Danielle Smith’s constitutional dumpster fire
Twenty years ago, she had an argument to make. Why isn’t she making it instead of playing footsie with Trump-affiliated separatists?
The first time I met Danielle Smith was in a downtown Montreal hotel, over twenty years ago. We were at a libertarian conference and what I remember most is her nails — always perfect, have you noticed? — clicking when she talked with her hands. The second thing I remember is the sense of grievance. Quebec, she felt, was treated differently than Alberta by the federal government, and the unfairness of it clearly rankled. Which is not completely inaccurate but it’s still wrong.
There is a fair amount of sympathy for Western alienation if you approach it honestly. The equalization formula is imperfect. Federal energy policy has squeezed Alberta. The sense that Ottawa makes decisions affecting the West without much concern for what the West thinks is not a paranoid fantasy. A Conservative prime minister from Alberta, Stephen Harper, recognized the Québécois as a nation within a united Canada. That was a significant thing to acknowledge, and it didn’t come with an equivalent gesture toward anyone west of Ontario.
But how you define a legitimate grievance matters a great deal. And the leap from “we are sometimes treated unfairly” to “we have a right to leave the country any way we want” is not a logical one. It is an emotional tantrum by people who are jealous of the attention others receive.
Danielle Smith says she is not a separatist. She says she wants a sovereign Alberta within a united Canada, which is a sentence that collapses on itself if you think about it for more than thirty seconds. (It doesn’t work in the Quebec context either, as comedian Yvon Deschamps mocked so perfectly well — inside joke for the francophones in my audience.) What she has actually done, since becoming premier, is bend over backward to make life easy for people who very much are separatists. She has been playing footsie with a movement she claims to oppose, and now she is discovering what footsie leads to.
A few days ago Justice Shaina Leonard of the Court of King’s Bench quashed the Stay Free Alberta petition, the one that claimed over 300,000 signatures and was aimed at putting a sovereignty question on the October ballot. The ruling sided with the Athabasca Chipewyan First Nation and the Blackfoot Confederacy, finding that the government had failed in its duty to consult First Nations before setting the province on a path that would substantially affect Indigenous treaty rights.
This should surprise no one who was paying attention in 1995.
When Jacques Parizeau held his referendum on Quebec sovereignty, the Crees of northern Quebec organized their own vote. Grand Chief Matthew Coon Come’s Council issued a paper called Sovereign Injustice making the case for Cree self-determination — specifically, their right not to be transferred from one country to another without their consent. On October 24, a week before the province-wide vote, the Crees held a separate referendum and over 96% of them voted to stay within Canada. (If you’re keen on this part of our national history, the federal government published an excellent primer on Aboriginal rights and Quebec separatism shortly after the last referendum.)
The separatists said Quebec’s territorial integrity was inviolable. They always do. The courts said otherwise, and three years later the Supreme Court of Canada made it official in the 1998 Secession reference, one of the most important constitutional rulings in this country’s history. The Court said that secession is not simply a matter of a majority voting yes. It requires a clear question, a clear majority, and — crucially — a good-faith negotiation with all affected parties, including Indigenous peoples whose rights precede the province itself. The Clarity Act in 2000 turned that framework into statute. And more recently, Canada enacted the United Nations Declaration on the Rights of Indigenous Peoples Act, which recognizes the importance of upholding the rights of Indigenous peoples to be participants in decisions that affect them and their territories.
None of this is obscure magic. It’s settled law.
Calling judicial decisions that are consistent with this framework anti-democratic, as Danielle Smith just did, is like complaining that the rules of soccer are unfair because you can’t use your hands. The rules exist because the game requires them. A political process that allows a simple majority to strip treaty rights from Indigenous peoples, sever millions from their country, and hand Alberta’s oil reserves to whatever arrangement the separatists have been quietly negotiating in Donald Trump’s Washington is not democracy. That is the opposite of it.
Sure, the semi-literate corner of the movement will call Justice Leonard a Liberal plant and declare the courts illegitimate and go back to twitter to recruit more volunteers to either run a referendum campaign or take down the premier. Danielle Smith knows this. She built this. She lowered the threshold, changed the rules, and let the petition run, and now she is facing a choice that has no good exit: call the referendum herself and own what she has enabled, appeal the ruling and buy time while the separatists sharpen their knives, or finally, clearly, unambiguously say the thing she has refused to say for three years.
She knows what happened to Jason Kenney.
I remember the woman with the clicking nails in Montreal who was genuinely angry about something real. That person had a legitimate argument to make. The argument was: we in the West are not being heard in Ottawa, and you need to hear us. That is a democratic argument. It can be made inside a federation. It has been made inside federations, successfully, for as long as federations have existed.
What is being made in Alberta right now is a different argument. It is: we will burn it down if we don’t get what we want. And the premier who let that argument take root, who watered it and tended it and never quite repudiated it, is now standing in front of what she grew, wondering how it got so large.
She knows exactly how.