Stéphane Dion: The secession process is dangerous

As the former federal minister who sponsored the Clarity Act, Alberta's path to independence is fraught with risk.

By: Stéphane Dion

While I do not have the honour of coming from Alberta, I am a Canadian, and the duty of Canadians is to care about every square inch of their country. What happens in Alberta therefore concerns me. When the premier of Ontario, Doug Ford, declared that the election of a Parti Québécois government would be a disaster, he was minding his own business as a Canadian, despite what was said in Quebec nationalist circles.

For my part, regarding Alberta, I see a multitude of reasons for why Albertans and other Canadians should stay together and not become foreigners to each other by separating through international borders. But I will stick here to the question of procedure.

The way in which some advocates for separation in Alberta envision the secession process should be of great concern to Albertans and everyone else. Unlike the vast majority of democratic states, Canada does not consider itself indivisible. The secession of a province is possible, but not unilaterally. A clear majority vote in a referendum would need to be established in favour of a clear question on secession and on that basis, the provincial government would have a democratic mandate to seek negotiations with the rest of Canada for a constitutional amendment that, if ratified, might permit secession to take place by lawful means.

The federal government and the governments of the provinces would be under a duty to come to the table to begin discussions on the potential terms and conditions of a separation agreement and with a view to amending the Canadian Constitution accordingly. There would be no legal obligation to reach a secession agreement, but the political pressure would be strong not to keep in Canada a provincial population that clearly wanted to leave.

Any terms negotiated would have to address many important issues, including the division of assets and liabilities, potential changes to the borders of the province, the rights, interests, and territorial claims of the Indigenous peoples, and the protection of minority rights. This is the procedure for a secession to be legal in Canada, as established by the Supreme Court of Canada’s opinion in 1998 and the Clarity Act enacted in 2000 by the Parliament of Canada that gives effect to the Court’s requirements.

Considering this established procedure, the current situation in Alberta raises two major uncertainties. First, in the very unlikely event that the referendum results in a majority in favor of secession, it would be the Alberta government that must first assess whether this majority is clear enough for it to invite the other partners in the federation to negotiate secession. The difficulty in the Alberta context is that no one knows what this secessionist government would be. Would it be Premier Danielle Smith’s government? Would she negotiate a secession she does not believe in? Wouldn’t committed separatists have good reasons not to trust her? Would there be a majority of secessionist members in the Legislative Assembly? Would the solution not be to hold a provincial election to see if the outcome of the vote would confirm the secessionist support indicated in the referendum? So there are many questions to which Albertans and all Canadians have the right to get answers, starting with the answers that Premier Smith herself must provide.

But suppose that this challenge is resolved and that a separatist Alberta government, supported by a separatist Legislative Assembly, requests negotiations on the basis of a clear majority for secession recognized as such by the other partners in the federation. These negotiations would be very difficult for all sorts of reasons, including notably the territorial question. Indigenous peoples have very well-founded legal claims that their territories remain within Canada. Separatist activists in Alberta are well aware of this huge difficulty. They claim they can get around it by obtaining recognition from the United States and boast that the State Department provided assurances to this effect. (In a recent Financial Times article, a spokesperson from the State Department said: “The department regularly meets with civil society types. As is typical in routine meetings such as these, no commitments were made.”)

This is where the second uncertainty arises, which is extremely worrying. If the Trump Administration were to recognize a Canadian province as an independent country against Ottawa’s wishes, few countries would follow the U.S., as such an act would be extraordinary. This would run contrary to the usual practice of states, which is not to recognize unilateral secessions outside the context of colonialism or the oppression of peoples. No state has become a member of the United Nations against the wishes of the predecessor state.

Politically, it would be unthinkable for the Government of Canada to comply with President Trump’s directive and to transfer to the secessionist government the powers that the Canadian Constitution grants to federal institutions. That would be to acknowledge that Canada is no longer a sovereign state. Above all, it would trample on the constitutional rights of Albertans, Indigenous peoples, and all Canadians.

So, to implement its recognition declaration, the Trump Administration, if it were so minded, would have to follow it up with the physical takeover of Alberta; in other words, an invasion and occupation. At that point, the outright annexation of Alberta would seem inevitable. Why would President Trump do something like seize Alberta, if not because he openly covets Canada’s abundant natural resources, including those of Alberta?

The Canadian Constitution essentially gives control of natural resources to the provinces, while the American Constitution essentially gives it to the federal government. Legislation, regulation, dividend collection — everything is essentially federal in the U.S. So, the five million residents of Alberta would have to share the benefits of their oil, gas, and other natural resources with 348 million Americans. That might be a good deal for Mr. Trump, but not for Albertans.

If Albertans then wanted to leave the U.S., they couldn’t, because the U.S. declares itself legally indivisible, an indestructible union. This was confirmed not only by the outcome of the American civil war, but also by the United States Supreme Court in the case of Texas v. White in 1868.

You can enter, but you can’t leave.

Albertans need to overwhelmingly reject such a dangerous secession plan, in addition to all the reasons why they should continue to remain proud Albertans and Canadians.

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