An Alberta judge quashed a separatist petition Wednesday, saying the provincial government had a duty to consult with First Nations.
Justice Shaina Leonard said the petition should never have been issued.
Lawyers for several Alberta First Nations had argued the province’s referendum process and its use by separatists are unconstitutional, as there’s no requirement for Indigenous consultation. They also said separation would violate treaty rights.
Lawyers for the province defended the process and pushed for the separatist petition to play out.
“As a matter of logic and common sense, there can be no doubt that Alberta’s secession from Canada will have an impact on Treaties 7 and 8,” Leonard wrote in her decision.
She said a bill that Premier Danielle Smith’s government passed in December to amend the citizen-initiated referendum process “put in motion a series of required steps that engaged the duty to consult.”
“No consultation occurred. Alberta breached its duty to consult with the applicants,” the judge said.
The separatist group Stay Free Alberta handed in its petition last week and boasted that it had nearly 302,000 names — well above its 178,000 requirement.
Smith had said if the petition got enough signatures, the group’s question would be put on a ballot this fall.
Last month, the judge ordered a pause on the signature verification process for the petition while she considered the legal challenge.
Athabasca Chipewyan First Nation and the Blackfoot Confederacy, which represents the Siksika, Kainai and Piikani First Nations, launched the case. They asked for the petition to be thrown out and an order striking down parts of the petition process.
Neil Dobson, a lawyer for the province, argued in court that it was premature to consult with Indigenous leaders about the petition, because the government wasn’t yet taking any action to take Alberta out of Canada.
“The collection of signatures and the ability to put forward the petition in the first place is really the commencement of that political discussion,” Dobson said.
He said that if a referendum passed and the province took steps to follow through, then a duty to consult would be triggered.
During the hearing, the judge questioned why consultation wasn’t done sooner, since First Nations have been sounding the alarm over the prospect of separation for more than a year.
Dobson said it was a policy choice and that the government was within its rights to wait.
Smith and some of her cabinet ministers have said they support a sovereign Alberta within a united Canada but also believe in direct democracy.
The premier has outlined nine questions dealing with immigration and constitutional changes for an Oct. 19 referendum, and a separation question going on the ballot was up in the air.
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