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Can Alberta Still Separate? Experts Clash over the Landmark Court Decision

A cross-country panel debates one of the most consequential rulings in years

Last week, the Alberta court issued a stunning decision, halting the separatist petition process in a way that immediately reshapes the national conversation around the democratic legitimacy of secession.

For First Nations leaders, the ruling represents a major affirmation of constitutional and treaty protections. For Alberta separatists, it is a frustrating setback. But the judgment is unlikely to extinguish the cause. Instead, it raises a new host of questions about the limits of provincial power, the role of Indigenous consent in Canada, and whether Western alienation will now enter an even more aggressive phase.

Over the weekend, we reached out to a group of constitutional and Indigenous experts to discuss the fallout from one of the most consequential court decisions in recent Canadian politics.

Their responses, in some cases edited for length and clarity, can be found below.

“The only way there will be a secession referendum now is if Smith becomes the separatist pied piper.” Patrick Lennox Former Royal Canadian Mounted Police Intelligence Manager

“We think that this decision is incorrect in law and anti-democratic, and we will be appealing it as a result.” These were the words of Alberta’s populist premier, Danielle Smith, just moments after the release of Justice Shaina Leonard’s historic ruling on Thursday, May 14.

To the obvious chagrin of the premier, Leonard’s decision has put a petition to hold a secession referendum in the province on ice. In fact, it’s been put deep in the basement freezer beneath a crusty bag of Costco vegetables that’s been there since the early omicron days.

The only way there will be a secession referendum now is if Smith becomes the separatist pied piper and puts the question on the ballot herself through a cabinet order. The reason she’s so miffed is that Leonard is the second justice to demonstrate the folly of her scheme to turn Alberta’s representative democracy on its little 121-year-old head. And the second time the First Nations successfully defended Canada against the separatist siege.

The first was Justice Colin Feasby who, in December of last year, after days of hearing blustery arguments from separatist leader and lawyer Jeffrey Rath, decided that, actually, the separatist petition is unconstitutional and would contravene treaty rights. Smith tried but failed to head this ruling off at the pass, with some late-night law making designed to nullify any requirement that a petition question be constitutional. Feasby’s ruling saw the light of day despite the last-minute legislating, but Smith and her United Conservative Party succeeded, through Bill 14, in giving the separatists licence to go about their merry signature-collecting campaign nonetheless.

Hence the need for Leonard this month to continue Feasby’s train of reasoning, ruling that the government (via Elections Alberta), in granting the petitioners licence to collect signatures, had failed in its duty to consult the First Nations who signed the Treaties with the Crown before Alberta was even a thing.

The upshot of Leonard’s decision is that if you want to separate, you have to go through the First Nations. And they want nothing of it. Their deal was with Canada. Not with Alberta. And the way in which the UCP has treated them thus far suggests rather strongly that any consultations are bound to go poorly. The trust has broken down.

Breaking down the trust and dividing our society and our country is actually the point though. That much should be crystal clear by now. “We want to hear from Albertans. That’s what we think democracy is.” This is another quote from the premier following the ruling. It’s designed to do one thing: blow up the concept of democracy to its breaking point.

In Canada, we don’t decide things in the town square by plebiscite. According to Canadian political philosopher Margaret Moore, plebiscites, especially secessionist ones, are blunt instruments, easily manipulated and used by authoritarians to consolidate power. Instead, we live in a representative, constitutional democracy, which has three branches of government that are separately endowed with specific powers and authorities designed to balance out one another in order to protect us against would-be despots.

We’ve seen what maximal executive power looks like in the United States. We’ve seen what happens when the courts and the legislature roll over and play dead in front of an executive with tyrannical ambitions. The populist premier is mimicking the populist president. She’s challenging the sacred principles and foundations of our country. That should be a warning to all Canadians. As Alberta’s democracy goes, the rest of Canada’s will follow.

An anti-democratic strain of populism is on the rise worldwide. It has taken root in our neighbours to the south. And it has taken root here in the province of Alberta. Smith’s latest attack on the court follows a now lengthy pattern of effort to delegitimize the judiciary and limit its role as an independent branch of our government. Be not fooled. The only thing anti-democratic about Justice Leonard’s ruling was Premier Smith’s reply to it.

“Hopes for a respectful debate between Canadians about separation seem increasingly quaint in this age of political polarization and foreign interference.” Kent Roach Professor of Law at the University of Toronto

Recent commentary on an Alberta trial judge’s ruling to quash a decision to add a question on Alberta separatism to upcoming referenda has cast more heat than light.

Alberta premier Danielle Smith has denounced the decision as “anti-democratic” and floated using the notwithstanding clause, even though section 33 of the Charter—which allows legislatures to pass laws temporarily overriding certain Charter protections—does not apply to Indigenous rights or to the Crown’s constitutional duty to consult.

There has been extensive litigation over the duty to consult since the Supreme Court of Canada established the doctrine in 2004 as an alternative to injunctions—court orders that can temporarily halt government or industrial projects while legal disputes are resolved. The duty requires governments to notify First Nations about proposed actions, consult them in good faith, and where appropriate, accommodate their interests. But the court has also repeatedly stressed that the duty to consult does not amount to a veto over government decisions.

In most cases where the duty to consult has been violated, governments are not permanently barred from proceeding with a project or policy. Instead, they are allowed a “do over”—meaning they must properly consult and, where necessary, accommodate........

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