For the last torrid year in Alberta politics, so much seemed to be building toward a separation referendum this fall.<\/p>\n
Premier Danielle Smith eased the rules repeatedly for a pro-separatist petition to succeed. Right before a court first ruled against petitioners in December because of constitutional issues, her government rewrote a law<\/u><\/a> to make that moot.<\/p>\n She scheduled a series of other referendums on immigration and constitutional reforms on Oct. 19, making that a de-facto \u201csave the date\u201d notice for that much more consequential ballot question.<\/p>\n If Alberta\u2019s independence vote had become a big rig hurtling relentlessly toward its destination, Justice Shaina Leonard\u2019s ruling this week proverbially bombed the key bridge on the route to Oct. 19.<\/p>\n It\u2019s not clear what the path is now, with many more potential hazards ahead.<\/p>\n Leonard quashed the separation petition and its 301,000 (unverified) Albertans\u2019 signatures. She sided with the Athabasca Chipewyan First Nation and the Blackfoot Confederacy by ruling<\/u><\/a> that the government failed in its duty to consult First Nations before setting Alberta on a process that could substantially impact Indigenous treaties with Canada.<\/p>\n The Court of King\u2019s Bench judge\u2019s ruling was still fresh in email inboxes Wednesday when Smith and key separatist lawyer Jeffrey Rath separately promised they\u2019d appeal the ruling, each claiming it had errors in law.<\/p>\n But the wheels of justice have been known to move slowly.<\/p>\n There would be no obligation for a court to hear those appeals on an expedited basis to accommodate Smith\u2019s hoped-for Oct. 19 referendum timing. (The referendum petition\u2019s own timeline made those wheels churn faster on the First Nations\u2019 initial challenge.)<\/p>\n Rath told CBC News he\u2019ll ask for a legal stay to allow Elections Alberta to verify those 301,000 signatures in the meantime, but that would not remedy the overall timing of an appeal of Leonard\u2019s decision.<\/p>\n Then there\u2019s the long-touted Plan B<\/u><\/a> for the separatist group Stay Free Alberta \u2014 persuade Smith to circumvent the stalled petition process and have the government call a separatist referendum itself, as it\u2019s done for the nine other questions scheduled for October.<\/p>\n But the lawyer who won the decision for the Athabasca Chipewyan suggests that any Alberta First Nation could quickly challenge a government-ordered referendum with the same \u201cduty to consult\u201d argument.<\/p>\n \u201cPutting a question on the ballot of this magnitude \u2014 with sweeping implications for treaty rights and the treaty relationship \u2014 without first consulting First Nations is simply not lawful,\u201d said Kevin Hille of Olthuis Kleer Townshend LLP in Toronto.<\/p>\n Rath said there is a clearer path to a Smith-led referendum, as he pursues his parallel appeal, on the basis that constitutional obligations to consult First Nations aren\u2019t triggered until later down the road to separatism.\u00a0<\/p>\n \u201cThe problem is that she [Leonard] doesn\u2019t understand the way that the duty to consult works in Canadian law,\u201d Rath told CBC\u2019s Power and Politics.<\/em><\/p>\n Constitutional scholar Dwight Newman agreed that the judge was incorrect.\u00a0<\/p>\n \u201cMore than 300,000 signatures cannot be thrown in the garbage based on an unreflective application of a legal test to circumstances outside its appropriate sphere,\u201d the University of Saskatchewan law professor wrote in the National Post<\/u><\/a>.\u00a0<\/em><\/p>\n But two judges, in December and May, have already decided that the risk to treaties is relevant at this stage.\u00a0<\/p>\n \u201cThey\u2019ve been called out twice by the courts for bypassing First Nations,\u201d Hille said.<\/p>\n This makes Smith calling a referendum herself a legally perilous option, on top of the risk of more directly putting her political stamp on separatism, while two-thirds of Albertans<\/u><\/a> oppose leaving Canada, many of them strongly.<\/p>\n But in addition to the duty to consult, Smith must reckon with another type of obligation \u2014 a political one. It may be that only 27 per cent of Albertans tell pollsters they back secession, but it\u2019s a majority position among UCP supporters, according to last month\u2019s Janet Brown Opinion Research<\/u><\/a> poll.<\/p>\n Smith has spent a year channeling those independence believers in that one direction, toward a separatism vote that they \u2014 not she \u2014 would put on the ballot. Now, those same 301,000 (unverified) Albertans who signed that petition \u2014 with a promise it would lead to an independence vote \u2014 might be channeled into a different direction: trying to push Smith out of a job.<\/p>\n
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