Western Standard - FILDEBRANDT： Legal pathway to Alberta independence？

00:00:00.000 I'm sitting down today with Alberta lawyer Jeffrey Rath.

00:00:29.680 Jeffrey Rath is one of the leaders in the Alberta independence movement, and he has been in court quite a bit over the years as regards citizens initiative petitions to launch a referendum.

00:00:42.260 As many or most of you know, the initial attempts to have a citizens-initiated referendum on Alberta independence with a clear question was disallowed by two court decisions or injunctions from Indigenous groups who were able to block it on the very strange grounds that they had not yet been consulted.

00:01:03.480 but how are we supposed to consult indigenous groups on independence if we haven't yet decided

00:01:10.280 as a body politic in Alberta that we want to pursue independence it's it's messy and it's fraught

00:01:15.680 as a result we have a very strange and more convoluted question that's going to go to

00:01:21.960 Albertans on October 19th essentially asking Albertans in a referendum if they want to have

00:01:26.760 another referendum that would be binding in the future on independence it's a mess and I want to

00:01:33.120 make a bit of sense with it so I've got Jeffrey Rath with us in studio today here downtown Calgary

00:01:39.000 thanks for joining us Jeff yeah well thanks for having me on Derek so you're a lawyer I'm not so

00:01:44.900 I get a bit of a handicap for perhaps being a maybe a prison study on this issue but

00:01:49.480 I want to hear your side about why you don't think it's necessary to word the referendum

00:01:58.320 this way, essentially a referendum to hold a future referendum. You argue, if I understand

00:02:05.240 correctly, that the two injunctions that were placed against counting or verifying the Citizens

00:02:12.920 Initiative referendum petition, that those injunctions would not stop it somehow.

00:02:19.800 Well, just to be clear, the first, you know, there was an injunction, but it was, you know,

00:02:24.200 it was very temporary. The second decision of Justice Leonard actually quashed the decision

00:02:29.400 of the electoral officer to allow the petition in the first place, right, which leads to some

00:02:35.540 very convoluted reasoning, which is now the subject of not one but two appeals to the Alberta

00:02:39.780 Court of Appeal, one by Mitch Sylvester and one by the government of Alberta. The first decision

00:02:45.680 of Justice Feesby's, again, was not an injunction, but it was a decision that in effect said that

00:02:52.240 the referendum question being proposed by Mitch Sylvester was not allowable under the wording

00:03:01.980 of the Citizens Initiative Act at the time, Section 2, sub 4, which, you know, had some,

00:03:09.860 you know, strange wording about, you know, the impact of a proposal, you know, on the Constitution.

00:03:17.040 And of course, what Justice Feasby did with the aid of two very left wing, you know, amicus curiae that had been hand selected by Elections Alberta to come and argue against Mitch Sylvester's question going forward said, oh, you have to look at the absolute end result of the process, specifically that it would lead to, you know, the independence of Alberta from Canada.

00:03:40.720 And by definition, that's unconstitutional. Of course, what Justice Feasby refused to acknowledge

00:03:46.560 is that by definition, that would require an amendment to the Constitution of Canada.

00:03:51.460 And by definition, any legal amendment to the Constitution of Canada is not constitutional.

00:03:58.040 It's constitutional and lawful, right? So, you know, Justice Feasby's decision to start off with

00:04:03.640 was based on a faulty legal premise and faulty legal reasoning, right? And even in Feasby's

00:04:10.140 decision itself at paragraph 247 that says, this case has not decided that First Nations have a

00:04:16.800 veto over Alberta independence, nor has it considered whether or at what stage of the

00:04:22.200 referendum process Alberta might have a duty to consult with First Nations. Treaty rights,

00:04:27.780 and this is, again, we say that strictly speaking wrong on the part of Justice Feasby,

00:04:32.180 would be contravened by Alberta independence, but whether such contraventions must be justified

00:04:38.240 or might be justified has not been considered because that's not required under section

00:04:43.180 two sub four of the citizens initiative act right and then he goes on to say which is really

00:04:48.540 interesting because this paragraph we put it directly to justice leonard in her case

00:04:52.740 completely ignored by her this is another ground of appeal justice fees be said nothing in this

00:04:58.480 decision should be understood to mean that the constitution cannot be amended or that alberta

00:05:04.220 cannot hold a referendum on separation. The decision only stands for the proposition that

00:05:09.420 Alberta and the CIA did not give citizens the power to initiate a referendum question

00:05:15.180 on the independence from Canada. And of course, Feesby said directly in his decision,

00:05:20.480 as did Justice Leonard, that it was completely open to Premier Smith to call Mitch Sylvester's

00:05:27.880 question under section one of the referendum act just not permissible for a process under the

00:05:34.460 citizens initiative act to lead to that same result i mean it's very convoluted legal reasoning we say

00:05:40.620 it's wrong and that's why we're going to the court of appeal but that's what we're dealing with and

00:05:45.180 of course what both of these judges also completely ignored right was and gee we were brought up in

00:05:52.280 Canada under, you know, what we understood as lawyers to be what's called, you know,

00:05:56.760 the system of common law, legal precedent, stare decisis, where you have binding precedent in

00:06:03.500 Canada. Well, the leading case, the binding precedent in Canada on independence referendums

00:06:09.640 comes directly from the Supreme Court of Canada in the secession reference, which both of those

00:06:15.360 learned justices completely ignored in the context of their decisions, because the Supreme Court

00:06:22.180 in that case, in the secession reference, stated clearly that no one's rights are at issue

00:06:29.540 in a referendum on independence or on secession. And they said that the reason that no one's rights

00:06:36.300 are at issue is that a referendum on independence, including a yes vote, is merely consultative.

00:06:43.540 And even a yes vote on independence, where it happened in Quebec, does not affect the

00:06:48.500 Constitution does not affect anybody's constitutional rights, and that constitutional

00:06:53.240 rights themselves are not engaged until all of the provinces, the government of Canada,

00:06:59.640 and according to Section 35.1 of the Constitution Act, the First Nations of Alberta and Canada

00:07:06.960 are invited to a constitutional table under Section 35.1 to have this consultation with

00:07:15.260 First Nations over the devolution of federal power to the provinces under section 35.1 of

00:07:21.620 the Constitution Act. So we'll circle back to actually where I was pursuing on the original

00:07:26.080 question. I want to actually follow down this rabbit hole first while we're on it. Well, I just

00:07:30.100 wanted to give you the legal case. Yeah. The way I understood this was that this federal court in

00:07:37.040 Alberta, was in a sense ruling against the secession reference case of the Supreme Court.

00:07:45.740 And law courts can't rule against higher courts, but in this case, it seemed like the secession

00:07:52.300 reference case talked about clear questions, clear majority. These things were reflected

00:07:56.760 at least somewhat in the Clarity Act that came after. We talk a lot more about the Clarity Act

00:08:01.700 rather than the secession reference, but it came from the secession reference.

00:08:07.040 So, you know, the Supreme Court in the secession reference said we have to have a clear majority on a clear question, and then that starts a duty from Ottawa and the other provinces to negotiate as if this was essentially a super constitutional amendment, more or less.

00:08:22.040 But then this ruling seemed to ignore that, saying like, no, you can't have a clear question. It doesn't matter if you get a clear majority on a clear question, you're just more or less not allowed to do that.

00:08:32.360 that's how i'm understanding it how did you did you see it as essentially the lower court

00:08:37.000 ruling against the higher court absolutely absolutely and of course i even told justice

00:08:41.600 feasby when we were in front of him the first time because i was citing um the secession

00:08:45.660 reference and saying look whether you like it or not you're bound by it and i jokingly in court

00:08:49.820 said i hope i don't have to cite master fundac to you on the principles of stare decisis and

00:08:55.060 justice feasby laughed nobody else in the courtroom about the joke but the joke is we had a master in

00:08:58.960 alberta years ago who did not like a higher court decision in alberta and of course masters at that

00:09:04.320 time they're they now call the motions judges but masters at that time were the lowest level

00:09:07.960 of the uh you know of the federally appointed judiciary in alberta and he you know he went

00:09:12.740 on to a great explanation of the system of stare decisis and he says you know it's a system of

00:09:16.820 precedent in effect the higher courts you know by by uh virtue of their precedence within the system

00:09:23.500 set the rules for the you know the lower courts um in effect we have a pecking order and little

00:09:29.520 peckers can't tell big peckers what to do i swear to god that's written into a court decision in

00:09:34.700 the province of albert word for word i'm sure no we are exactly that it was exactly that so for

00:09:40.200 years law students and lawyers we'd all laugh at one another and laugh with one another and say

00:09:44.060 well i hope i don't have to cite fun duck on story decisis so but that's effectively what

00:09:49.140 happened. We have both, we have two justices of the court of King's bench for, I say, political

00:09:53.680 reasons, rendering political judgments, not legal decisions, right, have decided to ignore the

00:09:59.820 Supreme Court of Canada, where the Supreme Court in the secession reference says that no legal

00:10:05.440 rights are impacted by a referendum on independence. And that becomes important in the context of

00:10:10.740 consultation law, because there's not a right at law for First Nations people to be consulted.

00:10:15.880 I mean, I pioneered all of this law. I argued these cases at the Supreme Court of Canada. I developed this law, right? I know it better than probably, you know, 99.9% of the lawyers in this country. You don't have an obligation to consult as a government unless a right is going to be potentially infringed.

00:10:32.880 infringed. Well, if the Supreme Court itself says that rights are not engaged even by a yes vote

00:10:40.100 in a referendum, therefore there's no rights infringement and there's no obligation to consult.

00:10:46.780 So Justice Leonard, you know, we obviously made those submissions clear as day to Justice Leonard,

00:10:51.560 both in writing and orally in court. She completely ignored the law to find this weird,

00:10:58.040 amorphous ongoing duty to consult whether a right was engaged or not because we said to her tell us

00:11:04.760 what right is infringed right to hunt trap fish or even take the broadest right under treaty eight

00:11:10.380 the right to carry on your modent way of life throughout the track surrendered as if you never

00:11:14.100 entered into treaty by a bunch of Albertans putting their signatures on a piece of paper

00:11:18.000 to tell the government how they feel about whether a question should be asked right we both agree

00:11:23.440 that these were bad decisions and that there's a very good chance that this gets overturned on

00:11:29.080 appeal to higher courts. It would go directly to the Supreme Court at this level, right?

00:11:32.620 No, no, we're off to the Alberta Court of Appeal. And in fact, I'm in the Alberta Court of Appeal

00:11:36.840 next Thursday, the 18th. We're applying for a stay of Justice Leonard's decision

00:11:42.360 so that the signatures of 301,620 Albertans can be counted by Elections Alberta and have that

00:11:49.680 result transmitted to the attorney general as per the statute okay but we're in agreement that

00:11:54.140 these were pretty at best flimsy decisions uh that more or less we have to consult before

00:11:59.940 verifying signatures bizarre stuff our position is that yeah the decision the the the justice

00:12:05.540 leonard's decision is legally indefensible so that then raises the point that regardless of what

00:12:12.880 reasoning was given in there they've already made too bad there was the the temporary injunction and

00:12:18.540 then the bigger injunction they've already justice leonard's already demonstrated that this is the

00:12:24.780 way he's going to rule um she's she's going to she's going to roll um that then raises i think

00:12:32.000 the very real prospect that if if if she's already made these bad decisions that you know if if say

00:12:37.920 the premier smith had put uh the original alberta prosperity project question the clear more concise

00:12:43.800 question the clarity act compliant question yes yeah that if that had been put uh as a government

00:12:49.160 referendum uh question rather than a citizen's initiative uh question it likely would have got

00:12:54.920 struck down to on some other grounds that it just would have faced endless uh endless injunctions

00:13:00.920 and we never would have actually got to a question in well you know that would be that would be

00:13:05.560 dependent on whether or not another politically motivated judge was appointed to the to the to

00:13:10.360 the case right I mean there's lots of you know here for me there are lots of good judges in the

00:13:15.340 province of Alberta there's a lot of justices on the you know on the courts that I have you know

00:13:19.960 an inordinate amount of respect for and you know in fact I think Justice Feesby is a phenomenal

00:13:24.640 justice I have him on other cases but you know on this because it's so emotional and people are so

00:13:30.200 you know concerned about Alberta leaving Canada and they're just it's such a fraught issue for

00:13:35.700 them. I just don't think people can think clearly when it comes to these issues. But even that,

00:13:40.580 you know, that being said, again, look at Justice Feesby's decision. You know, he literally says at

00:13:45.360 the end that his decision was extremely limited, right? His decision, sorry, at the end literally

00:13:52.300 says that he made, decided no constitutional issues, decided nothing to do with First Nations

00:13:58.200 rights or anything else. He actually said at paragraph 249, after writing 61 pages of what

00:14:05.340 we call obiter dicta or you know things that don't aren't binding or don't count says nothing

00:14:10.420 in this decision should be understood to mean that the constitution cannot be amended or that

00:14:15.620 alberta cannot hold a referendum on separation this decision only stands for the proposition

00:14:20.780 that alberta and the cia did not give citizens the power to initiate a referendum on the question of

00:14:27.280 independence from canada yeah you've cited that already and i that is a powerful point but

00:14:32.360 But again, if we've already seen the courts make these poor rulings already, there's not much time because October 19th is not very far away.

00:14:42.940 It seems to stand that the courts will be open to these endless injunctions.

00:14:47.680 Citizens initiative, called by citizens initiative or called directly by the government, one way or another, they'll just be pummeled with these injunctions no matter what.

00:14:56.100 And so that is the argument the Alberta government is advancing to say that this is the best question you can get away with in this time.

00:15:05.140 I'm actually surprised that the First Nations haven't brought an application to have Daniel Smith's decision to have a question, to have a question quashed.

00:15:13.520 Because, you know, you and I were having a private conversation before, you know, before we sat down in the studio and, you know, you made the excellent point that the first referendum question from Quebec, the 1980 question was effectively, even though it was much more convoluted than that, was effectively a question to have a question, you know, et cetera.

00:15:30.500 Right. So, you know, if a citizen's initiative question, you know, initiating this process, right, could be struck because of a lack of consultation with First Nations, that's a Clarity Act compliant question.

00:15:44.520 Why aren't they running to court to have the question to have a question struck? Because it's the same thing. It's initiating a process that they would say there's no coming back from.

00:15:53.920 Because quite frankly, if we succeed on the question to have a question, then Danielle is between a rock and a hard place politically. 1.00

00:16:00.760 You know, if she campaigns against us and we win, she might have to resign as premier either, you know, or, you know, call the question. 0.95

00:16:07.680 I think a lot of us that are, you know, inside baseball politics don't think there's any way in hell Danielle will call a referendum question in an election year on independence.

00:16:15.400 But that's a different subject, right?

00:16:17.860 So, you know, I'm surprised that the First Nations

00:16:20.440 haven't run to court to try to quash this decision.

00:16:24.760 You know, they still have time.

00:16:26.400 Well, I think that the Smith government would probably say

00:16:29.540 that it's because they haven't got a very good argument for it

00:16:33.400 because it's such a watered down...

00:16:35.120 They didn't have a good argument the last time either.

00:16:37.080 I know, and I'm with you.

00:16:39.140 But, I mean, but by watering it down to a question,

00:16:42.500 to have a question it it gives them even less straws to no no no no they don't have less straws

00:16:50.640 i mean they they still have the unappealed justice leonard decision right that basically says that

00:16:56.660 any initiation of a referendum process leading to independence without consultation with first

00:17:01.900 first nations is verboten and the government is not allowed to do anything that would lead

00:17:07.480 the independence without the permission of the indian chiefs of alberta well so justice leonard's

00:17:13.300 decision that i mean obviously that's why the province had to appeal it and especially if you

00:17:17.260 look at her injunction decision her injunction decision in effect said as long as you can point

00:17:22.860 to a treaty relationship right um and you can say that the government did something without

00:17:29.140 consulting without any proof whatsoever their rights being infringed right she uh you there's

00:17:34.540 irreparable harm and an injunction should issue right so think about the millions of things the

00:17:39.860 government of alberta does every year without consulting first nations according to um uh

00:17:45.740 without consulting first nations according to justice leonard anytime the government does

00:17:49.480 anything um that uh a first nations chief doesn't like they just have to go into court hold up the

00:17:55.380 treaty say look we have a treaty relationship and the government did that without consultation

00:17:59.540 and i pointed out to her how silly that was i said like you know the modem way of life clause

00:18:04.500 in the treaty it's like modem way of life throughout the track surrendered it's like

00:18:07.760 they didn't have stop signs in 1899 does that mean every time the government puts up a stop sign to

00:18:12.540 tell a treaty 8 indian that they had to stop before crossing the road but it's an infringement

00:18:16.740 of a right and i do think that you know the uh the federal you know we've got you know the left

00:18:20.980 wing which is pretty united on the federalist side the the right in alberta is more divided

00:18:25.480 It's probably a majority in favor of independence, but there's a big minority that is not.

00:18:30.120 You know, you've got the J.C.

00:18:31.020 Kenny types.

00:18:32.460 Well, they're not conservatives anyway.

00:18:34.000 No, well, they're mushy conservatives, perhaps.

00:18:37.480 Well, they're not even Paul Martin liberals.

00:18:39.760 They're liberals.

00:18:40.600 But anyway, call themselves conservatives.

00:18:43.240 And there are conservative federalists in Alberta who are real conservatives.

00:18:46.580 But, you know, but I think a lot of them are very dangerously cheering these injunctions.

00:18:53.340 And you've noticed they're very quiet on it because they understand that if these injunctions were to become precedent and somehow be baked into case law here, then they understand this.

00:19:03.880 Well, we can literally never build a pipeline.

00:19:05.720 We can't do anything.

00:19:07.500 As a treaty and aboriginal rights lawyer, this Leonard decision means that every time you go to court, you're going to win because you only have two things to prove.

00:19:15.080 One, that there's a treaty relationship, e.g. that the treaty exists, which nobody denies.

00:19:20.200 And two, that your client wasn't consulted.

00:19:22.220 like there's millions of things that happen every year in this product like we're not even

00:19:25.680 consultation we want to say open a new oil sands mine or or or a coal mine we're talking about

00:19:31.240 citizens initiative with that that's going well yeah why why they weren't consulted they weren't

00:19:35.240 consulted with regard to the core blunt petition the core blunt petition i mean that would certainly

00:19:40.680 affect uh treaty rights in areas where uh you know saying no coal mining on the east slope of the

00:19:45.680 rockies that surely touches on some treaty rights well should they not be consulted there so i think

00:19:50.380 federalist conservatives who are cheering this i think they're they're very quietly knowing like

00:19:57.460 i'm glad the injunction is here for now but i hope even they hope it doesn't stand the uh on

00:20:03.780 appeal because they understand how economically destructive and socially destructive uh these

00:20:08.520 standing on appeal would be it would mean no more economic development we couldn't even build a road

00:20:12.540 well it's just bad law right it's just really bad law and i mean the funniest thing is too and i

00:20:17.320 wanted, this is just another passage I wanted to take your viewers to. Justice Leonard basically

00:20:22.300 quashed the decision because of this lack of, or, you know, the petition, because there was lack of

00:20:27.840 consultation, right? So in paragraph 232, she says, nevertheless, I've already found that the

00:20:33.820 framework of the amended CIA provides that upon the CEO verifying the second proposal complies

00:20:39.640 with the statutory requirements, including verifying that the signature thresholds are met,

00:20:45.240 it's mandatory for the executive to undertake the subsequent actions outlined in the amended cia in

00:20:51.280 the referendum act but what she's forgetting is and this this is preceded by a discussion

00:20:56.540 of the fact that the chief electoral officer as you know is a former mla is a officer of the

00:21:02.320 legislature he's an administrative decision maker so by definition the ceo has no duty to consult

00:21:08.860 or obligation to consult she agreed with that right but what she did bizarrely in paragraph 232

00:21:15.720 was she showed exactly where the government's obligation to consult would arise and that's

00:21:20.820 only upon the counting and verification of the signatures so if anybody prevented the government

00:21:26.480 of Alberta from consulting with First Nations Justice Leonard prevented the government of

00:21:32.000 Alberta from consulting with First Nations by stopping the process. Well we're in agreement

00:21:36.240 that this is a crazy decision it seems unlikely to stand on appeal at the end of the day but we

00:21:41.280 know how slow these appeal processes are i mean you are going to court very soon yeah next week

00:21:45.280 but uh these things off you know say you know alberta taking the federal government to court

00:21:49.880 on the the federal carbon tax and things these take years and years and i think there's there's

00:21:58.020 there's a desire to to get a sense from albertans which way we want to go and that's that's why

00:22:03.440 you know there's there's a rush to get it on for october when we're going to be having these other

00:22:08.440 government referendums on immigration and constitutional reforms that'll never happen

00:22:12.840 these kinds of things um so i know when smith announced uh this question a lot of us were

00:22:20.160 disappointed because it's it's not clear it doesn't comply with the clarity act but

00:22:24.800 some would say it's the best we can have you disagree with that you think we can go straight

00:22:30.960 to a clarity act question that was originally put in the citizens initiative it just has been

00:22:35.160 called as a government question rather than right section one of the referendum act so you then you

00:22:40.760 know you've said that smith has got to go we you know we can't trust her on this issue anymore 0.98

00:22:45.740 she's she's clearly too far on the federalist side um perhaps but that would be fighting a

00:22:55.240 two-front war at the same time oh sure and i and i know as a german it's now ingrained deep in your

00:23:00.620 no two front wars they're really hard and they yeah uh yeah i mean you know we got world cup

00:23:07.200 right now and it's like we can't play brazil and england at the same time we can play one at a

00:23:11.320 time so the way i'm seeing what you're proposing is that the independence movement would be fighting

00:23:16.940 a two front war one on the referendum question and then at the same time an insurgency i mean

00:23:22.660 the insurgency against kenny worked but that was a one front war it was just everybody against kenny

00:23:26.540 there was no referendum at the same there was not like there was a referendum on covid going on at

00:23:30.200 the same time sure so i don't know i i i'd put it to you that that fighting a two-front war to

00:23:36.160 remove smith from the leadership at the same time before the referendum is done is a recipe to make

00:23:41.300 sure because the federalist side is more organized more unified better funded uh it's got big business

00:23:47.980 big labor almost all the media they've got the stronger cards going into this and and they're

00:23:56.880 you know beating the independent side in the polls right now how much is debatable

00:24:00.480 but pretty consistently ahead in the polls so while taking on that mammoth you know taking

00:24:07.600 on something that powerful uh to also then fight smith at the same time that seems to me to be a

00:24:13.360 recipe to probably not win that well you know and as far as that goes it's like i think we need to

00:24:18.720 back up a little bit i mean i was extremely hard on premier smith after her announcement of the

00:24:24.800 the question to have a question. And the reason was, as far as I was concerned, she looked Albertans

00:24:28.660 right in the eye and she lied to us. She knew full well that both judges said that she could 0.97

00:24:32.680 call the question under section one of the referendum act. Her own people told her that,

00:24:36.420 the two judges told her that. What she said in that announcement was simply untrue. And for a

00:24:42.280 lot of us, this was just the fourth or fifth lie that she's told to us. And it was just a step too

00:24:50.400 far you know like it was like you know when she got that uh 91 percent level of support at the

00:24:55.380 red deer uh agm you know a couple years ago that was on the basis and a lot of us were involved in

00:25:00.820 whipping votes for i was you know getting people that were on the black hat side saying hey look

00:25:04.820 gotta vote for danielle she's promised us that they're going to amend the um uh you know the

00:25:09.180 bill of rights to protect our gun right you know our rights to our firearms from federal incursion

00:25:14.220 etc etc she lied to us they didn't they didn't actually amend the bill of rights to protect our

00:25:19.100 gun rights they weakened them because had they amended the bill of rights to say that your rights

00:25:23.360 to own firearms in a province are only subject to provincial law under section 92 13 we all would

00:25:30.420 have been happy but they just said generally oh your gun rights are subject to law so again massive

00:25:34.940 lie misled a bunch of us why do you think mitch is so unhappy because this is like the second or

00:25:39.740 third time that she's promised things to us and established in the back so i mean it's not you

00:25:45.120 know but i mean whether getting back to your two front war question you know i don't necessarily

00:25:49.880 agree with you i think we need to get focused on winning the question to have a question

00:25:53.220 um i think it's eminently winnable you know notwithstanding but can you win both at the

00:25:57.920 same time well no i'm kind of acknowledging um or conceding the point that i understand your

00:26:02.680 position on the two front war thing and i think we all need to focus on uh you know on winning

00:26:07.280 the question to have a question and with any luck that'll force danielle to resign anyway 0.99

00:26:10.980 you know and again you know through this process when people see her campaigning against alberta 0.99

00:26:16.340 because look who she's in bed with now oh my god nenshi lukasic kenny carney i mean could she

00:26:23.400 chain herself to a more motley crew i mean oh my goodness right i want to come i'll come back to 0.95

00:26:30.880 that point um but you know you said that she she lied when she announced that uh question

00:26:36.340 at the risk of sounding naive i at least i make an attempt um you know with with the experience i

00:26:46.320 have of trying to um give the benefit of the doubt to those i disagree with and it's not always

00:26:55.540 deserved but we often don't do this in the political arena with those we were on the

00:27:00.020 a different side from is give them the benefit of the doubt that they believe what they're saying

00:27:04.000 Now, that's very often not the case because politicians, even the good ones, lie or at the very least bend the truth.

00:27:12.000 But, you know, we both know Keith Wilson, who is a staunch independent supporter.

00:27:18.180 But I know you have your differences with him.

00:27:20.000 Well, just on this one issue, frankly.

00:27:21.440 Yeah, frankly.

00:27:23.160 So but on this issue, he I think he does tend to agree.

00:27:28.020 You know, so he's another lawyer in the independent space like yourself.

00:27:31.020 I think you've even jointly argued cases.

00:27:33.020 No, no, Keith. No, we haven't. But Keith and I are, Keith and I, you know, are friendly. And the only thing we disagree on is, you know, he's actually described himself to me as a Daniel Smith fanboy, which is fine. I mean, he loves Daniel Smith and will never say anything bad about Daniel Smith and will always defend Daniel Smith.

00:27:48.520 I'm at a point now where I honestly believe if push comes to shove with regard to independence, whether it's negotiating from a principled position on behalf of Alberta, you know, if necessary, you know, issuing a universal declaration of independence, whatever it is, Danielle is not to be trusted and is not the person that we need in office.

00:28:08.020 So my point is, Keith Wilson, you know, who's on the different side of this about, you know, could she have gotten away with putting forward, you know, the Clarity Act compliant question that was originally proposed in the APP Citizens Initiative petition.

00:28:23.200 He does.

00:28:24.280 He also thinks that the courts are so mocked right now that they probably would have gotten an injunction against it.

00:28:29.440 And so I don't take it as granted, I do take it as granted that every politician lies at least a bit, or at least bends the truth, you know, to some extent, always, even the very best. But I'm not necessarily convinced that she believed that, yes, I can hold this question, and I'm not going to, and I'm going to lie and say we can't, and to do this.

00:28:55.800 I don't know. We have really, really, really good sources in Danielle's office.

00:29:00.500 And we were we were told. Hold on. Just go ahead. Sorry.

00:29:02.980 Just that I would say that there is there's at least a possibility that she believed the Wilson side that, hey, the courts are going to have already made two bad rulings.

00:29:16.340 They're probably going to make a third if we do that. So this is our only path forward so that it's not necessarily a lie.

00:29:21.680 It might be a question that you're unsatisfied with and unhappy with, but it's not necessarily an act of dishonesty.

00:29:29.500 Yeah, and I just disagree. 1.00

00:29:30.860 She's got too much of a track record. 0.99

00:29:32.180 I mean, from stabbing every member of the Wild Rose Party in the back when she crossed the floor before our election, which led to, you know, Premier Notley, you know, which led to Premier Notley in the NDP governing Alberta.

00:29:42.440 We have to thank Danielle for that.

00:29:44.060 And, you know, the, you know, the example of the amendment to the Bill of Rights that she screwed us on. She promised us a provincial firearms license last summer. She screwed us on that. You know, and this, you know, what she did on this question after promising, you know, 301,620 Albertans that if they go out and bust their asses through a freezing cold winter, wait in line to sign petitions, you know, do everything that we did in accordance with the rules. 0.99

00:30:10.700 we almost delivered double the required amount that she would put our question on a ballot.

00:30:14.860 She didn't. And she knew damn well, the two judges said she could, but she wouldn't. And we believe 1.00

00:30:20.640 it's, you know, and again, you know, we have sort of good sources in her office. We were told that

00:30:24.780 from somebody that was in the room with her and Carney, that she promised Mark Carney that there

00:30:28.600 would be no referendum on independence in Alberta this year. And this is her way of keeping the

00:30:33.560 promise. So, you know, I just don't buy it. I don't think that this was done in good faith.

00:30:38.600 I think it's all part of a, you know, a political machination that's, you know, come out of

00:30:43.140 her comm shop and out of, you know, you know, the fertile mind of Robert Anderson, chief

00:30:48.400 of staff.

00:30:49.120 And I think the strategy that she's running is I call it the, you know, you got to vote 0.98

00:30:54.460 for me or I'll kill the baby strategy.

00:30:56.320 So if we win the referendum, the question to have a question, which I don't think she 0.89

00:31:00.080 necessarily would care about, I don't think there's any way in hell that she's going to

00:31:03.880 give us a referendum question in 2027.

00:31:06.880 And Keith Wilson believes that she'd give it to us in February, right?

00:31:10.620 I don't necessarily believe that.

00:31:13.180 And the reason is that I don't think that she would want to have a referendum on independence

00:31:17.800 in an election year so that she would have to, so if we won, that she would have to run

00:31:22.180 an election campaign on the question of independence.

00:31:26.460 And I think what Rob Anderson's strategy has been all along is that we drag this out until

00:31:31.520 the election year.

00:31:32.420 and then we tell everybody that supports independence which is danielle's base right

00:31:37.080 well if nenshi gets elected independence is going to be dead for four years right so you better vote

00:31:43.400 for danny or i'll kill the baby right that's what i think they're doing it's you know it's i think 0.84

00:31:48.100 it's pretty cynical and it's pretty obvious that that's what they're doing from our from my 0.96

00:31:51.860 perspective so i want to circle back to something we were touching on and something we uh we talked

00:31:55.760 about in our uh our quick chat over coffee before we came on here is uh you know i i was very and

00:32:02.820 i'm still unhappy about the question i'd like like really the clarity the question that was in the

00:32:08.180 uh the petition was uh compliant with the clarity act uh it was straightforward unambiguous this

00:32:15.280 is less good but the more i've thought about it the more i think that it is likely that we would

00:32:21.520 have two referendums anyway. The wording of each one could change. But, you know, so we were talking

00:32:28.900 about the 1980 referendum in Quebec put forward by René Levesque at the time. It was essentially

00:32:35.660 a referendum to have a referendum. It was more, even more convoluted than this one. It was just

00:32:39.360 like, you know, do you give the Quebec government the right or a mandate to negotiate sovereignty

00:32:44.360 in this new weird thing with Canada that would result in kind of sovereignty, of which this will

00:32:51.300 be ratified in a second referendum so this is a somewhere between the 95 question was even worse

00:32:57.680 if you read it pursuant to this agreement and this statute and if you hold it up to the light

00:33:03.520 sideways it might get us there and if you play it backwards uh yeah yeah your fall is dead yeah

00:33:09.420 yeah and so i think you know it is the great credit of the alberta independence movement that

00:33:13.520 it's like yeah we want none of that crap we want a straight question let's just do it yeah um and

00:33:18.380 we're very simple folk yeah yeah but then then the courts the federally appointed the federal 0.71

00:33:23.400 liberal appointed judges here say no you can't do that because that would be no heaven forbid you do

00:33:28.280 that because that's what right at it yeah it's like oh they called us on it so um yeah but you

00:33:35.540 know as i've tried to game this out it seems that you know we have a referendum one way or another

00:33:41.520 to begin you could interpret this as a reference a question to have another question q2q but it

00:33:49.020 also could be interpreted as okay there is now a mandate to pursue this and that means beginning

00:33:53.120 negotiations now one way or another i don't think ottawa ever agrees to independence clarity act or

00:33:58.840 no clarity oh i'm with you 100 it's not happening regardless we've already heard carney backpedaling

00:34:03.100 on a clear majority and yeah he's going to decide what's a clear majority even if there was a clear

00:34:08.240 majority is going to be like 66 percent it's going to be a super majority even if it was 99

00:34:12.780 percent um they simply cannot agree to let alberta go because it would bankrupt canada it would

00:34:18.040 probably start a chain reaction because quebec probably leaves oh yeah how dare they leave first

00:34:22.740 the whole thing but then quebec would leave because then come back to saskatchewan would

00:34:27.520 join us they would probably nwt in the yukon yeah so there's just no way they can agree even if we

00:34:33.040 had a super majority if even it was virtually unanimous um so i think it would probably come

00:34:38.580 to a then a second referendum anyway uh i disagree though because i think your entire line of

00:34:45.340 argument is premised on the fact of you know in quebec there's going to be a second referendum

00:34:49.020 because of the wording of the 1980 question or the 1995 question in this case we were pursuing

00:34:54.380 a crystal clear binary yes no question with that complied with the clarity act and if canada

00:34:59.920 Our strategy and our thinking going forward was always then, if you say no to this, that it's clearly Clarity Act compliant and we have a clear majority, which for us is 50% plus one, if you refuse to negotiate, the Supreme Court itself said in the context of bad faith that a UDI could follow and that might actually be lawful under international law with international recognition.

00:35:27.060 And off the bat, I mean, the only country we need to recognize this right now is the United States of America.

00:35:31.820 And oddly enough, I feel like Quebec would probably recognize Alberta independence as a provincial government.

00:35:35.980 Oh, sure.

00:35:36.500 Depending on who's in power, I think they probably would.

00:35:38.560 And now maybe if we get a conservative premier in British Columbia, we'd have, you know, maybe a conservative premier in British Columbia would also recognize Alberta.

00:35:45.760 It really changes the constitution. 0.97

00:35:46.900 You're going to get her in trouble.

00:35:48.400 But no, but it really changes the constitutional dynamic if you think about it.

00:35:52.380 If you have two governments in Canada, say Paul Saint-Pierre Plamondon gets elected.

00:35:55.540 that's a good uh french accent from

00:35:57.900 we're fifth generation franco albertans on my mom's side so i grew up in french schools

00:36:08.020 okay well you're you're surprising me so but anyway it's yeah it's uh anyway getting back

00:36:12.880 you can be the ambassador to quebec no i'm lame i i keep telling people i'm not running for public

00:36:19.100 office i've never been a public appointment ambassador to quebec is one you could consider

00:36:23.080 no no no no no no i'm i'm an alberta boy through and through and once i get alberta out of canada

00:36:27.560 i'm gonna retire to my horse farm and raise horses and hang out with my kid and have fun so

00:36:32.840 okay um but yeah look i i think one way or another if independence was to happen it probably comes

00:36:39.160 down to ud are you getting american recognition um because i i don't think ottawa negotiates in

00:36:44.280 good faith one way or another simply because it would be too catastrophic for the remainder of

00:36:49.880 canada there's no doubt i've said more than i've said more than once they go what do we do for

00:36:54.120 currency and i said well obviously we've got to immediately convert to the u.s dollar because

00:36:58.060 the canadian dollar will trade on par with the polish lottie yeah the minute alberto leaves

00:37:01.920 you know but this also raises um you know a lot of declaration in fact most declarations of

00:37:08.000 independence like the united states um or well kosovo which canada was one of the first countries

00:37:15.660 that recognized uh ukraine i think we were the first to recognize these are all udis and they

00:37:23.340 were not even done with a referendum they were done by the legislature unilaterally exactly all

00:37:27.500 of the baltic states that broke out of the soviet union um many of the stands in central asia uh

00:37:33.340 breaking away from the soviet union they didn't even hold referendums and so if the courts seem

00:37:38.780 intent on not allowing albertans to vote in a referendum does that not raise the prospect that

00:37:44.700 that fine, we don't have to have a referendum.

00:37:47.520 I don't disagree.

00:37:48.360 I think a referendum is, for something on this scale,

00:37:50.700 I think it's the appropriate thing to do.

00:37:52.120 But if the courts say no, does that not mean that simply, fine,

00:37:55.880 the Alberta legislature, like the 13 colonies in the United States.

00:38:00.480 Yeah, the Houses of Burgess.

00:38:02.080 Yes, in Virginia, the three Baltic states, the Stans, Ukraine, Kosovo,

00:38:10.720 all of them, not one of them was a referendum.

00:38:12.900 every one of them was simply their legislatures declaring it so does that not mean that if if

00:38:19.080 the courts are going to be so determined to not allow us to hold a referendum should then the

00:38:24.340 legislature just vote to do it well i mean i i'm i'm with you i think it's perfectly open and at

00:38:30.660 that point it's just a matter of you know the legislature declares you know independence by

00:38:35.260 unilateral declaration of independence and you know providing that president trump was still in

00:38:40.840 power or perhaps J.D. Vance or Marco Rubio. I mean, we've been meeting with the State Department.

00:38:45.080 He's the head of the State Department. You know, I would imagine U.S. recognition would be soon to

00:38:49.940 follow, you know, like if immediately. So, you know, I think that, you know, and I think that's

00:38:55.980 desperately what they're trying to prevent. They're trying to keep us tied up in these

00:38:59.100 processes to have processes. And they're hoping that, you know, that a Democrat takes power in,

00:39:04.780 you know, following, you know, this Trump presidency so that they can then have a

00:39:10.280 democrat president say it'll be all day in hell before we recognize the breakup of canada blah

00:39:15.080 blah blah right um you know i think they're they're they're praying for time they're playing

00:39:19.680 for time they're trying to you know they're basically trying to get us stuck in the mud

00:39:23.180 like you know like you know turn turn this into a into trench war with the you know trench warfare

00:39:27.800 world war one you go back to our military analogies you're the one trying to do the schlieffen

00:39:32.260 plant well i you know uh like i said i think i think we you know i i think that's a legitimate

00:39:38.820 debate to have. And, you know, I, you know, I, I hear what people are saying on the other side,

00:39:43.160 but, but at the same time, I think people need to get their head around the fact that Danielle

00:39:47.280 Smith is not the person to lead us to independence. And a lot of us with good principled reasons

00:39:51.740 believe that we will never become independent with Danielle Smith as premier, even though

00:39:55.840 she's pandering to, um, you know, the separatists, you know, the separatist base or the independent

00:40:00.360 pro-independence people that elected her leader. I mean, let's face it, Cam Davies sold 25,000

00:40:04.840 memberships um to get danielle elected leader using the wexit list that they got from jenny

00:40:09.840 walker right so the same people that elected danielle smith leader will not be there the next

00:40:15.660 time around to support her because they feel burned by her on the question of independence

00:40:20.280 so it's going to be an interesting political dynamic going forward and danielle is going to

00:40:23.940 have to build an entirely new coalition to continue to govern the party like two-thirds 0.94

00:40:28.540 more than two-thirds of the ucp now favor independence so a super majority of her party

00:40:33.840 won Alberta out of Canada and Danielle is opposing them and campaigning against them

00:40:39.440 on the most important issue of our time. I mean, does her leadership survive? I don't know.

00:40:45.060 All right. Well, Jeff, I really appreciate your time and your insights

00:40:48.200 and wish you luck, I guess, as you're in court next week on appeal.

00:40:52.280 All right. Well, thank you very much. Real pleasure. Thanks for having me on.

00:41:03.840 We'll be right back.

Western Standard - June 16, 2026

FILDEBRANDT： Legal pathway to Alberta independence？

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