It will be another week before we know the full results of Monday night’s historic Alberta referendum. The country waits on tenterhooks: Will Albertans continue to change their clocks twice a year, or will they adopt daylight savings time all year round?
I’m kidding, of course. There was another referendum on the ballot, as I’m sure readers are aware. In that momentous vote, the people of Calgary elected to go back to putting fluoride in the municipal water supply.
Wait, what? You wanted to know about that other referendum? The one on whether to remove equalization from the Constitution?
We shall see. It appears a majority of those who turned out voted yes on the question, though by the time the results are known in Edmonton, which was expected to vote no, it could be a near thing. Turnout, at less than 50 per cent, compounds the impression of ambivalence.
That, however, is not the point. Even had Albertans turned out in record numbers, and even had they voted overwhelmingly for the ”yes” side, it would still not have given them the power to amend the Constitution of Canada on their own – or to oblige the rest of Canada to do it for them.
What, then, should be the response from the rest of Canada? Nothing. Its response should be to do precisely nothing. That Albertans dislike equalization was known before the vote; that they still dislike it is hardly an earthshattering revelation.
More to the point, neither the federal government nor the other provinces are obliged to take any action just because one province or another tells them they must – even if it gins up a referendum to back its demands. A referendum, however clear the result, would not entitle Quebec to help itself to nearly one-sixth of the territory of Canada. Neither would it entitle Alberta to rewrite the federal budget.
I make the comparison because the sponsors of this latest exercise in stunt democracy have made it. Their claim: the secession reference – the Supreme Court’s 1998 ruling that a referendum would not give Quebec the right to secede unilaterally, but would impose a duty on the rest of Canada to negotiate – also applies to other referendums, in other provinces, on other proposed constitutional changes.
Provided the result met the standard set by the Court – a “clear majority” on a “clear question” – any province could propose any constitutional amendment it liked, and the rest of Canada would be obliged to negotiate it: if not to accept it, at least to bargain in good faith. Whatever that meant, and however this would be enforced.
It’s pretty clear from the text of the reference that the Supreme Court meant it to apply to any province, not just Quebec, though whether it meant it to apply to any constitutional change, rather than just secession, is more open to debate. So the rest of Canada would arguably be within its rights to ignore the referendum in Alberta, on those grounds alone.
The implications, otherwise, are absurd: if Alberta could force the rest of Canada to negotiate changes to equalization, merely by holding a vote on it, what is to stop other provinces from forcing negotiations on their agenda, by the same means? If nothing else, expect to see referendums in Quebec and the Atlantic provinces on whether to keep equalization as it is – or even enrich it.
Moreover, the results in Alberta are anything but “clear.” Not only is the majority unlikely to much exceed 50 per cent, but the meaning of the vote was greatly muddied by the Premier, Jason Kenney, who insisted it was not about the question on the ballot – the one that he put there – but rather about giving Alberta “leverage” to demand changes to the program.
Again, this would be sufficient for the rest of Canada to ignore the result. A referendum on an explicit demand for a specific constitutional change is one thing, but a referendum that has been publicly and repeatedly described by its sponsors as a giant bluff practically begs to be disregarded.
But the real reason to ignore it is that the “duty to negotiate” is so much constitutional wind – unsustainable, indefensible and unenforceable. That a province cannot unilaterally impose major constitutional changes on the rest of the country is supported by the plain sense of the Constitution and the rule of law. But the supposed reciprocal duty to negotiate on the part of the rest of Canada is nowhere found in either the constitution or the law: the court just made it up.
The Alberta referendum can be of some use, then. It can establish the precedent that the federal government and the other provinces are under no obligation to respond to any such glorified opinion poll. All they have to do is nothing.
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