Collecting signatures for separation vote doesn’t violate treaty: Alberta’s lawyers

Lawyers for the Alberta government say collecting signatures for a potential referendum on separation doesn’t violate treaty rights, and they argue holding a vote on leaving Canada wouldn’t be a violation either.

“There’s no adverse harm,” Neil Dobson told an Edmonton courtroom Thursday in a hearing over challenges on the constitutionality of the province’s citizen-initiated referendum process.

Multiple First Nations launched the challenge. They argue the referendum process and its use by separatists in their ongoing petition campaign to force a vote violates treaty rights, including the duty to consult.

Dobson said there’s no need for consultation because the province isn’t taking policy action yet.

“The collection of signatures and the ability to put forward the petition in the first place is really the commencement of that political discussion,” he said.

Should a separation referendum pass and the province move to take steps to follow through on the vote, it would be then that the duty to consult would be triggered, Dobson said.

“It’s really the first point in time the government is looking from a policy level and a practical level: what is it that we can do with these things?”

Justice Shaina Leonard asked Dobson why the government wouldn’t want to consult sooner given there is no shortage of concerns from Indigenous leaders about the prospect of a vote.

Dobson, in response, said it was a policy choice. He then referred to a decision made last month when an injunction on a back-to-work bill that the Alberta Teachers’ Association applied for was denied and how the judge in that case said whether he believed the province was governing effectively was irrelevant.

“The question is, is (the province) entitled to do what it’s doing?” Dobson said. “If the answer is yes, then even if the underlying policy or law is something that you may personally think could be done better, (that’s not to be decided).”

Sturgeon Lake Cree Nation is seeking an injunction to put the petition on pause. Athabasca Chipewyan First Nation and the Blackfoot Confederacy are seeking a stay preventing confirmation of the petition’s results until there’s a court decision.

The group behind the campaign, Stay Free Alberta, said last week it has surpassed the 178,000 names it needed to submit petition sheets to Elections Alberta.

During the first two days of the hearing lawyers for the First Nations cited the failure to consult as well as the damage the separatist movement — and the steps Premier Danielle Smith’s government has taken to aid their efforts — has caused to the treaty relationship between First Nations and the Crown as reasons to stop the petition.

They also argued separation would create new international borders, violating the right for Indigenous people to use the land as they did before the treaty was signed.

Dobson and his co-counsel said Thursday the arguments went far beyond the issues at hand and urged Leonard to restrain herself from deciding on “hypothetical scenarios.”

Dobson, at Leonard’s request, did however engage with some hypothetical questions. Asked if he believed Alberta could separate without violating or “offending” the constitution, he said he thought it was “conceptually” possible but that it “doesn’t look like an easy path.”

Smith has said that should Stay Free Alberta collect enough signatures she would put their question on the ballot this fall. 

Jeff Rath, a lawyer for Stay Free Alberta, made his own submissions on Thursday and argued along similar lines as lawyers for the province.

“What is the infringement?” Rath asked the courtroom.

“(It) doesn’t infringe the right to hunt, doesn’t infringe the right to fish, doesn’t infringe the right to trap … All of those rights continue to exist, continue to be exercised throughout the process.”

The hearing wrapped on Thursday afternoon, and Leonard told the courtroom that she was reserving her decision until a later date but that she planned to work very quickly.

Also Thursday, Sturgeon Lake Cree Nation Chief Sheldon Sunshine noted the similar arguments of Alberta’s lawyers and Rath, and called the government’s referendum process a “sad attempt to end our treaty relationship.”

Sunshine’s statement, which was also signed by Mikisew Cree Nation Chief Billy-Joe Tuccaro, also said they expect Smith to call a separation referendum regardless of Leonard’s decision.

“In the face of our court challenges, we will consider this conduct to be the ultimate, traitorous and egregious breach of the honour of the Crown and the treaty by the premier and the (United Conservative Party),” the statement reads.

Alberta’s Opposition NDP, who have been outspoken critics of the separation movement and Smith’s failure to denounce it, announced Thursday that it would be campaigning to mobilize an anti-separatist vote in the fall referendum. 

NDP Leader Naheed Nenshi said the campaign was about standing up for Canada, which he called the “greatest country ever built.”

— With files from Lisa Johnson