Barry Cooper: Challenges for Western Independence

Barry Cooper is a Senior Fellow with Frontier Centre for Public Policy. In this report, which can be found on the Frontier Centre for Public Policy website, was developed from remarks delivered on November 15, 2019 in Red Deer, Alberta at the 7th Essentials of Freedom Conference hosted by the Economic Education Association.

We have included some excerpts below:

Part 1. The Significance of the 2019 Election

"The actual public opinion data have in fact been pretty stable. About a year ago an Angus Reid poll found that nearly three out of four Westerners thought that Ottawa doesn’t treat them fairly. Shachi Kurl, executive director of the Angus Reid Institute, told Global News that the West 'does not see itself reflected or represented in our so-called national institutions' and suggested that the data reflected the position of the Reform Party in the late 1980s and cited their slogan: 'The West Wants In.' Westerners are still not represented in our so-called national institutions. The difference this time is that increasingly the West wants out (p. 5-6)."

"The Laurentian journalistic consensus is something like this: Alberta and Saskatchewan have only themselves to blame for whatever adverse policies Laurentian Canada imposes on them because they were stupid enough not to vote Liberal. Who knows why, but they just refuse to go along to get along. Trying to change things by asserting provincial powers and provincial jurisdiction is (somehow) a dangerous threat to the great Laurentian bugaboo, 'national unity.' In order to avoid having to specify just what the danger might be, these deep thinkers quickly invoke the spectre of 'Western alienation.' The term has been around since at least the 1980s (p. 7)."

Part 2. Canadian Geopolitics

"Historically, the largest resource deposits have always been in the West – apart from cod, nickel, and white pine. This has been so since before Confederation. Since 1867 the population has been centred in the St. Lawrence valley, mostly downstream from Lake Huron. Fur, especially beaver, was replaced by grain, mainly wheat, then potash, uranium, oil, and gas. That is, the resources are still chiefly in the West. Federalism was supposed to reconcile population and resource wealth, and for many years Westerners believed it. That is why, as David Smith observed, Westerners initially worked within the dominant parties to get their interests acknowledged. Then they tried third parties – Social Credit, the CCF, the Progressives, Reform. Westerners have engaged with every party under the sun and deployed strategies from balance-ofpower to disruption. None of them worked (p. 9)."

"The reason is simple: Laurentian Canada has never seen the West as part of a federation. The Canadian federation, so far as they are concerned, is made up (as was implied by all the Laurentian journalists cited in the previous section) of Ontario and Quebec. The Maritime provinces were sidelined during the nineteenth century within a generation of Confederation. Newfoundland managed to hold out until 1949. The important thing to notice is that the West was never considered part of the deal. So what were we? (p. 9)"

"The context of the 2019 election, as interpreted and understood by the Laurentian media is continuous with the historical understanding of Canada’s (and Britain’s) involvement in the West, which long antedated 1867. The problem for Westerners today is that we see ourselves as part of a federation, not the vanquished members of a Laurentian empire; we see ourselves as living in provinces like Ontario and Quebec, not Roman provinces. We have forgotten that from the start Sir John A. Macdonald referred to the West as a Crown colony, the nineteenth-century British version of a Roman province, or that Isbister warned that the West would soon become 'a colony of a colony.' Stupid us (p. 11)."

Part 3. Challenges to Western Independence

"The real question facing Western politicians is actually quite plain and simple: how much more abuse will it take to persuade Westerners that serious action is required? How many times must polite petitions be answered with repeated injuries? (p. 12)"

"At the Alberta United Conservative Party convention in late November, 2019, a series of straw votes endorsed several of these proposals and Premier Kenney has indicated he was interested particularly in withdrawing from the Canada Pension Plan. Withdrawing from CPP was a no-brainer in 2001 and it remains so today. In 1966, under S.94A of the Constitution Act, 1867, Quebec established its own pension plan. With a relatively young population, higher than average wages, and greater participation in the workforce than the Canadian average, Alberta could provide the same benefits to pensioners with lower premiums to contributors. And it would hurt the rest of the country. And to be clear, that is precisely the idea: to inflict a little pain on Canada, and especially on Ottawa. The same effect would follow from leaving the Employment Insurance scheme (p. 13)."

"Several groups have urged Premier Kenney, perhaps in conjunction with Premier Moe, to hold a referendum on the need to amend s.36.2 of the Constitution Act, 1982, which governs equalization payments. There are several constituent-elements to this proposal that need to be distinguished. Referenda are not unknown in Canada but they, like another populist measure, the Initiative, are rare and the language involved must be crafted with care (p. 13)."

"Section 36.2 on its own is a tissue of ambiguities. The several governments are committed to the 'principle' of equalization payments but nothing is said about the actual practice. Nor is the meaning of a 'reasonable' or 'comparable' level of public services or taxation defined or discussed. If Alberta has a lower level of taxation than other provinces does this imply that Alberta should have higher taxes or the other provinces have lower ones? The question practically answers itself, which is why equalization has been called a welfare trap for provinces.29 For these reasons alone legal scholars (to say nothing of ordinary common sense) have reached a rare consensus that s.36 is non-justiciable. That is, in the view of these experts, no court can legitimately determine that s.36 imposes any obligations on any of the governments that have pledged their 'commitments.' This means that the actual working out of equalization is entirely political. The law of the constitution is simply irrelevant. In the language of the Declaration of Independence, how can this be anything other than a usurpation? In this instance, it is a usurpation of the foundational principle of what we now call responsible government. Since the days of the First British Empire and, for example, the representative institutions of 1619 Virginia, the problem has always involved limiting executive power and especially instituting financial controls over the executive (p. 14)."

"On the other hand, if a referendum on s.36 were linked to a referendum on secession in the (likely) event that initial negotiations regarding the equalization formula went nowhere, we can easily anticipate further political complications. Let us make a couple of simplifying assumptions: if there were no meaningful negotiations to change s.36 within a relatively short period, say three months, a second referendum, on secession, might be held. Such a constitutional two-step would be rather complex, but the threat of secession might be sufficient to inspire some serious negotiation for changes in the funding formula or even the spending power, which sustains it. Again, much would depend on the political leadership of Alberta and Saskatchewan and, while modifying the formula or amending or repealing s.36 might go some distance to restoring a sense of justice in the West, it would obviously not meet the requirement of independence (p. 15)."

"Even if a referendum on independence were held, either in connection with an equalization referendum or not, there are further obstacles to consider. The first is that, under the Clarity Act, the House of Commons, not the province or provinces holding the referendum, decides before the referendum whether the question is clear. The House of Commons also decides, after the vote on a notionally clear question had been held, whether there was a clear majority in favour of secession. Whatever the vote and whatever the question, and however clear the question and the vote may be to common-sense or to the voters, the House can always “deem” things to be otherwise. Moreover, the Government of Canada can disallow or reserve any provincial legislation. That disallowance and reservation have not been used since 1943 and 1961 respectively suggests only that by convention these provisions of the Constitution are no longer in force and effect. It may be politically unwise for the Government of Canada to disallow a referendum on equalization, particularly if it were coupled to another referendum on secession, but that would be a political choice not a question of legal capacity. So: what then? (p. 15-16)"

"Then all bets are off because it would be clear as can be that the legal path to independence is a fraud. If Alberta and Saskatchewan and, for the sake of the argument, Manitoba as well, held referenda anyway they would be illegal and Canada would have no duty to negotiate. Such an impasse reinforces the contention made several times already that the problem of Western independence is political, not legal. So let us propose the following hypothetical: following an intensive and effective educational campaign detailing the long train of abuses suffered by the West, Alberta and Saskatchewan vote overwhelmingly (say, 95 percent) in favour of a straightforward question: do you wish Alberta and Saskatchewan (and perhaps other parts of the existing country of Canada) to be independent of Canada? Then what? (p. 16)"

"Let us be clear: this is uncharted territory and these observations are both speculative and hypothetical. The major assumption is that, for reasons already outlined, Canada will not negotiate any significant changes, either negative ones, such as changes to equalization, or positive ones that would encourage resource development, such as pipeline construction, withdrawal from the Paris climate accords, and so on (p. 16)."

"It seems to me that one way or another, the windows of opportunity to avoid the acceleration of sentiments in favour of independence are, one by one, shutting (p. 16)."