A Referendum Isn’t Separation — So Why Shut It Down?

An Alberta King’s Bench judge recently ordered a halt to certification of a referendum petition on the issue of Alberta separatism. This dubious and unnecessary decision undermines the democratic rights of every citizen in Alberta.

Even a “Yes” vote on the separation referendum does not break up Canada. It’s nowhere near that easy. The vote may or may not be binding on the Alberta Government, but it’s most definitely not binding on the Federal Government. The Feds could simply tell Stay Free Alberta to pound sand. And they potentially would. Remember Jason Kenney’s referendum on equalization? Support that reached over 60 per cent in that vote generated nothing but the sound of crickets in our nation’s capital. There is absolutely no leverage, nothing to legally force a Prime Minister to act on constitutional matters or even negotiate.

Stay Free Alberta, the grassroots-led citizen group that led the petition to force a provincial referendum on Alberta independence, is not the government. They do not even have a single MLA in the Alberta Legislature. They have no standing to negotiate or consult on anything. A simple fact the judge missed.

So, how then have the First Nations been harmed by allowing the vote to take place? Wrong question … how then have they been harmed by merely certifying a petition to allow signatures to be collected for a possible vote? At this stage of the game, presumed harm to First Nations is speculative, and this is not the proper time in the process for court intervention. Consultation will be required if Ottawa chooses to negotiate a separation with Alberta after a successful referendum. Negotiations that will never happen.

Remember the Clarity Act passed after the narrow loss of the Quebec Referendum in 1993? The Clarity Act and Supreme Court jurisprudence make it clear that Indigenous rights and constitutional obligations would have to be addressed during any negotiations. Further, this Act declares that no Province has the right to secede unilaterally without a constitutional amendment requiring the consent of several other provinces. Consent that will never be given.

Now, let’s imagine a scenario where Alberta separation is legally possible, and let’s further imagine a solid vote in favor, something around 70 per cent, then consultation with the First Nations would be legally and constitutionally required. That would be the time for court intervention, if required. 

As a side note, part of the reason separation is unlikely to happen is that the current leadership of the Alberta independence movement seems unaware of the law and Canada’s constitutional history. Their arguments in court and in public make this ignorance plain. People have asked, what in the First Nations Treaties precludes separation? There is a recent court decision that states this, but what specific lines in the various treaties make this something the First Nations negotiated decades ago? One suspects those lines do not exist. The British King signed those treaties, and the administration of those treaties was inherited by the Crown of Canada after 1867. So, there is precedent for separating the Canadian and British Crowns and for the treaties to continue.

Yet, none of the court arguments mentioned this historical fact. Instead, the current Alberta separatists seem laser-focused on making Alberta a republic, or even an American state, an outcome which would harm the First Nations treaty holders by ending their relationship with their treaty partner - the Crown. This could be avoided by a future nation of Alberta keeping its constitutional monarchy and becoming the Crown of Alberta. This allows the Treaties to continue, with consultation, removing potential harm to First Nations.

The fact that none of the current leaders of the Alberta Independence movement are aware of Alberta’s constitutional history is yet another reason why Alberta is not leaving Canada any time soon.

It is disappointing that an Alberta judge has ruled to establish a precedent that will impact our democratic freedoms in Alberta for years to come. The principle of First Nations consultation should never apply to the Chief Electoral Officer’s decision to certify a referendum petition. Lawsuits come after the vote, not before. Using the nuclear judicial option to cripple Alberta’s referendum law, passed by an elected majority, is ill-advised and draconian when simply having faith in Canadians and Canadian law would suffice.