Wednesday, September 07, 2022

Carson Jerema: Danielle Smith's Alberta sovereignty act is a set up for disappointment

Carson Jerema - National Post

UCP leadership candidate Danielle Smith speaks at a campaign rally in Chestermere on Tuesday, August 9, 2022. Azin Ghaffari/Postmedia


EDMONTON — Supporters of United Conservative Party leadership candidate Danielle Smith who are galvanized by her proposed Alberta sovereignty act are in for disappointment. They need only look at outgoing Alberta Premier Jason Kenney, who Smith hopes to replace. He came to power on a similar anti-Ottawa, anti-Trudeau message, which he, like Smith, blamed for policies that either worsened the downturn in the energy industry, or would ensure the oil patch could never fully recover.

While in office, Kenney held a referendum on removing equalization from the Constitution, established a “war room” to defend the energy industry, sued the federal government over the carbon tax and launched a lawsuit over Bill C-69, which is on its way to the Supreme Court. Yet this was not enough, and was never going to be enough for some. Kenney was seen as too weak, too ineffective — even, in some corners, as an agent of Prime Minister Justin Trudeau. He lost the UCP leadership, in part, because he wasn’t anti-Ottawa enough.

Smith herself has dismissed Kenney’s efforts as “ineffective letter-writing campaigns and empty rhetoric.” It is clear that Kenney over-promised what was possible, but within a federation like Canada, which is governed by the rule of law, it is not really clear what else he should have been doing.

This is especially true in Canada, where there are no national institutions that can effectively represent provincial interests, unless those interests belong to Ontario or Quebec. The Senate lacks democratic legitimacy and doesn’t represent provinces equally, like in other federations. Cabinet ministers have long since abandoned their role as provincial advocates as power has centralized in the Prime Minister’s Office, and representation in the House of Commons will skew even more towards Quebec under a proposed Elections Canada redistribution plan.

All that remains are the premiers, who have no authority beyond their borders and are left to bluster away, claiming powers they don’t have and making promises they can’t possibly keep.

Nonetheless, Smith is making even bigger promises than Kenney — ones that will be even more impossible to keep. As for the Constitution, she wants to pretend it works differently than it does. And anyone who disagrees is “woke,” part of the “political establishment,” and otherwise guilty of “fear mongering” and of “spreading disinformation.”

She presents her proposed sovereignty act as the “first step” in reasserting provincial rights against “the destructive overreach of Ottawa,” which has put the country “on a path of division and disunity.” Despite the separatist nods — why else call it the sovereignty act? — Smith claims this is “the only viable way for Canada to remain a unified nation long into the future.”

If passed, Smith claims, the act would give the Alberta legislature the authority to pass a “special motion” declaring that a federal law that encroaches on provincial jurisdiction, or otherwise violates the Constitution, “shall not be enforced by the provincial government within Alberta.” It would then be up to the federal government to litigate the non-enforcement of the law in court. Examples of federal laws this would apply to are mostly related to those that would impose production cuts on resource industries.

It isn’t difficult to understand why an approach like Smith’s would be appealing. Ottawa is happy to benefit from the tax revenues that Alberta generates, and use them to bolster Quebec with equalization payments. But the government’s green agenda is disproportionately targeted at Alberta, giving the energy industry more onerous emissions targets than others.

While oil revenues have returned to Alberta, new investment has not. Energy companies are wary of new projects as future regulations are uncertain. The jobs lost after the 2014 oil price crash have largely not returned and wage growth in Canada has been muted since the Liberals took power.

Quebec has successfully negotiated powers for itself and routinely passes legislation that would be unconstitutional, if not for the notwithstanding clause. Quebec is constantly testing the boundaries of the federation, so it isn’t surprising to see similar tactics being employed in Alberta.

Danielle Smith: Alberta sovereignty is a constitutional right

However, while Smith may say her plan is “clearly constitutional,” it is clearly not. There is no provincial right to “nullification.” There is a federal right of disallowance, which gives Ottawa the ability to disallow provincial legislation, but it has fallen out of use. While it is still part of the “written” and legal Constitution, it isn’t part of what lawyers call the “political constitution.”

The only means for resolving such disputes are the courts. As imperfect and often frustrating as that may be for many Albertans, that is the reality in Canada. The rule of law demands governments not act outside constitutional bounds. Here is how Father of Confederation George Étienne Cartier put it: “The courts of justice will decide all questions in relation to which there may be differences between the two powers.”

The idea of a sovereignty act originated last fall under the Free Alberta Strategy. Barry Cooper, one of the authors of that document, has argued that the whole point of the strategy is to create a constitutional crisis. “But, but — gasp! — that would be unconstitutional! Indeed, that is the whole point,” he wrote in the National Post.

Cooper was referring to a version of the act he co-authored and not specifically to Smith’s proposal, but the two are close enough in concept to wonder what exactly Smith’s plan is here. Does she genuinely think her sovereignty proposal is constitutional? If so, she should maybe enlist better lawyers. If the point is to deliberately bring an unconstitutional law and to cause a crisis, then she should be honest with her supporters.

In either case, it is hard to imagine Smith will have more success than Kenney at forcing a Liberal government in Ottawa to reverse itself.

National Post

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