Beyond the Clarity Act (Re the Succession of Alberta)

 Beyond the Clarity Act

The province of Canada named Alberta is considering declaring its independence from the nation of Canada. On October 26th, it will be one of ten questions put forth to Albertans -- if they consider succession from Canada to be a good idea. 

The Clarity Act, drafted by former Prime Minister Stephen Dion following the 1998 succession movement from the province of Quebec, states that provinces must hold a referendum which indicates that a clear majority exists, centering around a clear issue which forms the grounds upon which the province in question means to leave the federation.

What the upcoming vote is, is not something that is clear to many Canadians, or to other out there who are interested. A province must submit a proposal for a referendum to the Parliament of Canada, in order for them to review it, and vote on whether this referendum is valid, and whether they feel it is legal for it to move forward. Following this, an official referendum can take place.

It may seem like a difficult loophole to have to go through, however you have not missed something. This loophole has not been passed through, and rather the road ahead to independence (if taken) is long.

The vote is rather a vote on if Alberta should pursue an official referendum. The populist government, lead by Danielle Smith of the United Conservative party, is driving Albertans to care about themselves above all, and to controvert any misuse or exploitation of the resources of their beautiful and rich landscape. The heart of the issue is that, together with the province of Newfoundland and Labrador, Canada derives the majority of its oil, and thus this relationships of interdependence could be one in which Alberta receives a short end of the stick. The premier Danielle Smith has presented a narrative in which these resources are so economically valuable that Alberta can not only survive without Canada, but potentially do better economically.

This is exacerbated by the fact that Alberta's oil economy means that it must put economic resources first on its list of priorities. It's consequently Conservative outlook makes it look questioningly at a neighboring province like British Columbia. Though, with the centrality of farming and rural economy to neighbor provinces of Saskatchewan and Manitoba, it is frustrating and a little puzzling to hear they do not feel a deep connection to those provinces. 

Indeed in a western capitalist nation one might ask is the problem their differing world view, or is it more so the similar world view in provinces like Saskatchewan? Is there need for transportation of farming goods, or the operation of farming equipment, not a sign of close cooperation, but rather an indication of perpetual discounts. If so, does it really matter? Does the boon of a slight improvement in economic prosperity rationalize the risk of economic collapse and societal disintegration? Is the token of freedom a valuable enough prize, or is it a calamity no different than a newly sovereign African nation in the 60s?

Re Succession of Quebec was an unprecedent matter, as the Canadian Constitution did not allow for such an event to take place. That is still the case today. An amendment would need to made to the constitution by the Parliament of Canada, and approved by the Governor General of Canada (representing the Queen) in order for this change to be fully effectuated.

Quebec was ultimately denied independence, given the circumstances. The question had to some extent puzzled the court as our legal system is borne of the British Empire in which there was no legal concept of independence. Rather, this was won from them in bloody wars such as the American Revolution. Only after a long process of devolution did Canada as well become a sovereign nation, though it remained a part of the common wealth, technically regarding the Queen as the head of the nation, and referring difficult questions to the Privy Council of the UK.

In terms of the Westphalian system, reinvigorated by the Munroe doctrine, there was only a question of expansion. Dissolution was only to pushed aside and ignored. The Quebec succession seemed in some light to part of an embarrassing union between French Canada and British Canada, which had never been properly addressed in any domestic or international case or agreement.

The question of sovereignty has nonetheless been an important question since the fourteen points address of Woodrow Wilson following World War 1. He vowed to help establish independence for all nations, and in his last point, he promised to create a world governing body. This was the League of Nations, which was mediocre in its effectiveness, but laid the grounds for the United Nations, which absorbed many of the core ideas of the League of Nations. 

The League of Nations had a court, the Permanent Court of International Justice, which is mirrored by the International Court of Justice. Both these courts settle disputes between nations. In 1921, the court took on one of its most important cases, concerning the Aland Islands. A Swedish minority living in Finland felt that their cultural rights were being unlawfully diminished by the Finish majority population. What is more is the Finnish population lived on self-contained islands off the Western coast of Finland, upon which the formed the majority.

Nonetheless, jurisdiction belonged to Finland, and this case highlights the importance of territory in determinations of sovereignty. The court determined the islands would remain under Finnish control, though they awarded to the Swedish population the guaranteed protection of their culture and language rights. Thus, they were awarded culturally autonomy, and they were allowed to practice their own way of life without interference. Such rights form the basis of the UN charter rights to freedom of Religion and Expression in articles 18 and 19.

The case of Re Succession of Quebec was not by any means a denial of the rights to self-determination of the Quebec people. The question of if their rights, specifically their language rights, were being adequately represented, is the reason why Canada is officially a bilingual nation, speaking English and French. It is the reason why when you visit the grocery store in Canada, in any province, any item you purchase will display English on one side, and French on the other. It is the reason for national French television and radio channels, and it is the reason French must also be used in the workplace, such as on any plane in Canadian airspace.

The Court concerning Quebec's succession reasoned that this issue did not deny Quebec's access to freedom or government. It seemed to be the opinion of the court that a succession was a negative outcome, and that the reason for succession must be one which has created a determinatively inferior situation.

"The population of Quebec cannot plausibly be said to be denied access to government. Quebecers occupy prominent positions within the government of Canada.  Residents of the province freely make political choices and pursue economic, social and cultural development within Quebec, across Canada, and throughout the world. The population of Quebec is equitably represented in legislative, executive and judicial institutions. In short, to reflect the phraseology of  the international documents that address the right to self-determination of peoples, Canada is a "sovereign and independent state conducting itself in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction"."

In terms of what the Supreme Court felt would be a valid disruption of the right to self-determination, they enumerated clearly the issues of "economic, social and cultural development...". It does seem to have slipped past the mind of the United Conservative Party that this situation is no different, and in situations of minorities disputing their ability to exercise self-determination, the onus lies on the various federal governments to accommodate these rights. The United Nations asks nations to keep up with international standards of human rights, like the prevention of discrimination against women, and when they are found to be not living up to these standards following any investigation of court cases, they are expected to make adjustments to fulfill those obligations much better. The decisions of the ICC are binding.

The court continued: 

"The continuing failure to reach agreement on amendments to the Constitution, while a matter of concern, does not amount to a denial of self-determination.  In the absence of amendments to the Canadian Constitution, we must look at the constitutional arrangements presently in effect, and we cannot conclude under current circumstances that those arrangements place Quebecers in a disadvantaged position within the scope of the international law rule."

The court referred to the Vienna Convention, which requires that governments represent "the whole people belonging to the territory without distinction of any kind."

The 1960 UN Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514), formally recognizes the right of all nations to resist outside control, and have their own independence. However international has not changed since the era of the PCIJ when it comes to minorities declaring independence. An important part of the UN Declaration is that these nations must have self-contained borders, and it must be the majority (by referendum) that desires independence from outside control.

What seems pertinent in this situation is that the question of Alberta succession lacks pertinence. The problem of colonialism is one that compares to impoverished conditions, wreaks of desperation, and has even involved near-slavery style relations. In fact, such a prosperous province like Alberta, can only assert that they have a population benefiting from a healthy economic and social life. There is in fact no way in which the Albertan position could be described as immediate, dire, or unpleasant.

So does the problem come down to a handful of dollars? This must not be a legal issue, and it is ultimately up to the Parliament of Canada if this decision is agreeable for both sides. In Re Succession of Quebec, the Supreme Court felt that Quebec was not ready for independence, though often when the court has time to deliberate, they can establish rules for the future. Thus, in the event of another Quebec separation movement, which has not materialized to date, or in the even of one from another province, they established that a province can petition for an official referendum, and upon receiving a majority of votes in favor, it can then negotiate for a separation. The example case was obviously unclear, the court said, in that there was no relationship between their cultural concerns and access to government, and no clear connection between cultural rights and control -- it is the responsibility of the federal government to accommodate economic and social concerns. In a very real way, the question has to make sense, and propose a working solution to a legitimate problem.

The court stated it is clear international law does not allow for succession. It is also stated it is unclear what would happen. This framework only allows for de facto sovereignty, which would mean Alberta's independence may not be recognized by Canada or other nations. The court also stated it is clear that a situation can mirror recognized situations where self-determination (a political issue) is being frustrated, though the level of a right being frustrated is quite high. Rather, it is best to solve it in a positive legal manner, using the existing legal framework. Nations have the obligation to correct this situation and thus this question is rendered unclear in the Quebec case.

In terms of the framework for succession, one could think of it as just an empty contract to be filled. What the question is, is determined by the Albertan government, however the response is entirely in hands of the federal government. They must only consider it and, if, they find that it is not a legitimate reason, or they privately oppose it, it is within their power to simply end it, even from the beginning of the formal process. The full title of the Clarity Act is "An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference." It remains in the hands of "the majority of Canadians" -- let alone the required involvement of the other provincial governments, the majority of Canadians must also vote or overwhelmingly signal support for Alberta's succession. This is the opposite and Canadians wish to retain Alberta. 

The position that other provinces mean to take advantage of their resources is preposterous, and the other provinces only want to see that these resources are more fairly and of course more highly valued. It is not a clear question if Canadians meant to steal from Alberta, and it certainly is not a legitimate question. All things considered, how unlikely is the succession of Alberta? More unlikely than you think!✌

By Asa Montreaux