Can Alberta Still Separate? Experts Clash over the Landmark Court Decision
A cross-country panel debates one of the most consequential rulings in years
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This story was originally published on thewalrus.ca
By Various Contributors
Last week, the Alberta court issued a stunning decision, halting the separatist petition process in a way that immediately reshapes the national conversation around the democratic legitimacy of secession.
For First Nations leaders, the ruling represents a major affirmation of constitutional and treaty protections. For Alberta separatists, it is a frustrating setback. But the judgment is unlikely to extinguish the cause. Instead, it raises a new host of questions about the limits of provincial power, the role of Indigenous consent in Canada, and whether Western alienation will now enter an even more aggressive phase.
Over the weekend, we reached out to a group of constitutional and Indigenous experts to discuss the fallout from one of the most consequential court decisions in recent Canadian politics.
Their responses, in some cases edited for length and clarity, can be found below.
“The only way there will be a secession referendum now is if Smith becomes the separatist pied piper.”
Patrick Lennox
Former Royal Canadian Mounted Police Intelligence Manager
“We think that this decision is incorrect in law and anti-democratic, and we will be appealing it as a result.” These were the words of Alberta’s populist premier, Danielle Smith, just moments after the release of Justice Shaina Leonard’s historic ruling on Thursday, May 14.
To the obvious chagrin of the premier, Leonard’s decision has put a petition to hold a secession referendum in the province on ice. In fact, it’s been put deep in the basement freezer beneath a crusty bag of Costco vegetables that’s been there since the early omicron days.
The only way there will be a secession referendum now is if Smith becomes the separatist pied piper and puts the question on the ballot herself through a cabinet order. The reason she’s so miffed is that Leonard is the second justice to demonstrate the folly of her scheme to turn Alberta’s representative democracy on its little 121-year-old head. And the second time the First Nations successfully defended Canada against the separatist siege.
The first was Justice Colin Feasby who, in December of last year, after days of hearing blustery arguments from separatist leader and lawyer Jeffrey Rath, decided that, actually, the separatist petition is unconstitutional and would contravene treaty rights. Smith tried but failed to head this ruling off at the pass, with some late-night law making designed to nullify any requirement that a petition question be constitutional. Feasby’s ruling saw the light of day despite the last-minute legislating, but Smith and her United Conservative Party succeeded, through Bill 14, in giving the separatists licence to go about their merry signature-collecting campaign nonetheless.
Hence the need for Leonard this month to continue Feasby’s train of reasoning, ruling that the government (via Elections Alberta), in granting the petitioners licence to collect signatures, had failed in its duty to consult the First Nations who signed the Treaties with the Crown before Alberta was even a thing.
The upshot of Leonard’s decision is that if you want to separate, you have to go through the First Nations. And they want nothing of it. Their deal was with Canada. Not with Alberta. And the way in which the UCP has treated them thus far suggests rather strongly that any consultations are bound to go poorly. The trust has broken down.
Breaking down the trust and dividing our society and our country is actually the point though. That much should be crystal clear by now. “We want to hear from Albertans. That’s what we think democracy is.” This is another quote from the premier following the ruling. It’s designed to do one thing: blow up the concept of democracy to its breaking point.
In Canada, we don’t decide things in the town square by plebiscite. According to Canadian political philosopher Margaret Moore, plebiscites, especially secessionist ones, are blunt instruments, easily manipulated and used by authoritarians to consolidate power. Instead, we live in a representative, constitutional democracy, which has three branches of government that are separately endowed with specific powers and authorities designed to balance out one another in order to protect us against would-be despots.
We’ve seen what maximal executive power looks like in the United States. We’ve seen what happens when the courts and the legislature roll over and play dead in front of an executive with tyrannical ambitions. The populist premier is mimicking the populist president. She’s challenging the sacred principles and foundations of our country. That should be a warning to all Canadians. As Alberta’s democracy goes, the rest of Canada’s will follow.
An anti-democratic strain of populism is on the rise worldwide. It has taken root in our neighbours to the south. And it has taken root here in the province of Alberta. Smith’s latest attack on the court follows a now lengthy pattern of effort to delegitimize the judiciary and limit its role as an independent branch of our government.
Be not fooled. The only thing anti-democratic about Justice Leonard’s ruling was Premier Smith’s reply to it.
“Hopes for a respectful debate between Canadians about separation seem increasingly quaint in this age of political polarization and foreign interference.”
Kent Roach
Professor of Law at the University of Toronto
Recent commentary on an Alberta trial judge’s ruling to quash a decision to add a question on Alberta separatism to upcoming referenda has cast more heat than light.
Alberta premier Danielle Smith has denounced the decision as “anti-democratic” and floated using the notwithstanding clause, even though section 33 of the Charter—which allows legislatures to pass laws temporarily overriding certain Charter protections—does not apply to Indigenous rights or to the Crown’s constitutional duty to consult.
There has been extensive litigation over the duty to consult since the Supreme Court of Canada established the doctrine in 2004 as an alternative to injunctions—court orders that can temporarily halt government or industrial projects while legal disputes are resolved. The duty requires governments to notify First Nations about proposed actions, consult them in good faith, and where appropriate, accommodate their interests. But the court has also repeatedly stressed that the duty to consult does not amount to a veto over government decisions.
In most cases where the duty to consult has been violated, governments are not permanently barred from proceeding with a project or policy. Instead, they are allowed a “do over”—meaning they must properly consult and, where necessary, accommodate Indigenous interests before moving ahead with plans.
Some commentary surrounding the case has wrongly suggested that the court has permanently blocked a referendum on Alberta separatism. But past duty-to-consult rulings suggest Alberta could still potentially hold a referendum on separation after fulfilling its constitutional obligations to consult.
My first concern is that the rhetoric of Smith and others that the decision is interfering with the will of the people will fuel the significant fires of Alberta separatism by feeding long-standing suspicions of courts and constitutional litigation as a conspiracy of the Laurentian elites. My second concern is that the decision could lull those opposed to Alberta separatism into thinking the courts can chase off the issue and save Canada. That is not possible.
The Supreme Court’s 1998 Secession Reference merely states—hopes, really—that there will be respect for Indigenous rights, minority rights, and the interests of the rest of Canada in the negotiations that will inevitably follow a clear vote that part of Canada wants to separate. At the time, the decision was widely praised for trying to reconcile democratic expression with constitutional order.
Alas, its hopes for a good-faith, respectful debate between Canadians about separation seem increasingly quaint in this age of political polarization and foreign interference.
“In the last thirty years, we have seen a cascade of court decisions affirming Indigenous land and title claims.”
Adrienne Davidson
Assistant Professor of Political Science at McMaster University
The current state of play in the Alberta referendum saga has brought several important issues into focus, but perhaps none is clearer than this: the Canadian Constitution has grown up a lot in the last thirty years and so has our understanding of what Canada is and how it came to be.
After the Quebec referendum in 1995, the Supreme Court was asked to weigh in on whether a province could break away from Canada on its own terms. The court ruled that while secession is possible in principle, it cannot happen unilaterally (meaning one province cannot simply declare it will walk away from the rest of Canada).
The court grounded its decision in four foundational principles that have shaped how Canada’s constitutional arrangements have evolved over time: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities. What is clear from the two most recent court decisions from the Court of the King’s Bench of Alberta is that Canadian constitutionalism does not look like it did in 1995. Aboriginal and Treaty Rights have moved from the margins to the centre of how we understand Canada’s constitutional foundations.
The 1998 Secession Reference made no reference to Aboriginal and Treaty rights. That is not because the issues weren’t there—the Cree of northern Quebec, for instance, have long contended that their territories would remain part of Canada even if Quebec separated—but because the court viewed these issues as secondary.
They are no longer so. In the last thirty years, we have seen a cascade of court decisions affirming Indigenous land and title claims, Indigenous rights to self-government, and the Crown’s legal duty to consult Indigenous peoples on issues that may impact them. These are now established constitutional principles that are shaping the state of play on secession. They may even end up changing our perspective on whether Canada is divisible after all.
There are many different questions still yet to be considered and many different ways the separation conversation may yet evolve. But one thing is already clear: Indigenous nations in Alberta will make sure that they have a seat at the table. As noted in Chief Electoral Officer of Alberta v. Sylvestre: “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.”
“The Athabasca Chipewyan decision makes clear that the provincial government cannot sidestep its constitutional obligations to First Nations.”
Lisa Young
Professor of Political Science at the University of Calgary
The heart of last week’s Athabasca Chipewyan decision is a requirement that the provincial government consult First Nations before allowing a referendum on secession from Canada to go forward.
Alberta’s 2000 Referendum Act, and the 2021 Citizen Initiative Act, were designed to make a referendum on secession possible but allow the provincial government to avoid responsibility for it. In essence, the legislation outsources decision making to the voters, making the government a mere “servant of the people” bound to act on their wishes. In the decision, Justice Shaina Leonard observed that “once the [chief electoral officer] issues a citizen led initiative petition, it sets in motion a sequence of mandatory statutory steps that bind the Government to implement the results of a referendum.”
The Athabasca Chipewyan decision makes clear that the provincial government cannot sidestep its constitutional obligations to First Nations by portraying itself as merely carrying out the will of the people. If a referendum on secession is to take place, Alberta must first engage meaningfully with the communities whose treaty rights would be directly affected.
Premier Smith has indicated that the province will appeal the ruling, and it is possible that a higher court will reverse some of the findings. But for now, the Smith government finds itself in a difficult position: to add the separatists’ question to the fall referendum ballot as a government-sponsored question means acting as an agent for the separatists. This would satisfy many of the governing party’s supporters, but it would brand the government as separatist in a province where some three-quarters of voters want to stay in Canada.
Ironically, the “Forever Canadian” petition offers the Smith government a possible escape route. The petition gathered more than 400,000 verified signatures calling for a referendum on whether Alberta should remain within Canada. It was launched to help head off a separatist question ending up on the ballot by demonstrating that federalist sentiment in Alberta was substantial and organized. To foil that strategy, the Smith government changed the rules for citizen-led referendum drives so that a separatist group needed fewer signatures to force its own ballot question—the very effort now effectively frozen by Justice Leonard’s ruling.
But the Forever Canadian campaign remains stranded in a legislative committee after the government delayed moving it forward. Smith might well decide to put it to the people in next October’s referendum. She could argue that it would give separatists a chance to register their discontent by voting “no” to Alberta staying in Canada.
It’s unlikely, though, that this camp would accept the Forever Canadian question as a meaningful substitute for a direct independence question. While the move could offer Smith a way out of a tight corner, separatists would likely respond by organizing inside the United Conservative Party itself, with the aim of outing Smith and making outright secession official party policy.
“A separatist referendum would make it harder to secure the political and social licence necessary to build a pipeline.”
Jared Wesley
Co-Director of the Peter Lougheed School of Politics and Democracy and Professor of Political Science at the University of Alberta
The court’s decision does more than stall the Stay Free Alberta petition. It forces Danielle Smith to confront two choices she had hoped to avoid.
The first is whether to call an independence referendum on her own initiative. Smith has preferred to use a valid citizen petition as political cover for such a vote. A successful petition would have allowed her to argue that the referendum was not her decision but a democratic imperative. This is why she changed the rules several times to facilitate the separatists’ drive for signatures and why she is reluctant to hold a public inquiry into the process. With the petition both in question (thanks to the separatists’ improper use of the voters list) and in limbo (with the purported hundreds of thousands of signatures unlikely to be validated anytime soon), that pretext disappears. If a referendum proceeds this fall, it will be because the premier wants it, not because she has to.
The second unwanted choice is between advancing a new pipeline and appeasing the separatist wing of her base. Those two objectives are fundamentally at odds. The court has said Alberta must consult First Nations before holding a referendum on separation, while the memorandum of understanding with the federal government requires similar discussions around a pipeline.
Regardless of whether it is a Forever Canadian or Stay Free Alberta question, First Nations leaders are unlikely to limit discussions to routes, environmental concerns, or economic benefits when the provincial government is simultaneously paving the way for a vote that threatens treaty rights.
Nor is British Columbia likely to provide the political cooperation needed for a new pipeline while Alberta entertains a process that could leave BC geographically isolated from the rest of the provinces.
Smith’s strategists will advise her that a referendum could pressure Ottawa into approving a pipeline to avoid strengthening separatist arguments in the final weeks of a campaign. (The federal pipeline approval is due eighteen days before a prospective October 19 referendum.) But the reality is the opposite: a separatist referendum would make it harder, not easier, to secure the political and social licence necessary to build a pipeline.
The court’s petition has forced Premier Smith into a difficult set of choices. That, as much as anything, may explain her animosity toward the “anti-democratic” judiciary.
“Foreign interference campaigns are especially potent in these contexts.”
Margaret Moore
Professor of Political Studies and Philosophy at Queen’s University
Referendums are often assumed to be a democratic way to decide whether a province or area ought to secede. “Let the people decide!”
However, academic research on referendums suggests that their democratic legitimacy depends on a more fine-tuned analysis of the entire process: how it is initiated, how the campaign unfolds, and how the public ultimately casts its ballots.
This is needed because the referendums are particularly easy for elites to manipulate through the timing of the vote, the wording of the question, and the ability to dominate public debate itself. The referendums have often been favoured by authoritarians, as Napoleon’s use of the device to consolidate power attests.
Research suggests a truly democratic referendum on secessions should be inclusive of different actors at all stages. Danielle Smith’s lowering the vote threshold to trigger the process is very worrying. A very small minority gets to set the agenda, defining what Alberta and the rest of Canada will be talking about and grappling with over the coming months.
And the exclusion of Indigenous peoples is a deep problem, not just because, as the court ruled, Alberta failed in its constitutional duty to consult but because we need to know before a referendum is held what the implications are for First Nations treaties with the federal government should Alberta secede.
Especially worrying from a democratic standpoint is that there has already been clearly documented interference by foreign actors who think they would benefit from the breakup of Canada or who seek to sow discord, and who mask themselves as local commentators. Social media’s truth content is almost completely unregulated, and early misinformation can train artificial intelligence to give incorrect answers on a variety of questions, thus amplifying the various false messages and claims made about Alberta secession.
Foreign interference campaigns are especially potent in these contexts because secession is not a straightforward policy choice—like whether to implement capital punishment, say. It is a high-stakes strategic gamble. I am being asked to make an irreversible yes-or-no binary choice without knowing how the rest of Canada, financial markets, Indigenous nations, businesses, or international actors would respond once the process actually begins—after views and positions typically harden. And that fog of uncertainty is often, and especially in this case, the stuff of misinformation campaigns.
So, to describe a referendum as democratic, we need to pay attention to key elements at all stages of the process. So far, at the first initiation stage, Alberta’s effort should receive a failing grade.
“Realizing that promise of treaties requires confronting Canada’s long-standing tendency of evading the responsibilities it takes on.”
Gina Starblanket
Member of the Star Blanket Cree Nation and Associate Professor in the School of Indigenous Governance at the University of Victoria
The Athabasca Chipewyan decision highlights an entrenched gap between the vital role of treaties in this country’s constitution and their chronic denial by Canadian governments. The gap is maintained, deepened even, through living histories and institutions of racism and colonialism that should be of concern to all.
First, the gap raises the enduring matter of treaty violations in treaty territories, rooted in early colonialism and persisting into the present. For instance, just as Indigenous treaty partners were agreeing to share the land with newcomers and securing Crown commitments not to interfere in our ways of life, Canadian authorities unilaterally imposed the Indian Act, a legislative effort to comprehensively restrict the exercise of those same ways of life.
The 1930 Natural Resource Transfer Agreement, which transferred control over Crown lands and natural resources to the prairie provinces, continues to enable the dispossession of lands and resources in treaty territories by giving the impression that they are under provincial jurisdiction. Matters of land and jurisdiction, however, are core to the treaty relation—and as this week’s court case shows us, their oversight remains of legal consequence.
Second, the gap points to the continuity of racialized logics underlying the appalling levels of entitlement that settlers display toward lands and resources in treaty territories. Canadian depictions of treaties as land transactions—that is, as transfer of ownership: one side gives up land, the other acquires it—are now widely discredited in historical archives, scholarly inquiries, and judicial decisions. Yet the notion retains credibility because of the presumed superiority of Western knowledge, particularly among white rural populations in the prairies. Meanwhile, Indigenous knowledge of treaties as land-sharing arrangements, or as an ongoing relationship between nations, are too easily dismissed.
A treaty offers a framework for mutual and productive coexistence, but realizing that promise requires confronting Canada’s long-standing tendency of evading the responsibilities it takes on.
“Legal proceduralism is no answer for messy political problems.”
Dónal Gill
Professor of Political Science at Concordia University
Premier Danielle Smith is, likely, merely seeking to provoke by stating that, unlike some (presumably in Ottawa), she is “not afraid of direct democracy.” But populist governance of this sort has deep roots in Western Canada and, whatever the merits of the referendum drive and separatism itself—none of which I support—there is value in stoking a deeply participatory political culture. Getting people to actually invest in and carry out the work of self-government is absolutely critical in rebuilding a civic culture of mutual trust.
Which is why I strongly believe that, across the board, legal proceduralism is no answer for messy political problems.
Shutting down the Alberta separatist campaign from the judge’s bench may uphold principles of liberal constitutionalism, but it has an undemocratic hue too. It’s discomforting that so many within the commentariat cheer when a judge sidelines a proposal or initiative that, for better or worse, is the result of popular political participation.
That’s not to say, however, that the duty to consult with Indigenous nations isn’t vital.
Brexit looms large over the whole affair. Ten years on from former United Kingdom prime minister David Cameron’s disastrous attempt to placate his Euroskeptic backbenchers, Smith appears to be attempting the same high-wire act.
The Brexit campaign also had a similar blind spot to the one Justice Leonard identified regarding obligations to Indigenous communities. Brexiteers cared not for how the border between Northern Ireland (constitutionally part of the UK) and Ireland (a European Union member state) would look post-Brexit—the main problem being that the Good Friday Agreement that established peace in Ireland after three decades of brutal sectarian conflict guaranteed frictionless north–south travel between the two jurisdictions. It turned out that this oversight then took centre stage in the years of chaotic and frequently shambolic work needed to “get Brexit done.”
Point being: Alberta separatists will wave away concerns regarding Indigenous rights, but ignoring inconvenient constitutional issues only forestalls them resurfacing with more force and divisiveness after the fact. The Court of King’s Bench of Alberta sticking a spoke in the separatist wheel now, not unhelpfully, forces acknowledgement of a major barrier to actual separation—even in the wildest fever dream of Alberta republicans getting a yes vote.
From a Quebec perspective, I suspect that this ruling will do little to influence public opinion on separatism. Quebec politics is in a period of volatility with polls swinging sharply in response to both the Liberals and the governing Coalition Avenir Québec coming under new leadership recently. As things stand, the Parti Québécois (PQ), led by Paul St-Pierre Plamondon (PSPP), remains best positioned to form government come the October election. PSPP is steadfast in his commitment to hold a referendum before 2030 if elected, even with support for sovereignty remaining at its lowest ebb in three decades.
Indeed, we’re a long way away from 1995, when Quebec came within 53,000 votes of a yes. Reflecting on that campaign later, former premier Jacques Parizeau could barely hide his contempt for the role that Cree and Mohawk communities played in seeking to highlight their legitimate right to determine their fate and relationship to the Crown.
Today, PSPP will point to the difference in PQ’s own government-sponsored referendum rather than one derived from a public petition, as well as the somewhat different status of Indigenous nations in Quebec (some communities do not have any formal treaty relationships at all with the Crown). For the seemingly dwindling number of persuadable soft nationalists, it is unlikely that an arcane court-ordered duty to consult with Indigenous nations prior to drafting a referendum question will shift the dial.