FRASER RESEARCH BULLETIN
2020 Refining Alberta’s Equalization Gambit by Rainer Knopff
MAIN CONCLUSIONS
■ Jason Kenney’s threat to seek the removal ■ But the Court provides an alternative trig- of equalization from the constitution is designed ger for the duty to negotiate, one that applies to less to secure its stated purpose than to shine any amendment initiated in the manner pre- the beam of nationally prominent negotiations scribed by the Constitution Act, 1982—that is, by on Alberta’s broader fight against the ways in legislative resolution. which governments who benefit through fiscal federalism from Alberta’s resources obstruct the ■ An equalization resolution by Alberta’s legis- transport and sale of those resources. lative assembly would unambiguously impose the duty to negotiate. ■ Kenney rightly thinks the “duty to negotiate” declared by the Supreme Court in the 1998 Secession ■ Kenney must still hold his referendum— Reference will bring reluctant governments to the Alberta’s Constitutional Referendum Act requires table, but he wrongly relies on a provincial equaliza- one “before a resolution authorizing an amend- tion referendum to trigger that duty. ment to the Constitution of Canada is voted on by the Legislative Assembly”—but it is the resolu- ■ The Secession Reference is most plausibly— tion, not the referendum, that triggers the duty and most widely—read to give referendums the to negotiate. independent power to trigger the duty to negoti- ate only when the question concerns secession. fraserinstitute.org FRASER RESEARCH BULLETIN 1 Refining Alberta’s Equalization Gambit
Introduction
Jason Kenney’s equalization gambit—his oft- Kenney portrays Albertans as “proud to have repeated threat to seek the removal of equaliza- helped to build schools, hospitals, roads, to fund tion from the constitution—is not as outlandish pensions, health care and social programs from as his critics maintain, though it could use some coast to coast” (Kenney, 2019, Dec. 10). What is rethinking and fine tuning. The gambit seems silly manifestly unfair, what Alberta “cannot abide” in to its critics for many reasons (Breakenridge, 2019, his telling, is other governments strangling the April 2), but especially because, as Max Fawcett energy-industry goose that lays the golden eggs colourfully puts it, “Alberta cannot, on its own, of fiscal transfer. Fairness will be established compel the rest of the country to remove equal- only when governments who “want to benefit ization from the Constitution any more than it from Alberta’s resources” stop obstructing “the can compel the Toronto Maple Leafs to give all transport and sale of those resources” (Kenney, their best players to the Calgary Flames” (Fawcett, 2019, Aug. 19). 2019, Oct. 31). Why? Because amending the Constitution Act, 1982 to delete section 36, which Completing the Trans Mountain Pipeline would be commits Ottawa “to the principle of making a move toward fairness. So would ending the ban equalization payments”, requires the support of on tanker shipments from the west coast “of only Ottawa and seven provinces having “at least fifty one export product—bitumen—produced in only per cent of the population of all the provinces”. one province—Alberta” (Kenney, 2019, Dec. 10), Impossible! But Kenney knows and concedes while tanker imports of OPEC oil to the east coast this. The equalization gambit’s real objective, he continue unimpeded. Substantial modification consistently maintains, is less to pursue a quix- of what Kenney calls Ottawa’s “no more pipe- otic constitutional amendment than to “elevate” lines law” would also contribute to fairness. Only Alberta’s broader “fight for fairness to the top of if such moves do not occur in a reasonable time the national agenda” (Slade, 2018, Sept. 7). frame does Kenney intend to launch the proposed removal of equalization from the constitution. The unfairness Kenney chiefly wants to fight is This “wouldn’t guarantee a particular outcome”, he not that Alberta taxpayers contribute upwards concedes, but it would shine the beam of nation- of $20 billion a year more to the federal treas- ally prominent constitutional negotiations on ury than they receive in federal services; indeed, Alberta’s fairness claims (Clarke, 2019, March 14).
Triggering the constitutional duty to negotiate: referendums and resolutions
The problem, of course, is how to get other gov- Kenney thinks holding a provincial referendum on ernments, especially those who do not concede an equalization amendment will do the trick. In Alberta’s claims, to the negotiating table. This is the 1998 Secession Reference, the Supreme Court where rethinking and fine-tuning is needed. declared that, if a clear majority of Quebecers
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voted affirmatively on a clear question to pursue when the question concerns secession. A referen- secession, other governments would have a duty dum on senate reform or equalization will not, by to negotiate the required constitutional amend- itself, compel other governments to come to the ments in good faith (Reference re Secession of negotiating table. Quebec). This duty, Kenney maintains, is triggered whenever “provincial voters seek a constitutional At the same time, the Court sets out a non- amendment through a referendum”, not just when referendum-based trigger for the duty to nego- they seek secession (Kenney, 2018, Dec. 16). tiate that applies to any and all amendments requiring multilateral consent. This alternative This is also how the Secession Reference was trigger, which Kenney’s critics do not mention, understood by the 2001 Alberta Agenda. According is less debatable and thus harder for other gov- to that document, the Court’s 1998 judgment ernments to ignore. It provides an easy fix for obliged “the federal government and other prov- Kenney’s problem, a way to put his equalization inces” to “seriously consider a proposal for con- gambit on a more solid footing. stitutional reform endorsed by a ‘clear majority on a clear question’ in a provincial referendum” The alternative trigger appears first, at paragraph (Harper et al., 2001, April 1). The Alberta Agenda 69 of the Secession Reference, where the Court thus urged premier Klein to use “the Quebec declares that “the Constitution Act, 1982” confers Secession Reference to force Senate reform back on “each participant in Confederation” the “right onto the national agenda”. As Tom Flanagan has to initiate” amendments, adding immediately recently observed, premier Kenney’s equaliza- that this right “imposes a corresponding duty on tion gambit reprises the Alberta Agenda’s senate- the participants in Confederation to engage in reform proposal (Flanagan, 2019, Nov. 22). constitutional discussions”. Whereas the “right to initiate” is textually explicit in the constitu- The underlying claim of both proposals—that the tion, its corollary duty to discuss “is inherent duty to negotiate is triggered by referendums on in the democratic principle which is a funda- constitutional reform other than secession—has mental predicate of our system of government” been hotly disputed. Emmett Macfarlane speaks (Reference re Secession of Quebec: para. 69). for many constitutional scholars (Markusoff, 2019, April 9) when he denies “that a referendum would Note the general language of paragraph 69. force the rest of Canada to negotiate” an equal- Whenever a participant initiates an amendment ization amendment. “The rule articulated in the requiring multilateral consent, the other relevant Quebec Secession Reference”, he insists, “applies parties are obliged to discuss it. Any participant only to secession” (Macfarlane, 2019, Oct. 22). and any amendment—nothing in this formula- tion limits the duty to negotiate to a secession I have come to see both sides in this dispute amendment. But neither does this formulation about the Secession Reference as partly right say anything about referendums triggering the (hence also partly wrong)—and yes, I know this duty to negotiate. Paragraph 69 invokes the “right means I have changed my mind since I signed the to initiate” conferred by the Constitution Act, Alberta Agenda in 2001. The Court’s judgment, I 1982. The relevant provision of that Act is sec- now concede, gives referendums the independ- tion 46, which specifies that amendments requir- ent power to trigger the “duty to negotiate” only ing multilateral consent “may be initiated either fraserinstitute.org FRASER RESEARCH BULLETIN 3 Refining Alberta’s Equalization Gambit
by the Senate or the House of Commons or by And only a secession referendum can do so, add the legislative assembly of a province.” A “reso- critics of the Alberta Agenda and Jason Kenney’s lution” by any of these legislative bodies is the equalization gambit. The Court, they insist, constitutional “initiating” mechanism, and thus never confers on other referendums the power what triggers the paragraph-69 duty to negoti- to trigger negotiations that paragraph 88 gives ate (Constitution Act, 1982: ss. 38, 39, 41, 42, 43). to secession referendums. Yes it does, counters At this point in its judgment, the Court has clearly the other side, and especially in paragraph 88. It established a duty for other jurisdictions to dis- is paragraph 88 that enables a referendum “to cuss amendments initiated by the legislative force” national discussions on senate reform, resolution of any one of them, including a resolu- according to the Alberta Agenda, and that now tion proposing the deletion of equalization from supports a referendum “to remove equalization the constitution. from the Canadian Constitution” according to Wheatland County (east of Calgary) (Fieldberg, Only after this resolution-based duty to negoti- 2019, Nov. 6). ate is in place does the Court turn its attention to referendums. It begins by emphasizing their We obviously need a closer look at paragraph subordinate status in the process of constitu- 88 (divided here into three parts to facilitate tional amendment. A referendum, the Court analysis): acknowledges, “may provide a democratic meth- od of ascertaining the views of the electorate on 88 The federalism principle, in conjunc- important political questions” but, lacking any tion with the democratic principle, dictates “direct role or legal effect in our constitutional that the clear repudiation of the existing scheme”, it cannot circumvent the legislatively constitutional order and the clear expres- controlled process of constitutional amendment sion of the desire to pursue secession by (Reference re Secession of Quebec: para. 87). Far the population of a province would give rise from giving referendums an independent power to a reciprocal obligation on all parties to to trigger the duty to negotiate, this initial argu- Confederation to negotiate constitutional ment weighs against it. Without more, the gen- changes to respond to that desire. eral duty to negotiate established in paragraph 69 remains resolution based. The amendment of the Constitution begins with a political process undertaken pursu- Of course, there is more. Things change at para- ant to the Constitution itself. In Canada, the graph 88 of the judgment, where the Court initiative for constitutional amendment is announces that “the clear expression of the the responsibility of democratically elected desire to pursue secession by the population of representatives of the participants in Con- a province would give rise to a reciprocal obliga- federation. Those representatives may, of tion on all parties to Confederation to negotiate course, take their cue from a referendum, constitutional changes to respond to that desire” but in legal terms, constitution-making in (Reference re Secession of Quebec: para. 88). A Canada, as in many countries, is under- secession referendum, at least, can independently taken by the democratically elected repre- trigger the duty to negotiate. sentatives of the people. The corollary of
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a legitimate attempt by one participant in function as decidedly subordinate to the legis- Confederation to seek an amendment to the lative role. Rather than establishing a general- Constitution is an obligation on all parties to ized referendum-based duty to negotiate, the come to the negotiating table. middle portion of paragraph 88 arguably does no more than restate the resolution-based duty for The clear repudiation by the people of amendments outside the secession context (as Quebec of the existing constitutional order does a similar passage in Reference re Secession of would confer legitimacy on demands for Quebec: para. 150). secession, and place an obligation on the other provinces and the federal government Why, though, would the Court restate the to acknowledge and respect that expression resolution-based duty to negotiate in a para- of democratic will by entering into negotia- graph obviously devoted to establishing a ref- tions and conducting them in accordance erendum-based duty? Even if the opening and with the underlying constitutional principles closing sentences mention only the example of already discussed. (Reference re Secession of secession referendums, does the general prin- Quebec: para. 88) ciple they convey not apply to the whole para- graph? If so, the function of paragraph 88 is to Both the already quoted opening sentence add a referendum-based duty to negotiate to the and the concluding sentence of paragraph 88 resolution-based duty for all amendments requir- establish that a secession referendum has the ing multilateral consent. This reading underlies independent power to trigger the obligation to the Alberta Agenda’s senate-reform proposal and negotiate, but neither sentence generalizes that Jason Kenney’s equalization gambit. power to referendums outside the secession con- text. Had paragraph 88 contained only these two Alternatively, paragraph 88 shows the Court sentences, it would not enable provincial refer- going out of its way to limit the newly proclaimed endums on senate reform or equalization to force referendum-based duty to negotiate to seces- other governments to the negotiating table. sion referendums, leaving all other multilateral amendments—those discussed in the paragraph’s But the middle portion of paragraph 88 does say middle section—subject to the resolution-based in more general language—language not lim- duty. After all, paragraph 88 occurs in a part of ited to the secession context—that the “corol- the judgment sub-headed “The Operation of the lary of a legitimate attempt by one participant Constitutional Principles in the Secession Context” in Confederation to seek an amendment to the (emphasis added). The paragraph’s explicit refer- Constitution is an obligation on all parties to ences to a referendum-based duty to negotiate come to the negotiating table”. At the same time, emphasize secession referendums, as do all of the however, this part of the paragraph underlines judgment’s subsequent references to the refer- the primacy of “democratically elected repre- endum-based duty. Neither in paragraph 88 nor sentatives” in initiating amendments that trigger anywhere else in the judgment does the Court the more general duty to negotiate. True, elected plainly say that referendums on other issues of representatives “may take their cue from a ref- constitutional reform can independently trigger erendum” but the Court portrays this cueing the duty to negotiate.
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Conclusion
One need not concede victory to the secession- Kenney must still hold his referendum—Alberta’s only view of the referendum-based duty to Constitutional Referendum Act requires one negotiate, as I now do, to conclude that premier “before a resolution authorizing an amendment Kenney should refine his equalization gambit. It to the Constitution of Canada is voted on by is enough to acknowledge the plausibility of this the Legislative Assembly” (Province of Alberta, view and its widespread support in the commun- 2002)—but it is the resolution, not the referen- ity of constitutional scholars—enough plausibility dum, that triggers the duty to negotiate. To take and support to give reluctant governments an Alberta’s fight for fairness into the nationally excuse to ignore an equalization referendum. prominent forum of constitutional discussions, Kenney needs to bring reluctant governments to There is no similar excuse to ignore an equaliza- the negotiation table. Adding a legislative reso- tion resolution by Alberta’s legislative assembly. lution to the proposed referendum strength- By exercising the “right to initiate” conferred by ens his hand; it’s the better way to leverage the the Constitution Act, 1982 on “each participant Secession Reference. in Confederation”, a resolution would unambigu- ously impose the corollary duty to negotiate A referendum to “cue” the resolution that un- introduced in paragraph 69 and reiterated in ambiguously triggers the duty to negotiate—that’s paragraphs 88 and 150. Other governments could the fix for Jason Kenney’s equalization gambit. refuse this invitation to negotiate only by mani- festly ignoring the Supreme Court.
References
@EmmMacfarlane (Oct. 22, 2019, 2:48 p.m.). Kenney still operating on presumption that a referendum would force the rest of Canada to negotiate. It doesn’t. The rule articulated in the Quebec Secession reference applies only to secession. Twitter.
Breakenridge, Rob (2019, April 2). Let’s Shelve the Silly Idea of an Equalization Referendum. Calgary Herald.
Clarke, Paul (2019, March 14). UCP Leader Jason Kenney Prepared to Hold Referendum over Equalization Payments. Rocky Mountain Outlook.
Fawcett, Max (2019, Oct. 31). Why Jason Kenney’s Proposed Referendum Is So Puzzling. Maclean’s.
Fieldberg, Alesia (2019, Nov. 6). Wheatland County Passes Resolution Calling for Alberta Independence Referendum. CTV News.
Flanagan, Tom (2019, Nov. 22). The Return of the Alberta Agenda. C2C Journal.
Harper, Stephen, Tom Flanagan, Ted Morton, Rainer Knopff, Andrew Crooks, and Ken Boessenkool (2001, April 1). The Alberta Agenda. Policy Options Politiques.
Kenney, Jason (2019, Aug. 19). Equalization: Statement from Premier Kenney | Déclaration du premier ministre Jason Kenney sur la péréquation. Alberta, Goverment News.
Kenney, Jason (2019, Dec. 10). A Strong Canada Needs a Strong Alberta. Speech to the Canadian Club of Ottawa, December 9, 2019. Alberta, Goverment News.
Kenney, Jason (2018, Dec. 16). UCP Leader Promises Alberta Referendum … on Equalization Payments. Reddit, r/metacanada, u/Fudrucker.
Markusoff, Jason (2019, April 9). Jason Kenney’s Us-versus-Them Plan for Alberta. Maclean’s.
Province of Alberta (2002). Constitutional Referendum Act: Revised Statutes of Alberta 2000 Chapter C-25. Current as of January 1, 2002. Alberta Queen’s Printer.
Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 SCR 217.
Slade, Gillian (2018, Sept. 7). Kenney Says Ottawa Needs to Force Issue with Pipelines. Medicine Hat News.
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Rainer Knopff Acknowledgments Rainer Knopff, Professor Emeri- tus of Political Science at the The author wishes to thank Dennis Baker, Barry Cooper, Tom Flanagan, Mark Harding, Ted Morton, University of Calgary and Senior and Dave Snow for their comments. He also thanks Fellow with the Fraser Institute, the anonymous reviewers for their suggestions and has written widely on constitu- feedback. Any remaining errors or oversights are the tional law and politics. His books sole responsibility of the author. As the researcher include The Charter Revolution and the Court Party has worked independently, the views and conclusions and Charter Politics (both with F.L. Morton), and expressed in this paper do not necessarily reflect those of the Board of Directors of the Fraser Institute, Human Rights and Social Technology (with Tom Fla- the staff, or supporters. This publication in no way nagan). Professor Knopff has served as a researcher implies that the Fraser Institute, its directors, or staff and consultant for the House of Commons Stand- are in favour of, or oppose the passage of, any bill; or ing Committee on Justice and Human Rights, the that they support or oppose any particular political Government of Alberta, and the federal Department party or candidate. of Justice. He was also a member of the Governor General Consultation Committee and the federal About this Publication Electoral Boundaries Commission for Alberta.
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