Judge overturns Elections Alberta’s approval of separation referendum petition

Alberta independency referendum in doubtfulness after try tosses petition

The Alberta authorities says it plans to appeal a decision by an Alberta Court of King’s Bench justice that has quashed the approval of a petition seeking a referendum on Alberta independence.

The judge's decision puts the future of Stay Free Alberta's independence petition, which the separatist group said has garnered more than 300,000 names, in question.

In two decisions issued Wednesday, Justice Shaina Leonard found that Elections Alberta's chief electoral officer Gordon McClure made an error in law to approve the second citizen initiative petition and failed to consider an earlier court decision that said separation would violate Indigenous people's treaty rights. 

Leonard's conclusion says there was an error of law, "rendering the [chief electoral officer]'s decision unreasonable."

At an unrelated news conference, Premier Danielle Smith spoke about her government's plans to appeal Leonard's decision.

"We think that today's decision by the court will deny opportunity to well over 300,000 Albertans to have their petition verified by Elections Alberta," Smith said Wednesday afternoon.

"We think that this decision is incorrect in law and anti-democratic, and we will be appealing it as a result.

"Our cabinet and caucus will, of course, be meeting in the next couple of days to discuss the full context and make some decisions after we've had a chance to talk it through."

Leonard found that the government, as representative of the Crown, failed in its duty to consult with applicants Athabasca Chipewyan First Nation, Blood Tribe, Piikani Nation and Siksika First Nation.

Chief Samuel Crowfoot of the Siksika First Nation said the ruling is a reminder that treaties are not historical documents, that they are "living constitutional agreements" between First Nations and the Crown.

Crowfoot said he isn't surprised Smith plans to appeal but suggested she may wish to accept the judge's ruling.

"The Alberta government would do well to change their course in dealing with First Nations and engage with us in a respectful and meaningful way when it comes to consultation," he said.

"We want to be part ... [of] improving Alberta, not roadblocks in their efforts to appease a fringe minority."

Allan Adam, chief of the Athabasca Chipewyan First Nation, also urged Smith to "take the high road" and let the decision stand.

Troy Knowlton, chief of the Piikani Nation and president of the Blackfoot Confederacy, called the judge’s decision a historic victory.

"Proceeding with an unconstitutional question would have caused irreparable harm to our treaty rights," he said in a statement.

Stay Free Alberta collected signatures between Jan. 2 and May 2. Mitch Sylvestre, leader of the group, delivered the petition to Elections Alberta's Edmonton office on May 4.

Sylvestre said he still expects Smith to allow a vote to happen this fall. He said the more than 300,000 people who signed the petition want to vote in a referendum.

"I honestly believe that she will give us the vote and I really don't believe that any government in her position could do anything else," he said.

Jeff Rath, one of Sylvestre's lawyers, called Leonard's decision "completely incomprehensible" and said he plans to appeal.

He said people in the separatist movement will buy UCP memberships to ensure Smith calls a referendum this fall.

"They're gonna be reminding Danielle Smith that we expect her to call the question under Section 1 of the Referendum Act, or there's any number of consequences that will flow from 301,000 new UCP members who support independence," he said.

Alberta NDP Leader Naheed Nenshi said he believes Smith needs to accept the court's decision and move on.

"Premier, call off the referendum and put this to bed," he said. "This petition is dead. This referendum is dead."

In a separate decision released Wednesday, Leonard denied an injunction request from another First Nation to stop the petition. 

The Sturgeon Lake Cree Nation argued the government violated Treaty 8 by changing the law to make it easier for the separation petition to proceed. 

It also alleged increases in racism and misinformation from the petition process, but the judge was not satisfied that "the observed increases in that regard are attributable to the [citizen initiative] process, Bill 14 or the second proposal itself."

Leonard said the evidence didn’t meet a legal test to prove irreparable harm if the injunction wasn’t granted. 

Orlagh O’Kelly, lawyer for the SLCN, said her clients are disappointed and are reviewing the decision to see if there are any next steps. 

Chief Sheldon Sunshine said while the SLCN lost the case, the First Nation changed the discussion. 

“Many Albertans know that this secession cannot happen without breaching treaties, and many more Albertans are aware of foreign interference because of this case,” he said. 

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.

A pro-federalist petition was earlier verified. Thomas Lukaszuk, a former deputy premier of Alberta, spearheaded the "Forever Canadian" petition, which had just over 400,000 signatures verified by election officials in December.

Provincial affairs reporter

---

---