As part of its most recent legislative session, lawmakers in Alberta passed a massive bill that would — among numerous other things — lower the threshold required for initiating a province-wide referendum. The result of that was increased public sentiment — and more column inches and time on the airwaves — about the possibility of Alberta holding a plebiscite to take it out of Canada and become an independent nation.
But that sentiment was met with a lot of blowback — with Indigenous Peoples some of the strongest voices in opposition to the independence idea. First Nations from across Alberta sent out statements pointing out that Alberta is covered by treaties between themselves and the federal Crown, treaties that the province has no power to supersede. Many also noted vast areas in Alberta are held in trust federally for the benefit of Indigenous Peoples, with two First Nations even sending a letter to Prime Minister Mark Carney asking him to “get the province of Alberta in line.”
Robert Hamilton, University of Calgary Faculty of Law
“The government may be able to infringe them subject to judicial oversight if they can prove that infringement is minimal, but they can’t extinguish them outright,” he said. “So, to the extent that the province would try to undertake activities associated with separation or anything else that would have the effect of extinguishing free rights, they have no authority to do that.”
He pointed to the fact that Indigenous Peoples have raised the argument that their treaty was not a surrender of land or rights but a promise to “share and coexist.”
“Canadian courts have been pretty clear — we understand the treaties to have ceded land, and they haven’t been prepared to budge on that yet,” he said. “But the oral histories have always said their understanding is that it didn’t cede land but rather shared it. So, given what we know about treaty interpretation, it is kind of curious the courts have not been more willing to entertain that right.”
Some have pointed to the 1998 reference case to the Supreme Court on Quebec secession (Reference re Secession of Quebec, [1998] 2 S.C.R. 217) as providing a guide for how Alberta could separate, but Hamilton said it is not clear whether a court would say the rationale applied in relation to Quebec would work for Alberta.
“There are different historical and linguistic contexts that make Quebec unique, so I don’t think it’s a foregone conclusion that you can just substitute the word Alberta for the word Quebec in the reference to just apply the same rules,” he said. “And in the secession reference Indigenous Peoples are referred to as a cultural minority and are dealt with entirely under the heading of minority rights — but the discourse around Indigenous rights has developed quite a bit since the 1990s, and I’m not sure that they would be framed entirely as like a minority rights issue.”
Concerns about the legal difficulties surrounding possible Alberta separation are shared by Eric Adams, a professor at the University of Alberta who teaches constitutional law. He said there is no clear path to independence for any province because the only thing the Supreme Court of Canada guaranteed in the Quebec secession reference is the existence of constitutional negotiations.
“And those constitutional negotiations might yield any number of disagreements on any number of topics, and at those junctures Alberta is going to have to decide whether it wants to play the constitutional game of trying to break up Canada through lawful means and through consensus, or whether a more radical and revolutionary independence agenda is required,” he said.
And there is no question any possible independence of Alberta breaks the fundamental nature of the treaty relationship, said Adams — a relationship that was meant to last forever.
“It’s clear that independence breaks those treaties in the law, where we would say there’s a privity of contract. You can’t make a contract with someone and then suddenly find yourself in a contract with another person — your contract is with the individual that you signed it with, and that’s even more true in the solemn exchange of treaty promises,” he said. “But there’s nothing to say that Alberta couldn’t take the position that it doesn’t want to rewrite the treaties. It wants to simply preserve them and honour them and step in the place of the Crown. And then, of course, it’s up to First Nations people whether they think that that’s a sufficient promise or not.”
As the referendum bill wound its way through the legislative process, Justice Minister Mickey Amery added language to it that said “nothing in a referendum held under this Act is to be construed as abrogating or derogating from the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada that are recognized and affirmed by section 35 of the Constitution Act, 1982.” But Hamilton’s colleague Nigel Bankes recently concluded in a blog post that the non-derogation clause is not an effective response to Indigenous Peoples’ concerns.
Hamilton said the inclusion of the clause “doesn’t change a thing.”
“If the statute makes it easier to hold a referendum which leads to a certain outcome, it’s the outcome itself that would be at issue for a treaty right — and there’s nothing about the non-derogation clause that would have an impact on that right,” he said. “The government has set itself up in a difficult position of saying we are both going to respect treaty rights and the results of any referendum without seemingly acknowledging the fact that giving effect to the results of a referendum might be fundamentally inconsistent with the treaty — so the non-derogation clause doesn’t do anything to really resolve that.”
Hamilton pointed to a recent online post by constitutional lawyer Keith Wilson that argued First Nations have three options if a vote on secession passes — one, the status quo by which reserve lands would still be held by the federal Crown and administered by the Canadian government; two, ask that the government of Alberta take on the role of the federal government with respect to treaties; or three, negotiate new agreements with Alberta — with Indigenous Peoples deciding which path is appropriate for them.
Hamilton noted that argument does have some appeal to it, but there are areas that are potentially problematic. He said one of those areas is the logistics of the status quo.
“So, we’re going to have within Alberta these little islands that belong to a different country, right? What does that mean for the citizens — are they going to have to cross international borders to go to the pharmacy?” he said. “You can look around the world and where that type of thing has been tried, and it doesn’t really work out very well to have landlocked little islands of ethnically defined populations.”
Adams said if there is a successful vote on independence there will be a long list of issues to tackle alongside the concerns of First Nations, such as Alberta’s borders, the state of the currency, national parks and infrastructure.
“And Alberta will have to deal with arguments that if Canada is divisible, then Alberta is divisible — and we may see segments of the province that have no interest in becoming part of a sovereign, independent country,” he said. “There are many complications.”
Representatives for the Alberta government did not respond to a request for comment for this article.
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