An Alberta King’s bench judge’s decision that a proposed referendum question supporting separation is unconstitutional because the province had a duty to consult First Nations has implications for the referendum question and for the Alberta-Canada MOU proposing a pipeline to the Pacific Coast.

On the referendum, the result is a wordy and confusing question that asks Albertans if they want to remain in Canada or “commence the legal process” to hold a “binding referendum on whether or not Alberta should separate from Canada.” Regarding the MOU, the flaws in the judge’s interpretation of the duty to consult add to the uncertainty and risks of building a pipeline to the West Coast.

Dwight Newman, a University of Saskatchewan law professor and expert in constitutional and Indigenous rights law, criticized the judge who “mechanically applied the duty to consult test” rather than taking a broader view of the importance of participation in referendums as a “vital act of democratic participation.” The shortcomings of this decision were described by Newman as part of a pattern in which “simplistic understandings of rights and desires to apply simple little legal tests have overtaken judgment,” citing the example of the British Columbia Cowichan decision, which called into question private property rights and caused “chaos.”

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