Why Alberta can’t resist fighting Ottawa

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“I don’t want to kill you. What would I do without you? Go back to ripping off mob dealers? No. No. No. No, you complete me.”

It’s one of the most-quoted lines from The Dark Knight — the Joker tells the Batman that they are more than arch enemies. They need each other, like yin needs yang. Like the Oilers need the Flames.

Like Alberta Premier Danielle Smith needs the federal Liberal party.

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This week, Smith wrote a letter to Quebec Premier Francois Legault, stating Alberta would be an ally in the fight for more provincial autonomy. Smith suggested Alberta would support several directives from a Quebec panel that was commissioned to explore how that province could have more self-determination within Canada.

Telling Ottawa to keeps its hands off of areas of provincial jurisdiction is nothing new for Smith. The premier’s office confirmed Thursday that there are “11 challenges to federal intrusion on provincial jurisdiction, at various procedural stages.” Those 11 challenges target seven pieces of federal legislation.

As premier, Smith has overseen the Alberta Within a United Canada Act, known as the sovereignty act, which gives the provincial legislature powers to reject federal laws it feels are harmful to the province’s interests. The province was part of a group of plantiffs that argued in federal court that labelling “plastic manufactured items” as toxic was a constitutional overstep. The court agreed.

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Last year, the province passed an act requiring it to oversee any new national parks created in the province.

“Albertans elected our United Conservative government with a majority mandate to, among other things, protect families and communities from federal overreach and intrusion,” said Leduc-Beaumont MLA Brandon Lunty, who introduced the legislation. “That’s exactly what this bill accomplishes.”

In March, the UCP introduced the Critical Infrastructure Defence Act, which would ban federal employees from accessing emissions data from Alberta. Again, “constitutional overreach” was cited.

Smith called for the construction of new pipelines, and warned new Prime Minister Mark Carney that Alberta’s legal knife is sharp.

“If the new prime minister wants to resume an old fight, we’ll fight tooth and nail,” said Smith.

Smith follows a line of Alberta premiers who have had, at best, frosty relationships with Ottawa. Jason Kenney was behind a suit that challenged the constitutionality of the federal government’s Impact Assessment Act, which critics felt would kill any further pipeline development in this country. Alberta won after Smith took power. Kenney fought the carbon tax, and lost. Go back to 1981, when then-premier Peter Lougheed ordered a cut in oil and gas production as a protest to the federal government’s imposition of the National Energy Program.

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Alberta and Ottawa, like Batman and the Joker. Which one is which is a matter of opinion.

This was bound to happen

But, according to constitutional expert Eric Adams, this was a battle that’s been about 160 years in the making.

He is a professor in the University of Alberta’s faculty of law and an expert in not only the Constitution but how the division of powers between the federal government and the provinces have evolved.

He chuckles when Smith refers to the spirits of the Fathers of Confederation — she often suggests Alberta’s battles with Ottawa ensure that the country remains true to a vision where the provinces hold much of the power, including natural resources.

But Adams said that “the framers of the Constitution were more supportive of more centralized federalism than what we ended up with.”

To understand how we got here, we need to go back to the 1860s, as British colonies in North America looked to unite. While the future Canadians were talking unity in 1864 at the famous Charlottetown conference, the neighbouring Americans were in the throes of a civil war. Those negotiators in Charlottetown saw it as a warning. The U.S. was built on the idea that the states acted as their own mini-nations.

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So, there was a push for strong federal power, to not follow the American example of extreme federalism. The national government would oversee commerce and trade. The feds would provide “peace, order and good government.” The provinces were given control over property and civil rights, because those were seen as local issues. Those were set out in the Constitution Act of 1867.

It was far from absolute, and far from perfect.

“That created tensions across the framework of Confederation,” said Adams.

Why? Right from the get-go, the contradictions were evident. How could one level of government be given the responsibility to oversee trade, while the other was given property rights?

“There was push and pull,” said Adams. “The politics varied over what was the right balance of federalism Canada should have.”

The Constitution was left open-ended, so, as Adams said, “in the long course of history, we’ll figure where these responsibilities precisely fall.”

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As decades went by, a number of constitutional challenges went to the courts, and the judges consistently sided with the provinces, tilting the balance toward regional governments.

So, Smith vs. Ottawa can simply be seen as a case of history repeating itself.

“Constitutional law is never standing still,” said Adams. “Conflict is perpetual and endemic to our constitutional relationships.”

Today, we accept the provinces control property rights, as well as education and the administration of health care. The feds look after aviation and telecommunications. Understand that much of this was just science fiction to those bearded men putting their quills to paper in 1867. They could not legislate what they could not imagine. They would not have seen a world where oil would become a major commodity. A social safety net would have been too much for politicians in the 19th century to consider. They lived in a place where democracy was limited to white men, where immigrants were brought in to build railroads, where the Indigenous population was being forced to assimilate or perish.

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“In 1867, they weren’t even thinking about hospitals and schools, because government didn’t provide those things back then,” Adams said. “No one predicted the coming of the public service in 1867. They would not have understood anything about our 21st-century economy. But what they did know is that they had to find a balance between diversity and unity. We are a geographically diverse country.”

We see this in the United States, where the constitution and its amendments, many of them written by men who thought it was OK for people to own people, are defended as if they were Biblical pronouncements. They didn’t live in a world with automatic weapons or safe ways to terminate pregnancies.

Playing to the base

In March Mainstreet Research released the results of a poll that asked, “Do you support or oppose the idea of an independent Alberta, either on its own or with other Western provinces, from Canada?”

Of those polled, 26 per cent said they “strongly support” independence, while 11 per cent came in at “somewhat support.” It’s a minority, but not a small number either. Put them together, and more than one-third of the people surveyed would at least entertain the idea of Alberta sovereignty.

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In 2021, the Free Alberta Strategy, authored by former MLA Rob Anderson, University of Calgary professor Barry Cooper and lawyer Derek From, outlined how the province could carve out more autonomy for itself, and laid the groundwork for the sovereignty act.

“Alberta’s treatment within Canada has become intolerable,” stated the report.  “Successive federal governments in Ottawa have relentlessly attacked our province’s economic interests, stifled our prosperity, and pillaged the resources and wealth of Alberta’s citizens to purchase electoral support in other parts of the country.”

Anderson, in a town hall meeting with supporters, said Ottawa’s policies were equal to “economic sanctions” and proposed an alliance with Quebec.

“We may disagree with Quebec on many things, on some of their socialist tendencies,” he said. “But when it comes to provincial sovereignty Quebec is king.”

Lac Ste. Anne-Parkland MLA Shane Getson has appeared with Anderson at Free Alberta Strategy town halls, and the manifesto reads like a playbook for Smith’s battles against Ottawa.

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The base that calls for autonomy, and sovereignty, while not a majority, is loud — and large enough to make a political difference. The question, as Adams puts it, is if they really understand what those men sitting in Charlottetown were thinking back in 1863.

ssandor@postmedia.com

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