Janice Makokis is an assistant professor in the Faculty of Law at the University of Windsor, and a member of Saddle Lake Cree Nation in Treaty No. 6 territory. Doreen Cardinal-Somers is a treaty advisor, living in Treaty No. 8 territory, and a member of Chapleau Cree First Nation and Kanien’kehá:ka from Mohawks of the Bay of Quinte. Orlagh O’Kelly is a lawyer living on Treaty No. 6 territory in Edmonton.
Last week, Alberta Premier Danielle Smith proposed Bill 54, which would lower the bar for a referendum such that even a small group of separatists could trigger a vote on the province’s separation from Canada. But what that legislation ignores is that separation would be a breach of the Crown’s treaties with First Nations, the legal foundation of Canada – and that First Nations, who want nothing to do with these secessionist plans, will not accept Albertan independence.
In fact, the whole issue is moot without the consent of treaty peoples. The Premier should drop the idea of any referendum immediately.
But rather than do the right thing, Ms. Smith only fanned the flames further by sharing inflammatory misinformation, gaslighting First Nations and all Canadians who reject any talk of separatism, and doubling down on her commitment to allow a citizenship referendum – all before Prime Minister Mark Carney’s high-stakes meeting with an increasingly authoritarian U.S. President.
For those not aware, the province of Alberta is treaty land under Treaty No. 6 (1876), Treaty No. 7 (1877) and Treaty No. 8 (1899). These treaties were not entered into with the government of Alberta; they were made with the Crown before Alberta even existed.
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These treaties were preceded and informed by similar covenants in the East. Relations between the earliest settlers and First Nations were recorded by the Two Row Wampum Belt, originally between early Dutch settlers and the Haudenosaunee (also known as the Iroquois Confederacy). The Wampum is a representation of laws demonstrating that First Nations and the newcomers would continue to live side-by-side in perpetuity, without any interference from the settlers, whom First Nations welcomed here on their land. The Wampum guaranteed mutual respect for each others’ laws, customs and sovereignty.
The Wampum’s teachings are reflected in petroglyphs across the West, including in Alberta, that have been here for thousands of years. They confirm First Nations’ laws and responsibilities to the land, and to one another.
The Wampum was also foundational to Canada’s constitutional origins. Following the conquest of New France in 1760 and the end of the Seven Years’ War, the British needed First Nations as allies, which led to the Royal Proclamation of 1763. The proclamation required First Nations consent for any settlement in their territories, and consent was only to be achieved through treaty-making between First Nations and the Crown. These discussions culminated with the Treaty of Niagara in 1764, where the Wampum was confirmed as the foundation for all treaty-making.
Likewise, First Nations understood Treaties No. 6, 7, and 8 to be sacred covenants to share the land, for peace and friendship, while respecting one another’s sovereignty and laws. They were to continue “as long as the sun shines, the grass grows and the rivers flow.” In other words, these treaties are forever.
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When Canada last went through a national-unity crisis, the Supreme Court of Canada sidestepped the question of how Indigenous rights and treaties would be engaged, but they would be central to any effort by the province of Alberta to secede. And the fact is that Alberta was not a party to the treaties; it was created by a federal statute, the Alberta Act, in 1905 – well after the treaties. It does not simply get to violate or ignore these, as it wishes.
To be blunt, Alberta has no apparent right to secede. A supposedly “independent” Alberta would be an unlawful occupation of land that was only shared with the Crown, not the people who came to settle the province. There would be no legal right or permission for an Alberta “state” to occupy this treaty territory.
Through her rhetoric and actions, Ms. Smith is completely disregarding the legal basis of the province she governs. While Alberta may have been created in 1905, it rests on the treaties that First Nations entered into with the Crown well before the province came to be. And so Bill 54 flips the nature of treaty-making on its head. A provincial referendum has no bearing on the treaties with the Crown and would therefore be illegitimate and non-binding, regardless of the result. Indeed, notwithstanding the Clarity Act, the federal government would have no right to alter these treaties as part of negotiations with the Alberta government. First Nations have made it clear that this will not be tolerated.