A Legal Pathway to Alberta Independence
By Michael Wagner
In August 1998 the Supreme Court of Canada inadvertently created a pathway for Alberta independence. In the Reference Re Secession of Quebec decision, the court established that the federal government was required to negotiate with Quebec if a clear majority of citizens voted for separation on a clear question. Before this time, the federal government had argued it had no obligation to negotiate the breakup of Canada, even if a majority of Quebecers voted for separation. The court decision changed that.
In its decision, the court stated that, “A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize.” Furthermore, it continued, “The other provinces and the federal government would have no basis to deny the right of the government of Quebec to pursue secession should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others.”
With this ruling, the court opened a legal pathway for provincial independence for the first time. Prof. Ted Morton, a constitutional expert at the University of Calgary, noted the significance of this decision: “Here, for the first time ever, the Supreme Court has created (it certainly can’t be found anywhere in the text of the Constitution) a constitutional ‘right to pursue secession.’” He added, “As of August 1998, Quebec now has, in writing, a ‘constitutional right’ to pursue secession and Canada has a ‘constitutional duty to negotiate.’”
Although this decision specifically involved Quebec, the other provinces necessarily receive the same rights. The Constitution encompasses all of the provinces, and the line of legal argumentation therefore establishes principles that apply to all the provinces generally, not just Quebec.
In response to this Supreme Court decision, the federal government passed the Clarity Act in 2000. The purpose of the Clarity Act is to provide the legislative framework to implement the principles provided by the court. Essentially, it states that the House of Commons would determine if the referendum question was clear enough, and also if the majority was large enough, to justify negotiations towards secession.
While the Clarity Act recognizes the binding authority of the Reference Re Secession of Quebec decision, it nevertheless also appears to add hurdles to the process for separation. Some scholars, especially in Quebec, have criticized it for this reason.
Nevertheless, those hurdles cannot effectively block a legitimate effort towards provincial independence. As Patrick Dumberry, a law professor at the University of Ottawa, has noted, “to the extent that a referendum would result in the clear expression by the people of Quebec of their will to secede from Canada, the unwillingness of the federal government to undertake negotiations, or even the interdiction to do so under the Clarity Act, would not prevent Quebec from eventually becoming an independent State.”
According to Dumberry, the democratic will of a populace expressed through a referendum takes precedence over any significant obstacles that the federal government may use to block an attempt at secession. In short, if a clear majority of voters in one province supported a clear question on secession from Canada, the federal government would have a hard time blocking that province from seceding.
Currently there is some support for separation among Albertans but not enough to constitute a majority. However, if a large majority could be convinced that independence was desirable, a referendum demonstrating that support would be a necessary step that could legally result in Alberta’s independence. A referendum for independence is worth pursuing because a mandate for secession cannot ultimately be blocked by the federal government.
Dumberry, Patrick. 2006. “Lessons learned from the Quebec Secession Reference before the Supreme Court of Canada.” In Secession: International Law Perspectives. Edited by Marcelo G. Kohen. Cambridge, UK: Cambridge University Press.
Morton, Ted. 1999. “Liberal Party Wins, Canada Loses.” In The Quebec Decision: Perspectives on the Supreme Court Ruling on Secession. Edited by David Schneiderman. Toronto: James Lorimer & Company Ltd.
Reference re Secession of Quebec,  2 S.C.R. 217.