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All Hail Queen Danielle and her new shadow court
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University of Calgary law professor Martin Olszysnki joins Duncan Kinney to discuss the recently passed Alberta Sovereignty Act and its corrosive effects on democracy, the rule of law and the treaties.
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Transcript
Introduction to The Progress Report
00:00:00
Speaker
Hey folks, Duncan Kinney here, host of The Progress Report. The Progress Report is still a proud member of the Harbinger Media Network, a loose but mighty collection of left-wing podcasts that help you make sense of the world. Something that is becoming increasingly harder and harder to do these days.
00:00:15
Speaker
A new episode on the network that I want to highlight is the latest from Press Progress' new pod, Sources. Edmonton City Councilor Michael Jans joins host Remnik Johal to talk about help-secret technologies and the growing trend of municipal police forces hiring this social startup to give them the cover they need to increase police budgets.
00:00:35
Speaker
Also, if you like the work that we do and think it's important, please consider becoming a monthly donor. There is a link in the show notes, or just go to progressreport.ca slash patrons and put in your credit card. If you're already a donor, thanks, you're amazing, we love you, you're amazing. But now, onto the show.
Diving into the Alberta Sovereignty Act
00:01:03
Speaker
Friends and enemies, welcome to the Progress Report. I am your host Duncan Kinney, recording today here in Amiskwetchu, a Skygun, otherwise known as Edmonton, Alberta, here in Treaty 6 territory on the banks of the mighty Kasis Kasal, Mississippi, or the North Saskatchewan River. Joining us today is a friend of the pod, Martin Olshinsky, a law professor at the University of Calgary. We've had him on before to talk about the
00:01:24
Speaker
uh, the much maligned, uh, inquiry, public inquiry into, I guess oil and gas, or no, not even an oily ass into environmental NGOs. But today Duncan, it was, it was anti Alberta. You get that right.
00:01:40
Speaker
Yes, the anti-Alberta, you know, bad guys, environmentalists. How could I forget? I mean, but but yes, we're not on that today. Today, we're all about the newest, the newest outrage, the newest terrible thing coming out of Alberta, the Alberta Sovereignty Act. And you have been a very notable and very public critic of this legislation. So thanks for taking the time to come on the pod. How are you doing? Yeah, I'm all right. I'm I'm a little bit
00:02:07
Speaker
I think frazzled about it all, frankly, at this point. I think, you know, it's been, it feels like, and I think we talked about this the last time we chatted. I mean, it's just been very interesting times in this province for the past few years and I don't necessarily, you know, I mean that in that kind of pejorative way. It would be nice to get, it would be nice to have a bit of a break, I think, from
00:02:28
Speaker
from what feel like sort of like weekly assault on like basic democratic norms. But if you could just be teaching university law students about administrative law, you would be a much, much happier, more relaxed person. But unfortunately, Alberta politics is what it is.
00:02:46
Speaker
Yeah, I think that's, I think that's what we talked about actually last time. I was like, I would love to go back to the slow food movement of the environmental crisis, um, you know, as compared to sort of like these sort of like very real and tangible and immediate sort of assaults on the rule of law and that kind of stuff. And I know that that all sounds very, maybe grandiose and hyperbolic, but, um, as we'll talk about, um, uh, you know, throughout the course of this, um, I don't think they are actually, uh, I don't think it is hyperbole and we're in a bad spot.
00:03:17
Speaker
Yeah, one of the reasons why having you on is because you are able to take these pretty highfalutin, esoteric philosophical legal arguments and concretize them and be like, actually, this does matter for Joe on the street who isn't going to necessarily get into the minutia of constitutional law, but this does actually, this is bad. What is happening is bad and here's why. The Alberta Sovereignty Act is now law, passed in the dead of night on a December evening, one something in the morning.
00:03:46
Speaker
And, you know, you've examined this legislation closely, both pre and post amendment. And, you know, you wrote a really good blog post on it, which we will have in the show notes called, and you published this alongside Nigel Banks, who's a law professor emeritus from the University of Calgary as well titled, you know, Running a Foul, the Separation
00:04:08
Speaker
the Division and Delegation of Powers, the Alberta Sovereignty within United Canada Act. It's a really kind of like excellent breakdown of your issues, yours and Nigel's issues with the acts. And it is kind of written for the layman, but your quote I think is good is that, you know, the Alberta Sovereignty Act, quote, represents a significant and unprecedented intrusion into the historical and core jurisdiction of Canada's superior courts.
00:04:35
Speaker
And so while the bill was amended to kind of take the very worst of the kind of like, you know, queen and kingly powers away from Daniel Smith and the Alberta Cabinet, this bill still does have significant problems and real implications on our democracy and the way government functions. So I guess I kind of want to
Power Dynamics and Governance Issues
00:05:00
Speaker
you know, I want to turn it over to you for a minute. You know, how is the sovereignty act? How does it work? You know, how is it going to do what it says on the tin, you know, and, and what are the key parts of the legislation that people need to know about?
00:05:16
Speaker
Yeah, sure. And we're lucky in a way that the bill is relatively short. But I think the best way to come at it always is to come at it from just the basic premise of power. And so at a high level, from 10,000 feet, this bill is all about giving the premiering cabinet more power.
00:05:37
Speaker
And so I, you know, then that's why we refer, you know, to the separation of powers in our blog. And that's what I'm talking about when I talk about an incursion into the judicial branch. And so I guess, again, just to remind everybody, right, that like,
00:05:51
Speaker
the basic building blocks of democratic governance over the past couple hundred years has been the separation of government power. So this deliberate separation between these three branches, we have our legislative branch, we have the executive branch, and we have the judicial branch. And each one is supposed to play a role, has its own functions,
00:06:14
Speaker
really with a view towards keeping the other ones in line, right? So this is this idea that of checks and balances, right, which has been just kind of like a hallmark of functioning democracies, again, for hundreds of years. And it's when this separation of powers breaks down, that we move towards failed states, right? And then we've seen that, unfortunately, you know, it sounds again, hyperbolic, but it happens actually all the time. You know, and so then, so then the act is best understood in its original
00:06:43
Speaker
form as the executive branch, the premier and her cabinet, wanting to steal both the legislature's role and intrude on, or not maybe steal, but intrude upon the legislature's role and intruding on the judicial role.
00:07:00
Speaker
And so I'll start with the first one because that's the one that got fixed. And so there was this idea that the legislature would pass a motion, a non-binding motion in the legislature. And having done so, that would trigger essentially this super extraordinary power of the premier and cabinet to go essentially and change laws.
00:07:26
Speaker
Right. And so going in back to that sort of like that framework of the separation powers, the legislative branch passes laws, the executive branch, premier cabinet, implement laws, execute laws, and the judicial branch interprets laws. So here with this one mechanism, what they were trying to do is take that legislative function and give it to themselves without scrutiny from
00:07:50
Speaker
the legislature, right? And this is really important. The idea was that these resolutions would essentially say, you know, some federal law is bad for Alberta, or more problematically, a federal initiative is unconstitutional, and it would recommend measures, right? And then the Governor and Council cabinet
00:08:13
Speaker
would then consider that resolution and could do essentially whatever it wanted to whatever law that had been passed in Alberta to the extent that it considered it necessary or advisable. Those are the specific words and quotations necessary or advisable to implement that measure.
00:08:30
Speaker
so like maybe necessary is a bit of a tether and would have constrained their discretion a little bit but advisable is a hugely subjective term and it essentially allowed them to do anything and the original section four of the of the act essentially allowed you could take a whole act you could take the whole environmental protection and enhancement act in Alberta
00:08:50
Speaker
scratch out every provision, replace it with a whole new act, and that would have been okay under the original version of the legislation that was introduced like a week ago, right, nine, 10 days ago. So that's what got everybody up in a huff. This is the King Henry VIII laws, right? This is what they refer to. Exactly.
00:09:13
Speaker
Exactly, right. And so, you know, and again, you know, efforts to sort of like convey this as some kind of misunderstanding or a lack of clarity. There was no lack of clarity. This was very clear and obvious. There are two terms that every drafter knows and that every politician or legislator should know. An enactment is one thing and a regulation is another. An enactment includes everything.
00:09:37
Speaker
regulations only include what we refer to as essentially a subordinate form of legislation. So we always know that the executive fills in sometimes laws, right? We don't expect our legislators to pass laws that are fully fleshed out. We often will leave some sort of like what we call, again, subordinate or delegated legislative power to the executive to fill things in. But this was totally different. This was everything in the statute book, you know, the way Nigel described.
00:10:02
Speaker
Well, and that's why it was very funny when Danielle Smith was kind of asked by the media about, you know, like, why are you changing it? And she's like, well, that's that's why we have three, three readings of the law, three readings of the bill. And it's like she had this whole like, that's why pencils have erasure stick that she was like trotting out. And it's like, all right, I mean, this is your flagship legislation. You rolled this out. You campaigned on it. This was like feature feature law that you were going to pass. And it was like, oh, yeah. Whoops. We just put in this provision that
00:10:31
Speaker
essentially allowed me as premiering cabinet to just go in and rewrite laws whenever the hell we want. That's not something that just gets put in there by accident. That was in there and they had to take it out because of outcry.
00:10:48
Speaker
Absolutely. Like it's just, it's totally untenable for them to suggest that they didn't understand what they were putting in there. They absolutely did. And so again, you know, I think, I think it was Jared Wesley or, you know, Dwayne Bratt or Lisa Young, like they would have sort of said, no, look, like this was a classic. Let's see what we can get away with. And, and, uh, and if we just like the coal policy stuff, right? Like, so it's just more of the same UCP it's, uh, you know, it's essentially like, um,
00:11:14
Speaker
you know, essentially, you know, like, I think it's Jefferson who said like vigilance is the
00:11:19
Speaker
or democracy is the price of vigilance, or vigilance is the price of democracy. And like in this province, it's like you have to be vigilant all the time, like 24 seven, because you never know when this government is going to try to do something like totally insane, in terms of sort of like, affecting our rights and interests. So so no, so yeah, it was totally, you know, in the backlash, and you know, and then people get into the sort of like 3d chess, like, was it a diversion? Was it is it intended to sort of like,
00:11:46
Speaker
I don't know, I mean to me, the whole episode just screamed incompetence and everything and all the exchanges in the media and in Twitter and everything else suggested to me that the left hand didn't know what the right hand was doing. So we'll see again whether they own that to any extent, whether they carry that going forward.
00:12:06
Speaker
Well done, everyone, for raising the alarm, for pushing back and getting rid of that. But as you said at the intro, it doesn't actually deal with this other hugely problematic aspect of the bill that relates then to not the executive wanting to take the legislative role and powers, but encroaching on the judicial ones. Yeah. The bill still has all these provisions that essentially let her
00:12:30
Speaker
If you allow me to editorialize, create a shadow court, which gets to pronounce on the constitutionality of all federal laws. Was my interpretation? No, and that's exactly right. Exactly right. And this part gets into some pretty arcane constitutional law, so I'll do my best to not get bogged down in it. But going back to just this basic idea that the separation of powers, the idea that
00:12:58
Speaker
Why do we have courts and why do we entrust in them? Why do we build them in a way that obviously there's always going to be nothing. No human institution is perfect. And so I don't pretend for a second that courts are always super impartial or neutral when they deal with stuff. And in fact, I've been very critical of our own court of appeal.
00:13:17
Speaker
when in at least two reference cases that recently, you know, on the Greenhouse Gas Pollution Pricing Act, on the Impact Assessment Act, I felt like they clearly went beyond that role of sort of like impartial arbiter. But nevertheless, I defend that institution because its basic wisdom is unassailable. When you have a country, a federation, and we are a federation, and we'll come back to that in a second,
00:13:43
Speaker
Like, of course, there are going to be disputes between the provincial and federal governments. Of course, there's going to be turf wars. And so then you ask yourself, like, well, how do you resolve those? And in a country
00:13:55
Speaker
that is supposed to be governed by the rule of law, you resolve them by appointing a referee to resolve them. And so that is what our courts are supposed to do. We're very clear in Canada that we are supposed to be governed by the rule of law. And then as a part of that, it's the judiciary that plays the role in maintaining that rule of law by impartially and independently adjudicating
00:14:20
Speaker
legal disputes generally, but especially jurisdictional disputes between the federal and provincial governments. And so then, as tied to that, and this is where I think it gets interesting, and this is where I think there's like some real important insight, is that our constitution in section 96 creates this judicial branch, but also gives the federal cabinet the power to appoint judges to it.
00:14:46
Speaker
So across Canada, whether you're BC, Alberta, Saskatchewan, Ontario, Quebec, the Maritimes, all judges of what we call the Superior Courts, the Courts of Inherent Jurisdiction, the courts that really, really matter. In Alberta, it's the Court of Kings Bench and the Court of Appeal. They're all federally appointed.
00:15:05
Speaker
And now that was on purpose. That's part of what we described in the blog and the case law describes is this historical compromise. So the provinces in each province have the power, the legislative authority to pass laws for the administration of justice. So they pass laws around the functioning of the courts and the functioning of the justice system.
00:15:26
Speaker
But the federal cabinet appoints all of the judges to it. And of course, they don't do that from some dark chamber in Ottawa. There are mechanisms in place to get regional input and all that kind of stuff. But I think these two things combined, this idea that it's an independent and impartial institution that happens to be appointed by the federal government, I think drives the current leadership here in Alberta nuts.
00:15:56
Speaker
And we've seen that we saw that in the free Alberta strategy, where they were just like, in that document that is the sort of like the the brainchild or whatever you want to call it for the intellectual forerunner of the sovereignty. Yes, yes, yes. Using that first word in the broadest sense. And, you know, like, just, just like, very clear disparaging comments at the federal judiciary. And so, so, you know, and then and then you think about
00:16:24
Speaker
the things that the Premier says about the Constitution, the way she describes it, and then she went really way off the deep end the other night, on the night that the sovereignty act passed. But I've said before that the way she talks about our Constitution is this idea of watertight compartments.
Jurisdictional Challenges and Sector Impacts
00:16:40
Speaker
which was like cool a hundred years ago, but our Supreme Court and King Courts generally have all moved past that and have moved towards this world where of course there's going to be overlap between federal and provincial jurisdiction. Just the complexity of modern society and modern economies mean that something might seem like a provincial matter when viewed from one perspective, like from the perspective of resource development,
00:17:05
Speaker
But it might also be a federal matter when viewed from an impact on fisheries, for instance, which are clearly federal. Or if that resource development results in an effluent or emissions that are, you know, baking the planet, then the criminal law power, for instance, the federal criminal law power might have something to say about it, right? So that's the world that we're in. And that is the world that Premier Smith doesn't accept. And so
00:17:31
Speaker
you know, when you look at the sovereignty act, going back now to the triggering mechanism, and this is what we say is like the heart of the thing. She is going to have legislators by a free vote, apparently, pass judgment on the constitutionality of not just federal laws, but this idea of federal initiatives. So it can be laws, regulations, policies, right? And that that then gives her the power
00:17:57
Speaker
the cabinet, the power to conscript essentially the rest of, you know, the most peripheral understanding of what is the provincial government in her war with Ottawa. Hospitals, police services, nonprofits that receive government money, municipalities, post-secondary education institutions. Exactly. Right. And so, and so the question that becomes like, you know, cause someone said this to us, I think, or, you know, we would have this debate on, on Twitter, like,
00:18:27
Speaker
So what's the big deal with, you know, MLAs make opinions, state your opinions all the time. And we say that this is fundamentally different, right? It's one thing for the minister to get up and oppress, you know, to issue, have oppressor and accuse the federal government of acting in an unconstitutional way. It's another thing even for like ad hoc motions in, you know, the Quebec legislature saying, we don't want your emergency act to apply here. It's a fundamentally different thing when you pass a law,
00:18:56
Speaker
that gives the legislative branch the power to make these essentially declarations of invalidity, which are then not subject to court supervision. So because of the way it's structured as what's called a non-binding motion, you can't traditionally review that. You can't put that finding in front of a court. And then further, it then triggers the machinery
00:19:21
Speaker
of this act, which in some ways resembles the kinds of things that judges do when they declare a law to be unconstitutional. And so all of that together, we say, is clearly an intrusion then. And it's essentially designed to circumvent the courts. The premier isn't satisfied, because I think she knows that our courts will not give her the answers that she wants when she's going to challenge the oil and gas cap. And guess what?
00:19:48
Speaker
if the government can get in, the federal government can show that climate change is an evil, that parliament can rightfully address through the criminal law power, which it has already basically said it can, like there's court judgments that already confirmed that, then it's not hard for them to get to that next step and say, okay, well, then here's a mechanism in place. When people have to understand is that like,
00:20:13
Speaker
Prohibitions on food additives that are harmful. Restrictions on advertising of tobacco. These are all rooted in the criminal law power, the federal criminal law power. And so she knows that she's not going to get far in the Court of Kings bench or in the Court of Appeal, or at the very least, even if she does succeed here at the Supreme Court, she's probably going to lose.
00:20:35
Speaker
And so she's creating this shadow or parallel court to get the result that she wants and to give her a cloak of legitimacy for then, again, the really broad power, still broad. Yes, they're not changing laws, but they can change any regulation and they can direct any provincial entity, essentially conscript them into their battle with Ottawa.
00:20:59
Speaker
Yeah. Like one thing that is, I think it's lost in all of this kind of relatively esoteric arguments around separation of powers and all of this is like, how is this bill going to actually be used? You know, Daniel Smith has vacillated between, I'm going to use it right away to, we'd only use it as a last resort. And like it's law now, you know, it could conceivably be used tomorrow. It could not be used at all over the next six months.
00:21:24
Speaker
I think there's been some signals that maybe they'll use it with regards to this federal gun law that's being passed that prohibits certain guns from existing. What is a viable scenario here that like Daniel Smith invokes the sovereignty act that she essentially says this law is unconstitutional and I'm going to direct the RCMP who work here and the municipal police officers who live and work in Alberta
00:21:51
Speaker
to not enforce this federal law? Is that on the table?
00:22:00
Speaker
And again, part of the trick here is understanding all these different contexts. So I think that is potentially on the table. And the trick is to understand is that in all these different spaces, there are, and I'll admit that my own limitations, right? So I come into all of this, going back to the point I made at the outset, now I'm supposed to be like an environmental natural resources lawyer, right? So that's and law professor. And so that's the space that I'm most comfortable and that I understand and sort of assess this regime from. And I'll go there right away.
00:22:28
Speaker
Because I think, for instance, in that space, I don't really see this law doing very much. But I will say, and I'll acknowledge my limitations, I think there are things here, because especially in the health context and in the criminal law, the classic conventional criminal law context, including the gun registry and all that kind of stuff, and this buyback program,
00:22:51
Speaker
you know, there is a lot of like interlocking parts, arguably. And, and so what might happen is that, yeah, I mean, and it is totally lawful for the, you know, I don't think I agree with the basic proposition that the provinces are not, you know, there's nothing compelling the provinces to cooperate with the federal government, but then you don't actually need a law to say that, right? Like you don't, you know, so this goes back to, again, like what is going on here. And there's that weird carve out.
00:23:17
Speaker
in the act that says, you know, because again, I don't necessarily agree or that the law is just about non enforcement, because in section two, and we talked about this in our blog, that section two says, nothing in this act shall be construed as forcing any person as you compelling any person to contravene a federal law. But then it carves out specifically provincial entities. So it seems to contemplate, not just mere non enforcement,
00:23:45
Speaker
but it seems to contemplate something more. It seems to contemplate the ability to order or direct a provincial entity to not comply with the federal law. And to give you an example, I think, and this is now in the sort of carbon greenhouse gas context. Generally speaking, in Alberta, we don't have a lot of crown ownership of things, but I think the city of Calgary is a major shareholder in NMACS.
00:24:13
Speaker
you could maybe see this power being used to direct the city of Calgary not to pay its carbon price, for instance, or to not conform with an oil and gas emissions cap, like to not participate in that space.
00:24:31
Speaker
But you know, but but even in that if that's the case, like, and Max is a pretty like in the world of Alberta's emissions, where the vast majority of them are generated by private companies and private oil sands companies in particular, it's almost impossible for me to see how this act.
00:24:46
Speaker
does anything like it doesn't change the impact assessment act at the federal level because that again that applies directly to proponents it doesn't change the carbon price insofar as it applies to private individuals it doesn't change the oil and gas emissions cap as well itself would apply directly to facilities and emitters so so it's you know again part of it is that the the framework here the tools are so broad it's hard to imagine every potential scenario maybe they have something cooked up already
00:25:15
Speaker
But it goes back to, I think your earlier point, what happens here now? Does this get used in an aggressive way? Or in which case, it'll almost certainly get challenged in court and then it might get vaporized? Or does the premier sit back now, as you say, and she has vacillated back and forth, will she just sit tight and let it go the way of the equalization referendum? The one thing I noticed is that her Twitter feed yesterday was silent.
00:25:45
Speaker
about the passage of her flagship legislation. That certainly was. And the other thing that jumps out to me is the language from the people who, again, were the intellectual forefathers of this bill, Barry Cooper, Rob Anderson, they were very clear that the whole point of all of this was to cause a constitutional crisis.
00:26:09
Speaker
They, they were acting, you know, like Lenin almost, you know, in 1917, like they wanted to, they want the goal from the beginning. These people have stated out loud in, you know, podcasts, media reports, their own freaking papers, white papers that they publish. The point is to cause the crisis. And, and so here we are, like we're, we're to the point where this law has been passed. Will they actually pull the trigger on causing a crisis? Like we don't know, right?
00:26:36
Speaker
Well, yeah, and I mean, and crew and Cooper was at it again yesterday, right? And sort of just like double down on that rhetoric. And then, of course, the thing I don't think I got to, you know, I talked about how, you know, the Premier's sort of like approach to constitutional interpretation has always been, you know, of the like discredited variety. But then, you know, two days ago, she also decided that, you know, Canada is not a national government.
00:26:57
Speaker
Yeah, let's get into what Danielle Smith said in the legislature the other night while the bill was being passed. She said, quote, it's not like Ottawa is a national government. Martin, is the federal government located in Ottawa, Ontario, what you would call a national government? It is. It really truly is in every sense. Right. And in fact, it's probably more national. It is. It was in its conception. It was probably more central and more centralized than it currently is.
00:27:27
Speaker
And she kept going though. She kept saying other crazy shit. So like the way our country works is that we are a federation of sovereign independent jurisdictions. They are one of those signatories to the constitution. The rest of us as signatories of the constitution have a right to exercise our sovereign powers in our own areas of jurisdiction. Martin, is Alberta a sovereign independent jurisdiction? It is not.
00:27:50
Speaker
I know it's, I know it's hard for everyone to understand that, but it's not, you know, like, you know, and I, it's funny, I was just, I'm, I'm doing some work and so I was able to come, um, at this, you know, like, if you go back, actually, the Supreme court in the 1998 succession reference, um, Quebec succession reference has this, this, this great line, um, you know, that essentially like.
00:28:12
Speaker
A federal system of government enables provinces to pursue policies responsive to their particular concerns. That's right. But at the same time, Canada as a whole, and I'm quoting now, is also a democratic community in which citizens construct and achieve goals on a national scale. And the function of federalism enables citizens to participate concurrently in different collectivities and to pursue goals at both a provincial and a federal level.
00:28:39
Speaker
That is what Canada is, right? And yes, it's about equal partners. And it's not supposed to be like a subordinate relationship. That part, when people say like, Ottawa is not the parent, and that's absolutely right. It's not a parent-child relationship. It's a relationship of equals. But that means fundamentally, if you're grown up, if you and I are adults and we share something equally,
00:29:08
Speaker
And that means that as a general rule, we're going to have to cooperate, and sometimes we're going to have to compromise. And what you see from Alberta really for the last decade is a fundamental refusal for any kind of compromise around, for instance, what it perceives, I think, as its entitlement to externalize
00:29:35
Speaker
like however many megatons of GHG emissions that it wants because it makes a lot of money doing so, right? And like that is the fundamental issue here. You know, all of this comes down to that. When you read that speech that the Premier gave, you know, underlying so much of it is just a fundamental refusal to come to grips with the fact that this thing that makes us very rich in Alberta
Indigenous Rights and Historical Treaties
00:30:02
Speaker
is part of the major thing that is causing the climate to burn up. And that it's surprising to her that people around the world are like, yeah, we don't want to go there.
00:30:17
Speaker
Yes. And I know I might seem like I'm being flipped taking these quotes from Danielle Smith and being like saying these patents. She's just saying these kind of patently, ridiculously and untrue things. But the reason why it's important to say them and note them is because like when she says that Alberta is a sovereign independent jurisdiction, that totally wipes out and nullifies the existence of the treaties, which are like,
00:30:44
Speaker
were signed before Alberta became even became a province and are like the whole backbone of like how Canada exists as a modern state. Like the whole reason that Canada exists is because like nation to nation agreements were signed between first nations and the British crown. Those rights then devolved to Canada after, you know, whatever, whenever that happened. And there's arguments about whether that happened in 1905, 1931, whatever, but like, like,
00:31:12
Speaker
There's a reason why First Nation leaders and the treaty organizations, Treaty 678, have come out publicly over and over and over again and have stated that the Alberta Sovereignty Act is bad, that it needs to be repealed, that it ignores the historical and contextual reality of Canada's existence on these lands. And so I know that's not necessarily your
00:31:40
Speaker
the part of the law that you are the biggest expert on, but as a lay person, and as someone who cares about these treaties as a treaty person, as someone who recognizes that these treaties are the foundation of why and how Canada gets to exist, the Sovereignty Act totally just wipes out any and all discussion of the, even just of the existence of these treaties.
00:32:07
Speaker
And it boggles my mind. We've got Rick Wilson, the indigenous relation minister for Alberta, saying, sure, yeah, the new law respects treaty rights, but that the term sovereignty had caused confusion among indigenous leaders. Quote, in fairness, there's not a lot of clarification around what that means. Should we have done more consultation? Absolutely. I mean, I think there is a pretty decent definition of sovereignty that exists.
00:32:35
Speaker
The government of Alberta is simply using one that is incorrect. Is that fair?
00:32:40
Speaker
Yeah, well, but it's also like trying, you know, in like, it's like that classic play of like trying to, you know, buy, you know, and I know everybody loves to accuse the other side of doing this, but like, when you repeat a lot often enough, like whether or not you can make it so, right. And that, you know, fundamentally, that is the exercise here. That is the goal. It is to, I think, flood the zone with shit in the language of Steve Bannon. And like, so like, it is to knock
00:33:08
Speaker
Albertans off in terms of their understanding of what's actually going on. You can't tell me, sure not for everybody, but when the legislature passes a resolution that something is unconstitutional, it has a legitimizing force. Whether we like it or not, it has a legitimizing force.
00:33:26
Speaker
When a subsequent judge is faced with that same question, you cannot tell me that we haven't fundamentally politicized their job, that we haven't made it harder for them to be impartial and to be independent in answering that question. And you can't tell me that we haven't at the same time also created the potential, for instance, for a big swath of our
00:33:47
Speaker
polity to start to delegitimize and lose confidence in those judicial decisions and the judicial branch when they make decisions that don't jive with the thing that their legislative assembly is saying. But again, exactly, it's about creating
00:34:09
Speaker
a new narrative. And going back to your point, I think the main issue is like First Nations absolutely are speaking up and speaking for themselves and they are clearly pissed off.
00:34:21
Speaker
But when I go back and think about it, we have this huge case that's brewing in northwestern Alberta. It's built off of a case that actually came out of BC a couple of years ago. So the Blueberry River First Nation had this massive win in BC, their Treaty 8 First Nation, where they were able to convince the court that the amount of development in their traditional territory was so significant, so vast, so quick.
00:34:46
Speaker
that it essentially it was an effective breach of individual treaty rights, but of the treaty itself, that they were no longer able to exercise the rights and that the promise that they would be able to meaningfully exercise their rights and sort of in perpetuity as they understood to be the sort of terms and conditions of those treaties at the at the turn of the 19th or the 20th century, like
00:35:09
Speaker
They succeeded there. And there is another case now, I think it's called the Duncan First Nation, bringing forward an action similar here in Alberta against the Alberta government. And so I think it's absolutely the case that Barry and Rob and some of those folks generally are tired of this constitutional arrangement. It's not that they're arguing that everyone's interpretation is wrong and that theirs is right. They know that theirs is wrong.
00:35:37
Speaker
So now they're trying to, but now they, so they want to change the deal. It's not, you know, and this is, I think really important. It's not about, it's not about a historical understanding. You know, he, I think Barry in particular likes to make this comment, like if we were to sign now, would we, you know, it's like, well, that's not the question.
00:35:53
Speaker
friend, you know, like the issue is what did you sign up for back then? And if you don't like it now, you know, this is what I'll give you. You want to change the terms of the constitutional arrangement? Okay. Now you get to negotiate with first nations that, uh, you know, can I have understood, understand what Canada is up to and have a hundred and, you know, a 40 some years of like understanding of how Canada works and like, how, how does these legal arrangements work? And you're not just going to fucking snow them under like you did, uh,
00:36:22
Speaker
you know, when the treaties were signed originally. Yeah. So no, I mean, so it's like, it's like the slow boil, right? It's the slow frog boil, whatever analogy, right? So it's like, so I do think actually, you know, like I've been thinking about this the last couple of days, because I know the NDP came out and said, this is all laying the groundwork for separatism. And I was like, I don't know about that. But actually, the more I think about it,
00:36:42
Speaker
you know, like, I think that that's true. And, you know, and what I think is hilarious, like, I think, in response, you know, Daniel Smith said, you know, like, United Canada is right in the name of the act, right? And I thought that that was like, hilarious. It's reminiscent of like, Pierre Polievre saying, you know, that that Nazis were socialists because the word socialism was in, in their name. And then somebody else recently pointed out that, you know, like, the Black Panthers weren't actually Panthers. And so, like,
00:37:10
Speaker
There's so much of just like really basic sort of like the sowing of confusion and misunderstanding, flooding the zone, really intended, I think, to get everyone to like sort of like, well, frankly, right to attack the notion that there is an objective truth to all of this. And as much as I don't, I can't profess to have a unilateral claim on that.
00:37:33
Speaker
You know, like when you look at the way our Constitution has been interpreted over the past 100 years, the wisdom that was, you know, wisdom, small, like maybe not always wise. But anyways, like there is an understanding.
00:37:46
Speaker
it works actually for the most part and you know obviously flaws around but what these folks are proposing is just completely different you know and I think I've said in other times like there's no space in our constitutional order for the kinds of things that this premier and her cabinet and her executive you know her leadership team
00:38:06
Speaker
where they want to take Canada, not on not on its current terms. And if they don't like that, then they should be they should have the courage to take that reality to be upfront about it and and present it to voters in a straightforward manner, as opposed to these kind of machinations, which again, like they're essentially they've convinced them a big chunk of their base.
00:38:25
Speaker
that it's okay to trample on the judicial branch. It's okay for us in this completely self-serving and conflicted way to start passing judgment on another order of government. These are the kinds of things we don't want our political leaders to be doing. There should be, ideally anyways, and maybe that's Pollyanna-ish of me, but when you start to dismantle the basic building blocks of functioning democracies,
00:38:55
Speaker
like that's when we're getting into a bad place and that's when things get desperate and that's when people start you know like with each one of these sort of things I think that side shows how desperate it is and how desperate it's you know and and then when people get desperate they start to do desperate things and I think that's like a big problem that's so going back to you know what you said at the beginning like
00:39:15
Speaker
We kind of do need Albertans to understand that we are way, way, way beyond normal politics here. And you may not feel it on your day-to-day basis, but it is totally unprecedented in our modern history for sure.
00:39:31
Speaker
Yeah.
Political Strategies and Conclusion
00:39:32
Speaker
And we brought him up a couple of times, Barry Cooper. I just want to lay out a couple of things that he said and give the context. He is your colleague at the University of Calgary, a professor of political science, a long-time right-wing crank, the author of a policy paper called The Free Alberta Strategy, which is
00:39:48
Speaker
kind of seen as this unofficial blueprint for the sovereignty act. And he was on CBC the other day calling Canada's constitution not a legitimate document that has not safeguarded Alberta's interests within federation. Quote, I want the constitution to be changed or we'll have another referendum, said Cooper. And, you know, he's talking and then he's referencing the like independence referendums that happened in Quebec in the 80s and 90s.
00:40:13
Speaker
And I think we've talked enough about Cooper and then his kind of like particular crazy brand of Alberta sovereignty and independence. But this idea of the Quebec referendums has really been what the Alberta NDP as opposition have really kind of keyed in on as they try to kind of transmit the dangers of this bill politically to the audience, through the media, to their members. And their biggest message coming out of it
00:40:43
Speaker
has really focused on like investor uncertainty and like what the Chamber of Commerce thinks and what capital thinks and like what quote unquote job creators think. By the way, never say the, if you're the NDP, never say the word job creators, just you are buying into their, into the UCP's frame. If you ever utter those words like without spitting on the ground afterwards, it's like anyways, but they did actually say it.
00:41:08
Speaker
And so they trotted out David Dodge, the former Bank of Canada governor to say, oh, well, you know, this could be bad for investment. And it's like, if you're trying to make this bill real to people.
00:41:21
Speaker
I don't understand and I don't see how trotting out some like former pointy head from the Bank of Canada is really going to convince Joe and Jane, you know, Albertan that like this bill matters. Like I don't care about
00:41:40
Speaker
investment decisions of giant pools of capital. I am just trying to get my kids to school and I'm worried about inflation. I'm worried about having to pay for my fucking doctor, like Daniel Smith's Insane Plan. When we want to talk about how to make this real politically for regular Albertans, do you think that focusing on the investor uncertainty thing is effective at all?
00:42:05
Speaker
You know, I mean, it's interesting, because I feel like we have this like foil, sort of maybe not right on point, but you know, there's, you know, Doug Ford in Ontario, right, and who like, was about to do this, did, did this like, highly unconstitutional thing, right, when they passed that bill, and they invoked the notwithstanding clause, and Labour just like,
00:42:28
Speaker
came out in force in a classic way and just destroyed that initiative. I don't know if anybody saw that coming and that would play out that way, but it was a really important moment, I'll say, in regards to that notwithstanding clause and the way that it's used and all that kind of stuff.
00:42:50
Speaker
And what an incredible show of force. And exactly, it wasn't about investment, whatever. It was just people making very clear.
00:42:59
Speaker
I guess I do feel like the political culture in this province is different. And I feel like I'm not really in a place to say that it's necessary. I think there are a lot of people who do probably fundamentally think about politics from that perspective of like, we just want the economy to be functioning well and we want to maintain our affluence or whatever. So I don't know, I just don't know how big a chunk is. But to your point, I think,
00:43:27
Speaker
So I don't know if it's wrong, but I would say that what I think is missing, what I think could speak to you and to me and to others like us is how many lost years we've had.
00:43:43
Speaker
to deal with those kinds of issues. After the past three years, our government has been tilting at windmills, getting into fights, scandals, going after crypto, going after all kinds, blowing billions of dollars on pipelines to nowhere, attacking NGOs, going after movie producers who put Bigfoot, all this kind of stuff. The amount of energy and money that has been wasted on these stupid fights
00:44:13
Speaker
instead of spending that time and thinking about where are we going here in Alberta? What can we do to make Alberta, you know, how can we make Alberta better exactly for like Joe and Jane Doe, right? Like how can we make this all like, so that to me is like, I guess what's missing. I don't fault them necessarily with for talking about the business aspects. I think the reality is like Calgary is a business town, you know, like I don't, I won't pretend to speak for Edmonton, but
00:44:40
Speaker
So I get that. But I think what's missing, I guess, because because at the same time, it's also a very like, so you see, right, like, is like, you know, premiered.
00:44:47
Speaker
trots out the CEO of Synovus who says, I haven't heard anybody freaking out about investment yet. Which is the most hilarious, most tepid quote to put in support if you're like your bill, but anyways, yeah, keep going. Right, exactly. It's kind of a mugs game too because these people won't invest, these people do invest. It's kind of like you can't prove it. The counterfactuals are really hard.
00:45:10
Speaker
But I feel like there is a way here to just talk to people and be like, aren't you tired of all of this?
00:45:20
Speaker
Surely there are things. Don't we just want a government that's like actually not in the news all the time and that is just working diligently and good faith, you know, like and on that front, you know, like I don't know enough about BC politics, but like I kind of feel like that's what's going like if we want an example of what a government that's just like kind of like trying to do the like trying to govern You know and trying to solve problems. I feel like they would give it they give a pretty good example of that and
00:45:50
Speaker
You know, like, so, you know, again, just like, you know, and they had huge challenges, right? Like the, you know, again, climate change, you know, essentially wiped out huge chunks of their like major artery, major infrastructure, right? And like, but they, they got in there and they crushed it. And then they even seem to make it like a, actually a point of sort of like provincial pride. And like, I don't know about you, but I was following the, like the BC highways Twitter, um,
00:46:16
Speaker
profile. And they had, you know, it was like amazing watching this like engineering that was happening, right. And, and so I guess I just think that to me and to your point, like issues like inflation, issues like affordability, these are things that you can you can tackle issues like housing, you know, you can do that, but you can't do it if you're constantly setting your hair on fire, and raging and foaming about something that Ottawa did, like, so that so again, just, you know, and maybe that's a bit rant. But like, I just think, for me, when I think about the last four years, and when I think about
00:46:45
Speaker
the potential next four, right? It's just like, how much time will we lose if we keep electing people who are just like completely obsessed and myopic on on these like on on like three or four issues when there's so much more that we could be like addressing and doing effectively.
00:47:06
Speaker
And like, I don't want to turn this podcast into a like, here's what I think the NDP should do. One, they don't, they're not going to listen to my advice anyways. And two, it's like, I mean, at the end of the day, if you want, you can just listen to me on Twitter or lots of people on Twitter who tell you what the NDP should do.
00:47:25
Speaker
I don't think it's a very effective tactic to just be like, here's what the Chamber of Commerce thinks. You are the ostensibly social democratic party. You're supposed to represent workers. How is the sovereignty act going to affect workers? I don't think that case has been made. Maybe the conversation that we've had today has maybe laid clear why
00:47:45
Speaker
Hopefully laid clear about why, you know, regular ass people who are worried about having to go pay for their family doctor or just the what that their fucking grocery bill is about why this is important because it is it is it is a step towards dictatorship. It is a concentration of power. And, you know, it's very funny that like.
00:48:03
Speaker
Daniel Smith is mad about Ottawa exercising power that it shouldn't, and as a result, and as a reaction has instead just essentially crowned herself queen of this shadow court of Alberta that gets to pronounce on the constitutionality of federal laws.
00:48:19
Speaker
That's where we're at right now. The Alberta NDP are definitely running on what you talked about, right? Which is like, we promise to be sane. We promise to be like the Joe Biden pitch, right? We promise to not be in the news. It was essentially their pitch.
00:48:38
Speaker
Look, that's clearly what they're going with. I don't think if I was running a political campaign or a political party, that's what I would do, but again, I'm not in charge of the Albert NDP. I want to thank you for your time for coming on, Martin. I think this has been an incredibly illuminating conversation about a piece of legislation that is important, that has dominated news coverage, but I don't think has really been
00:49:01
Speaker
thoroughly understood. So thanks again for coming on. And if people want to follow along with you and the work you do, what's the best place for people to do that? Well, yeah. So I'm on the Twitter machine as well. So it's at at M-O-L-S-Z-Y-N-S. And of course, I'm at the University of Calgary.
00:49:20
Speaker
Yes, that's right. I thought about changing it to actually something more reasonable, but no, I just can't. It's part of me now. It's ingrained in my brain. And then, yeah, I'm at the law school and I get emails every once in a while, so most of them are pretty decent.
00:49:36
Speaker
So yeah. The Alberta law blog too, if you're not, if you're not following the, the, the output of the Alberta, the Alberta law blog, it's, it has a funny name that is a, that is an arrested development reference, but it is also one of the best places for legal analysis that you can get in, in Alberta. So definitely follow them as well. Yeah, that'd be great. Absolutely.
00:49:56
Speaker
Yeah, and folks, if you like this podcast, you know, if you like what we do, if you think you want to listen to more content like this, please join the 500 or so other folks who help keep this independent media project going. There will be a link in the show notes, but you can also go to progressreport.ca slash patrons, putting your credit card and contribute. We would really appreciate it. Also, if you have any notes, thoughts, comments, e-transfer donations that you would want to send my way, you can send those to Duncan K at progresselberta.ca.
00:50:24
Speaker
I'm also on Twitter as well, far too often at Dunkin' Kinney. Thank you to Jim Story for ending this podcast. Thank you to Cosmic Family Communists for our theme. Thank you for listening and goodbye.