Alberta MLA Joe Ceci looks at a sign during a 'Stay in Alberta' rally at city hall in Calgary on Saturday.Todd Korol/Reuters
Kent McNeil is Emeritus Distinguished Research Professor at York University’s Osgoode Hall Law School.
Some Albertans seem to think that separation from Canada can be achieved by a majority vote in a provincial referendum. It’s not that simple.
Canada was created in 1867 when three British colonies united and became the provinces of New Brunswick, Nova Scotia, Ontario and Quebec. They each consented to enter into Confederation, as did British Columbia, Prince Edward Island and Newfoundland, which joined later. Manitoba, Saskatchewan and Alberta, on the other hand, didn’t enter Canada. Acts of the Canadian Parliament carved them out of Rupert’s Land and the North-Western Territory, which were transferred from Britain to Canada in 1870.
After the transfer, in preparation for the settlement of the Prairies, Canada then entered into treaties with the First Nations. In what became Alberta, the first of these treaties was signed in 1874, and the last in 1899. With the exception of Treaty 7 with the Blackfoot Confederacy, they also include territory in what was to become Saskatchewan in 1905 and, in the case of Treaty 8 in 1899, extend into British Columbia and the Northwest Territories.
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In these treaties, Canada – not the province of Alberta, which did not exist until 1905 – made promises to the First Nations, including promises to respect their ways of life for as long as the sun shines and rivers flow. Since 1982, Canada’s obligations under these treaties have been recognized and affirmed by the Canadian Constitution.
Were Canada to accept Alberta’s separation, it would be reneging on these solemn promises and breaching its own Constitution. It would be accepting the division of treaty territories that cross provincial boundaries. It would be abandoning the First Nations of Alberta to the whims of a new national government, whose relations with First Nations as a provincial government have not always been positive.
Surely, the secession of Alberta would require Indigenous consent. The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) requires their “free, prior and informed consent” to measures that affect their rights. The federal government has endorsed this Declaration and Parliament has committed Canada to implementing it. British Columbia has done likewise. Alberta has not.
UNDRIP also provides that the Indigenous peoples have the right to self-determination. Albertans, as a group, do not because they are not a “people” by international law standards – they are residents of a Canadian province with a population that fluctuates as citizens and permanent residents exercise their Charter right to move in and out of the province. (This is another right that would be lost were Alberta to secede, which is just one of many reasons why Canadians more generally should have a voice in the matter.)
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From 1870 until 1905, when Alberta and Saskatchewan were created, the territory they would be carved from was administered by Ottawa, with limited authority delegated to a legislative assembly in 1888. Desiring more local autonomy, the assembly passed a resolution in 1900 calling on Sir Wilfrid Laurier’s Liberal government to grant provincial status. Frederick Haultain, the territorial premier, favoured one big province, but Laurier opted for two provinces, which is how Alberta and Saskatchewan came into being. The boundary between them was arbitrarily drawn at 110 degrees west longitude because Laurier wanted them to be about equal in size. The geographical extent of these provinces bore scant resemblance to the smaller, pre-existing territorial districts of Alberta and Saskatchewan.
All of the provinces that united to form Canada or later joined it retained their public lands, with certain exceptions, such as military lands, harbours and railways. When Alberta and Saskatchewan were created out of the federally owned North-West Territories, the federal government retained these lands, as it did when Manitoba was created in 1870. Laurier justified this on the basis that the other provinces owned these lands previously, whereas the Prairie provinces did not, reflecting the nature of their founding. Ottawa did relent in 1930, however, correcting this inequality through the Natural Resources Transfer Agreements, which transferred public lands and resources from the federal government to the Prairie provinces. These rich natural resources – effectively a gift from Ottawa – came with the obvious understanding that the Prairie provinces would remain part of this country.
The minority of Albertans who appear to think they can just walk away and take all this with them are deluding themselves. They have no unilateral right to do so under the Canadian Constitution or international law. Nor could they do so without the consent of the Indigenous peoples in Alberta. This divisive dream needs to be abandoned, so we can concentrate on the real threat to this country from the south.