Dr. Dennis L. Modry is Chairman of the Alberta Prosperity Society and ProjectI have a lot of respect for Mr. Bernier, whom I have met on a few occasions. He is correct in supporting Alberta sovereignty and has long advocated for a massive devolution of power and control from the federal government to the provinces. He recognizes that Canada is just as diverse in its varied regions as it is in culture and endowed natural resources. He believes that these differences should be celebrated and not homogenized into a WEF globalist dystopian nirvana where there is no unique culture, as promulgated by former Prime Minister Trudeau and seemingly embraced by Mr. Carney — 'Vive la différence,' implies Mr. Bernier! In essence, he is saying — let us celebrate our unique differences and use those differences to advance freedom and prosperity throughout Canada. And I agree with him.However, is it possible to negotiate meaningful concessions from Ottawa that would satisfy Albertans' hunger for self-determination free from Ottawa’s subjugation, domination, exploitation and wealth usurpation because of a successful referendum on Alberta sovereignty? The answer is yes, but perhaps not in the way Mr. Bernier might think..Let’s first consider what concessions Mr. Bernier might be referring to? Could they be ending equalization, taking control of all tax collection, ending the Canada Health Act, implementing representation by population in the House of Commons, supporting a Triple-E Senate, permitting regional elected representation of the Supreme Court, removal of Section 1 limits on freedom, property rights, and so forth?Mr. Bernier knows that it is impossible to achieve any of these concessions because it is impossible to overcome the hurdles of opening and changing the constitution. He also knows that many other federal dictates and laws that harm Alberta, if litigated, will be decided in favour of eastern Laurentian elites by 'right-thinking' justices appointed by the Prime Minister’s Office. Without stating it, Mr. Bernier understands that Alberta does not have the leverage to force constitutional change but believes that a successful referendum for secession would provide the necessary negotiating clout.Bernier says he would "encourage Albertans to vote in favour of breaking from Ottawa; even if it doesn't actually lead to separation, it's going to force Ottawa’s hand on key issues”. I, too, once believed this, based on the Quebec secession reference to the Supreme Court which led to the Clarity Act, which defines the legal pathway for a province to leave Canada. If we apply the question — would a successful referendum on Alberta secession alone based on the tenets of the Clarity Act permit opening and changing the 1982 Constitution Act, the answer is unlikely. .Here’s why.First, from Section 4 (a) and (b) of the Clarity Act, a secession referendum question would not be approved if the purpose was to negotiate a better deal within confederation. “Where no clear expression of will(4) For the purpose of subsection (3), a clear expression of the will of the population of a province that the province cease to be part of Canada could not result from(a) a referendum question that merely focuses on a mandate to negotiate without soliciting a direct expression of the will of the population of that province on whether the province should cease to be part of Canada; or(b) a referendum question that envisages other possibilities in addition to the secession of the province from Canada, such as economic or political arrangements with Canada, that obscure a direct expression of the will of the population of that province on whether the province should cease to be part of Canada.”.Second, even if the secession question was valid, the Clarity Act does not make clear what happens once a successful referendum is achieved. For example, although the federal government and other provinces are now legally obliged to negotiate with Alberta, the Clarity Act doesn’t define what happens if negotiations fail to satisfy Alberta’s demands, i.e., negotiations that might lead to secession.“ Implicit here, is that negotiations might fail and Alberta would be forced to remain in Canada despite a clear expression of the will of Albertans to form a new sovereign nation and cease to be a province in Canada.Is there another solution that could result in concessions to Alberta, but then would Alberta even want them?.It is apparently the case that concessions to Alberta are unnecessary if Alberta leaves Canada.Sections 154 and 155 of the Supreme Court’s ruling on the Quebec Secession Reference provides an answer based on International Law and International recognition of a successful referendum.First, from Section 154 – “ a right to secession only arises under the principle of self-determination of peoples at international law where "a people" is governed as part of a colonial empire; where "a people" is subject to alien subjugation, domination or exploitation; and possibly where "a people" is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. Second, from Section 155 – “Although there is no right, under the Constitution or at international law, to unilateral secession, that is secession without negotiation on the basis just discussed, this does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession. The ultimate success of such a secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec (Alberta) and Canada, in determining whether to grant or withhold recognition.Given that Kosovo had a successful sovereignty referendum in February 2008, unilaterally declared its sovereignty from Serbia, which was acknowledged one month later by Japan and Canada, it would be hypocritical of Canada to not acknowledge Alberta’s sovereignty following a successful referendum and failed negotiations, especially if the will of Albertans was acknowledged by other countries. .What the above means is that a successful referendum on Alberta secession, wherein all Clarity Act criteria are met, but negotiations fail to resolve the demands of Alberta, Alberta sovereignty could be realized by the Alberta government unilaterally declaring its independence from Canada. Acknowledgement by other nations would confer political and legal legitimacy. Under these circumstances, Mr. Bernier would be correct. Alberta, as a sovereign nation, could entertain joining Canada if all the concessions that Alberta wants were agreed to.However, what could Canada possibly offer to a sovereign Alberta that would be better than getting out from all federal regulations and taxation? Dr. Dennis L. Modry is Chairman of the Alberta Prosperity Society and Project.
