Legal experts weigh in on what’s next for Alberta’s proposed separation referendum

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An Alberta court decision this week derailed a proposed referendum question on the province’s separation from Canada. The ruling focused on the issue of Indigenous consultation. Legal experts say the long-term impact of the ruling is unclear, with a planned appeal to the higher courts, and other open questions about previous Supreme Court of Canada decisions on secession and Indigenous consultation.

What is happening?

A group in Alberta wants the province to include a question on separating from Canada on the ballot for a planned referendum in October. Several Indigenous groups, led by the Athabasca Chipewyan First Nation, challenged the process in court.

On Wednesday, Justice Shaina Leonard of the Court of King’s Bench ruled the province’s chief electoral officer was wrong to approve the petition for the separation question last December. This is based in part on the judge’s conclusion that “the Crown failed to meet its duty to consult” Indigenous groups.

What does this mean? Will a separation vote happen?

The ruling this week may be overturned, said Patrick Taillon, a law professor at Laval University. He described the judgment as unusual and controversial.

“It is far from clear that appellate courts will endorse it,” he said.

Alberta Premier Danielle Smith called the ruling “incorrect in law and anti-democratic” and said the province plans to challenge it at the Alberta Court of Appeal.

Legal experts say the province’s top court could hear the case in the coming months and issue a ruling soon after.

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But there would be a potential appeal to the Supreme Court. The typical timeline for that process at the country’s top court would stretch for months past the October referendum.

Even if, as Ms. Smith has suggested is an option, the government added the separation issue to its own list of referendum questions – which include issues such as immigration – that move would still face the problem of inadequate Indigenous consultations.

Lawyers for the Athabasca Chipewyan say the logistics and timing of the appeal process aren’t clear, nor is it evident how the Alberta government could conduct Indigenous consultations in good faith in a short span of time.

“We believe it is highly unlikely that the government can legally put the question on the ballot in October,” said Kevin Hille, counsel for the Athabasca Chipewyan and a partner at Olthuis Kleer Townshend in Toronto.

What role does the Supreme Court’s 1998 secession reference on Quebec separation play?

After separation was narrowly defeated in a 1995 vote in Quebec, the federal government asked the Supreme Court to provide answers on questions of the province’s unilateral secession from Canada.

In its unanimous ruling in 1998, the Supreme Court spoke generally of a “clear majority on a clear question in favour of secession,” and the required negotiations that would follow. The top court highlighted the role of Indigenous groups in such negotiations.

Prof. Taillon said the 1998 reference “treated Indigenous rights as extremely important but mainly at the negotiation stage.” He said the Alberta court decision treated the potential referendum question “as though it were already a legally decisive act of secession” and observed the Supreme Court “never suggested that prior Indigenous consultation was a legal precondition to holding a referendum itself.”

What about the duty to consult?

This legal concept was detailed six years later in the Supreme Court’s unanimous Haida Nation decision in 2004. The duty to consult involves questions around whether a government knows an Indigenous right is potentially imperilled by government action.

In Justice Leonard’s ruling this week, she said the chief electoral officer’s decision to approve the separation petition so it could move forward to collect signatures triggered the duty to consult. “No consultation occurred,” the judge wrote. Alberta thus breached its duty to consult with the First Nations that brought the case.

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Emmett Macfarlane, a professor of political science at the University of Waterloo, in January examined the secession reference and the Haida decision. Prof. Macfarlane on Substack stated that the duty to consult and the concept of the honour of the Crown mean “it would become increasingly difficult to see secession as a valid constitutional option” if Indigenous communities opposed the change. He said that at the very least, provincial boundaries remaining fully intact would be “virtually impossible.”

Is the Clarity Act a factor at all?

The federal government passed the Clarity Act in 2000 after the Supreme Court secession reference. The law’s preamble states that any province can consult its population by referendum on any issue, and that the top court said a question on secession must be clear and requires a clear majority to spark negotiations. The act details what happens once a referendum question on separation becomes official and the process thereafter. Alberta’s potential question remains at an earlier stage.

Could all this have an impact in Quebec, if the province ends up holding another separation referendum?

Possibly, but it all depends on how the legal process proceeds in Alberta and on the details of the eventual outcome.