Albertans – and future lawyers – have an opportunity to revitalize federalism; they should embrace it, argues Ian Holloway
It’s an interesting time to be living in Alberta.
The anger and frustration that Albertans of all stripes are feeling is palpable. In one sense, the movie is one that has been seen before — more than once, depending on how old one is. But this time, there is a difference.
Before, the province’s fortunes largely mirrored those of the energy industry worldwide. It’s true that the first prime minister Trudeau oversaw what was hitherto the greatest provincial calamity in living memory: the National Energy Policy (NEP). But for the most part, when oil was up, Alberta was rich. And when it was down, Alberta suffered.
It is to the province’s shame that it didn’t save for a rainy day when the sun shone, and seemed instead to behave toward its treasury like a sailor on shore leave. Nor does it stand to the province’s credit that no government has ever had the political courage to introduce a sales tax. But the point is that Alberta was part of a global energy economy. That instilled a cosmopolitanism and enterprise that came to typify the Alberta Advantage. Now, though, cosmopolitanism has been replaced by parochialism, and enterprise by resentment.
As someone who was born and raised in the Maritimes, I get it. Maritimers are accustomed to being in an economically-depressed state. Indeed, apart from the war years, which were a boom time for the Maritimes, economic stagnation has been the default position since confederation. I say this as someone who is (as anyone who knows me will attest) very proud of his roots; but thank heaven Maritimers have history and culture and family out there, for they don’t have much else.
“The future holds no hope” state of mind has never been a cultural phenomenon for folks from southern Ontario. Almost the first laws passed by the new Dominion parliament after Confederation were to implement the so-called National Policy, whose objective was to protect Ontario and Quebec industry against competition from the United States. The end result was the kneecapping of the Maritime provinces’ economies, whose prosperity depended upon North-South trade. Since then, Canada’s economic policy has been centred on keeping the Toronto-Montreal corridor strong. That’s what led to the NEP, and it’s what fuels Prairie anger today.
It is understandable why there is little empathy in central Canada for the Prairie plight; but here is a thought exercise for southern Ontarians. Remember the angst a year ago when it was announced that the General Motors plant in Oshawa was closing? Imagine, then, that there was a GM closing every single week. And then imagine that the government of Canada were to institute a set of policies that were popular across the rest of the country aimed at making it difficult to get whatever cars that might be manufactured in Ontario to market (because even though everyone still drove cars they preferred to buy imports from despotic regimes). Ask yourself, then, how much warmth and fuzziness there would exist in central Canada toward the West and other regions?
Thus is the provenance of the so-called “Wexit” movement. Taken on its face, the idea of an Albertan or Alberta-Saskatchewan separation is a ridiculous one. For one thing, it’s hard to imagine any province ever being able to meet the requirements of Canada’s Clarity Act, which established the conditions under which the federal government would enter into negotiations that might lead to secession following a vote to do so by one of the provinces. (Jean Chrétien was not called a politician’s politician for nothing.)
For another, the constitutional principles regarding Indigenous peoples have progressed a lot since the last Quebec referendum on secession in 1995. No major change to Canada’s constitutional fabric would be possible today without Indigenous buy-in; and, generally speaking, how can anyone who is seeing the train wreck of Brexit play out on the nightly news imagine that a Canadian version wouldn’t be infinitely worse?
So let’s drop the silliness of Wexit rallies and the “Make Alberta Great Again” slogans on ball caps. Things like that are frivolous; they detract from the real issues and make Albertans seem like fools to the rest of the country. What Alberta could do — and in so doing, make a genuine and lasting contribution to the Canadian constitutional fabric — is to facilitate a serious conversation about federalism.
It’s an odd thing. Canada is one of the oldest federations on earth, but it has become almost impossible for us to talk about it. For us, federal discussions generally involve the provinces bonding through demands for more money from the government of Canada (as if they couldn’t levy taxes themselves) before turning on each other (witness the pipeline debate) to argue over whether one province is fleecing another through the equalization formula.
What Canadian constitutional law needs is a revitalized sense of federalism as an organizing principle. Part of our problem is that, since 1982, we’ve developed a constitutional myopia. “Rights” are what we think of when we talk about constitutional law. Yes, we’ll still occasionally have disputes about division of powers — especially when beer is at issue — but it’s almost never that we actually talk about federalism as a grundnorm, or as a system for promoting governmental efficiency and maximizing collective wealth generation.
This is a national issue — one that faces each of us who care about the future of Canada. Yet perhaps we in the law schools have a particular responsibility for shaping the public debate. Indeed, perhaps we should take Wexit as a cue for curricular rejuvenation; for if we don’t equip future lawyers with the skills to discuss intelligently the basis for our system of governance, then we’re done.
