Alberta has lost ‘moral authority’ on protecting treaty rights, lawyer argues in bid to block independence referendum

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A lawyer for a northern Alberta First Nation hoping to persuade the courts to block a potential independence referendum argued Wednesday that the provincial government has lost the “moral authority” to call itself a trusted guardian of treaty rights.

Kevin Hille, counsel for Athabasca Chipewyan First Nation, asked a judge to strike down Elections Alberta’s approval of the active petition trying to force a referendum on whether the province should separate from Canada. He argued that the three-day hearing this week was one of the last opportunities the court may have to uphold treaty rights before Albertans vote.

“Alberta’s pattern of conduct has lost it the moral authority to simply say, ‘Trust us. We’ll get it right next time. We’ll get it right later in this process – wait until the referendum result and we will protect your rights in the implementation of that result,’ ” Mr. Hille told Justice Shaina Leonard in the Court of King’s Bench in Edmonton.

“Alberta has not shown itself to be a reliable or trustworthy treaty partner, or to have the protection and fulfilment of treaty promises at heart at all.”

Mr. Hille’s remarks came on the second day of a hearing where Justice Leonard will decide whether to suspend the pro-independence petition, through which separatists are trying to collect the nearly 178,000 signatures needed to launch a referendum on leaving the country.

While a vote for separation wouldn’t be binding, it would likely lead to fraught negotiations between Alberta and the federal government.

Lawyers for Sturgeon Lake Cree Nation, a band in northern Alberta, asked Justice Leonard on Tuesday to suspend the petition by reinstating constitutional protections that the province has stripped from Alberta’s citizen-initiative legislation.

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Athabasca Chipewyan and the Blackfoot Confederacy, meanwhile, are asking the judge to suspend the Alberta chief electoral officer’s approval of the active separatist petition.

Lawyers and separatist advocates Jeffrey Rath and Eva Chipiuk, representing independence proponent Mitch Sylvestre, attended Wednesday’s hearing. They will make oral arguments on Thursday on behalf of Mr. Sylvestre, one of the leaders of Stay Free Alberta, the group behind the provincial independence campaign.

Counsel for the Alberta government and for the province’s chief electoral officer also attended the hearing.

Across the street from the courthouse, hundreds of people gathered in Churchill Square for a rally, carrying signs about respecting treaties and protecting water and land. Canadian flags flapped in the cold spring wind.

Blackfoot Confederacy Chief Troy Knowlton said he met with Premier Danielle Smith and members of her cabinet in Calgary on Tuesday, and that he confronted her about what he called the “political fantasy” of separatism, and the racism he feels has been unleashed against First Nations people and other communities.

“People were asking, why would I meet with her? Well, there’s an old gangster adage that also applies to politicians. You keep your friends close, you keep your enemies closer,” he said, to hoots and cheers from the crowd. “We’ve got to know what their next steps are.”

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Inside the courthouse, Mr. Hille’s arguments largely focused on provincial legislation passed last December that nullified a court decision by Justice Colin Feasby. The judge had ruled that transforming provincial and territorial boundaries into international borders would contravene First Nations’ constitutionally protected treaty rights.

The amendment of the Citizen Initiative Act by the government allowed Mr. Sylvestre to resubmit his referendum application, which was then approved by Elections Alberta.

While Alberta Justice Minister Mickey Amery has committed to respecting treaty rights no matter the outcome of any referendum, Mr. Hille disputed the notion – particularly if residents vote to separate. At such a point, he argued, the government would be politically bound to pursuing independence.

“We’re on the precipice of rolling into a realm of non-justiciable, purely political considerations and losing court oversight,” Mr. Hille said.

Mr. Sylvestre, one of the independence movement’s key leaders, said last week his group had collected all the signatures needed to force a fall referendum, which will be verified by Elections Alberta after the May 2 deadline.

He recently told The Globe and Mail that he announced the goal had been reached ahead of the deadline in order to apply pressure on the Premier to call a referendum even if Justice Leonard suspends the petition.

With a report from Jana Pruden