Coyne asserts that Alberta could lose the parts of its territory containing oil and gas if it leaves Canada.

 

Columnist Andrew Coyne weighed into the Alberta separation debate with a novel theory: that if Alberta ever left Confederation, it shouldn't assume it would leave with all of its territory, including the parts containing oil and gas.

"Its wealth?" Coyne wrote. "Among the most absurd assumptions in this whole surreal debate is the idea that Alberta... would depart with its entire current territory — including the parts with the oil."

He goes on to argue that provinces only control natural resources because they are provinces within Canada, and that once they cease being provinces, constitutional guarantees disappear.

It's a bizarre argument, particularly because it moves beyond arguing against separation and into something closer to: Nice oil patch you've got there. Shame if something happened to it.

The problem is that Coyne compresses several different legal questions into one dramatic conclusion.

Yes, Section 92A of the Constitution gives provinces exclusive jurisdiction over the development, conservation and management of non-renewable natural resources within their boundaries. Alberta fought hard for those protections during constitutional negotiations, with former Premier Peter Lougheed playing a major role in securing them.

But Coyne then takes a leap:

Because these powers exist under the Constitution of Canada, he argues that Alberta's claims over resources would somehow evaporate if constitutional arrangements changed.

Constitutions don't create the physical existence of provinces, their borders, or the oil beneath them. Alberta's boundaries are established legal boundaries. Its resources physically sit inside those boundaries today. The Constitution allocates legislative authority over them.

Coyne's argument effectively assumes a future negotiation would begin with: "We'll keep your oil fields, thanks."

There is little historical basis for that assumption.

When states separate internationally, negotiations generally involve division of assets, liabilities, territory and resources. The Supreme Court's Quebec Secession Reference contemplated negotiations following a clear democratic mandate; it did not suggest Ottawa would simply confiscate provincial territory as a punishment mechanism. Separation itself would be an unprecedented constitutional negotiation, not an automatic reset button.

And there is another irony here.

For decades Albertans have been told they are selfish for believing Ottawa treats the province like an ATM. Now some opponents of separation appear to be making an argument that sounds suspiciously close to: You can't leave because the rest of Canada needs your resources.

There are legitimate arguments against Alberta independence: economic uncertainty, Indigenous treaty issues, trade complications, debt allocation and constitutional chaos.

But "the oil might not go with Alberta" is blackmail with no grounds in law.