The legislative initiatives have varied: from a direct carbon tax to an indirect one in the form of “clean fuel” regulations; from a ban on new pipeline construction to a prohibition of west-coast tanker traffic. Then came a cap on oil and gas emissions and a limit to the use of fertilizer. Finally, we have the Alberta NDP-sourced Just Transition back to serfdom..The consistent goal of all these policies was to ensure Alberta’s energy resources stayed in the ground. The phony excuse was sequestration would reduce global carbon dioxide emissions and save the planet. The real purpose, however, is to destroy Alberta prosperity..And it works. Unemployment and bankruptcies have increased, suicides and opioid addictions are up, income has gone down, and hundreds of billions of investment dollars have migrated south..This recent assault constitutes the current context and efficient cause of the Sovereignty Act..The purpose of the act is to assert provincial autonomy and responsibility to the greatest constitutional extent possible, anticipating resistance from Laurentian interests and criticism by unimaginative academics and lawyers would be inevitable. Before considering typical criticisms, we note two Alberta voices got it right..Jack Major, a former Supreme Court of Canada justice, stated the obvious: If Ottawa has a policy that Alberta opposes, Alberta won’t enforce the federal law. If Ottawa objects, they, not Alberta, can go to court. Currently, if Alberta objects, the province must take Ottawa to court. “I don’t find that particularly alarming,” Major said, because such political practices have been common since 1867.. ASA endorsementFormer Supeme Court Justice John C. Major. .Likewise, Geoffrey Sigalet, director of the Centre for Constitutional Law and Legal Studies at UBC, noted the Sovereignty Act did not "nullify" federal laws or empower provincial officials to "disobey judicial decisions," which would be illegal.."It’s saying the federal government has its jurisdiction and we have ours.".This is not news..The least informed critics have been journalists and politicians..Jen Gerson, who frequently appears on CBC, declared the law was dumb, bizarre, and "doesn’t even read like a real bill." Gerson did not say what a "real bill" reads like but, having read a few real bills over the years, it looks like one to me..Calgary mayor Jyoti Gondek said it was “incredibly unnerving." Poor Jyoti. One of my colleagues, Lisa Young, thought (metaphorically) about lighting her hair on fire because "there’s no way the federal government will allow itself to be seen caving into these antics. Because that would invite every province to give itself the same kind of power.".So?.Better-credentialled sources from whom sensible criticism might be expected, also disappoint..Ian Holloway, dean of the U of C law school compared the act to a C- student paper, being poorly drafted and riddled with contradictions. Unfortunately, he didn’t say what an A paper looked like, nor did he provide examples of lousy draftspersonship or contradictions. Instead, he said it was just an "unconstitutional gambit" and part of a game of "political chicken.".Eric Adams, a law prof at the University of Alberta, said it was "deeply subversive to a number of key principles in our Canadian constitutional order." He named no principles. Moreover, it "could undermine the rule of law." He did not say how. He did, however, indicate if a provincial government ordered one of its agencies to refuse compliance with a federal law, "that is invalid as an interference in federal jurisdiction.".Despite being educated at McGill, Professor Adams seems to have forgotten Henry Morgenthaler, a Montreal physician who violated federal abortion laws for years and was ignored by the Quebec Provincial Police. Nor does he recall the police in B.C., both municipal and provincial — which is to say, the RCMP — were ordered by the province not to enforce federal drug laws..These legal eagles ignored, as did Young, the reality discussed in a classic article by C.C. Sharman nearly 50 years ago. Police powers are "constitutionally ambiguous" because of administrative compromises and executive accommodation between the Canadian and provincial governments..Because the provinces administer, but do not draft the criminal law, enforcement varies across the country. This is called federalism. One might expect professors to know about it..David Schneiderman, at the University of Toronto law school, issued a different objection..Constitutional "beefs," he said, should be settled by "an impartial third-party decision-maker, the courts.".Perhaps he didn’t read the act; start with Sec.9, Dave. The issue of justiciability also raises the question of the contemporary role of the courts..Prime Minister St. Laurent ended appeals to the Judicial Committee of the Privy Council in London in 1949. At the time it seemed a gesture towards independence from Great Britain. But, given the Supreme Court of Canada was designed by Macdonald to be a substitute for the use of the disallowance power, the potential of a Canadian court of final appeal held other implications as well..No one ever accused the Law Lords of being agents of the Canadian executive. The Supreme Court of Canada has not escaped such criticism. By initial design and by current practice, the Supreme Court hardly looks like an independent branch of government, whatever its formal status..Andrew Breitbart, not a likely source of insight into Canadian politics, made a famous observation: "Politics is downstream from culture." Here is another: the constitution is downstream from politics..Ask yourself: where did the BNA Act come from back in 1867? Or the 1982 Constitution Act? The answer: from political negotiations and deal-making that reflected political ambitions..That is also where the Sovereignty Act came from. It is the current expression of a not-so-quiet Alberta revolution initiated by Ralph Klein a generation ago..Those who say the Constitution can never be re-opened are wrong. If constitutional documents are downstream from political deals, of course the constitution can be renegotiated! That is one of the purposes of the Sovereignty Act. If the Sovereignty Act is unconstitutional, all that means is it’s time to change the law of the constitution. Perhaps the legal constitution works well for Laurentians and for Ottawa bureaucrats, but if it does not work for Albertans why should they accept it?.If Alberta cannot renegotiate its position within the federation, if redress of generations of exploitation proves impossible, then the resulting impasse initiates its own political logic: a reasonable, well considered exit strategy to be fully debated and then voted on by Albertans and by nobody else..No less an authority than Pierre Trudeau once said “Canada has no claim to immortality.”.Meanwhile, by using the Sovereignty Act, Alberta can act on its own without respect for the engrossed jurisdiction claimed by Ottawa..Last in a series of four. Dr. Cooper teaches political science at the University of Calgary.
In previous installments, we discussed what Thomas Jefferson, in the Declaration of Independence of the North American colonies from Great Britain, called "a long train of abuses and usurpations pursuing invariably the same object.".Attentive readers will note the applicability of Jefferson's words to Alberta. Ever since the land was acquired by Canada, the Dominion government pursued imperial policies to ensure dependency on Ottawa. The resources and the people who live here were fit only to serve Laurentian interests and, in the past generation, to pay for the demands of Quebec..The arc of exploitation, from the National Policy of Sir John A. Macdonald to the National Energy Program of Pierre Trudeau, has been continued by the son of the latter. Such continuity indicates that a deliberate strategy has become a tradition..The Laurentian concern for national unity was made most explicitly in the NEP, which was strongly supported by Ontario premier Bill Davis..The immediate cost to the Alberta economy approached $100 billion. The effects of the equalization formula between 2007 and 2018, which provided Quebec with $171 billion, cost Albertans $204 billion. Over the past 60 years it cost Albertans $600 billion. Eventually that starts to look like real money..Simultaneously stoking the latest moral panic about human-caused climate change, Ottawa initiated a plan to extinguish Alberta’s oil, gas, and petrochemical industries. The legislative initiatives have varied: from a direct carbon tax to an indirect one in the form of “clean fuel” regulations; from a ban on new pipeline construction to a prohibition of west-coast tanker traffic. Then came a cap on oil and gas emissions and a limit to the use of fertilizer. Finally, we have the Alberta NDP-sourced Just Transition back to serfdom..The consistent goal of all these policies was to ensure Alberta’s energy resources stayed in the ground. The phony excuse was sequestration would reduce global carbon dioxide emissions and save the planet. The real purpose, however, is to destroy Alberta prosperity..And it works. Unemployment and bankruptcies have increased, suicides and opioid addictions are up, income has gone down, and hundreds of billions of investment dollars have migrated south..This recent assault constitutes the current context and efficient cause of the Sovereignty Act..The purpose of the act is to assert provincial autonomy and responsibility to the greatest constitutional extent possible, anticipating resistance from Laurentian interests and criticism by unimaginative academics and lawyers would be inevitable. Before considering typical criticisms, we note two Alberta voices got it right..Jack Major, a former Supreme Court of Canada justice, stated the obvious: If Ottawa has a policy that Alberta opposes, Alberta won’t enforce the federal law. If Ottawa objects, they, not Alberta, can go to court. Currently, if Alberta objects, the province must take Ottawa to court. “I don’t find that particularly alarming,” Major said, because such political practices have been common since 1867.. ASA endorsementFormer Supeme Court Justice John C. Major. .Likewise, Geoffrey Sigalet, director of the Centre for Constitutional Law and Legal Studies at UBC, noted the Sovereignty Act did not "nullify" federal laws or empower provincial officials to "disobey judicial decisions," which would be illegal.."It’s saying the federal government has its jurisdiction and we have ours.".This is not news..The least informed critics have been journalists and politicians..Jen Gerson, who frequently appears on CBC, declared the law was dumb, bizarre, and "doesn’t even read like a real bill." Gerson did not say what a "real bill" reads like but, having read a few real bills over the years, it looks like one to me..Calgary mayor Jyoti Gondek said it was “incredibly unnerving." Poor Jyoti. One of my colleagues, Lisa Young, thought (metaphorically) about lighting her hair on fire because "there’s no way the federal government will allow itself to be seen caving into these antics. Because that would invite every province to give itself the same kind of power.".So?.Better-credentialled sources from whom sensible criticism might be expected, also disappoint..Ian Holloway, dean of the U of C law school compared the act to a C- student paper, being poorly drafted and riddled with contradictions. Unfortunately, he didn’t say what an A paper looked like, nor did he provide examples of lousy draftspersonship or contradictions. Instead, he said it was just an "unconstitutional gambit" and part of a game of "political chicken.".Eric Adams, a law prof at the University of Alberta, said it was "deeply subversive to a number of key principles in our Canadian constitutional order." He named no principles. Moreover, it "could undermine the rule of law." He did not say how. He did, however, indicate if a provincial government ordered one of its agencies to refuse compliance with a federal law, "that is invalid as an interference in federal jurisdiction.".Despite being educated at McGill, Professor Adams seems to have forgotten Henry Morgenthaler, a Montreal physician who violated federal abortion laws for years and was ignored by the Quebec Provincial Police. Nor does he recall the police in B.C., both municipal and provincial — which is to say, the RCMP — were ordered by the province not to enforce federal drug laws..These legal eagles ignored, as did Young, the reality discussed in a classic article by C.C. Sharman nearly 50 years ago. Police powers are "constitutionally ambiguous" because of administrative compromises and executive accommodation between the Canadian and provincial governments..Because the provinces administer, but do not draft the criminal law, enforcement varies across the country. This is called federalism. One might expect professors to know about it..David Schneiderman, at the University of Toronto law school, issued a different objection..Constitutional "beefs," he said, should be settled by "an impartial third-party decision-maker, the courts.".Perhaps he didn’t read the act; start with Sec.9, Dave. The issue of justiciability also raises the question of the contemporary role of the courts..Prime Minister St. Laurent ended appeals to the Judicial Committee of the Privy Council in London in 1949. At the time it seemed a gesture towards independence from Great Britain. But, given the Supreme Court of Canada was designed by Macdonald to be a substitute for the use of the disallowance power, the potential of a Canadian court of final appeal held other implications as well..No one ever accused the Law Lords of being agents of the Canadian executive. The Supreme Court of Canada has not escaped such criticism. By initial design and by current practice, the Supreme Court hardly looks like an independent branch of government, whatever its formal status..Andrew Breitbart, not a likely source of insight into Canadian politics, made a famous observation: "Politics is downstream from culture." Here is another: the constitution is downstream from politics..Ask yourself: where did the BNA Act come from back in 1867? Or the 1982 Constitution Act? The answer: from political negotiations and deal-making that reflected political ambitions..That is also where the Sovereignty Act came from. It is the current expression of a not-so-quiet Alberta revolution initiated by Ralph Klein a generation ago..Those who say the Constitution can never be re-opened are wrong. If constitutional documents are downstream from political deals, of course the constitution can be renegotiated! That is one of the purposes of the Sovereignty Act. If the Sovereignty Act is unconstitutional, all that means is it’s time to change the law of the constitution. Perhaps the legal constitution works well for Laurentians and for Ottawa bureaucrats, but if it does not work for Albertans why should they accept it?.If Alberta cannot renegotiate its position within the federation, if redress of generations of exploitation proves impossible, then the resulting impasse initiates its own political logic: a reasonable, well considered exit strategy to be fully debated and then voted on by Albertans and by nobody else..No less an authority than Pierre Trudeau once said “Canada has no claim to immortality.”.Meanwhile, by using the Sovereignty Act, Alberta can act on its own without respect for the engrossed jurisdiction claimed by Ottawa..Last in a series of four. Dr. Cooper teaches political science at the University of Calgary.
