Rob Breakenridge: Smith has put herself into a bizarre corner with Bill 14

The government might end up antagonizing everyone in this debate before all is said and done.

By: Rob Breakenridge

So, as it turns out, constantly changing rules mid-stream for reasons of political expediency has some unforeseen consequences. Who knew?

It’s now quite a mess the Alberta government has created for itself in its repeated — and myopic — attempts to satiate the separatist movement.

Arguably, the premier has helped to deliver quite a blow to that movement with her energy and pipeline agreement with the federal government. But it was also clear from the rocky reception that agreement received at the UCP AGM, that separatists wield enough clout within the party to cause problems for the leader.

It is a fine line Danielle Smith is walking in trying to reduce the appeal of separatism while strenuously avoiding anything that might antagonize the movement’s adherents. Suddenly, though, her government has wandered right into a constitutional morass where there are no fine lines to be found. The government might end up antagonizing everyone before all is said and done.

Earlier this year, Smith pressed ahead with a plan to lower the threshold for triggering a referendum under the province’s citizen initiative legislation. This was in the immediate aftermath of the federal election, the results of which were seen as the last straw for Canada by many separatists

But the prospect of a sudden plunge into a discussion on Alberta’s future in Confederation raised many obvious questions about Constitutional and treaty implications. On the latter point especially, First Nations expressed concerns about the impact on treaty rights and their exclusion from the process.

So the hasty changes to the Referendum Act got some further hasty last-minute changes to alleviate those concerns.

The government added a section to make it clear that “nothing in a referendum held under this act is to be construed as abrogating or derogating from the existing aboriginal and treaty rights of the aboriginal peoples of Canada that are recognized and affirmed by section 35 of the Constitution Act, 1982.”

And in case there was ever any uncertainty about a potential question, the Chief Electoral Officer could seek “the opinion of the Court as to whether the proposal conforms to the requirements.”

Fast forward just a few months, and the government has suddenly changed its mind on all of that. After empowering the Chief Electoral Officer to refer a matter to the courts, Bill 14 takes that power away and discontinues any initiated court proceeding.

But even that change tripped up the government, prompting even more hasty, last-minute alterations. Originally, Bill 14 sought to put the justice minister in charge of whether there would be any future court references.

The problem, though, as the chief electoral officer warned in a letter to MLAs, is that such a change constitutes “an erosion of the separation of powers.”

“The chief electoral officer should not be taking direction from the executive branch of government. If adopted, Bill 14 would require just that,” Gordon McClure wrote.

So, now neither the chief electoral officer nor the justice minister will be able to refer a potential question to the courts.

It’s confused and convoluted, to say the least. And all of this is complicated further by the very process the government unleashed to begin with.

As per the original legislation, McClure, upon receiving the proposed referendum question from the separatist Alberta Prosperity Project, referred the matter to the Court of King’s Bench for further clarity on its constitutional implications.

The day after the government announced its intention to quash the case and free the separatists from legal purgatory, we got the court’s decision: the question does indeed contravene the Constitution Act.

Court of King’s Bench Justice Colin Feasby concludes that the Constitution Act “guarantees the rights in the Charter” and therefore the referendum proposal runs afoul of the Act “because it does not guarantee the rights specified therein.” Furthermore, “Alberta cannot succeed to the Numbered Treaties without the consent of First Nations.”

Justice Feasby even tacked on a section admonishing the government over Bill 14. He lamented how “legislating to pre-emptively end this court proceeding disrespects the administration of justice” and that the government displayed a “cavalier disregard for court resources and lack of consideration for the parties and First Nations intervenors who participated in this proceeding in good faith.”

In response to Feasby’s ruling, Premier Smith argued that “gatekeepers,” such as judges, shouldn’t stand in the way of referendum questions. But Justice Feasby would have never heard this case in the first place had it not been for the legislative changes brought in by this very premier and her government only months ago.

Does anyone think for a moment that if a separatist group — one with some apparent clout within the premier’s political party — wasn’t pursuing a referendum question that we’d have seen any of these legislative changes?

This is the same government that made a very public display of trying to show First Nations that their concerns were being heard and taken seriously. Now, they’re left to defend a strategy that displays a “cavalier disregard” and a “lack of consideration” for those same First Nations.

It’s all the more bizarre given that a petition on the issue of Alberta’s place in Confederation has already been verified by Elections Alberta. The Forever Canadian petition should have been the final word on all of this, since the law originally stipulated that only one petition on any given issue could proceed. It’s yet another concession to the separatists to give them the green light here, despite all of that.

There’s no undoing Justice Feasby’s ruling. There’s no going back on Bill 14 now, either, now that the legislation has passed. They’ve backed themselves into quite a corner here.

Rob Breakenridge is a Calgary-based podcaster and writer and host of The Line Alberta. He can be found at robbreakenridge.ca and and reached at rob.breakenridge@gmail.com

Rob Breakenridge is a Calgary-based podcaster and writer and host of The Line: Alberta Podcast. He can be found at robbreakenridge.ca and and reached at rob.breakenridge@gmail.com

---

The Line: Alberta is a provincial bureau of The Line, edited by Jen Gerson and Matt Gurney. Email us at alberta@readtheline.ca.