Will Danielle Smith’s secession referendum question get around an Alberta judge’s ruling?

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Alberta Premier Danielle Smith plans to put a secession question on the province’s referendum ballot in October. Her move skirts a recent court ruling that derailed a similar question. Legal experts say the new approach appears viable.

What is happening?

A group in Alberta wanted the province to include a question on separating from Canada in a referendum where the province had its own list of questions on issues such as immigration. The group’s push happened under the province’s Citizen Initiative Act.

In mid-May, Justice Shaina Leonard of the Court of King’s Bench of Alberta ruled that the proposed referendum question shouldn’t have been approved by Alberta’s chief electoral officer. This conclusion was based in part on the judge’s view that “the Crown failed to meet its duty to consult” Indigenous groups.

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What was the province’s response?

On Thursday, Ms. Smith announced she would include separation on the province’s list of questions, under Alberta’s Referendum Act.

Ms. Smith said the court ruling earlier this month was “a legal mistake by a single judge” that would “silence the voices of hundreds of thousands of Albertans.”

Legal experts note that the duty to consult Indigenous groups was determined under the Citizen Initiative Act, whereas the latest version of the question is being put forth under the Referendum Act. It may violate the spirit of the court ruling – and invite new legal challenges – but for now it appears legally sound.

“The Premier is taking a very legalistic approach to the question,” said Rebeca Macias Gimenez, an assistant law professor at the University of Alberta.

Kevin Hille is counsel for the Athabasca Chipewyan First Nation, one of the Indigenous groups that won in court this month. He said Ms. Smith’s move is “an attempt to evade” consultations with Indigenous groups.

A statement released by the First Nation on Thursday called on Ms. Smith to halt her moves toward a referendum question on separation, but did not indicate a new legal challenge was forthcoming.

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What will the question be?

“Should Alberta remain a province of Canada or should the Government of Alberta commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada?”

What does the wording reveal?

Asking a question on whether to ask a bigger question could bolster the province’s short-term legal position, because a yes vote to start a legal process doesn’t mean separation. The court decision about the Crown’s duty to consult Indigenous groups had focused on the binding nature of the previously proposed referendum question.

On Friday, Rob Anderson, Ms. Smith’s chief of staff, said on social media: “Due to the recent court ruling, there is no legal way to hold a binding separation referendum this fall.”

Patrick Taillon, a law professor at Laval University, said the idea of two votes evokes former Quebec premier René Lévesque’s approach in 1980. The provincial government asked Quebeckers for a mandate to negotiate separation, but the question also stated any formal plan would be put to a second referendum.

Prof. Taillon said Alberta’s new question is meant to “send a strong message to the courts about the nature of the process and the authorities’ intention to proceed step by step, according to the law, and gradually.”

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Is this the second time the Alberta government skirted a court ruling in the separation debate?

Yes. The court decision this month follows a related ruling last December from Justice Colin Feasby of the Court of King’s Bench. The same group seeking Alberta independence was involved. Justice Feasby ruled that the proposal was unconstitutional under the Citizen Initiative Act.

But Ms. Smith’s government rewrote the rules in the act as the judgment landed in December. The revised law allowed citizens to launch referendum petitions without Elections Alberta first determining whether their proposed questions are constitutional. This led to the renewed push for a citizens-initiative separation question, the one that was defeated in court this month.

Justice Feasby, in the epilogue of his December ruling, observed: “Changing legislation to circumvent a valid legal process … is the antithesis of the stable, predictable, and ordered society that the rule of law contemplates, and democracy demands.” He also said: “Legislating to pre-emptively end this court proceeding disrespects the administration of justice.”

With the new referendum question, could there be more legal challenges?

Possibly, said Prof. Macias Gimenez. But given there are less than five months before the Oct. 19 referendum, it would likely require a court to issue an injunction against the asking of the new separation question under the Referendum Act while a case is heard.

Prof. Macias Gimenez predicted the new separation question will be on the ballot in October.