Western Standard - Legal pathway to Alberta independence？

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

00:00:29.700 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.

00:00:42.300 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

00:01:15.700 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

00:01:26.780 another referendum that would be binding in the future on independence. It's a mess, and I want

00:01:33.040 to make a bit of sense with it. So I've got Jeffrey Rath with us in studio today here downtown Calgary.

00:01:39.100 Thanks for joining us, Jeff. Yeah, well, thanks for having me on, Derek. So you're a lawyer, I'm not,

00:01:44.540 so I get a bit of a handicap for perhaps being maybe a prison study on this issue, but

00:01:49.480 But I want to hear your side about why you don't think it's necessary to word the referendum this way, essentially a referendum to hold a future referendum.

00:02:03.180 You argue, if I understand correctly, that the two injunctions that were placed against accounting or verifying the Citizens Initiative referendum petition, that those injunctions would not stop it somehow.

00:02:19.480 Well, just to be clear, the first, you know, there was an injunction, but it was a, you know, it was very temporary. The second decision of Justice Leonard actually quashed the decision of the electoral officer to allow the petition in the first place, right, which leads to some very convoluted reasoning, which is now the subject of not one, but two appeals to the Alberta Court of Appeal, one by Mitch Sylvester and one by the government of Alberta.

00:02:43.580 The first decision of Justice Feesby's, again, was not an injunction, but it was a decision that in effect said that the referendum question being proposed by Mitch Sylvester was not allowable under the wording of the Citizens Initiative Act at the time, Section 2, sub 4,

00:03:06.640 which um you know had some you know strange wording about uh you know the impact of a proposal

00:03:14.920 uh you know on the constitution and of course what justice fees we did with the aid of two

00:03:19.840 uh very left-wing you know amicus curiae that had been hand selected by elections alberta

00:03:25.640 to come and argue against mitch sylvester's uh question going forward said oh you have to look

00:03:31.980 at the absolute end result of the process specifically that it would lead to you know the

00:03:38.440 independence of Alberta from Canada and by definition that's unconstitutional of course

00:03:44.340 what Justice Feasby refused to acknowledge is that by definition that would require an amendment to

00:03:50.200 the Constitution of Canada and by definition any legal amendment to the Constitution of Canada

00:03:56.140 is not constitutional. It's constitutional and lawful, right? So, you know, Justice Feasby's

00:04:02.320 decision to start off with was based on a faulty legal premise and faulty legal reasoning, right?

00:04:07.960 And even in Feasby's decision itself, at paragraph 247, this says that this case has not decided

00:04:15.260 that First Nations have a veto over Alberta independence, nor has it considered whether

00:04:20.840 or at what stage of the referendum process, Alberta might have a duty to consult with

00:04:26.000 First Nations. Treaty rights, and this is, again, we say that strictly speaking wrong

00:04:30.540 on the part of Justice Feasby, would be contravened by Alberta independence, but whether

00:04:35.700 such contraventions must be justified or might be justified has not been considered because

00:04:41.380 that's not required under Section 2, sub 4 of the Citizens Initiative Act, right? And

00:04:46.800 then he goes on to say, which is really interesting because this paragraph, we put it

00:04:50.700 directly to Justice Leonard in her case, completely ignored by her. This is another

00:04:55.100 ground of appeal. Justice Feesby said, nothing in this decision should be understood to mean

00:05:00.720 that the constitution cannot be amended or that Alberta cannot hold a referendum on separation.

00:05:06.660 The decision only stands for the proposition that Alberta and the CIA did not give citizens the

00:05:13.140 power to initiate a referendum question on the independence from Canada. And of course,

00:05:18.000 Feesby said directly in his decision, as did Justice Leonard, that it was completely open

00:05:24.280 to Premier Smith to call Mitch Sylvester's question under Section 1 of the Referendum

00:05:30.540 Act, just not permissible for a process under the Citizens Initiative Act to lead to that

00:05:36.860 same result.

00:05:38.020 I mean, it's very convoluted legal reasoning.

00:05:40.340 We say it's wrong, and that's why we're going to the Court of Appeal, but that's what we're

00:05:44.560 dealing with.

00:05:45.060 And of course, what both of these judges also completely ignored was, and gee, we were brought up in Canada under what we understood as lawyers to be what's called the system of common law, legal precedent, stare decisis, where you have binding precedent in Canada.

00:06:03.880 Well, the leading case, the binding precedent in Canada on independence referendums comes directly from the Supreme Court of Canada in the secession reference, which both of those learned justices completely ignored in the context of their decisions.

00:06:20.680 Because the Supreme Court in that case, in the secession reference, stated clearly that no one's rights are at issue in a referendum on independence or on secession.

00:06:33.740 And they said that the reason that no one's rights are at issue is that a referendum on independence, including a yes vote, is merely consultative, and even a yes vote on independence, where it happened in Quebec, does not affect the Constitution, does not affect anybody's constitutional rights,

00:06:51.820 and that constitutional rights themselves are not engaged until all of the provinces,

00:06:58.140 the government of Canada, and according to Section 35.1 of the Constitution Act,

00:07:04.320 the First Nations of Alberta and Canada are invited to a constitutional table under Section 35.1

00:07:11.980 to have this consultation with First Nations over the devolution of federal power

00:07:18.260 to the provinces under section 35.1 of the Constitution Act.

00:07:22.540 So we'll circle back to actually where I was pursuing on the original question.

00:07:26.580 I want to actually follow down this rabbit hole first while we're on it.

00:07:29.480 Well, I just wanted to give you the legal case.

00:07:31.120 Yeah, the way I understood this was that this federal court in Alberta

00:07:37.360 was in a sense ruling against the secession reference case of the Supreme Court.

00:07:45.780 And lower courts can't rule against higher courts. But in this case, it seemed like, you know, the secession reference case talked about clear questions, clear majority. These things were reflected at least somewhat in the Clarity Act that came after. We talk a lot more about the Clarity Act rather than the secession reference, but it came from the secession reference.

00:08:05.720 um so you know the supreme court in the secession reference said we have to have a clear question

00:08:11.120 on a clear majority on a clear question and then that starts a duty from ottawa and the other

00:08:16.020 provinces to negotiate as if this was a essentially a super constitutional amendment

00:08:20.260 more or less but then this ruling seemed to ignore that saying like no you can't have a

00:08:27.000 clear question uh you know it doesn't matter if you get a clear majority on a clear question

00:08:30.720 you're just more or less not not allowed to do that that's how i'm understanding it uh how did

00:08:34.700 Did you see it as essentially the lower court ruling against the higher court?

00:08:38.840 Absolutely.

00:08:39.900 And of course, I even told Justice Feasby when we were in front of him the first time,

00:08:43.480 because I was citing the secession reference and saying, look, whether you like it or not,

00:08:47.440 you're bound by it.

00:08:48.460 And I jokingly in court said, I hope I don't have to cite master fund act to you on the

00:08:53.200 principles of stare decisis.

00:08:54.780 And Justice Feasby laughed.

00:08:56.160 Nobody else in the courtroom about the joke.

00:08:57.600 But the joke is we had a master in Alberta years ago who did not like a higher court

00:09:01.760 decision in Alberta.

00:09:03.060 And, of course, masters at that time, they now call them motions judges, but masters at that time were the lowest level of the, you know, of the federally appointed judiciary in Alberta.

00:09:11.820 And, you know, he went on to a great explanation of the system of stare decisis.

00:09:15.540 And he says, you know, it's a system of precedent.

00:09:17.620 In effect, the higher courts, you know, by virtue of their precedence within the system, set the rules for the, you know, the lower courts.

00:09:26.600 In effect, we have a pecking order and little peckers can't tell big peckers what to do.

00:09:31.940 i swear to god that's written into a court decision in the province of albert word for

00:09:37.000 word i'm sure no we are exactly that it was exactly that so for years law students and

00:09:41.280 lawyers we'd all laugh at one another and laugh with one another and say well i hope i don't have

00:09:44.840 to cite funduck on story decisis so but that's effectively what happened we have both we have

00:09:50.280 two justices of the court of king's bench for i say political reasons rendering political judgments

00:09:56.060 not legal decisions right have decided to ignore the supreme court of canada where the

00:10:01.720 Supreme Court in the secession reference says that no legal rights are impacted by a referendum on

00:10:08.100 independence. And that becomes important in the context of consultation law, because there's not

00:10:12.920 a right at law for First Nations people to be consulted. I mean, I pioneered all of this law.

00:10:17.880 I argued these cases at the Supreme Court of Canada. I developed this law, right? I know it

00:10:22.320 better than probably, you know, 99.9% of the lawyers in this country. You don't have an obligation to

00:10:28.720 consult as a government unless a right is going to be potentially infringed. Well, if the Supreme

00:10:34.800 Court itself says that rights are not engaged even by a yes vote in a referendum, therefore there's

00:10:42.820 no rights infringement and there's no obligation to consult. So Justice Leonard, you know, we

00:10:48.080 obviously made those submissions clear as day to Justice Leonard, both in writing and orally in

00:10:53.420 court she completely ignored the law to find this weird amorphous ongoing duty to consult

00:11:01.100 whether a right was engaged or not because we said to her tell us what right is infringed right

00:11:06.960 to hunt trap fish or even take the broadest right under treaty eight the right to carry on your

00:11:11.700 modem way of life throughout the track surrendered as if you never entered into treaty by a bunch of

00:11:15.920 Albertans putting their signatures on a piece of paper to tell the government how they feel about

00:11:20.080 whether a question should be asked right we both agree that these were bad decisions and that

00:11:25.600 there's a very good chance that this gets overturned on appeal to higher courts it would

00:11:30.840 go directly to the supreme court at this level right no no we're off to the alberta court of

00:11:34.280 appeal oh okay and in fact i'm in the alberta court of appeal next uh thursday the 18th we're

00:11:39.840 applying for a stay of justice leonard's decision so that the signatures of 301 620 albertans can

00:11:46.960 be counted by Elections Alberta and have that result transmitted to the Attorney General

00:11:51.420 as per the statute.

00:11:52.400 Okay, but we're in agreement that these were pretty, at best, flimsy decisions.

00:11:57.820 More or less, we have to consult before verifying signatures.

00:12:02.040 Bizarre stuff.

00:12:02.420 Our position is that, yeah, the decision, Justice Leonard's decision is legally indefensible.

00:12:08.680 So that then raises the point that regardless of what reasoning was given in there, they've

00:12:15.280 already made two bad rules there was the the temporary injunction and then the big injunction

00:12:19.660 they've already justice leonard's already demonstrated that this is the way he's going

00:12:25.240 to rule um she's she's gonna she's gonna roll um that then raises i think the very real prospect

00:12:32.940 that if if if she's already made these bad decisions that you know if if say the premier

00:12:38.260 smith had put uh the original alberta prosperity project question the clear more concise question

00:12:44.220 The Clarity Act compliant question, yes.

00:12:45.940 That if that had been put as a government referendum question rather than a citizen's initiative question, it likely would have got struck down to on some other grounds.

00:12:57.620 It just would have faced endless injunctions and we never would have actually got to a question in October.

00:13:04.280 Well, you know, that would be dependent on whether or not another politically motivated judge was appointed to the case, right?

00:13:11.120 I mean, there's lots of, you know, here for me, there are lots of good judges in the province of Alberta.

00:13:16.220 There's a lot of justices on the courts that I have, you know, an inordinate amount of respect for.

00:13:21.980 And, you know, in fact, I think Justice Feesby is a phenomenal justice.

00:13:25.260 I have him on other cases.

00:13:26.720 But, you know, on this, because it's so emotional and people are so, you know, concerned about Alberta leaving Canada and they're just it's such a fraught issue for them.

00:13:36.160 I just don't think people can think clearly when it comes to these issues.

00:13:39.680 But even that, you know, that being said, again, look at Justice Feasby's decision. You know, he literally says at the end that his decision was extremely limited, right? His decision, sorry, at the end literally says that he decided no constitutional issues, decided nothing to do with First Nations rights or anything else.

00:13:59.260 he actually said at paragraph 249 after writing 61 pages of what we call obiter dicta or you know

00:14:07.140 things that don't aren't binding or don't count says nothing in this decision should be understood

00:14:12.420 to mean that the constitution cannot be amended or that alberta cannot hold a referendum on

00:14:17.500 separation this decision only stands for the proposition that alberta and the cia did not

00:14:23.680 give citizens the power to initiate a referendum on the question of independence from canada yeah

00:14:28.440 You've cited that already, and that is a powerful point.

00:14:32.200 But, again, if we've already seen the courts make these poor rulings already, there's not much time.

00:14:40.340 Because October 19th is not very far away.

00:14:43.400 It seems to stand that the courts will be open to these endless injunctions.

00:14:47.640 Citizens' initiative, called by Citizens' Initiative, or called directly by the government, one way or another,

00:14:53.300 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.

00:15:05.160 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.

00:15:13.540 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.

00:15:30.520 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.

00:15:53.940 Because quite frankly, if we succeed on the question to have a question, then Danielle is between a rock and a hard place politically.

00:16:00.780 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.

00:16:07.700 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.

00:16:15.420 But that's a different subject, right?

00:16:17.880 So, you know, I'm surprised that the First Nations haven't run to court to try to quash this decision.

00:16:24.820 Well, I think they still have time.

00:16:26.420 Well, I think that the Smith government would probably say that it's because they haven't got a very good argument for it because it's such a watered down.

00:16:35.140 They didn't have a good argument the last time.

00:16:36.900 I know. And I'm with you.

00:16:39.160 But, I mean, but by watering it down to a question, to have a question, it gives them even less straws to grasp onto.

00:16:48.060 No, no, no, no. They don't have less straws.

00:16:50.640 I mean, they still have the unappealed Justice Leonard decision, right, that basically says that any initiation of a referendum process leading to independence without consultation with First Nations is verboten,

00:17:03.500 and the government is not allowed to do anything

00:17:06.940 that would lead to independence

00:17:08.140 without the permission of the Indian chiefs of Alberta.

00:17:11.220 So Justice Leonard's decision,

00:17:14.380 I mean, obviously that's why the province had to appeal it.

00:17:16.620 And especially if you look at her injunction decision,

00:17:19.000 her injunction decision in effect said,

00:17:21.560 as long as you can point to a treaty relationship, right?

00:17:26.100 And you can say that the government did something

00:17:28.740 without consulting, without any proof whatsoever

00:17:31.240 their rights being infringed, right?

00:17:33.000 she there's irreparable harm and an injunction should issue right so think about the millions

00:17:39.220 of things the government of alberta does every year without consulting first nations according

00:17:43.580 to um uh without consulting first nations according to justice leonard anytime the

00:17:49.000 government does anything um that uh a first nations chief doesn't like they just have to

00:17:54.300 go into court hold up the treaty say look we have a treaty relationship and the government did that

00:17:58.620 without consultation and i pointed out to her how silly that was i said like you know the modem way

00:18:03.880 of life clause in the treaty it's like modem way of life throughout the track surrendered it's like

00:18:07.780 they didn't have stop signs in 1899 does that mean every time the government puts up a stop sign to

00:18:12.560 tell a treaty aid indian that they had to stop before crossing the road but it's an infringement

00:18:16.760 of a right and i do think that you know the uh the federal you know we've got you know the left

00:18:21.000 wing which is pretty united on the federalist side the the right in alberta is more divided

00:18:25.500 It's probably a majority in favor of independence, but there's a big minority that is not.

00:18:30.140 You know, you've got the Jason Kenney types.

00:18:32.480 Well, they're not conservatives anyway.

00:18:34.020 No, well, they're mushy conservatives, perhaps.

00:18:37.500 Well, they're not even Paul Martin liberals.

00:18:39.780 They're liberals.

00:18:40.620 But anyway, call themselves conservatives.

00:18:43.260 And there are conservative federalists in Alberta who are real conservatives.

00:18:46.620 But, you know, but I think a lot of them are very dangerously cheering these injunctions.

00:18:53.360 and you've noticed they're very quiet on it because they understand that if these injunctions

00:18:57.920 were to become precedent and somehow be baked into case law here then they understand this

00:19:03.680 well we can literally never build a pipeline again we can't do anything as a treaty and

00:19:08.640 aboriginal rights lawyer this leonard decision means that every time you go to court you're

00:19:13.120 going to win because you only have two things to prove one that there's a treaty relationship e.g.

00:19:17.600 that the treaty exists which nobody denies and two that your client wasn't consulted like there's

00:19:22.880 millions of things that happen every year in this product like we're not even consultation we want

00:19:26.740 to say open a new oil sands mine or or or a coal mine we're talking about citizens initiative with

00:19:32.100 that that's going well yeah why why they weren't consulted they weren't consulted with regard to

00:19:36.240 the core blunt petition the core blunt petition i mean that would certainly affect uh treaty rights

00:19:42.100 in areas where uh you know saying no coal mining on the east slope of the rockies that surely

00:19:46.800 touches on some treaty rights well should they not be consulted there so i think federalist

00:19:51.660 conservatives who are cheering this i think they're they're very quietly knowing like i'm glad

00:19:58.760 the injunction is here for now but i hope even they hope it doesn't stand the uh on appeal because

00:20:04.720 they understand how economically destructive and socially destructive uh these standing on appeal

00:20:09.220 would be it would mean no more economic development we couldn't even build a road anymore well it's

00:20:13.160 just bad law right it's just really bad law and i mean the funniest thing is too and i wanted this

00:20:17.740 is just another passage i wanted to take your viewers to um justice leonard basically quashed

00:20:22.740 the decision because of this lack of or you know to the petition because there was lack of

00:20:27.860 consultation right so in paragraph 232 she says nevertheless i've already found that the framework

00:20:34.140 of the amended cia provides that upon the ceo verifying the second proposal complies with the

00:20:39.920 statutory requirements including verifying that the signature thresholds are met it's mandatory

00:20:46.300 for the executive to undertake the subsequent actions outlined in the amended cia in the

00:20:51.420 referendum act but what she's forgetting is and this this is preceded by a discussion of the fact

00:20:57.460 that the chief electoral officer as you know is a former mla is a officer of the legislature he's an

00:21:03.600 administrative decision maker so by definition the ceo has no duty to consult or obligation to

00:21:09.820 consult. She agreed with that, right? But what she did bizarrely in paragraph 232 was she showed

00:21:16.620 exactly where the government's obligation to consult would arise, and that's only upon the

00:21:21.700 counting and verification of the signatures. So if anybody prevented the government of Alberta

00:21:27.020 from consulting with First Nations, Justice Leonard prevented the government of Alberta

00:21:32.420 from consulting with First Nations by stopping the process. Well, we're in agreement that this

00:21:36.580 is a crazy decision it seems unlikely to stand on appeal at the end of the day but we know how

00:21:41.560 slow these appeal processes are i mean you are going to court very soon yeah next week but uh

00:21:46.300 these things off you know say you know alberta taking the federal government to court on the

00:21:50.220 the federal carbon tax and things these take years and years and i think there's there's there's a

00:21:58.480 desire to to get a sense from albertans which way we want to go and that's that's why you know

00:22:04.680 There's a rush to get it on for October when we're going to be having these other government referendums on immigration and constitutional reforms that will never happen, these kinds of things.

00:22:15.360 So I know when Smith announced this question, a lot of us were disappointed because it's not clear.

00:22:22.020 It doesn't comply with the Clarity Act.

00:22:24.460 But some would say it's the best we can have.

00:22:28.860 You disagree with that.

00:22:29.960 You think we can go straight to a Clarity Act question that was originally put in the Citizens Initiative.

00:22:34.680 It just has to be called as a government question rather than...

00:22:36.740 Right, section one of the referendum act.

00:22:38.600 So you then, you know, you've said that Smith has got to go.

00:22:43.080 We, you know, we can't trust her on this issue anymore.

00:22:46.040 She's clearly too far on the Federalist side.

00:22:52.680 Perhaps, but that would be fighting a two-front war at the same time.

00:22:56.840 Oh, sure. And I know as a German, it's now ingrained deep in your soul.

00:23:00.880 No two-front wars.

00:23:02.780 They're really hard.

00:23:04.160 And they, yeah, I mean, you know, we got World Cup right now.

00:23:07.660 And it's like, we can't play Brazil and England at the same time.

00:23:10.520 We can play one at a time.

00:23:12.180 So the way I'm seeing what you're proposing is that the independence movement would be fighting a two front war.

00:23:17.760 One on the referendum question.

00:23:20.300 And then at the same time, an insurgency.

00:23:22.460 I mean, the insurgency against Kenny worked.

00:23:24.260 But that was a one front war.

00:23:25.220 It was just everybody against Kenny.

00:23:26.800 There was no referendum at the same.

00:23:28.120 It was not like there was a referendum on COVID going on at the same time.

00:23:30.800 Sure.

00:23:30.900 So, I don't know, I'd put it to you that fighting a two-front war to remove Smith from the leadership at the same time, before the referendum's done, is a recipe to make sure, because the Federalist side is more organized, more unified, better funded, it's got big business, big labor, almost all the media, they've got the stronger cards going into this.

00:23:55.920 And they're, you know, beating the independent side in the polls right now.

00:23:59.260 How much is debatable, but pretty consistently ahead in the polls.

00:24:03.320 So while taking on that mammoth, you know, taking on something that powerful to also then fight Smith at the same time, that seems to me to be a recipe to probably not win that.

00:24:16.160 Well, you know, and as far as that goes, it's like I think we need to back up a little bit.

00:24:19.720 I mean, I was extremely hard on Premier Smith after her announcement of the question to have a question.

00:24:25.920 And the reason was, as far as I was concerned, she looked Albertans right in the eye and she

00:24:29.480 lied to us. She knew full well that both judges said that she could call the question under section

00:24:33.840 one of the referendum act. Her own people told her that the two judges told her that

00:24:37.880 what she said in that announcement was simply untrue. And for a lot of us, you know, this was

00:24:43.720 just, you know, the fourth or fifth lie that she's told to us. And it was just, you know, it was like

00:24:49.560 just a step too far. You know, like it was like, you know, when she got that 91% level of support

00:24:55.000 at the red deer uh agm you know a couple years ago that was on the basis and a lot of us were

00:25:00.460 involved in whipping votes for i was you know getting people that were on the black hat side

00:25:04.260 saying hey look gotta vote for danielle she's promised us that they're going to amend the um

00:25:08.200 uh you know the bill of rights to protect our gun right you know our rights to our firearms from

00:25:13.260 federal incursion etc etc she lied to us they didn't they didn't actually amend the bill of

00:25:18.320 rights to protect our gun rights they weakened them because had they amended the bill of rights

00:25:22.500 to say that your rights to own firearms in a province are only subject to provincial law

00:25:28.340 under section 92 13 we all would have been happy but they just said generally oh your gun rights

00:25:32.780 are subject to law so again massive lie misled a bunch of us why do you think mitch is so unhappy

00:25:37.780 because this is like the second or third time that she's promised things to us and established

00:25:43.320 in the back so i mean it's not you know but i mean whether getting back to your two front work

00:25:47.180 question you know i don't necessarily agree with you i think we need to get focused on winning the

00:25:52.260 question to have a question um i think it's eminently winnable you know notwithstanding

00:25:56.860 but can you win both at the same time well no i'm kind of acknowledging um or conceding the

00:26:01.680 point that i understand your position on the two-front war thing and i think we all need to

00:26:05.140 focus on uh you know on winning the question to have a question and with any luck that'll force

00:26:09.920 danielle to resign anyway you know and again you know through this process when people see her

00:26:14.700 campaigning against alberta because look who she's in bed with now oh my god nenshi lukasic

00:26:20.880 kenny carny i mean could she chain herself to a more motley crew i mean oh my goodness right

00:26:28.240 i want to come i'll come back to that point um but you know you said that she she lied when she

00:26:34.740 announced that uh question i at the risk of sounding naive i at least i make an attempt um

00:26:44.540 you know with with the experience i have of trying to um give the benefit of the doubt to

00:26:53.200 those i disagree with and it's not always deserved but we often don't do this in the political arena

00:26:58.720 with those we were on a different side from is give them the benefit of the doubt that they

00:27:02.980 believe what they're saying now that's very often not the case because politicians even the good

00:27:08.640 ones lie or at the very least bend the truth but you know we both know um you know keith wilson who

00:27:15.360 is a staunch independent supporter but i know you have your differences with him well just on this

00:27:20.480 one issue frankly yeah frankly so but on this issue he i think he does tend to agree uh you know

00:27:28.560 so he's another lawyer in the independent space like yourself uh i think you've even jointly

00:27:32.380 argued cases no no keith yeah well no we haven't but keith and i are keith and i you know are

00:27:36.940 friendly and the only thing you disagree on is you know he's actually described himself to me

00:27:41.720 as a daniel smith fanboy which is fine i mean he loves daniel smith and will never say anything

00:27:46.140 bad about daniel smith and will always defend daniel smith i'm at a point now where i honestly

00:27:51.280 believe if push comes to shove with regard to independence whether it's negotiating from a

00:27:56.240 principled position on behalf of alberta you know if necessary you know issuing a universal

00:28:01.000 declaration of independence whatever it is danielle is not to be trusted and is not our

00:28:05.620 not is not the person that we need in in office so my point is uh keith wilson uh you know who's

00:28:11.200 on the a different side of this about you know could yeah just this one issue could she have

00:28:15.320 gotten away with putting forward you know the clarity act compliant question that was originally

00:28:19.400 proposed but in the app uh citizens initiative petition uh he does he also thinks that the

00:28:25.380 courts are so mocked right now that they probably would have gotten an injunction against it and so

00:28:30.520 i i don't take it as granted i do take it as granted that every politician lies at least a

00:28:36.560 bit or at least bends the truth you know to some extent always even the very best but i'm not

00:28:44.080 necessarily convinced that she believed that yes i can hold this question and i'm not going to and

00:28:52.400 i'm going to lie and say we can't and to do this i don't know we have really really really good

00:28:58.800 sources in danielle's office and we were we were told hold on just just go ahead sorry just that

00:29:03.580 i i would say that there's there's at least a possibility that she believed uh the wilson side

00:29:12.940 that hey the courts are going to have already made two bad rulings they're probably going to

00:29:16.860 make a third if we do that so this is our only path forward so that it's not necessarily a lie

00:29:21.700 it might it might be a question that you're unsatisfied with and unhappy with but it's not

00:29:26.300 necessarily an act of dishonesty yeah and i just i just disagree she's got too much of a track

00:29:31.900 record i mean from stabbing every member of the wild rose party in the back when she crossed the

00:29:35.740 floor before our election which led to you know premier notley you know that which led to premier

00:29:40.440 notley in the ndp governing alberta we have to thank danielle for that and uh you know the uh

00:29:46.200 you know the example of the uh amendment to the bill of rights that she screwed us on she promised

00:29:52.400 us a provincial firearms license last summer she screwed us on that uh you know and this you know

00:29:57.340 what she did on this question after promising you know 301,620 Albertans that if they go out

00:30:04.240 and bust their asses through a freezing cold winter wait in line to sign petitions you know

00:30:08.160 do everything that we did in accordance with the rules we almost delivered double the required

00:30:12.400 amount that she would put our question on a ballot she didn't and she knew damn well the

00:30:17.380 two judges said she could but she wouldn't and we believe it's you know and again you know we

00:30:21.900 have sort of good sources in her office we were told that from somebody that was in the room with

00:30:26.260 her and carney that she promised mark carney that there would be no referendum on independence in

00:30:31.540 alberta this year and this is her way of keeping the promise so you know i i just don't buy it i

00:30:36.980 don't think that this was done in good faith i think it's all part of a uh you know a political

00:30:41.120 machination that's you know come out of her comm shop and out of you know um you know the fertile

00:30:46.180 mind of robert anderson chief of staff and i think the strategy that she's running is

00:30:51.840 i call it the you know um you got to vote for me or i'll kill the baby strategy so if we win the

00:30:57.660 referendum the question to have a question which i don't think she necessarily would care about

00:31:01.360 i don't think there's any way in hell that she's going to give us a referendum question

00:31:05.180 um in 2027 keith wilson believes that she'd give it to us in february right um i don't necessarily

00:31:11.780 believe that and the reason is that i don't think that she would want to have a referendum on

00:31:17.320 independence in an election year so that she would have to if so if we won that she would have to run

00:31:22.200 a run a an election campaign on the question of independence and i think what rob anderson's

00:31:28.100 strategy has been all along is that we drag this out until the election year and then we tell

00:31:33.420 everybody that supports independence which is danielle's base right well if nenshi gets elected

00:31:39.080 independence is going to be dead for four years right so you better vote for danny or i'll kill

00:31:44.460 the baby right that's what i think they're doing it's you know it's i think it's pretty cynical and

00:31:49.140 it's pretty obvious that that's what they're doing from our from my perspective right so i want to

00:31:53.100 circle back to something we were touching on it's something we uh we talked about in our uh our

00:31:56.900 quick chat over coffee before we came on here is uh you know i i was very and i'm still unhappy

00:32:03.480 about the question i'd like like really the clarity the question that was in the uh the

00:32:08.880 petition was uh compliant with the clarity act uh it was straightforward unambiguous this is less

00:32:15.960 good but the more i've thought about it the more i think that it is likely that we would have

00:32:21.960 two referendums anyway the wording of each one could change but you know so we were we were

00:32:28.700 talking about the 1980 referendum in quebec um put forward by rennie levec at the time it was

00:32:35.300 essentially a referendum to have a referendum it was more even more convoluted than this one it was

00:32:39.280 like you know do you give the uh quebec government the right uh 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

00:32:51.320 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

00:33:03.540 sideways it might get us there and if you play it backwards uh yeah yeah your ball is dead yeah

00:33:09.440 and so i think you know it is the great credit of the alberta independence movement that it's like

00:33:13.780 yeah we want none of that crap we want a straight question let's just do it yeah um and then we said

00:33:19.060 we're very simple folk yeah yeah but then then the courts the federally the federal liberal

00:33:23.940 appointed judges here say no you can't do that because that would be no heaven forbid you do

00:33:28.300 that because that's going right at it yeah it's like oh they called us on it so um yeah but you

00:33:35.560 know as i've tried to game this out it seems that you know we have a referendum one way or another

00:33:41.540 to begin you could interpret this as a question to have another question q to q but it also could

00:33:49.500 be interpreted as okay there is now a mandate to pursue this and that means beginning negotiations

00:33:53.860 now one way or another i don't think ottawa ever agrees to independence clarity act or no clarity

00:33:59.160 oh i'm with you 100 it's not happening regardless we've already heard carney backpedaling on a clear

00:34:03.600 majority and yeah he's going to decide what's a clear majority even if there was even a clear

00:34:08.260 majority is going to be like 66 it's going to be a super majority even if it was 99 um they simply

00:34:14.980 cannot agree to let alberta go because it would bankrupt canada it would probably start a chain

00:34:18.780 reaction because Quebec probably leaves oh yeah how dare they leave first the whole the whole thing

00:34:24.540 but then Quebec would leave because then Saskatchewan would join us they would probably

00:34:28.420 NWT in the Yukon yeah so there's just no way they can agree even if we had a super majority

00:34:34.180 even if it was virtually unanimous um so I think it would probably come to a then a second referendum

00:34:40.140 anyway uh I disagree though because I think your entire line of argument is premised on the fact

00:34:46.880 of you know in quebec there's going to be a second referendum because of the wording of the

00:34:50.200 1980 question or the 1995 question in this case we were pursuing a crystal clear binary yes no

00:34:56.720 question with that complied with the clarity act and if canada our our strategy and our thinking

00:35:02.000 going forward was always then you know if you say no to this that is clearly complete you know

00:35:07.380 clarity act compliant and we have a clear majority which for us is 50 plus one right that would you

00:35:14.200 know if you refuse to negotiate the supreme court itself said in the in the context of bad faith

00:35:19.000 that you know a udi could follow and that might actually be lawful under international law

00:35:24.220 you know with um you know with international recognition and off the bat i mean the only

00:35:28.500 country we need to recognize this right now is the united states of america and oddly i feel like

00:35:32.760 quebec would probably recognize alberta independence as a provincial government oh sure depending on

00:35:36.860 who's in power i think they probably and now maybe if we get a conservative premier in british

00:35:41.360 columbia we'd have you know maybe a conservative premier in british columbia would also recognize

00:35:45.100 alberta it really changes the constitution you're gonna get her in trouble you know but no but i

00:35:49.260 mean it really changes the constitutional dynamic if you think about it if you have two governments

00:35:53.160 in canada say paul saint-pierre flamandong gets elected that's a good uh french accent from

00:35:57.920 we're fifth generation franco albertans on my mom's side so i grew up in french schools okay

00:36:08.420 well you're you're surprising me so but anyway it's yeah it's uh anyway getting back you can

00:36:13.140 be the ambassador to quebec no i'm lame i i keep telling people i'm not running for public office

00:36:19.380 i've never been a public appointment ambassador to quebec is one you could consider no no no no no no

00:36:24.500 no i'm i'm an alberta boy through and through and once i get alberto out of canada i'm gonna retire

00:36:28.100 to my horse farm and raise horses and hang out with my kid and have fun so okay um but yeah look

00:36:34.500 Look, I think one way or another, if independence was to happen, it probably comes down to UDI.

00:36:39.900 Are you getting American recognition?

00:36:42.120 Because I don't think Ottawa negotiates in good faith one way or another,

00:36:46.360 simply because it would be too catastrophic for the remainder of Canada.

00:36:50.600 There's no doubt.

00:36:51.460 I've said more than once.

00:36:53.440 They go, what do we do for currency?

00:36:54.560 And I said, well, obviously, we've got to immediately convert to the U.S. dollar

00:36:57.560 because the Canadian dollar will trade on par with the Polish Zladi, the minute Alberta leaves.

00:37:01.940 You know, but this also raises, you know, a lot of declarations.

00:37:06.200 In fact, most declarations of independence, like the United States, or...

00:37:12.640 Well, Kosovo, which Canada was one of the first countries to recognize.

00:37:17.780 Ukraine, I think we were the first to recognize.

00:37:20.320 There you go.

00:37:20.620 These are all UDIs, and they were not even done with a referendum.

00:37:25.000 They were done by the legislatures.

00:37:26.800 Unilaterally, exactly.

00:37:27.460 All of the Baltic states that broke out of the Soviet Union.

00:37:29.720 many of the stands in Central Asia

00:37:32.640 breaking away from the Soviet Union

00:37:34.640 they didn't even hold referendums

00:37:36.380 and so if the courts

00:37:38.080 seem intent on not allowing Albertans

00:37:40.720 to vote in a referendum

00:37:41.840 does that not raise the prospect

00:37:44.420 that fine we don't have

00:37:46.560 to have a referendum

00:37:47.320 I think a referendum is for something on this scale

00:37:50.620 I think it's the appropriate thing to do

00:37:52.060 but if the courts say no does that not mean

00:37:54.320 that simply fine

00:37:55.760 the Alberta legislature

00:37:57.180 like the 13 colonies in the united states yeah the houses of burgess yes yeah yeah yeah in uh

00:38:04.680 in uh in virginia uh you know the three baltic states the stands ukraine kosovo all of them not

00:38:11.560 one of them was a referendum every one of them was simply their legislatures declaring it so

00:38:16.820 does that not mean that if if the courts are going to be so determined to not allow us to

00:38:21.220 hold a referendum should then the legislature just vote to do it well i mean i i'm i'm with you

00:38:28.860 i think it's perfectly open and at that point it's just a matter of you know the legislature

00:38:32.900 declares you know independence by unilateral declaration of independence and you know

00:38:39.160 providing that president trump was still in power or perhaps jd vance or marco rubio i mean we've

00:38:43.720 been meeting with the state department he's the head of the state department uh you know i would

00:38:47.520 imagine a u.s recognition would be soon to follow you know like if immediately so you know i think

00:38:53.780 that um uh you know and i think that's desperately what they're trying to prevent they're trying to

00:38:58.060 keep us tied up in these processes to have processes and they're hoping that uh uh you know

00:39:03.000 that a democrat takes power in uh you know uh following uh you know this trump presidency

00:39:08.280 so that they can then have a democrat president say it'll be a whole day in hell before we

00:39:13.100 recognize the breakup of canada blah blah blah right um you know i think they're they're they're

00:39:18.500 praying for time they're playing for time they're trying to you know they're basically trying to get

00:39:22.360 us stuck in the mud like you know they like you know turn turn this into a into trench war

00:39:26.480 with the you know trench warfare world war one you go back to our military analogies you're the

00:39:31.440 one trying to do the schlieffen plant well i you know uh like i said i think i think we you know

00:39:37.340 i i think that's a legitimate debate to have and you know i i you know i hear what people are saying

00:39:42.400 on the other side but but at the same time i think people need to get their head around the fact

00:39:46.500 that danielle smith is not the person to lead us to independence and a lot of us with good

00:39:50.800 principled reasons believe that we will never become independent with danielle smith as premier

00:39:55.240 even though she's pandering to um you know the separatists you know the separatist base or the

00:40:00.060 independent pro-independence people that elected her leader i mean let's face it cam davy sold

00:40:03.940 25 000 memberships um to get danielle elected leader using the wexit list that they got from

00:40:09.600 jenny walker right so the same people that elected danielle smith leader will not be there the next

00:40:15.680 time around to support her because they feel burned by her on the question of independence

00:40:20.300 so it's going to be an interesting political dynamic going forward and danielle's going to

00:40:23.960 have to build an entirely new coalition to continue to govern the party like two-thirds

00:40:28.560 more than two-thirds of the ucp now favor independence so a super majority of her party

00:40:33.820 won alberta out of canada and danielle is opposing them and campaigning against them

00:40:39.460 on the most important issue of our time i mean does her leadership survive i don't know

00:40:44.000 all right well jeff i really appreciate your time and your insights

00:40:48.140 and uh wish you luck i guess as you're in court next week on appeal all right well

00:40:52.680 thank you very much real pleasure thanks for having me on

00:41:03.820 We'll be right back.

Western Standard - June 13, 2026

Legal pathway to Alberta independence？

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