The Alberta Referendum on Independence is a Reckless Attack on Democracy.

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In response to a recent ruling by the Alberta Court of the King’s Bench, Albertan Premier Danielle Smith asserted that anyone seeking an independence referendum should not have “gatekeepers,” like the courts, standing in their way.[1] She said giving the Justice Minister Mickey Amery the power to be “permissive” about referendum questions, which is included in the new legislation, “upholds democracy”. She is patently wrong and by ignoring the fundamental principles of democracy and the rule of law she joins a group of right-wing thinkers who seem to believe they can act with impunity simply by asserting that they have the support of the majority. No one, not even a majority, is above the law.

Democracy is not based on the populist sentiments that might appeal to the majority of the population from time-to-time. In order to be enduring and sustainable, democracy is built on long-term trends and its pace is slower and based on a system of checks and balances to ensure in particular the rights of minorities and special interest groups are protected from the will of the mob (i.e. the populist majority). This is precisely why the courts have a role in checking the power of a given government and ensuring that no government tramples on the constitutional and legal rights of anyone.

Moreover, morally and ethically the Alberta government (along with the governments of every other province and the federal government) has an obligation to uphold the honour of the Crown. Neither Premier Smith, The United Conservative Party (UCP) or any other party can ignore the fundamental truths built into our Canadian system of governance. While it is unfortunate that the courts have to act as intervenors to prevent governments from ignoring the rights of minority interests, the fact is that some governments, like the current one under Premier Smith in Alberta, seem only too willing to ignore the rule of law and reject any responsibility to uphold the tenets of our democracy as laid out in our laws and constitution. Upholding these is part of upholding the honour of the Crown. Checking governments to ensure compliance is the role of the courts and why the courts have to step in from time to time to maintain the balance and equilibrium required to sustain democratic rule.

Smith’s comments came a day after Alberta Justice Colin Feasby said a separatist referendum question would go against the Charter, First Nations treaty rights and the province’s existing referendum law. The separation question was referred to the courts by Alberta’s chief electoral officer, Gordon McClure, this summer. McClure said at the time that he was just following the rules laid out for him, but Smith’s government criticized him for creating red tape.

McClure was joined by several First Nations who were granted intervenor status in the case including:

• Treaty 8 First Nations of Alberta;

• Confederacy of Treaty 6 First Nations;

• Athabasca Chipewyan First Nation;

• Samson Cree First Nation;

• Mikisew Cree First Nation;

• Sturgeon Lake Cree First Nation;

• and three First Nations in Treaty 7 — Piikani Nation, Siksika Nation and Kainai Nation.

Justice Feasby found that the proposed referendum on Alberta independence contravenes the Charter and the Treaty and Aboriginal rights guaranteed under Section 35 of the Constitution Act, 1982, therefore agreeing with the First Nations’ intervenors. The decision means that the Chief Electoral Officer of Alberta is required to reject the proposed referendum, stalling a months-long campaign by the Alberta Prosperity Project to launch the referendum using Alberta’s Citizen Initiative Act.

The case came to the Court of King’s Bench as a reference[2]. The Court was asked to decide whether a proposal under the Citizen Initiative Act, SA 2021, c C-13.2 (the “Act”), that “Alberta shall become a sovereign country and cease to be a province in Canada” (the “proposal”), contravenes the Charter or Treaty rights. The proposal was put forward by Mitch Sylvestre (the “Proponent”), a private Alberta citizen who commenced the referendum process. If successful, it would result in a province-wide referendum on the issue of Alberta independence from Canada.

Justice Feasby concluded that the referendum proposal contravened several sections of the Constitution Act. However, the decision is not the end of the matter. In his ruling, the judge said Alberta’s Citizen Initiative Act, as it was before the proposed changes under Bill 14 (which is now before the Alberta legislature), “did not give citizens the power to initiate a referendum on the question of independence from Canada”. The government under Premier Smith is seeking to change that through amendments to the Citizen’s Initiative Act that were tabled immediately following the court’s decision.

In a previous case before the Supreme Court of Canada, Canada’s first Indigenous Justice, Michelle O’Bonsawin, reinforced the notion that Treaties are sacred, binding agreements for land sharing, not land surrenders, and supported the Blackfoot position that provincial actions (like border creation) cannot diminish these rights, strengthening the foundation for ongoing negotiations and respect for Indigenous sovereignty in Alberta and in Canada.

Shot Both Sides v. Canada (2024)[3], upheld treaty rights for the Blackfoot Confederacy by affirming that Treaty No. 7 rights are constitutionally protected and enforceable and cannot be extinguished by governments. That decision emphasized the Crown’s duty to act honorably in upholding Treaty promises, requiring good faith in negotiations.

In Shot Both Sides v. Canada (2024), the court also found that the treaty‑making process creates active and binding obligations on the Crown, and this is well established in Canadian caselaw. A long line of authorities has upheld the enforceability of treaties at common law and the actionable duties they enshrine. Courts have long recognized the legal character of treaties: they create and embody enforceable obligations based on the mutual consent of the parties. Treaties are binding legal instruments that must be upheld, and the right to a judicial remedy where treaty obligations are breached is provided by the common law, grounded in the terms of the treaty at issue. So, Premier Smith’s comments are to the contrary and are clearly wrong.

The specific land claims under Shot Both Sides v. Canada (2024), were time barred[4] but the decision provides for declaratory relief[5] which is a means by which a court can promote reconciliation to restore the nation‑to‑nation relationship. The non‑coercive nature of declaratory relief can help the parties to the dispute to resolve the issues without an excessively hostile or adversarial approach and can help to restore the honour of the Crown. This approach is especially appropriate given the non‑adversarial, trust‑like relationship Canadian governments are supposed to have with Indigenous people. Avoiding expensive, lengthy, and adversarial litigation is an important step for reaching reconciliation‑oriented results where Aboriginal and treaty rights are at issue. Declaratory relief can assist in providing a clear statement on the legal rights of Indigenous parties, the duties placed on the Crown, and the Crown’s conduct in relation to those sacred promises.

The connection and message we are highlighting by citing these cases and awards is that the courts have as recently as last year and for many years prior been working to clearly lay out the obligations of government to indigenous peoples. Federal and Provincial governments are required to uphold those obligations.

The fact that the Alberta government is passing laws and encouraging ignorant citizens, who may lack the legal understandings of these obligations, is reckless. Moreover, it is a direct affront to the rule of law and consistent with many right-wing thinkers who seem ready to ignore democratic principles like respect for the checks and balances incorporated into the role of the courts as a branch of government, the notion of equal treatment under the law, the honour of the Crown and the inherent duty to uphold the obligations established under nation-to-nation treaties.

Canada needs leaders who respect our history and respect the rights of all Canadians and the Indigenous people we share this land with. Canada needs leaders who can focus on matters of importance during our current times. The referendum is illegal and an unnecessary distraction. The expectation that politicians like Premier Smith need to act honourably and respect the rule of law and fundamental democratic principles is a necessary prerequisite to ensuring Canada’s brand of democracy not only survives but continues to evolve based on the foundation of collaboration and cooperation between the sovereign parties[6] who founded this confederation.

Every Canadian, including every Albertan, should oppose Premier Smith’s and the UCP’s attempts to encourage separation. It is a short-sighted political maneuver aimed at gaining special treatment for the province. It ignores the spirit of collaboration, cooperation, and sharing that is the prerequisite for living in a democracy. In the future, when we no longer are dependent on fossil fuels Alberta will be looking to other provinces for support as it has done in the not-so-distant past (most recently in 1965). Canadians accept that. We work together with the ebbs and flows of the economic realities we must face together as a united country. Our focus must be on inclusion and building our internal strengths rather than on divisiveness that ignores the rights of minorities and tramples on the common good.

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[1] See https://www.cbc.ca/news/canada/calgary/alberta-premier-danielle-smith-says-courts-should-not-be-gatekeepers-on-independence-questions-9.7006383

[2] See: https://stettlerindependent.com/2025/12/12/judge-first-nations-say-bill-14-risks-eroding-the-rule-of-law-in-alberta/

[3] See: https://www.canlii.org/en/ca/scc/doc/2024/2024scc12/2024scc12.html

[4] Time-barred” means a legal claim or debt can no longer be pursued in court because the time limit, set by a statute of limitations, has expired. This may limit the redress sought by the Blackfoot with respect to certain specific Treaty Land Entitlements (TLEs) but does not close the door on all future claims per se.

[5] “Declaratory relief” is a court-issued judgment that provides definitive legal answers to actual controversies, preventing future disputes by establishing a clear legal position, like interpreting a contract or confirming insurance coverage, offering parties certainty and utility. However, declaratory relief does not include any award for damages or any other form of payment to plaintiffs.

[6] For clarity, those sovereign parties are the “Crown in the right of Canada” (meaning the federal and provincial governments) and the many different Indigenous Peoples of Canada with whom the Crown has entered into treaties with or who otherwise hold title to land that is included within the international boundaries that define Canada.