Separatist lawyer Jeffrey Rath listens to Premier Danielle Smith's speech at the United Conservative Party AGM last November in Edmonton.Amber Bracken/The Globe and Mail
One of the lawyers leading Alberta’s separatist movement argued in court on Thursday that a vote in favour of independence wouldn’t violate First Nations’ constitutionally protected rights, calling the notion “pure speculation.”
Jeffrey Rath, in his defence of the separatist petition that First Nations are trying to block, told Justice Shaina Leonard there’s no evidence the continuing signature-collection effort has infringed on their treaty rights.
“I just sit here shaking my head, because what everybody always wants to gloss over is the question of, ‘What is infringement?’” Mr. Rath said in the Court of King’s Bench in Edmonton on Thursday afternoon during his hour-long remarks.
“I haven’t heard any of my friends explain at all, in any circumstance whatsoever, how a treaty right is infringed by the legislature of Alberta setting out a process by which citizens can communicate potential constitutional amendments to the legislature by way of petition.”
Mr. Rath, representing separatist leader Mitch Sylvestre, is among the most prolific personalities to emerge from Alberta’s independence movement, which has been galvanized by Premier Danielle Smith’s legislative changes making it easier to force a referendum.
He has attracted significant attention after he attended three meetings with U.S. State Department officials to discuss Alberta’s potential vote. And since January, he has been traversing the province selling Albertans on the benefits of independence.
Mr. Rath’s remarks on Thursday punctuated the third and final day of a hearing that will see Justice Leonard decide whether to suspend pro-independence Stay Free Alberta’s effort to collect nearly 178,000 signatures by May 2.
If Stay Free Alberta’s signature drive is successful, it would likely force the province to hold a vote, but the results wouldn’t be binding.
Alberta has lost ‘moral authority’ on protecting treaty rights, lawyer argues
Sturgeon Lake Cree Nation triggered this week’s hearing by suing the provincial and federal governments and Alberta’s chief electoral officer, arguing that an independence referendum would be a violation of their treaty rights. Counsel for several Alberta First Nations presented arguments at the hearing.
Earlier in the week, lawyers for Sturgeon Lake Cree Nation asked the judge to reinstate constitutional provisions that were stripped from the Citizen Initiative Act by the Alberta government last December. Counsel for other First Nations have asked for the Alberta chief electoral officer’s approval of the separatist petition to be suspended.
Mr. Rath took issue on Thursday with both of those requests.
He argued that First Nations’ counsel were asking the judge to usurp legislative amendments passed by the United Conservative Party government.
“They are asking you to re-legislate,” Mr. Rath said of the bands’ legal counsel. “They’re asking you to put words into a statute that the legislature of Alberta – perfectly within its legislative competence – removed from the statute."
Mr. Rath also said an independent Alberta would separate from Canada but continue to be governed by the Crown, and new borders would not limit First Nations’ rights to mobility or hunting, trapping and fishing.
Earlier in the day, an Alberta government lawyer asked Justice Leonard to exercise “judicial restraint” in her decision because the province believes it’s too early to determine if treaty rights would be violated by an independence referendum.
“We are at the opening moments of what we would think of as something like a five-act play,” the lawyer, Neil Dobson, said. The first act – the citizen-initiative process of collecting and approving the independence petition’s signatures – was the focal point of the three-day hearing.
Mr. Dobson argued that after a petition is approved by Alberta’s chief electoral officer, several “off-ramps” remain to ensure treaty rights are respected.
A provincial flag flies at an Alberta Independence petition signing location in the town of High River on Feb. 5.Todd Korol/Reuters
Counsel for First Nations disagreed with that stand, describing this week’s hearing as one of the last opportunities for the courts to weigh in on treaty issues ahead of an independence vote.
Kevin Hille, counsel for Athabasca Chipewyan First Nation, said on Thursday that a vote for Alberta’s secession would lead to highly political negotiations that would happen without the courts’ input.
“I submit First Nations, in particular, would be put in an intolerable position,” Mr. Hille said.
Justice Leonard did not say when she will issue her decision but said it will be a priority.
“I’m going to work very quickly,” she said.
Separately, another possible referendum question on Alberta’s place within Confederation is currently in the hands of a committee that will decide whether legislative members or the general population will vote on it.
Ms. Smith, speaking at an event in Calgary on Thursday, said the committee is assessing the “legalities” of the Forever Canadian petition that raked in more than 438,000 signatures last year in support of remaining in Canada.
While the Premier is waiting for the legislature committee to make a decision, she has committed to a referendum if Stay Free Alberta’s petition drive is successful.
“I guess we’ll see what happens with the court and whether they get the signatures,” Ms. Smith said.
Mr. Sylvestre and Mr. Rath said last week that they’d reached the goal of 178,000 signatures, which will be verified by Elections Alberta after the May 2 deadline.