FELDSTED -- I have little doubt that as Alberta moves to enforce her sovereign rights as a province, other provinces will flock to the flag

Few people understand that every province in Canada has separate sovereignty different from that of the federal government. Our Constitution, Section 92 sets it out:

     92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
       1. Repealed.
       2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.
       3. The borrowing of Money on the sole Credit of the Province.
       4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.
       5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.
       6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province.
       7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.
       8. Municipal Institutions in the Province.
       9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.
      10. Local Works and Undertakings other than such as are of the following Classes:
          (a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:
          (b) Lines of Steam Ships between the Province and any British or Foreign Country:
          (c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.
      11. The Incorporation of Companies with Provincial Objects.
      12. The Solemnization of Marriage in the Province.
      13. Property and Civil Rights in the Province.
      14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
      15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.
      16. Generally, all Matters of a merely local or private Nature in the Province.

The federal government has incrementally but steadily encroached on provincial sovereignty. As an example, the Constitution Section 36 reads:
 

Commitment to promote equal opportunities
       36.(1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to
(a)promoting equal opportunities for the well-being of Canadians;
(b)furthering economic development to reduce disparity in opportunities; and
(c)providing essential public services of reasonable quality to all Canadians.

Commitment respecting public services
         (2) Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.
In view of the commitments under Section 36. (1) provinces appear to have a right to review, amend and endorse the Equalization Formula adopted when it is due for renewal.

In April 2019 the federal government renewed the Equalization Formula for another five-year term (2019 to 2014) without consultation, input or agreement by the provinces.

Despite the commitment under Section 36. (2) the federal government cannot establish “reasonably comparable levels of public services at reasonably comparable levels of taxation” without the agreement of provinces affected what constitutes “comparable levels of public services” ad separately what constitutes “comparable levels of taxation”. The current phrasing is abstract and subject to abuse.

Section 36. (2) is paternalistic and infringes on the sovereignty of provinces clearly set out under Section 92. When 66.16% of federal equalization payments for 2019-20 go to a province with 22.62% of the population the system is broken and grossly unfair.
 

	EQUALZATION 2019-20		POPULATION 4th Q 2019
New / Lab	$0	0.00%	521,922	1.39%
PEI	$   419,000,000	2.11%	157,901	0.42%
Nova Scotia	$ 2,015,000,000	10.16%	976,768	2.59%
New Bruns	$ 2,023,000,000	10.20%	780,021	2.07%
Quebec	$13,124,000,000	66.16%	8,522,800	22.62%
Ontario	$0	0.00%	14,659,616	38.91%
Manitoba	$  2,255,000,000	11.37%	1,373,859	3.65%
Sask	$0	0.00%	1,178,657	3.13%
Alberta	$0	0.00%	4,395,586	11.67%
BC	$0	0.00%	5,105,576	13.55%
Canada	$19,837,000,000		37,672,706

The original concept of equalization was to help small provinces without the population and corporate tax base to fund basic public services. One of the glaring omissions in the approach to equalization is that “basic public services” are not defined.

The federal claim that is has unilateral jurisdiction over equalization as payments are made from general revenues is chicanery; the bulk of those revenues are raised through a plethora of individual and corporate taxes levied on residents of provinces.

Including taxation of non-renewable resources for those provinces that produce those resources while not considering natural resources that other provinces fail to produce is openly discriminatory. Quebec has billions in natural resources she does not develop as doing so would decrease her Equalization claim.    

I suspect the Western provinces could get an injunction halting all equalization payments until a rational formula is developed with the concurrence of the provinces.

A second area where the federal government has infringed on provincial sovereignty is in health care. This one is two-fold.

First, health care is accepted as a provincial jurisdiction under Constitution Section 92 (7). The Canada Health Act infringes on provincial sovereignty to deliver health care in the way that they find most effective and efficient.

Second, the federal government is dodging its responsibility to maintain heath care for military personnel (including the RCMP), federal prison inmates and indigenous people. The feds closed the hospitals that used to dot most major urban centres and dumped their responsibilities on already overburdened provincial facilities. The feds must man up and provide the facilities and personnel to provide heath care for people under its constitutional jurisdiction particularly in remote locations.

Again, provinces have a strong case for repeal of the Canada Health Act and a transfer of tax points to provinces to replace current federal health transfers. We cannot continue to risk a repeat of 1996 unilateral 40% cuts to federal transfers to provinces (Thank you Paul Martin).

A third area where the government infringes on the sovereignty of provinces is the Official Languages Act (OLA). When Parliament passed the 1982 Constitution Act, sections 16 through 23 embodied the key protections of the OLA in the Constitution rendering the OLA superfluous. 

The proposition that only bilingual people can provide language services to minorities is not credible. The proposition that all senior bureaucrats and department heads must be bilingual is not credible. Linguistic ability cannot override the principles of hiring the most able and qualified people for a position, but that is exactly what the Language Commissioner does.

Natural resources are another area of unwarranted federal intervention in provincial sovereignty. Constitution sections 92 (5), 92 (10), 92 (16) and 92A all put development of natural and non-renewable resources squarely in the hands of provinces and the federal government cannot interfere.

Section 92A empower provinces to enact environmental law respecting development of resources. Provinces have jurisdiction over resource development environmental law governing resource development. Federal law that infringe on this exclusive provincial jurisdiction must be challenged in court as unconstitutional.

There are also many instances where the federal government ignores its constitutional responsibilities. Interprovincial works in one. Highways that connect provinces as well as those that connect to ports of entry are a federal responsibility.

The feds have gotten away with making improvements to the Trans-Canada and Yellowhead routes “joint ventures” on the basis that provinces benefit from improvements, but that is an abdication of its constitutional responsibilities. Without first class truck and rail routes to ports, our economic engines can’t work at full capacity.

Another issue requiring attention is the global warming / climate change file. Dr. Michel Mann’s “Hockey stick” global warming calculations cannot be duplicated by competent authorities on projection calculations. Ross McKitrick (University of Guelph) has written extensively on the topic.

There are also over 500 scientists who do not agree with IPCC projections:

We need to challenge the federal government on two fronts:

First, proving that the IPCC climate change projection models are valid and reliable. I am sure that the Canadian scientists who endorsed the Open Letter to the UN would be willing to debate the government climate change cadre; and

Second, prove to Canadians that sharp reduction in Canadian carbon emissions will have a significant (or even measurable) impact on world carbon emissions.

The federal government has fallen into the trap of accepting an unproven theory as true on the basis that several thousand people believe that it is true. Unchallenged scientific theory is basically rumour. Canada’s failure to challenge the theory prior to embarking on a scheme with significant adverse economic impact is a dereliction of the federal duty to employ the principles of peace, order and good governance.

Alberta can lead the way by passing legislation that prohibits the registration and operation of organizations (including foundations and non-profits) who receive funding from foreign sources. That will kill some of the “protests” on oil sands development. We must demand that the federal government enact similar legislation.

It is unacceptable that the federal government is attempting to deal directly with cities in violation of Constitution Section 92 (8). The provinces have clear sovereignty over municipalities. We must not allow the federal government to bypass provinces when it is trolling for votes in urban centres.     

I have little doubt that as Alberta moves to enforce her sovereign rights as a province, other provinces will flock to the flag. At present, there is more competition than cooperation between the provinces. Asserting constitutional provincial sovereignty will make an arrogant federal government a natural common enemy and counter the divisiveness that is destroying this nation and our way of life.

Our confederation is not broken; our constitution prevents that. We must make the case that the federal government must confine itself to its constitutional responsibilities and allow the provinces to exercise the full range of their constitutional authorities.

My point to all this is that the provinces, led by Alberta, can start a series of legal action to establish their sovereignty and tie this government in knots while doing so. Populating the Rideau canal with angry alligators will result in studied attention from Parliament Hill.

The last thing that federal political parties want is to recognize the power of the provinces. We fight back or will forever remain doormats for the muddy boots of the federal government.

John Feldsted
Political Commentator, Consultant & Strategist
Winnipeg, Manitoba