As Albertans prepare to vote in their October referendum, it is important that they know and understand what has happened to the constitutional legacy of former Alberta Premier Peter Lougheed. During the 1980-81 drafting of the Charter of Rights and the Constitution Act 1982, Lougheed and the other Western premiers negotiated and won four important concessions from the Trudeau Liberals. But now, four decades later, these hard-fought constitutional rights and powers have been reversed by the Supreme Court of Canada, Liberal federal governments, or the two working together. These constitutional losses represent a clear and present danger to Albertans' future. Harmful federal policies can be repealed by a new federal government. Constitutional losses are permanent, unless challenged.
The addition of Section 92A to the constitution was Lougheed's most important achievement. Section 92A explicitly affirms each province's exclusive jurisdiction over the exploration, development, conservation and management of non-renewable natural resources. Its purpose was to ensure that Alberta would never again see a federal government implement anything like then-Prime Minister Pierre Trudeau's disastrous National Energy Program (NEP). During negotiations to patriate and amend Canada's constitution, Section 92A became a non-negotiable demand of Lougheed and the other western premiers. Without it, Trudeau would never have received their consent to the 1982 Constitution Act and the new Charter of Rights and Freedoms.
But now, Section 92A's protection has been largely erased, not just by the anti-oil-and-gas policies of a second-generation Trudeau Liberal government, but also by the Supreme Court judges that have upheld them. Justin Trudeau's carbon tax, West coast tanker ban, and Impact Assessment Act amount to an NEP 2.0. The Supreme Court ruling that upheld the carbon tax leaves 92A in tatters.
Do not take my word for it. The Alberta Court of Appeal described the Trudeau carbon tax as a constitutional Trojan horse that, under the guise of fighting carbon emissions, would give the federal government potentially unlimited power over provincial regulations. The Alberta Court warned that the carbon tax would forever alter the constitutional balance that exists between the heads of power allotted to Parliament and the provincial Legislatures in the federal Canadian state, facilitating a wholesale takeover of a collection of clear provincial jurisdictions and rights.
The Feds of course appealed their loss in Alberta to the Supreme Court in Ottawa, and equally predictably, the Supreme Court reversed it. But not unanimously. Listen to what the dissenting judges said about the majority ruling upholding the carbon tax. Justice Russell Brown warned that it reflected a model of federalism that rejects our Constitution and rewrites the rules of Confederation and was bound to lead to serious tensions in the federation. Justice Malcolm Rowe warned that the majority's reasoning allows Parliament to acquire exclusive jurisdiction over matters that fall squarely within provincial jurisdiction and flatten regional differences. But these were the dissenting judges. In any subsequent litigation, all lower-court judges are obliged to follow the majority's ruling.
