The Critical Compass Podcast - Bruce Pardy on the Myth of Eternal Treaties & Why Alberta Independence Needs a Blank Slate

00:00:00.000 is in flux. The Supreme Court says a successful independence referendum is a repudiation

00:00:06.480 of the existing constitutional order. Alberta is no longer part of Confederation,

00:00:12.800 and the Canadian Constitution will not apply, except for this section of this Alberta statute.

00:00:19.360 The Alberta statute is tying the hands of the Alberta government in negotiating, or will do if

00:00:27.920 we get to that stage, will tie the hands of the Alberta government according to its own laws.

00:00:33.680 I have to emphasize this. This is a self-inflicted restriction. This is not Ottawa. This is not the

00:00:41.280 Constitution. This is not the Supreme Court. This is a made-in-Alberta problem.

00:01:02.240 Welcome back, everyone, to The Critical Compass. My name is Mike, and this is my co-host James,

00:01:06.720 and we are pleased to be joined again on the show by Dr. Bruce Pardy, Executive Director at

00:01:12.640 Rights Probe and Law Professor at Queen's University in Toronto. Thank you, sir, for joining us again.

00:01:18.000 Hi, guys. Great to be with you. Thanks for having me.

00:01:20.480 Great to have you on. Since the last time we talked, we talked primarily about Alberta independence,

00:01:27.600 and it was sort of a budding movement. There was a lot of groundswell happening at the time,

00:01:35.360 and we've sort of gotten a little bit more sophisticated since then. There's been some

00:01:39.680 documents filed, there's been court action, there's been lots of things going on. So

00:01:45.440 maybe you can catch us up with kind of the latest that's going on in the Alberta courts.

00:01:51.360 Right. Well, so the reason that the court is involved is because of a section in the Citizen

00:01:58.960 Initiative Act. Now, so the Alberta government, the Alberta legislature passed this statute called the

00:02:07.440 Citizen Initiative Act. And it's a mechanism for citizens to be able to propose questions for

00:02:16.880 referendum to the government, which is great, right? It's terrific. You give more power to the people.

00:02:23.520 But in that statute, there are a number of requirements for being able to trigger this

00:02:31.040 mechanism, which is fair enough. One of those requirements is Section 2-4 of the Act. And Section

00:02:39.520 2-4 of the Act is a very strange, strange provision. It goes like this. An initiative petition proposal

00:02:51.920 must not contravene sections 1-35.1 of the Constitution Act 1982. Now, that's strange because

00:03:05.200 if you're proposing a question, and you're going to hold a referendum on that question,

00:03:10.880 the asking of the question, the making of the petition, and the holding of the referendum, those

00:03:16.480 processes are not going to violate any sections of the charter. So, sections 1-35.1, that's the charter

00:03:27.200 and Aboriginal rights. So, the holding, the making of the proposal, and the holding of the referendum

00:03:33.120 are not going to contravene any of those sections, okay? So, you think, oh, fine. In that case, there's

00:03:40.000 no problem, okay? But no, that's not necessarily the conclusion. Because when courts take provisions

00:03:50.960 and interpret them, one of the presumptions is that every provision serves a purpose. It's there for a

00:03:58.800 reason. The legislature has put that provision in there for a reason. So, the question is,

00:04:06.400 what does it mean? Now, the chief electoral officer under the statute is authorized to refer questions

00:04:14.880 to the court. And so, the chief electoral officer, you know, sees the APP proposed question, sees this

00:04:22.000 section of the statute, and says, hmm, you know, I wonder if this is okay. So, he refers that question

00:04:28.160 to the court. And the court now has the job of figuring out what this provision means and whether

00:04:35.760 or not the proposed question complies with it. So, what does this mean? It's not necessarily going to

00:04:42.800 mean nothing. And that's because of the choice of the word contravene. And so, we have to figure out,

00:04:52.400 the court is going to have to figure out, but we're trying to anticipate what the court might do

00:04:56.880 in figuring out what this section might mean. Now, note this. The section refers to just sections 1 to

00:05:06.640 35.1 of the Constitution Act, 1982. It does not refer to all the other sections in the Constitution.

00:05:16.640 So, there's something that this provision does with respect to those sections that it does not

00:05:23.440 do with the rest of the sections. Okay? Now, I want to make a basic point here. Now, we're talking

00:05:28.880 about the charter, sections 1 to 35.1. And some people think, oh, now we're talking about whether

00:05:35.120 or not the question is constitutional. Or, you know, whether or not it complies with the Federal

00:05:41.120 Clarity Act. Or whether or not it complies with the Supreme Court decision about separation. None of those

00:05:46.880 things are happening. This is a question that is contained entirely within the Alberta statute. This

00:05:53.600 is a made-in-Alberta problem. Nothing to do with the Federal Government. Nothing to do with the Constitution.

00:05:59.920 Nothing to do with whether Alberta can hold a referendum. It can. It can do that. No problem.

00:06:05.600 This is an Alberta statute. And Alberta, the Alberta legislature, under the direction of the Alberta government,

00:06:13.040 has put the section in the statute that is now an obstacle to getting the APP question approved.

00:06:22.240 And we can go further and figure out, trying to figure out, you know, what this thing might mean. But

00:06:27.200 that's the context of the problem. Yeah. So, the APP submits their question. It gets referred to the

00:06:34.560 court. Correct. The Chief Electoral Officer didn't actually, there's no decision made, and they didn't make

00:06:40.480 a judgment call on it. But they said, we want to find out if it does actually contravene sections one

00:06:48.720 through 35. Correct. Correct. And so, the fault here, if there's any fault, is not the Chief Electoral

00:06:57.440 Officer, and it's not the court. Because the statute is giving those two individuals the role that they

00:07:04.800 are carrying out. Okay? This section, let's just make this explicit. This section of the act makes

00:07:14.240 no sense. There's no reason for it to be there, and it's not clear. Okay? So, I don't know if it was a

00:07:19.600 blunder or not. As I understand it, it was added very late in the process before the bill was approved.

00:07:25.760 I don't know what the rationale was. I don't know why they chose that wording. It's not clear,

00:07:30.880 and it is causing a problem. Can you go maybe just briefly what the content of that statute is

00:07:39.200 that's causing the problem? Sure. This is the Citizen Initiative Act. So, we have,

00:07:44.800 there are two statutes in Alberta that are relevant to referendum. Okay? This is the first one. This is

00:07:50.480 the Citizen Initiative Act. This is the one that provides a mechanism for citizens to be able to

00:07:55.760 propose questions to the government to hold a referendum. The Referendum Act is the statute under

00:08:03.520 which the government will hold a referendum. Okay? And that statute has its own requirements.

00:08:11.440 And that also has a problematic section, which perhaps we can get to as well. But those two

00:08:15.360 statutes are different. The one applies to the citizens, the citizen's mechanism for making these

00:08:21.840 proposals. And the other one, the Referendum Act, applies to government referendum. Okay? And so,

00:08:29.920 right now, we're still at the early stage of having this APP question approved under the Citizen

00:08:34.720 Initiative Act, so it can go to the government in the form of a proposal, petition, and the government

00:08:39.840 can hold a referendum. So, I guess one of the questions is then,

00:08:44.960 the Alberta government can just create a referendum under its own volition. Yes. And then that is

00:08:54.320 under slightly different statutes than the Citizen Initiative Act. So, what if the Alberta government

00:09:01.200 submitted something with the identical question as the APP's proposal? Right. Would it still run into

00:09:07.680 this same kind of barrier? Or is the barrier slightly different because of the wording of the statutes?

00:09:14.880 The barrier is slightly different. And you put your thumb on a very key point, which is this.

00:09:21.040 The government of Alberta could hold an independence referendum on its own without any of this

00:09:28.000 Citizen Initiative Act any time it wanted. So, it's great to have this Citizen Initiative Act there,

00:09:35.360 but on the other hand, it's also a distraction. It makes it look as though this is a necessary process

00:09:41.440 to get into a referendum. And that is not so. The government could do this on its own any time.

00:09:47.120 It just seems to be that it does not want ownership of that process. It wants the citizens to do it

00:09:53.360 so it doesn't have to own it. So, if and when the government of Alberta decides to hold an independence

00:10:02.720 referendum, there is a section in the Referendum Act, which is also going to be a barrier. It's not

00:10:07.920 the same one. It doesn't have the same wording, but I'll read that one to you. It's not as broad,

00:10:12.800 but it is also a problem. It goes like this. This is section 8.11, subsection 3.

00:10:27.280 Nothing in a referendum held under this act is to be construed as abrogating or derogating from the

00:10:38.080 existing aboriginal and treaty rights of the aboriginal peoples of Canada that are recognized

00:10:44.720 and affirmed by section 35 of the Constitution Act 1982. That sounds like it means the government

00:10:54.400 of Alberta holds a referendum on anything, including independence. No result of that referendum

00:11:01.600 can change the status of aboriginal rights in Alberta. That sort of sounds similar to what we've

00:11:09.680 been hearing from guys like Jeff Wrath, you know, saying that, amongst other things, the treaty rights

00:11:20.000 are not because the treaty, the current treaties are, of course, they're related to the Crown. Technically,

00:11:28.560 an independence referendum doesn't actually involve the Crown. Is that an accurate thing to say?

00:11:34.240 No, I don't agree with him about this. So that point is a very different proposition than the one

00:11:39.440 I'm talking about. This that I've just read out is the Alberta statute, four corners of the Alberta

00:11:44.960 statute. If that section was not in there, then that restriction would not apply. The Alberta government

00:11:52.400 has had the Alberta legislature include that section in the act. If that section was not in there,

00:12:00.880 then as far as I'm concerned, you know, an independent Alberta could do whatever it wanted.

00:12:06.480 Like in an independent Alberta, I'm hoping that there will be no Crown. No Crown. And therefore,

00:12:13.760 no, not necessarily any deals that the Crown made. You could start with a blank slate if that's what the,

00:12:22.400 that's what the country wanted. This proposition that, oh, well, you can be a dependent, but you can't,

00:12:28.400 you can't break away from these obligations created by the British Crown. Nonsense. Absolute nonsense.

00:12:34.720 So I've bounced these ideas around with a couple of different people. And I think the way that I've

00:12:44.160 heard it described is that these treaties, essentially, if going down this path and you

00:12:51.200 have to address these treaties, either they're going to be upheld by the federal government,

00:12:56.320 they're going to be renegotiated by the Alberta, like by an Alberta government as it becomes,

00:13:04.800 as independence has moved forward. Or if they just wanted to keep doing their thing,

00:13:10.080 they would just put a fence around the reservations and that would be a pseudo state inside of Alberta,

00:13:15.120 which is not ideal, but that's currently, that seems like how it is. If nothing moves forward,

00:13:24.080 if no conversations move forward on the, on the treaty side of things, because there are current,

00:13:31.040 like there's something current that needs to be either updated or upheld based on what was there,

00:13:39.280 right? Well, so the Supreme Court of Canada in this 1988 reference case that everybody is referring to

00:13:46.640 appropriately, says that in these negotiations that would follow a successful referendum,

00:13:54.080 the interests of various groups, including Aboriginal groups, should in these negotiations be taken,

00:14:04.640 this is the language that they use, should be taken into account. Now, that's very important language.

00:14:11.920 To be taken into account does not mean that their continuation is guaranteed. To be taken into

00:14:19.680 account means you turn your mind to them. You put them on the table and the two parties decide what's

00:14:26.160 going to happen. So they are very much in flux, like everything else. Everything else is in flux. The

00:14:31.680 Supreme Court says a successful referendum, independence referendum is a repudiation of the existing

00:14:39.680 constitutional order. That's what we're after. We're after a repudiation of the existing

00:14:46.240 constitutional order. Aboriginal rights are part of the existing constitutional order.

00:14:52.400 And for my money, and I'm not the only one, an independent Alberta should start with a blank

00:14:57.680 slate. And a blank slate means no charter, no Aboriginal rights, no Canadian constitution. 0.59

00:15:04.000 You start afresh and decide how the country's going to work. And so I do not accept these arguments

00:15:12.480 that, oh, well, you know, we can be independent, but these things must are required to continue.

00:15:18.000 They are not required to continue. That's a choice. I mean, James, when you say that the federal

00:15:23.280 government might uphold the treaties, well, you know, what does that have to do with it? The federal

00:15:28.480 government can uphold them. The federal government, the Canadian government is still subject to those

00:15:34.960 obligations because that situation does not change for them. What's happening in Alberta is a complete

00:15:40.640 change. Alberta is no longer part of Confederation, and the Canadian constitution will not apply,

00:15:47.600 except for this section of this Alberta statute. The Alberta statute is tying the hands of the Alberta

00:15:56.400 government in negotiating, or will do if we get to that stage, will tie the hands of the Alberta

00:16:03.280 government according to its own laws. I have to emphasize this. This is a self-inflicted

00:16:10.480 restriction. This is not Ottawa. This is not the Constitution. This is not the Clarity Act.

00:16:16.320 This is an Alberta statute saying, Alberta government, you may not derogate from these

00:16:22.720 established constitutional rights in the Canadian constitution.

00:16:28.160 Do, to your knowledge, do other provinces have these same provisions in their provincial statutes?

00:16:34.720 Oh, not to my knowledge. Not to my knowledge, no. I mean, I don't know the full

00:16:40.960 canopy of statutes that are out there across the country, but not to my knowledge, no.

00:16:46.880 So is there, in your opinion, is there any, I guess I don't know the proper legal terminology here,

00:16:53.280 but would there be any, uh, room for interpretation in this statute to, um, say if the, if the parties agreed to,

00:17:01.760 uh, address in some way, the existing, uh, um, treaties, like if they not necessarily held to the,

00:17:11.520 the wording and the formulation of the existing treaties, but just as long as there was a, uh,

00:17:17.680 legal acknowledgement and an agreement moving forward, like, is there any wiggle room in

00:17:21.200 that or is it, does it have to be linked to a Canadian constitution?

00:17:25.280 I'm not sure I understand the question just yet.

00:17:28.800 So, uh, maybe to say a different way, um, if I'm understanding correctly, there's a,

00:17:35.680 there's a provision in Alberta legislation that is, um, seemingly inextricably linking, uh,

00:17:42.880 any further movement towards independence with a Canadian constitution that we wouldn't be

00:17:48.160 recognizing as an independent nation. Right. Right. Yes.

00:17:51.200 Now, is there any, uh, is there any play in the wording in your legal opinion of that statute

00:17:59.520 so that a, a, a person could reasonably interpret it as, well, it's not saying that we have to, uh,

00:18:05.920 proceed linked to a Canadian constitution, just that we must carry forward with the same

00:18:11.040 obligations, rights, things like this that were present in the Canadian constitution as an

00:18:15.600 independent country. Right. Well, so that's a very interesting question. So I'm going to read

00:18:21.280 the section again, and you can tell me what you think. What is the answer to the question that you

00:18:25.840 just posed? Here's the wording. Nothing in a referendum held under this act is to be construed

00:18:34.400 as abrogating or derogating from the existing aboriginal and treaty rights of the aboriginal peoples

00:18:44.880 of Canada that are recognized and affirmed by section 35 of the constitution act 1982.

00:18:53.360 So, well, I suppose just, just hearing it that way, and you know, maybe this is a,

00:18:58.240 obviously a layman's interpretation. Could you not say that if, could your response not be,

00:19:05.920 okay, uh, as part of our Alberta constitution, we adopt the exact same wording responsibilities

00:19:13.840 rights existent in the, in the constitution of Canada now, but as only applied to the new constitution

00:19:20.400 of Alberta and then it's done, then the link is severed. Oh, that's possible. That's quite possible.

00:19:26.240 That, I mean, it's, it's feasible that that, that, that action would comply with that section.

00:19:35.440 That's quite possible. But, but the question that follows, the question that follows that is,

00:19:44.960 um, so that, that question is now being decided for you. It's already being, it's all effectively

00:19:52.240 already been decided. But so, so what the statute is saying is to all, all, all the Albertans who

00:19:59.200 might vote in this referendum, sorry, you are not allowed to express an opinion about whether

00:20:07.520 aboriginal rights as they presently exist are going to continue in Alberta. They are.

00:20:11.760 Right. Right. Right. So we're, uh, here, here's one question. Um, and maybe this is more of a,

00:20:20.800 the timeline of it. Um, does that exclude any part of the negotiations from reframing those questions?

00:20:31.840 Because the referendum itself is one thing, the negotiations, that's another, that's down the line.

00:20:40.000 That's downstream from negotiation. So it depends on, this is where like looking at the whole process

00:20:50.000 versus these little, these isolated slices. I feel like sometimes it's hard to know how much,

00:20:58.080 how much the tone is set from one stage to the next and how much is brought over. Um, but essentially

00:21:08.160 I'm wondering, as long as let's say, if it's just the APP's question, um, do you agree that Alberta

00:21:14.800 should become a sovereign country and cease to be a province in Canada? Yep. Um, nothing there actually,

00:21:22.720 again, says anything specifically about breaking treaties. Right. That, that question is still

00:21:30.400 left over. So it's not, it's not actually in violation of that yet because that's left to the

00:21:38.160 negotiations. Right. Um, so is it, is it actually hamstringing that, that referendum to the degree that

00:21:48.160 like, well, well, let's just, let's just play this out though. I get, I get your question and it is

00:21:53.920 logical and it is one of the arguments that the APP is making in the court process to say, look,

00:22:01.680 the posing of the question is not contravening the charter or Aboriginal rights. That's not possible.

00:22:09.200 So everything is fine. And so let's say, let's say the question is approved on that basis. And then you

00:22:16.800 have a referendum held by the government and an independence referendum. And let's say they use

00:22:22.000 the same question. And, and that question also doesn't contravene the section of the referendum

00:22:29.920 act that I just read out. Cause it's just nothing about Aboriginal rights. So you have the question

00:22:35.120 approved, you hold the referendum, the referendum passes, you get into negotiations. And let's say at

00:22:40.960 that stage, Alberta says, right, we're going to wipe out the charter, start again with something else.

00:22:46.800 We're going to remove Aboriginal rights, start again with something else. And, and people turn 1.00

00:22:52.240 around and say, but hold on, the question was approved on the basis that you couldn't contravene

00:22:58.000 the charter and Aboriginal rights. And the referendum proceeded on the basis that you, nothing, nothing 0.99

00:23:02.480 that we were voting on could abrogate from Aboriginal rights. Right? So what you've done now is you've

00:23:08.640 undermined the legitimacy of your negotiating position. Right? If you just ignore those two sections and say,

00:23:16.000 well, this is not the stage where that's relevant. It's not possible at the stage of proposing a

00:23:20.800 question to, to, to, to contravene the charter. And it's not possible at the stage of holding a

00:23:26.720 referendum to derogate from Aboriginal rights. Well, therefore the, the, these sections don't mean

00:23:31.840 anything and sections mean something, right? The court is not likely to say, ah, don't worry about it.

00:23:40.080 The section doesn't mean anything. Let's just carry on. Okay. The court is going to look for

00:23:45.920 what is the section supposed to be doing? And, and so one, so one of the, one of the possibilities is

00:23:55.520 that the section is supposed to be restricting the question to amend, you know, it's all back a step.

00:24:03.680 This citizen initiative act lists three different kinds of proposals, policy proposals, legislative

00:24:10.640 proposals and constitutional proposals. Okay. So if you're doing a constitutional proposal, which is

00:24:17.280 what the AP question is doing, you are proposing to amend the constitution. And that's the question

00:24:24.160 that you're asking, whether it's full blown independence or whether you're, you know, suggesting

00:24:28.720 to amend some other, you know, small piece of it. What does the section mean? What's it, what is it

00:24:37.520 trying to do? What was its purpose? And one of the possible answers is it's trying to restrict

00:24:44.640 questions that propose to amend those parts of the constitution. You can amend any part of the

00:24:50.880 constitution you want, but not those, right? Those are non-negotiable. In other words,

00:24:58.080 you can propose to amend the division of powers between the province and the federal government

00:25:02.320 because that's in section 91 and 92, but you can't propose to do away with free speech

00:25:09.200 and you can't propose to do it with Aboriginal rights because those are listed in the section.

00:25:14.160 That's one of the most likely conclusions that the court is going to come to because the section's

00:25:18.320 got to mean something. Would, would you, um, I don't know if you would know off the top of your head,

00:25:26.160 like what, what the process might be for amending the referendum act in itself to modify or remove that

00:25:33.760 clause. Not in, not in a way of saying, no, now you can, you can remove Aboriginal rights, but rather you just,

00:25:41.920 you unlink the requirements to be, you just unlink the requirements. You know what I'm asking?

00:25:50.000 This is exactly the case I'm trying to make that the Alberta government, number one,

00:25:56.640 those two provisions shouldn't be there. And number two, to get around them,

00:26:02.560 the Alberta government needs to repeal them. Those sections, not the statutes, just those sections.

00:26:07.520 Right. Do they have the power to do that without? Of course they do. Easily, easily,

00:26:12.000 because they have a majority in the legislature. They can do it fairly easily because they just

00:26:17.920 did that by putting the amendments into the statute in the first place. Right. So this is a real

00:26:25.280 inflection point, if you like, or a test. They can get rid of those sections. If they choose not to,

00:26:31.600 it's because they don't want to. Okay. So, and sorry, James, I'm sort of stacking questions,

00:26:39.600 but I'm on a, I'm on a thing here. I'm on a, I'm on a train. I got to go with this. Um,

00:26:44.560 is it, would it be fair to say that if you were maybe in the mind of Danielle Smith, you would be

00:26:51.440 looking at it in a, in a context of, well, uh, we're going to lose more. We're going to lose the,

00:26:58.880 the public argument. We're going to lose the support of the public if we are seen to be

00:27:04.000 amending this because it's going to be twisted into a anti indigenous argument. And so what they're

00:27:10.400 hoping is let's just do the referendum. Let's hopefully get that passed. And then we can figure

00:27:16.400 out constitutionally how we have to figure out this subsection. I, that could well be,

00:27:22.240 I would not be surprised if that was part of the reasoning at all, but, but they're setting

00:27:28.080 themselves up for a problem, right? So let's say, let's say, you know, you hold the referendum and

00:27:32.800 the referendum passes and you're now thinking of negotiations with the federal government.

00:27:37.440 And the Supreme court has said, this is a political negotiation rather than a, you know,

00:27:42.000 strictly legal one, but you're at the table and at the table, you say, right, well, you know,

00:27:47.760 we're going to do away with Aboriginal rights. Okay. What's the response going to be? It's like, 0.97

00:27:52.320 hold on your own law says that that will not be one of the results of the referendum.

00:28:00.880 So our position is that you are obliged to carry on the regime that exists in the Canadian constitution.

00:28:07.920 Right. I mean, and that's a good response. Like how come now you can,

00:28:13.680 you can change the goalposts that you set up yourself. We did not impose these goalposts on you.

00:28:19.280 You did it yourself. You held a referendum. You are now endangering the legitimacy of your own question

00:28:27.200 because you have, you're now proposing essentially to, to breach your own statute.

00:28:34.800 And once you're on, once you're there, it's going to be very, I mean, if you're scared

00:28:39.840 of repealing the section now, why would it be any different when you got to the negotiating table

00:28:47.840 and you have to say out loud, we are going to end Aboriginal rights. Okay. That's that, 0.99

00:28:55.680 that sounds very unlikely to me. In other words, the question about Aboriginal rights, I think,

00:29:00.880 I think needs to be confronted now. Hmm. So it does seem like it is a game of chess

00:29:10.480 where each one of these moves, there's, there's no like simple, oh, we just do this one move and

00:29:18.480 everything works out. There's like, it's muddy along the way. Things are going to be contested.

00:29:25.280 Um, we're going to have disagreements and there's different interpretations as well. And so the,

00:29:33.120 this is also the stress test of, if you're going to build a nation, you have to go through these

00:29:38.880 growing pains. This is part of the process. If it was easy, then everyone would do it.

00:29:46.000 And these, you know, and these could be quite minor in the scheme of things. You know,

00:29:50.080 we haven't even gotten to the stage of the, of those interests that oppose the whole project of

00:29:55.360 being, you know, in the game yet. This is the irony about this, this court process and so on.

00:29:59.920 As I said earlier, this is all self-inflicted. This is all made in Alberta. The federal government's

00:30:06.400 not even involved yet. There haven't been any objections to the process yet from, from that quarter.

00:30:11.120 So, so this is just the beginning.

00:30:15.760 So, um, I've two, two points. I, I, it does sound like the, from kind of what I've heard from the APP,

00:30:26.320 it almost seems like the way that they would phrase it or they would propose or frame the situation is

00:30:33.200 that, um, if anything was to change with treaty rights within Alberta, they would say they can

00:30:42.400 be upheld with your existing cause they are currently existing within Canada. And again,

00:30:50.880 let's listen, let's, we've both, we've all seen the brief that the APP has submitted to,

00:30:58.480 you know, with respect to the court hearing, let's just read what they say on this question. Okay.

00:31:05.360 Okay. This is a section, uh, paragraph 143, 144. Should Alberta lawfully pursue independence in the future,

00:31:18.960 the obligations arising from these treaties, that is Aboriginal treaties would continue to exist

00:31:26.400 under both domestic and international law. Just as Britain imposed binding obligations on Canada,

00:31:36.240 Canada in turn can impose such obligations on Alberta in favor of Indigenous peoples.

00:31:45.360 These obligations are tied to the crown itself, not the provincial government, and are not diminished

00:31:54.560 by constitutional or political change under the Constitution of Canada. Accordingly,

00:32:00.000 treaty rights will remain their full legal status, whether held by Canada or a future independent

00:32:11.120 Alberta. That is the APP position, according to its brief.

00:32:17.040 So that makes me, that's, that's the key thing is if they're not upheld by, there, there is the part of

00:32:27.520 Canada imposing, but it's, does that mean that they're upheld by Canada or the Alberta government? So could there

00:32:35.920 be a situation where you say like, if you want your reservations to be up, like these treaty rights in

00:32:45.360 these reservations to be upheld, would that just be facilitated by the, by Canada federal government?

00:32:51.680 And, and, and you draw out, like you have a fence around the reservation and it exists as that pseudo state. Like, this is where some of this language is like, well,

00:33:00.720 it again, it's possible, right? I mean, it's not practical, but it's possible. It's theoretically

00:33:10.000 possible, right? So let's just say that's, that's where they get to. So, you know, the reserves, reserve

00:33:17.600 land is going to continue to be Canadian territory. And the people who are on that territory are going to

00:33:23.760 continue to be Canadian citizens. And it's going to be a, you know, pieces of little pieces of land

00:33:28.720 inside the territory of Alberta, and there's going to be border borders and border checks at the entrance

00:33:35.920 to every reserve, because those people don't belong to the same country. You have passport checks. I 0.69

00:33:41.520 mean, that, sure. You're not saying it's ideal. No, no, it's not ideal. Some of these things.

00:33:46.480 It's very unlikely. And so, but the, but the alternative that's being cited there is that the, that Alberta

00:33:55.600 is required to take on the obligations that the Canadian crown holds. Okay. Don't agree.

00:34:06.800 It makes it sound actually even like, I don't know, maybe I wasn't, you need to get deeper. I need to get

00:34:12.800 deeper into the wording, but it makes it sound almost like that even the, even the, the bands that are

00:34:19.600 subject to those or that are the subject of those treaties, it makes it sound like even they don't

00:34:24.240 necessarily have the, the power to amend them. I don't know. I don't know about that. Yeah.

00:34:34.400 But you would think that they would have the ultimate authority on it, or, you know, that's

00:34:38.080 how, at least how it's being presented that they, this is why it would be an issue in the first place,

00:34:42.800 but. Right. But, but so, but I think it's important to, to articulate why, from the point of view of

00:34:50.160 those of us who think that this has to end, why that is so. It's because people should not be

00:34:59.200 treated by the law as members of groups. They should be treated as individuals. And so,

00:35:04.640 as long as we are thinking of people as members of groups, that is, you know, this group can negotiate

00:35:09.840 with this group. And if they negotiate together that this is going to be the resolution, well,

00:35:14.320 then, okay, no, that is embracing the problem. The problem is treating people as members of groups.

00:35:22.640 The fact of the matter is that if you are in a country, a free country ruled by the rule of law,

00:35:29.200 then the law applies equally to everybody. And we don't count genes or lineage or ancestors or

00:35:34.640 histories or group belongings. We are all people. And this group negotiation thing is

00:35:43.280 not appropriate. Yeah. It's a non-starter, at least from, from,

00:35:47.920 from a first principle standpoint anyway. Yes. Um, but I would, I guess I would ask, um,

00:35:54.800 you know, there are like, we can see, you know, in any, any neutral objective observer can see

00:36:01.520 that the treaties do not actually provide much of value to a modern day indigenous person on a

00:36:07.600 reservation. In fact, they may actually act as an, an, an, an impediment, uh, to their flourishing.

00:36:13.920 Yeah. Now for the, and, and a lot of, uh, indigenous people would agree with that.

00:36:18.960 Yes. Uh, but for the, for the, maybe the, the band leaders or the, the chiefs or, or people in the

00:36:26.160 reservations who do seem to have some sort of, uh, remaining, uh, loyalty or allegiance to Canada

00:36:33.840 in general, what would your sales, what would your elevator pitch be to somebody like that to sell them

00:36:39.760 on an independent Alberta? But you see, but you've put your finger right on it. That's exactly the

00:36:44.800 situation that there is going to be a constituency of Aboriginal people whose interests are consistent

00:36:51.920 with the status quo because, and, and of course it varies from community to community, but, but, but

00:37:01.360 there, there, there, there is a community of Aboriginal elites that control because this is a communal

00:37:07.040 thing and because the money comes in, you know, communally, the people who control the, the, the

00:37:13.840 territory and the money are in positions of power. And I don't know if there's a pitch you can make to

00:37:19.680 persuade them that they ought to give that up. I'm not sure that would work, but that's not the point.

00:37:24.080 The point is, is, is it the most important point is the first point you made, which is,

00:37:28.400 this is not in the interest of the, of the ordinary rank and file apparitional person.

00:37:34.000 Yeah. They'd be much better off to, to, to escape this bad situation that's bad for all of us,

00:37:40.160 except those individuals that happened to profit from it.

00:37:43.200 That's going to be a constant threat. It's going to come up in different forms, this battle. Well,

00:37:53.040 as soon as you have entrenched interests in any part of a system, um, there's almost a immune system

00:37:59.840 that you are, you're fighting against in different ways. Let it be unions popping up and unions doing

00:38:06.400 what unions do. And I'm still waiting for the union to protect people against the union.

00:38:11.600 Right. Right. Right. There you go.

00:38:15.360 James, you're a hundred percent right. But this is what I mean when I say,

00:38:21.200 Alberta needs to escape the Canada that is outside Alberta, but it also needs to purge the Canada that 0.97

00:38:26.320 is inside Alberta. You know, the Canadian systems that exist inside Alberta are systems of vested

00:38:31.680 interests. And this is going to be the hardest fight. I mean, you think your major fight is going

00:38:36.960 to be with Ottawa and that's not going to be easy, but the main, but the most difficult fight is going

00:38:41.920 to be inside Alberta between Albertans, between those who want a fresh start and those who want to

00:38:47.520 maintain their status in the old order. And part of that is convincing, convincing people

00:38:55.120 that are, they, they view the system in a current way. And some of those are still moderates. They still

00:39:02.160 have trust in some of these systems. And a lot of the Alberta independent supporters view those,

00:39:09.200 um, those systems or the unions or the, any of these on any level, they, they seek to reform that

00:39:15.760 or seek to build it from the ground up to prevent corruption. And I, I've had conversations with friends

00:39:25.360 and family that they look at one area and they think that there's corruption and they think like,

00:39:30.880 well, yeah, we can't trust these people because they're corrupt. And then you ask them, well,

00:39:36.640 what enables that corruption? What's preventing anybody else from any, wearing any other colored 0.98

00:39:42.240 shirt from being corrupt in that same position. And just because that person wears a different colored

00:39:48.080 shirt than you votes a different way, like you're against them in this form, but you're not like,

00:39:54.000 what would it be different if the tables were like, if, if everything was flipped and we, we talk

00:40:02.160 like my, Mike and I, we, we were talking right after the Alberta next panel, when you had NDP hecklers

00:40:09.520 and you had everybody upset over that. And nobody seemed to be voting for increasing Alberta sovereignty.

00:40:15.600 And I can kind of understand that because right now there are liberals in power at a federal level

00:40:23.920 and these evil conservatives, the UCP, that they can direct all their anger towards on a provincial

00:40:29.760 level. But I was really curious on would they have the same position at a principal level if the

00:40:37.600 conservatives were in for the last 10 years at a federal level and you had NDP with a

00:40:44.560 five or 10 year rule in Alberta currently, would they now think that more, um, more autonomy,

00:40:53.360 more sovereignty at a provincial level is a good thing?

00:40:56.240 Right.

00:40:56.640 So is this, do they care about those principles or they, is it more that they're fighting against

00:41:03.120 those that they perceive bad? And if that's the case, you still have to frame it in the way of,

00:41:10.800 well, rather than just directing it towards this group, bad, that group, bad, can we look at what

00:41:18.160 system enables these groups to become corrupt and have these kind of, uh, have these negative effects

00:41:25.680 of that group being in power? Cause you, you, you don't want your enemies to have the power of that.

00:41:31.520 Sure. It feels great when your, your guys are in power and they can pass something and shift things

00:41:36.800 for your benefit. But if somebody else gets in now you're screwed and, and this is what we need to

00:41:43.600 remind people of. 0.73

00:41:44.400 Exactly. It's exactly right. It's a very, it's a good way to articulate the test about whether your

00:41:49.280 system works to protect you. If you, if you, if your system is in place and you assume that the people

00:41:57.040 who occupy the powerful positions are your opponents and the thing still works,

00:42:03.760 then you got something. If not, it doesn't work yet.

00:42:09.040 Are you, uh, uh, Bruce, are you familiar with the, uh, gel man amnesia effect? You heard this

00:42:16.560 term? I don't, I don't think so. It's, uh, it's named after a physicist named Murray gel man,

00:42:21.840 gel hyphen man. It was coined by Michael Crichton. Oh yeah. Michael Crichton. And he says, um,

00:42:27.600 he says, uh, it's, it's the gel man amnesia effect. And he says, it's, um, you read a newspaper

00:42:33.120 article about a topic that you happen to be familiar with. You have to, oh yes, I've heard

00:42:37.280 of this. Carry on, carry on. Yes. Go on. Yeah. And so, and so you read it and you see that,

00:42:42.000 you know, not only has the author completely gotten it wrong, they don't have the actual,

00:42:45.920 any knowledge on the subject, but they're so ill informed on it. They've actually reversed cause and

00:42:50.480 effect. Right. And then you read that and you, and you, you, you acknowledge that and you turn

00:42:55.600 the page and then you read an article on Israel, Palestine, and you assume that author knows exactly

00:43:00.080 what they're talking about. That's right. You, you, you immediately forget the lesson you just

00:43:04.080 learned. Yes, exactly. Yeah. And that seems to be like, like James was pointing out, uh,

00:43:08.480 a, a very serious problem that we're going to have to overcome. Right. I agree. Yeah. Well,

00:43:14.400 maybe we can, uh, uh, transfer that into another serious problem that we're going to have to

00:43:19.920 overcome in the form of, uh, Thomas Lukasik. Right. And, uh, he, uh, he maybe somewhat

00:43:27.120 ironically just had his, uh, his own, uh, referendum question approved, which he's now

00:43:33.440 saying wasn't really a referendum question, but, um, it appears that, uh, maybe legally it

00:43:39.200 have to be considered a referendum question. Do you have, um, maybe any insight, any opinion on,

00:43:44.400 on, on the forever Canada, uh, contingent? Yeah, right. Well, this is also, you know,

00:43:53.760 strange stuff, but if I understand correctly, that proposal was framed as a policy proposal,

00:44:00.400 even though it sounds like the reverse of the APP independence question, it was framed as a policy

00:44:08.240 proposal for a referendum. And so what policy is it then? Well, the, the policy of the policy of

00:44:16.720 like not doing anything, like just leave things where they are. Right. Right. But of course,

00:44:21.600 if you held that referendum and the answer turns out to be, no, we do not want to stay in Canada.

00:44:28.400 Well, then the question is, well, what are the implications of that? Does that serve

00:44:32.000 as an independence referendum in the same way that the other question would serve if the answer was

00:44:40.080 yes? And right. But so, but this, but the, but this, this sort of question and controversy

00:44:47.120 underlines where we started, which is the Alberta government can hold an independence referendum

00:44:55.040 anytime it wants. And it can choose the question as it wishes, right? It doesn't have to fool around

00:45:00.640 with this. It doesn't have to say, oh, well, we have this, you know, stay question. We're going to,

00:45:05.680 we're going to use that, uh, you know, to hold a referendum. And then maybe we're going to hold,

00:45:10.080 you know, use that, like, you don't, you don't have to play this game. You can choose to do it

00:45:15.040 yourself with a proper question. And that's why I'm a, I'm a little bit cynical about, about all this

00:45:21.680 playing around with that. It seems like maybe it's not actually, well,

00:45:27.440 the forever Canada was meant to, and it's been stated like in public, they've mentioned that

00:45:36.160 it is meant to combat the APP's question. It's meant to be a deterrent because they want,

00:45:42.720 they want to stay in Canada and that's the purpose. So it's already a, not a good faith

00:45:49.840 exploration. It's not a good faith use of a petition, but they did mark it down that they want

00:45:55.680 a referendum and then they walked that back. So on the petition, it's marked with that. So,

00:46:01.280 again, not a genuine, if they're able to change their mind on there, but what it almost seems like

00:46:07.920 is that the UCP might just look at that and like, okay, well, they collected signatures. We, that was

00:46:15.120 meant for referendum. And then we have this other group, we have large interests on both sides. We're

00:46:20.080 going to frame, we're going to create a question that is clear in alignment with the 1998 Supreme

00:46:26.400 Court ruling. And here's our question to satisfy both, both parties and we'll, we'll sort it out,

00:46:32.880 let the people decide and whatever answer is. Sure. The result is the result.

00:46:38.480 But back, but back to this main point though. So if the government chose to go ahead and hold a

00:46:45.600 referendum, which it is entitled to do, it doesn't matter how many signatures you get,

00:46:51.600 you don't have to do a petition. You don't have to do this. You don't have to do any of this.

00:46:57.280 These, the number of signatures and the mechanism in the Citizen Initiative Act is only there for the

00:47:04.000 purpose of establishing a mechanism for a citizen to lay a proposal before the government.

00:47:09.200 If the government wants to do this, it can just do it. No signatures required. There's the government.

00:47:18.160 They can hold a referendum. One more thought on the petition though.

00:47:21.920 Uh, sorry to interrupt. Is that a interest gauging mechanism potentially? Like,

00:47:28.480 well, sure. But it's other than like, yeah, other than the Alberta next panels, but those are

00:47:34.320 snapshots. Well, sure. But that's the rationale for the, for the signatures required under the act.

00:47:39.440 Yeah. If there is a large enough movement, um, you should be able to get the signatures and that,

00:47:46.640 that is a proxy for the democratic will needed for. Okay. But so, but the, but the, probably the

00:47:55.840 rationale in the act for requiring signatures is so that the government doesn't get, you know,

00:48:01.200 hundreds and are thousands of proposals coming in for referendum question. You have to show that

00:48:06.640 there's at least a degree of interest in the question before you're allowed to access this

00:48:11.200 mechanism. Right. But, but the government still can do what it wants. It, and surely it has the

00:48:17.520 wherewithal to gauge the, the, the interest and support for this kind of a question for a referendum.

00:48:25.280 I mean, what, what is sort of happening is that the, the government is, I don't know,

00:48:31.440 seems to be pretending to hide behind this citizen initiative act process to say, oh, well, you know,

00:48:37.120 these two things are on the go. Well, let's see what happens. Let's see if these get the right

00:48:41.440 signatures and maybe, you know, maybe one of them will, will come to us and we'll, maybe we'll have

00:48:45.600 to use it as a, you don't need any of that. If you don't want it, you can just go and hold your

00:48:52.640 own referendum under the referendum act. Now, uh, forgive me if this is a silly question, but,

00:48:58.720 uh, presumably even if, uh, even if the provincial government just decided to, to call their own

00:49:05.760 referendum with no citizen initiative act involved, they would still be, if it were a, if it were a

00:49:12.560 past referendum, let's say for Alberta sovereignty, uh, they would still be hamstrung by section 8.11,

00:49:19.600 correct? 8.11. Yes. Correct. They would be. Okay. Okay. Yes. Yes. That's why it needs to be

00:49:26.720 repealed. Okay. This is a way around it from a, you know, if you avoid the citizen referendum

00:49:32.480 and it's called by the government, then you can bypass or there's nothing like that.

00:49:35.760 No, this is a section, um, designed by the Alberta government passed by the Alberta legislature to tie

00:49:44.800 the hands of the Alberta government. Yeah. Right. Why are you doing that?

00:49:54.400 This was written in the eighties. You said originally that this subsection. Oh, no, no,

00:49:58.160 I don't actually, I don't know. I don't know when it was written. The, the, the section two,

00:50:02.000 four section two, four of the citizen initiative act was, was put in, in, in the most recent, uh,

00:50:07.520 allotment, apparently very late in the process. I actually haven't looked at when the,

00:50:12.320 that the referendum act, uh, section was, was put in place. I was assuming it was fairly recent,

00:50:16.800 but I don't know. Hmm. Yeah. It seems like, um, part of this is that the UCP didn't run

00:50:27.200 exclusively as an independence party. So that that's a little bit different than maybe you, some of the,

00:50:32.960 the, some of like how Quebec's political landscape evolved, they have more outspoken independence.

00:50:43.040 Yes. Um, politicians. Yes.

00:50:45.520 And so maybe you don't get this kind of tight rope walking in the same sense that Alberta,

00:50:53.040 the UCP is doing right now. And I can see, again, you have in, you have self-interest and you have

00:51:02.640 the preservation of self-interest. Yep.

00:51:04.800 And I, I feel like this is almost the, uh, maybe a good analogy is like, um,

00:51:14.800 it's like women will often choose the guy who's already made it in life in the way like, oh, he's 0.60

00:51:21.760 got all this money. He's done great. Like when they know for sure it's, it's like a solid deal.

00:51:27.360 And they're like, yeah, you put in all this hard work and like, look at where he's at now.

00:51:31.360 Now you want to know where the parade is going before you get to the front of it.

00:51:36.480 Yeah. So I, uh, it's not surprising that they would type rope or they would walk this type rope,

00:51:43.280 but still like the Alberta next panels kind of still feed into it. It's also still kind of gauging

00:51:50.720 the temperature. It could also still be used. I've wondered if the Alberta government, because all this

00:51:58.560 again gets down to politics and the image and you've got to maintain, like you're fighting against,

00:52:05.520 uh, messaging and narratives and all this. And I, I feel like the Alberta next panel could be used

00:52:13.120 as another justification and or evidence in conjunction with, um, maybe they're waiting,

00:52:20.720 uh, with these demands that they sent to Ottawa saying, okay, we gave some clear demands of things that,

00:52:26.800 that Ottawa can do. And they didn't do those things.

00:52:29.920 Nope.

00:52:30.400 And then we had these Alberta next panels and here, here's the result that we got from those.

00:52:36.320 And they're all tell like we have the recordings, we have them, we have multiple pieces of evidence.

00:52:42.640 Now we're going to proceed with this. So I don't know if they were just trying to

00:52:49.280 like, maybe they're just trying to keep Alberta in Canada, or maybe it's a, uh, it's more strategic

00:52:58.640 in the sense that they want to be careful before over, like before jumping ahead.

00:53:03.360 Well, you said Bruce, you said last time we talked, like, I remember asking you, you know, what your,

00:53:10.960 what your general read on Danielle Smith was, if you kind of got the vibe that she would,

00:53:15.360 this would be something that she was interested in. And I think you kind of without saying it

00:53:19.200 explicitly, you sort of, you thought that she was, she was more complex than maybe she's letting on.

00:53:25.360 Is that still your opinion a few months later?

00:53:27.280 I can't, I think so. I can't really tell, but I think that would be consistent with what James

00:53:32.880 just described. I think that's quite accurate. It's a, it's a trying to gauge, you know,

00:53:41.200 where the solid ground is without showing your hand. Um, you know, maybe it's 3d chess, but I,

00:53:50.240 you know, I, I, I'm not sure about that. I, my perception from afar is that she's surrounded by

00:53:59.440 people who have very different views on this. And there's probably a lot of battles going on

00:54:04.400 behind the scenes. I just to guess on my part, but I wouldn't be surprised. Um, but, but a lot of the

00:54:10.800 activity really is a distraction. I mean, these Alberta next stuff. So you, you know, you send a letter to,

00:54:18.960 to prime minister Carney, you say, here are your nine things that we need to see.

00:54:23.680 Those things don't happen. You do Alberta next panels that talk about, you know,

00:54:28.240 provincial police and provincial pension plans and so on, all of which are already within provincial

00:54:33.600 jurisdiction and you can do it now if you want to. So that's not about independence.

00:54:40.240 And I've heard that there, you know, there might be conceivably a referendum,

00:54:44.880 a government referendum put forward on these various, you know, related Alberta next issues.

00:54:50.800 Okay. And we all know that is not an independence referendum that does not comply with the clarity

00:54:55.920 act or the Supreme court reference. So, you know, all of that, if, if all, if all of that comes to be,

00:55:02.080 if all of that is true, you know, that is avoiding the independence question.

00:55:11.840 Yeah. As like a, um, sort of a bandaid sort of solution. Like, look, we, we couldn't go all

00:55:16.560 the way, but here you got this, you got the APP, you got the provincial police. Yeah. Yeah.

00:55:22.080 Yeah. You got, you got Ottawa off your back a little bit.

00:55:24.560 Yeah. Consolation prize. And, and actually you haven't really,

00:55:26.800 you haven't really gotten Ottawa off your back at all. All you've done is take back those things,

00:55:31.600 which you were always able to do anyway. Yeah. I wonder if there's, there's an aspect of it where

00:55:37.040 it's, um, uh, maybe a bit educational as well as like, uh, you know, uh, a temperature check,

00:55:42.880 it's maybe more of an educational piece to have like, Hey, listen, you know, this is,

00:55:46.480 we're not inventing this, like this concept of, you know, we actually do have this within our

00:55:50.640 jurisdiction. Just the, the political literacy of the average Albertan and the average Canadian

00:55:55.600 is so low that we need to put these things in the public consciousness before we can even begin to

00:56:00.720 have a new conversation about it. I don't disagree. That makes sense. But here's the way you could do

00:56:06.960 that. You could be clear about it and say a provincial police force is within our jurisdiction.

00:56:14.320 We just haven't done it until now. Should we do it now? Like, okay, that's clear as a bell.

00:56:19.280 I can't. No, no fussing around. Let's not pretend there's a boogeyman out there in Ottawa

00:56:24.320 preventing us from, you know, insisting upon our provincial jurisdiction. Nobody is doing that.

00:56:30.240 Nobody is saying, even people in Ottawa is saying, Oh no, Alberta, you're not allowed to do that.

00:56:35.520 That's not happening. Okay. This is a boogeyman. It's a, it's a, it's a, it's a false opponent.

00:56:41.440 They've got coupled together with other Ottawa problems because there are some things that are

00:56:46.480 Oh, listen, don't get blocked from Ottawa, but including it in the next Alberta next panel

00:56:54.480 kind of shifts it to in the same territory is like, this is an Alberta problem that we have to fix.

00:57:00.240 So I don't know if this is the calculation and don't get me wrong. There are some huge,

00:57:05.680 real problems emanating from Ottawa. No, no question about that. But by mixing them in,

00:57:12.320 in an unclear way, I mean, maybe the calculation is, well, you know, we can, we can end up here with,

00:57:20.160 you know, a decision to do our own police force and to do our own pension plan. And it will look like

00:57:26.480 we've had two victories. Okay. Those are not victories. Yeah. You are always able to do that.

00:57:33.440 No one is saying otherwise. And your real problems are, have not budged one bit.

00:57:42.320 Um, would it be your, okay. So maybe, maybe to put it in a nutshell here. So it, are you,

00:57:53.360 are you saying that before we even start to really consider like laying the groundwork for when the

00:58:00.480 referendum is going to happen? Is it your opinion that the, the, uh, uh, Alberta government needs to

00:58:06.640 essentially just sit down, suck it up and say, we are repealing these sections that are standing in

00:58:14.080 our way, you know, we'll take the, the public backlash as necessary and deal with it so that

00:58:20.400 we can proceed with a clean referendum and have, and not have this hanging off our backs. Yes.

00:58:25.760 There's no reason the likelihood of that is no reason not likelihood. Well, I, you, you might be

00:58:34.400 right politically, but this is, this is one of the litmus tests along the way, right? You have these two

00:58:39.520 sections, one in each act that are simply obstacles to, to a clear question. They're, they're a complication

00:58:48.160 you don't need. Well, why have them in there? It's a litmus test. If the government, the Alberta

00:58:53.040 government is not willing to get rid of these two sections, that, that is telling you something.

00:59:00.720 So in a couple of weeks, uh, depends when this episode actually full episode gets out. So, uh,

00:59:07.760 maybe a week from now, but when the, the APP's submission gets reviewed and the court's going to

00:59:14.880 make a decision, um, I almost see that there's like three possible ways it could go. They could say that,

00:59:22.080 okay, your question is unconstitutional and you cannot proceed. Well, not, not unconstitutional though.

00:59:27.280 No, not unconstitutional. It's invalid based on, yeah, sorry. Right. It would be,

00:59:33.920 yeah, it would contravene therefore be invalid. So they might say your question's invalid.

00:59:38.560 Let's say it would be, it would be inconsistent with that section of the statute.

00:59:42.160 Yeah. Okay. Um, or they might say everything's good. Your, your arguments were solid and you,

00:59:51.680 you clearly laid it out and we did the, yeah, we, we did the double check. Right. Or there could be

00:59:57.040 somewhere in the middle where they say you can proceed, but with these constraints. Right.

01:00:01.520 And until we see what of those that, what kind of results we get, um, we're not quite sure yet.

01:00:09.760 Uh, like that might also give us a little prediction of the answer on this would also give

01:00:16.960 us an idea of the section. What is it? 811? 8.11. Yeah. 8.11 as well. Uh, if the Alberta government

01:00:27.680 submits something partially, this is down to interpretation. And if they're leaning in that

01:00:33.600 way on the interpretation, it's possible, but, but keep in mind though, that the section two,

01:00:41.120 four in the citizens initiative act is, is, is much less clear than the section in the referendum

01:00:48.720 act 8, 8.11 that, that section in 8.11 is, is actually pretty explicit.

01:00:55.040 Yeah. So yeah, the, I guess then moving forward again, with it being a chess match and you've got

01:01:10.000 all these moving pieces, we have one component, which is just getting the, getting the democratic

01:01:16.560 will. So just having these conversations, uh, spreading the word, getting people thinking

01:01:22.480 about these things partially because, um, even I, I try to balance out optimism with pessimism because

01:01:31.360 yes, these kind of roadblocks when identified. Yeah. Almost paint the case for the need for

01:01:38.400 independence. Yeah. On the way of you're like, you're, you're seeing these entrenched bureaucracy

01:01:44.720 fight this in real time. And you're like, okay, well we need to fix this. Right. And the more it pushes

01:01:50.640 back, the more you're seeing, it will help convince people as well. So I think it's good that we're

01:01:56.320 having these conversations. Um, the, uh, gotta balance out the black pills because they're,

01:02:05.200 I know sometimes these hurdles come up and people, uh, when people are burnt out from COVID they're

01:02:11.120 burnt out from the election and they see these things as a very much defeatist. Um, and I, I know you

01:02:16.640 treat these things kind of more through an academic, you're, you're looking at first principles and

01:02:21.120 you're saying like, given this, that, and these other principles, how might this interfere? I did

01:02:27.920 see you got a little bit of pushback with your article. Um, but that was right when the like APP

01:02:34.480 was still working on their submission and, um, there's still some unknowns. So it's,

01:02:41.600 and of course, you know, it's, it's actually very difficult to predict what a court is going to do.

01:02:49.920 So nobody, including me knows exactly what's going to transpire. Um, and, and the job that the APP

01:02:57.920 has been given in this court process is, is unnecessary and unfair. I mean, this, this, as I said,

01:03:05.520 this section shouldn't exist. And to try to argue about, you know, why it doesn't mean this and it

01:03:11.120 means this instead is given the wording is very difficult for them to do. So, uh, I mean, I hope

01:03:17.280 it goes well. I, I, I would, I would like to see a different result than I expect.

01:03:22.960 That's what I was going to ask you. I was going to ask what you're, uh,

01:03:26.240 like what you're, if you had to make a prediction, well, I was going to ask you two things.

01:03:30.320 I was going to say, cause I kind of think I know the answer, what your prediction is

01:03:34.560 for how this, uh, what the court is going to say. And then a follow-up question, uh, to maybe

01:03:42.160 just to be respectful of your time. Cause we've had you for over an hour now,

01:03:45.120 what would be some, uh, parting thoughts of positivity for the movement that you can

01:03:51.680 inject into this otherwise very, uh, academic and maybe a little bit bummer of a conversation?

01:03:56.240 Oh, sorry. What was the first part of the question? Well, what you're, what you anticipate

01:04:03.360 the court's response to be, and then, and then follow up of what, what the hopeful response would

01:04:08.960 be. Right. Okay. So, so the, the amicus brief in the hearing, which I would, which I've read,

01:04:15.680 I mean, and the, and the individuals who are the friends of the court

01:04:19.440 have a much different perspective on independence than, than, than, than we do, than I do.

01:04:23.360 I disagree with them about the desirability of independence completely, but their legal

01:04:30.160 argument that the way they set it out in the brief does make some logical legal sense.

01:04:35.840 They're making the case that, that this section actually does prevent

01:04:45.440 the proposing of questions that would have the result of doing away with the charter and

01:04:50.800 Aboriginal rights, probably because it's very difficult to think of anything else it can mean.

01:04:58.400 And so that's, that's, that's a possibility. It's a good possibility.

01:05:02.880 The other possibility is, uh, James, as I think you said earlier, is that, that the court will say,

01:05:09.200 well, okay, it can go ahead, but it has certain strings attached, which is that the results of the

01:05:15.120 referendum, if it comes to pass, cannot result in getting rid of the charter or Aboriginal rights.

01:05:22.480 And the third possibility, again, James, as you mentioned, is that the court will just say,

01:05:26.320 you know, listen, don't worry about it, go ahead. But that would require the court to, to conclude

01:05:31.040 essentially that the, that the section doesn't mean anything. Yeah. And, and I don't, it's possible,

01:05:37.760 possible, anything is possible, but I don't think that's likely.

01:05:41.760 But maybe not mean anything. Maybe they clarify what contravenes in what context, like potential

01:05:52.000 versus actual, like, could you, could you imagine a question that would directly contravene at that

01:05:58.960 moment versus the potential? Because then you, again, you're fighting this thing of if, if this

01:06:05.600 contravenes, then why didn't the forever Canada contravene with the potential of the no answer,

01:06:11.920 right? Having downstream effects. Possibly, but let's, but let's play this game differently.

01:06:17.120 Okay. Let's put it this way. Can either of you think of a question

01:06:26.000 that would contravene section two, four in a way that the APP proposed question does not?

01:06:32.880 Not without sounding racist.

01:06:38.400 Well, sound racist.

01:06:40.080 No, no. Like I could, I could maybe try to like frame a very, like a very deliberate.

01:06:45.840 But, but, but you can be as outrageous as you want because we're dealing with hypotheticals.

01:06:50.800 We're trying to imagine the kind of thing that the court might be inclined to conclude that that

01:06:55.200 was the, you know, that the section is designed to prevent, right? So we put it, put it generically

01:07:00.800 this way. You know, section two, four was designed to prevent the outrageously, uh, unconstitutional

01:07:07.600 proposal going forward that, that does, that does X. Okay. What is X?

01:07:12.080 That Alberta can only be, uh, you can only live in Alberta if your family lineage goes back four

01:07:22.480 generations, something like that.

01:07:23.600 Okay. Okay. But good. In, in this sense, that's a good example of a question that would be outrageous.

01:07:31.120 But if that's a constitutional proposal, then what it means is that it would be proposing

01:07:38.480 an amendment to the constitution that would allow that result. So for example, that, you know,

01:07:44.720 one of the sections that would have to amend or repeal is section 15, one, you know, equal application

01:07:51.440 of the law. Okay. If that is ruled to be in violation of section two, four,

01:08:01.120 then so is the APP question because the question that you've identified proposing to, you know,

01:08:09.680 generations is proposing an amendment to the constitution. That's all, that's all it's doing.

01:08:15.200 It's a question. The, the posing of the question doesn't, doesn't contravene the charter. It is the

01:08:21.760 making of the question that is the target of the section. Well, that's right. And then if, if the,

01:08:27.760 if the result is that the court sets a precedence, that it's, uh, it's invalid to propose a question

01:08:34.400 that can modify the constitution, then well then, but then you just can't ever, you can't ever do

01:08:42.080 anything. No, no, not true. Not true. Not true. Because this section, section two, four refers only

01:08:50.960 to the charter and aboriginal rights. If you want to make a constitutional proposal about any other

01:08:56.320 aspect of the constitution, you're free to do. That's fair game. Right. Oh, okay. Okay. So I,

01:09:05.200 Mike, we have to, we might have to like on our own, uh, dive into some of the history. I'm curious on like

01:09:12.000 what role either special interests, like as these things unfold and if something's added in late in

01:09:21.040 the process, they're like, well, we were consulting with this and this group and they, they wanted to

01:09:26.960 be recognized and they wanted this and you get these things added in. Sometimes it's an appeasement.

01:09:32.880 And then sometimes it's just also written in again, just to prevent something from actually

01:09:41.760 invoking change. So you have it sounding like you have power on the outside and then you go

01:09:46.160 down to the weeds and there are things that can be weaponized to prevent a specific result,

01:09:54.480 open to interpretation. And it's hard to know when that interpretation will be,

01:09:59.280 when it will go one way. So. So if I can put labels on those alternatives,

01:10:04.800 James, you're, you're, you're saying that the section could be an appeasement.

01:10:10.560 It could be a blunder or it could be a poison pill. And we don't know which of those things it is.

01:10:18.000 Sure. Be good to know. Wouldn't it? Yeah. Well, I guess we'll, uh, we might get a little

01:10:23.440 bit more information in the next, uh, yeah, let's do some digging into that. But Dr. Pardee,

01:10:28.400 I have to say you didn't answer at all. The second part of my question of leaving

01:10:32.240 us with some positivity to the end of the, remind me, remind me what the part two was.

01:10:38.320 Well, just give us a, give us a little bit of hope here, man. Like what's the,

01:10:42.400 what are we, what do we have to look forward to?

01:10:45.680 Well, what is, but isn't there a UCP general meeting soon?

01:10:50.240 There is. There very much is.

01:10:51.680 I'm, I'm, I'm hoping that enough Albertans who are seized with these concerns will have

01:10:59.760 the wherewithal to say, look, we are your people. We want a referendum. We want one on independence.

01:11:06.000 You know, I, you know, get with us. We, we want you to lead us, please lead us. And the first thing

01:11:12.560 you have to do is get rid of these two sections. There's no reason not to, if you get enough people

01:11:17.040 who say that, then, then maybe you'll, you'll get a good result.

01:11:21.600 Well, currently 3,500 confirmed coming to the AGM. And I think it's larger than last year.

01:11:32.400 And then, yeah, we'll, we'll have to dive into what things are, are being voted on or like what board,

01:11:39.360 board seats are up and what things that can be like, if you support independence,

01:11:46.240 what things at the AGM do we have that, uh, that control over that, that influence. Um,

01:11:55.040 so yeah, it'll be an, an interesting, it'll be an interesting one because it's a different tone

01:12:01.120 set from last year. Okay. Here, here, here's, here's your good news. Here's the good perspective.

01:12:07.200 Remember, this is happening nowhere else in the country. Okay. No matter the obstacles,

01:12:15.520 this is still the best shot anywhere. It's the best shot for Alberta is the best shot for Canada.

01:12:21.360 It's the best shot for all of us. And these are the, these kinds of difficulties are going to come

01:12:26.240 up and they're going to be more. That's okay because it comes with the territory. This is just,

01:12:31.360 these are just bumps in the road. So carry on.

01:12:34.080 That's perfect. That's perfect. That's perfect message. I think to, to wrap her up on here,

01:12:39.360 Dr. Party, uh, was there, I, I, I've been trying to ask this now at the end of interviews,

01:12:45.200 was there anything that we didn't ask you or didn't talk about that you wish we would have?

01:12:49.200 Dr. Well, sure. But you don't, you don't have another hour, dude.

01:12:54.080 Dr. Well, I don't think you have another hour, but we certainly have, uh, another, uh, uh, you're,

01:12:59.920 you're always welcome on the show. We, we really, really appreciate this. Um, you're, uh, you're a

01:13:04.960 really important voice in this movement. Um, and, uh, and yeah, you're like James said, you know,

01:13:10.800 you're the way that you approach this from an academic and first principle standpoint is so,

01:13:15.440 so valuable in a, uh, discussion that can be so emotionally charged. Uh, it's very,

01:13:20.560 very important to have voices like yours. So we really appreciate it. Um, where can, uh,

01:13:25.440 our viewers, uh, if they want to learn more about you or, or see what you're up to, what can they,

01:13:28.960 where can they go? Right. Great. Thank you for the question. Um, the rights probe site is

01:13:34.560 rightsprobe.org. All our material is, is there. I also have my own, uh, sub stack. They can sign

01:13:40.000 up for free and they can follow me on Twitter or I guess X at a party Bruce.

01:13:45.680 Perfect. Thank you very much for having me guys. Appreciate it. Yeah. Great to have you on.

01:13:50.640 Yeah. Cheers. Talk to you soon.

The Critical Compass Podcast - November 09, 2025

Bruce Pardy on the Myth of Eternal Treaties & Why Alberta Independence Needs a Blank Slate

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