Alberta separatists deliver boxes of petitions at a rally outside the offices of Elections Alberta in Edmonton earlier in May.Todd Korol/Reuters
An Alberta judge has struck down a petition aimed at triggering a referendum this fall on separation from Canada, in part because the province failed to consult with First Nations to address how breaking off from Confederation could affect treaty rights.
Premier Danielle Smith immediately condemned the ruling. While she said her government favours Alberta staying in Confederation, the province will nonetheless appeal the ruling.
“We think this decision is incorrect in law and anti-democratic,” Ms. Smith said at an unrelated news conference after the court ruling was released on Wednesday.
The debate over national unity has escalated in Canada over the past year, with separatists in Quebec and Alberta both pressing for votes on independence. Ms. Smith has repeatedly stated she wants Alberta to remain in Canada, but she argues the federal government needs to be more responsive to her province’s concerns. She has also promised to hold a referendum if enough voters endorse a question under the province’s citizen initiative law.
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The roughly 301,000 signatures collected by separatist activist Mitch Sylvestre and other supporters of independence were well past the legislated minimum necessary for a citizen-led effort to force a provincewide vote, though the judge in the case barred Elections Alberta from verifying the signatures until her ruling.
Mr. Sylvestre has promised to appeal. But the court ruling means, at minimum, a further delay in verifying the signatures.
The decision is also likely to add to pressure on Ms. Smith to forgo the citizen initiative process and add a secession question to an already scheduled referendum in October, which will ask nine questions related to immigration and Alberta’s relationship with the federal government.
Ms. Smith said Wednesday her cabinet and caucus will discuss whether the government should add a secession question to the referendum.
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The uncertainty around the referendum is also happening as Ms. Smith and Prime Minister Mark Carney are on the verge of finalizing a new deal on industrial carbon pricing, which could pave the way for a new oil pipeline to the West Coast. Both politicians have argued that such an agreement would show that Confederation can work for Alberta.
Justice Shaina Leonard of the Court of King’s Bench concluded that the province’s chief electoral officer was wrong to approve the separatist petition last year because it should have triggered First Nations consultations. The judge said such consultations must happen before starting a process that could trigger a binding referendum.
“As a matter of logic and common sense, there can be no doubt that Alberta’s secession from Canada will have an impact on Treaties 7 and 8,” the judge wrote in her decision.
“A requirement to implement secession without prior involvement of [First Nations] has the potential to adversely affect Treaty rights.”
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Alberta government lawyers and pro-independence leader Jeffrey Rath, who is also a lawyer, argued in hearings earlier this year that the electoral officer was correct in his decision to approve the petition.
Government lawyers disputed the idea that a vote on independence would infringe treaty rights, arguing that there were numerous “off-ramps” through the referendum process to ensure treaties were respected. They also argued that consultations could happen after a referendum.
Mr. Rath described the notion that independence would violate treaties as “pure speculation.”
During her news conference on Wednesday, Ms. Smith questioned the judge’s conclusion that the government must consult with First Nations before separation can be put to the electorate.
“I think that the duty to consult is an obligation on government specifically when we’re talking about the impact on treaty rights over hunting, fishing, trapping and when we’re dealing with particular projects,” she said. “I think that that part of the law is very clear. This is pretty murky. That’s why we think it may be incorrect.”
Ms. Smith said she plans to discuss Wednesday’s ruling with leaders in Quebec. The opposition Parti Québécois has promised to hold a sovereignty referendum if the party wins the provincial election this fall.
Elections Alberta spokesperson Michelle Gurney said in a statement the agency is analyzing the ruling.
“We respect the Court’s decision and anticipate there will be more to say in the coming days and weeks,” she said.
Justice Leonard is the second judge in the past six months to rule First Nations must be considered in the decision to call a referendum on provincial independence.
In December, Court of King’s Bench Justice Colin Feasby ruled that Alberta independence would contravene treaty rights. In that decision, he wrote: “First Nations, as founding partners in the creation of Alberta, cannot be ignored or bypassed as Alberta contemplates its future whether that is as part of Canada or not.”
Kevin Hille, counsel for Athabasca Chipewyan, the First Nation that brought the lawsuit, said Ms. Smith’s government is required to consult with First Nations if it wants to put independence on a referendum ballot.
“The government has to take ownership of this and engage with First Nations,” Mr. Hille said in an interview.
Mr. Sylvestre said he was unsurprised – and undeterred – by Wednesday’s decision. He said he and like-minded supporters of independence will press Ms. Smith to use the government’s powers to put a secession question to the electorate.
“We believe it is not unreasonable to ask our government to put that on a ballot and let the people decide,” he said in an interview.
“We’ve always been aware that the best path for this is for the Premier to put it on the ballot.”
With a report from Temur Durrani