Alberta’s chief electoral officer Gordon McClure says he accepts a court’s ruling overturning his decision to authorize an Albertan to gather signatures for a proposed independence referendum.
Boxes containing sheets with potentially hundreds of thousands of signatures supporting a separation referendum remain locked in a secure Elections Alberta facility, and employees will not count or verify those signatures for now, agency spokesperson Michelle Gurney said Thursday.
Alberta Justice Minister Mickey Amery, meanwhile, said his United Conservative government will appeal Wednesday’s court ruling to protect its citizen petition law — not because his government favours a separation referendum.
“It is, in my view, irrelevant as to whether we like the question, or what the topic of the day is, but rather the foundational purpose of the legislation, and that is to allow Albertans to weigh in on important issues,” Amery told reporters at the legislature on Thursday.
He said the government believes there are grounds to appeal the decision, in which Justice Shaina Leonard quashed the approval of a citizen initiative petition proposing Alberta seek independence from Canada.
Independence group Stay Free Alberta, led by Mitch Sylvestre, said it had gathered nearly 302,000 signatures of support from Albertans between Jan. 2 and May 2. The group delivered the signature sheets to Elections Alberta for verification on May 4.
By then, several First Nations had launched a court challenge of the process.
Leonard’s ruling said the Crown had failed in its duty to consult with four First Nations challenging the decision: the Athabasca Chipewyan First Nation, Blood Tribe, Piikani Nation and Siksika First Nation.
Amery said enough people have signed the “Forever Canadian” petition, proposing Alberta remain part of Canada — and potentially enough have signed the Stay Free Alberta petition — to signal that the question of independence is “an important question that Albertans have and we think that the opportunity to get this resolved is important.”
Amery said it’s “too early to tell” if the government will exercise its option to put its own separation question on the ballot for a provincial referendum on immigration and federalism questions, already scheduled for Oct. 19. Cabinet and the UCP caucus will discuss it in the coming days, he said.
Amery said he didn’t know how long any legal appeal might take, or whether a matter would conclude in time for the October referendum.
Red Deer-South UCP MLA Jason Stephan told reporters he thinks the judge made a mistake by quashing the separatist petition.
“All those good people put in so much work and time, and then basically, the rug was pulled out from under them,” he said.
Jeffrey Rath, one of the lawyers for Stay Free Alberta, said the group will appeal Leonard’s decision within days, and plan to request a stay of her order, which could allow Elections Alberta to begin verifying signatures.
Sylvestre had been calling for Alberta separatism supporters to join the UCP to promote separatist party policies and candidates.
Rath said Thursday that Premier Danielle Smith’s willingness to put her own separatism question on the ballot is an “existential question” for her party leadership.
“If she states that she and her cabinet and caucus are superior to the members that elected them, and that they don’t care what the members of the party say, that they’re going to do whatever they want to do because they are the boss of us, I think that’s going to be a real problem for her,” Rath said.
Last month, Smith said she didn’t want the government to advance a separatism question because she supports the province remaining in Canada and working with the federal government to improve Alberta’s economic opportunities.
Smith called Wednesday’s court ruling “anti-democratic” and pledged to challenge it.
Leonard’s ruling is the second time an Alberta court has said a separation referendum would violate treaty and constitutional rights.
Last year, when Sylvestre filed his first application for a separation petition, a judge ruled the proposed question was unconstitutional. Although the chief electoral officer at the time had the ability to reject an unconstitutional question, the legislature passed a bill days later to revamp the Citizen Initiative Act.
In a statement, Athabasca Chipewyan First Nation Chief Allan Adam said this week’s decision reinforced the importance of treaty rights and consultation with Indigenous peoples.
“This decision should close the chapter on the suggestion of an independence referendum,” his statement said. “The court has spoken — and so have the First Nations.”
The First Nation sent a nearly 600-page brief to the Alberta government explaining that Dene territory pre-dates provincial and territorial borders, among other information.
Dene Tha’ First Nation (DTFN) Chief Wilfred Hooka-Nooza said in a statement Thursday that he believes the premier must stop pursuing an appeal of the judgment.
“Alberta’s separation from Canada would have deeply profound impacts on DTFN’s treaty rights,” his statement said.
“We’re immensely relieved the court’s decision recognizes this and upholds that the Crown has a duty to consult before making decisions that impact treaty rights.”
Rebeca Macias Gimenez, an assistant professor of law at the University of Alberta, said the ruling suggests it would be up to the provincial government to conduct any consultations with First Nations people before proceeding with an independence referendum.
She said the judge’s interpretation of the Citizen Initiative Act is that once Elections Alberta issues a petition, there potentially would be no opportunity to meaningfully consult with First Nations people once that ball is in motion.
The Supreme Court of Canada has said what constitutes meaningful consultation depends on the context of the decision, including how much it would affect First Nations people.
“In this context, you may argue that the implications are quite serious, and that their claim is quite strong,” Macias Gimenez said. “They are nations who have their treaty rights recognized by Canada and the province.”
She said it could take months for a court to hear appeals of the “complex” case, and she believes it would be unlikely to be settled in time to have a citizen initiative question approved for the October referendum.
Macias Gimenez said she does not see grounds for the court to grant a stay of Leonard’s decision, which would allow Elections Alberta to proceed with verifying signatures on Stay Free Alberta’s petition, because there would be no point in doing that if the petition is ultimately declared invalid.
Lawyer Orlagh O’Kelly, who represents Sturgeon Lake Cree Nation in a separate challenge of the Stay Free Alberta petition, said Canadians do not have the power to vote away Charter or treaty rights in a referendum.
O’Kelly told CBC News Network on Thursday that the Alberta government’s record of making legal amendments to improve the odds of a successful separation petition suggest that similar decisions will follow.
“We anticipate the goalposts will be moved again, and that the premier will make an end run around this decision and call the referendum herself through a cabinet order.”
