by Brian Peckford

Peckford42

September 9, 2022

Anyone who thinks of the word Alberta will likely say, oh, yes, that’s an area in the western part of Canada —a Province of Canada.

I think that is how it is known now.

Constitutionally it is a Province of Canada,

There are no other Constitutions of this nature to which Alberta is a part.

The Constitution of Canada through the BNA Act defines Canada as a Federal  State composed of Provinces  and the Federal  Government and hence powers  under the Act are divided among the Provinces and the Federal Government.

Under Section 91 of the Act the powers of the Federal Government are enumerated .

Under Section 92 of the Act the powers of the Provinces are enumerated.

There are some areas that are shared jurisdiction like the Environment , Agriculture and even Fisheries and others.

Over time it has been determined and worked out how the two Governments handle this overlapping. Not always pretty but it has been accommodated or negotiated.

Alberta feels particularly aggrieved in that its oil and gas resources resources, which are under the Province , have resulted in huge revenues to the Province and there has over time been an imbalance in how much Alberta pays into the Federal Government and how much it gets back.

This has been exacerbated by the appearance over time of equalization  and other social programs with a definition / formula of equalization where some of the Provinces are have and others who are have not—those that qualify for extra equalization payments and those that do not .

In essence , the have not Provinces  through the Federal Government receive extra money to assist in maintaining reasonably the same standards across the country . And , of course , the Federal revenue comes indirectly in large measure from the have Provinces who pay more revenue into the Federal Government .

The equalization formula is negotiated among the Federal  Government and the Provinces every five years. Alberta has been unsuccessful in negotiating a new formula that would be fairer for that Province  because there are more have not Provinces  than there are have Provinces , or if equal number , some of the have Provinces are just barely have and could fall back into have not status quickly. The largest Province of Ontario( most Federal seats)   in recent times, for example , has gone from have , to have not, back to have.

And other Programs like health care which is Provincial under the Constitution have seen all the Provinces including Alberta accept federal heath transfer payments  to prop up an ever growing , expensive health care system . This is also happening in social services and higher education , both under Provincial jurisdiction .

The Federal Government , therefore , has gained over time huge bargaining  leverage when it comes  to the equalization formula and better balancing the the revenues and expenses of have and have not provinces and what is included to determine whether  you receive equalization or not. For example , are non renewable resource revenues used to too great a degree , as Alberta would see it ,in determining the equalization formula?

Over  many decades this has not been resolved and Albertans are more and more frustrated that some recognition is not given to them in how much money has been provided by then to indirectly finance even in some cases richer social programs to have not Provinces than they have themselves.

Its  a tough issue because if it was easy PM Mulroney and PM Harper for whom Alberta gave almost all their federal seats in their elections would have solved it. And both PM’s  enjoyed majority governments and big western  presence in the Cabinets of these Governments.

Danielle Smith’ s proposed Sovereignty Act  I see it is the manifestation of this frustration. Obviously, a Province cannot unilaterally usurp Federal Jurisdiction, anymore than the Federal Government can usurp unilaterally Provincial jurisdiction. And where there is a conflict it has been determined that the Federal jurisdiction prevails .

But as we have seen the Federal Government and the Provincial Governments together have done agreements that blur the traditional black and white lines of the BNA Act. The Canada Health Act is a prime example .

Another is where the Supreme Court of Canada  ruled that the Province of Newfoundland Labrador had no jurisdictional power to levy royalties from the developments of its offshore oil and gas resources and yet within months after this decision  a deal was struck  whereby that is exactly what happened and is happening today. One could say, outside the Constitutional parameters.

So short of invoking the Clarity Act involving a process of separation from Canada , Alberta must put on it bargaining shoes and with the other Provinces and the Federal Government come up with a new more flexible agreement for sharing that reflects ever changing economic and fiscal realities across the country.

I hope the Sovereignty Act action is that first bargaining chip.

Honourable A. Brian Peckford P.C.

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