Hope everyone had a happy Thanksgiving.
Thanksgiving is a good occasion to think about promises. Families and friendships rest on them. Countries are no different.
On October 19, Albertans will answer ten referendum questions. Four concern changes to Canada’s Constitution. The provincial opposition leader calls them “blatantly unconstitutional.” Others suggest that merely asking them threatens Indigenous treaties.
That is a serious charge. It deserves something better than shouting.
Two kinds of promise
Alberta lies within the territories covered by Treaties 6, 7 and 8, signed in 1876, 1877 and 1899. The written treaties contain provisions surrendering land to the Crown. Indigenous rights, nonetheless, are recognized and affirmed in Canada’s Constitution. Those commitments should be honoured.
But Canada rests on another historic bargain, one that deserves as much if not more respect.
The delegates who met at Charlottetown, Quebec and London during the 1860s negotiated the terms of this Confederation. The British Parliament gave those arrangements legal force in 1867. That Constitution was subsequently amended, most importantly in 1982.
This federal compact divided power between Ottawa and the provinces. The provinces accepted a national government with limited authority. Ottawa, in turn, was expected to respect the powers left to them.
A confederation bargain in which the federal side may rewrite the rules whenever it suits them is hardly a bargain.
Indigenous treaties and Canada’s constitutional compact are different legal instruments. But they share a basic moral foundation: promises bind the people who make them, especially when keeping them becomes inconvenient.
Read the questions
The four Alberta questions ask whether the government should work with willing provinces to amend the Constitution. The proposals concern provincial participation in selecting superior-court judges, abolishing the Senate, allowing provinces to leave federal programs in provincial fields while keeping the funding, and giving provincial law priority in certain areas of overlapping authority.
Some proposals are contentious. Some would be difficult to enact. Abolishing the Senate, for example, requires Parliament and every province to agree. The Supreme Court settled that in 2014.
But notice the operative word: amend.
Canada’s Constitution contains procedures for changing itself. Asking other provinces to use those procedures is ordinary constitutional politics. A yes vote would authorize no unilateral rewriting of the Constitution. It would signal an instruction to pursue negotiations.
A constitution that nobody may even propose to change belongs in a museum. Citizens should not have to live there.
The treaty objection deserves equal care. In 1983, Canada added a provision requiring a constitutional conference with Indigenous representatives before amendments affecting three specific areas: federal responsibility for Indigenous peoples and reserve lands, the Charter’s protection of Indigenous rights, or the constitutional recognition of Aboriginal and treaty rights.
None of the four questions expressly proposes such a change. That does not dispose of every concern Indigenous communities might raise about a future amendment. It does, however, expose the leap from “I oppose this proposal” to “asking the question violates the treaties.”
There is a separate debate about Alberta’s possible separation. That would raise profound treaty and constitutional issues. Confusing that question with proposals to negotiate changes inside Canada helps nobody.
The Constitution was written to restrain governments, whose appetite for power rarely needs encouragement. Its amendment procedures were written for citizens and governments who might reasonably disagree with what earlier generations decided.
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Who respects the bargain?
Now consider Ottawa’s record.
In 2023, the Supreme Court concluded that the central scheme of the federal Impact Assessment Act reached too far into provincial jurisdiction. Ottawa amended the legislation. On October 9, Alberta’s Court of Appeal concluded, by a four-to-one majority, that the revised law still crossed the constitutional boundary, except in its application to federal undertakings.
The federal government may pursue further legal arguments. But Albertans hardly invented the jurisdictional problem.
The grievance reaches beyond environmental assessments. In 2021, 61.7 per cent of Alberta voters supported removing equalization from the Constitution. The legislature followed with a formal resolution. Ottawa declined to engage.
That vote could not itself change the Constitution. Whether it imposed a legal duty to negotiate is debatable. Yet a federation depends on more than what its governments can be forced to do in court. There is also the elementary courtesy of answering a partner who knocks at the door.
Then there are pipelines. Quebec opposed Energy East politically. British Columbia went further, attempting to regulate the flow of oil through an interprovincial pipeline. Courts rejected B.C.’s attempt because such pipelines fall under federal jurisdiction.
Now Ottawa has agreed to negotiate a revenue-sharing arrangement connected to a proposed new pipeline through British Columbia. Albertans may reasonably ask why a province that obstructs access to a national market should be rewarded for permitting it.
Nor is this record confined to economic policy. In January, the Federal Court of Appeal upheld the finding that Ottawa’s 2022 invocation of the Emergencies Act was unreasonable. Parts of the measures also violated Charter rights. The government had reached for exceptional power against a protest, and the courts ruled that it exceeded the lawful limits.
These cases differ. Together, they help explain why Albertans have grown impatient with Ottawa's lectures on constitutional obedience.
If the federal government wants lasting public confidence, speeches will not suffice. Alberta needs enforceable constitutional guarantees and a serious discussion of compensation for damage caused by unlawful federal measures or lack thereof. A change of government or a change of mood is no substitute for enduring rules.
Alberta helped write the Charter
The irony goes deeper.
The Charter’s notwithstanding clause exists in large part because western premiers insisted on it in 1981. Alberta’s Peter Lougheed, Manitoba’s Sterling Lyon and Saskatchewan’s Allan Blakeney, a New Democrat, wanted elected legislatures to retain limited authority to respond to judicial interpretations of certain rights.
Lougheed did not propose a blank cheque. The clause required an express legislative decision and must be renewed after five years. Its purpose was to leave some room for democratic judgment.
Today the clause is again before the Supreme Court, this time over how far judges may review legislation that invokes it. Quebec, Alberta, Ontario and Saskatchewan have defended a more limited judicial role. Manitoba and British Columbia have supported greater scope for judicial scrutiny.
So much for the notion that the clause belongs to the political right. René Lévesque’s Parti Québécois was one of its most sweeping early users. Quebec and Alberta, so often portrayed as constitutional opposites, have stood together on this issue.
The province now accused of attacking the Constitution helped secure the compromise that made the Charter possible. Alberta has earned the right to be heard when it proposes changes.
Quebec also selects many of its own economic immigrants under a longstanding accord and legislated a ban on petroleum exploration and production in 2022. Those choices may be debated on their merits. They illustrate how much provincial autonomy Canadians already accept when it is exercised elsewhere.
Why, then, does Alberta’s request to negotiate constitutional change inspire such theatrical alarm?
Keep the promises, measure the results
Another uncomfortable parallel exists between Canada’s promises to Indigenous peoples and its promises to provinces: Ottawa’s habit of answering failure with another program and another cheque.
Federal spending on Indigenous priorities rose from about $11.4 billion in 2015–16 to nearly $33 billion in 2022–23. Yet enormous gaps remain. Among adults aged 25 to 64, roughly nine in ten non-Indigenous Canadians have finished high school, compared with about six in ten Registered Indians living on reserve. On-reserve high-school attainment has improved, but slowly.
The Auditor General has repeatedly documented failures in services and outcomes. Boil-water advisories, inadequate housing and troubled child-welfare systems remain deeply familiar features of the federal record.
Meanwhile, Ottawa has developed layer upon layer of distinct programs, administrative arrangements and legal institutions. Their value deserves scrutiny. Have they improved education, health, opportunity and independence? Where have they succeeded, and where have they failed?
Money alone cannot honour a promise. Nor should creating another distinct program be mistaken for improving a life. The test should be whether people are healthier, safer, better educated and more able to direct their own affairs.
The same standard belongs in federalism. Ottawa should be judged by what its constitutional commitments actually protect, rather than by the warmth of its declarations.
I want Canada’s treaties honoured. I want its constitutional bargain honoured too. Albertans can insist on both without apology.
The argument ultimately comes down to something that would be understood around any Thanksgiving table. You cannot demand that everyone else keep their promises to one side while reserving the right to break your own to another side. Respect for Aboriginal affairs should also translate into respect for provincial ones.
There is room for everyone at Canada’s table, we have always been told. That we still argue over who sits where tells us the house matters.
Keeping it standing requires respecting our word and respecting others.
Truly well argued, Sir.
I have voted and I selected Option 2. And, I selected "Yes" on the first nine questions. Truly, I believe that we in Alberta can do better than simply click our heels and say "Yes, sir" to Ottawa.
Very nicely written piece. Informative and well reasoned.