Rob Breakenridge: Could Danielle Smith's next step be a step too far?
Alberta separatists have been put on pause by the courts, but the premier could hand them a lifeline. It would be a risky move.
By: Rob Breakenridge
We’re just approaching the first anniversary of the 2025 federal election, the result and aftermath of which served as the catalyst for what seemed like an inevitable march to a vote on Alberta separation.
That may still be where all of this is headed, but suddenly now we have an injection of uncertainty with the separatist petition efforts having been thrown into a state of purgatory.
The separatist forces may now be looking for the premier to save them from this morass, but her previous interventions in this process have played a role in getting us to this point. The intervention separatists envision now, however, would be much bigger — something that arguably exceeds her own current mandate and could even spur an early election.
It was clear very early on in this process that First Nations in Alberta were not simply going to be passive bystanders amid talk of Alberta’s future within Confederation. There is a clear vested interest for First Nations in any sort of process that could lead to the carving up of Canada and a pretty reasonable expectation that they be active participants in such a conversation. It is Canada, after all (via the Crown), that is the signatory to the relevant treaties that apply in Alberta and those treaties pre-date Alberta’s formation.
After her initial move to lower the threshold for forcing a referendum, Danielle Smith’s second change to the citizen initiative law was to stipulate that no unconstitutional referendum question would be permitted to proceed. That change empowered the chief electoral officer to seek a court reference if there was any uncertainty on that point.
Sure enough, that’s what occurred once the separatist petition was formally submitted. And in December, Court of King’s Bench Justice Colin Feasby concluded that the proposed question did indeed pose such problems with regard to the Constitution Act “because it does not guarantee the rights specified therein.” Furthermore, he noted, “Alberta cannot succeed to the Numbered Treaties without the consent of First Nations.”
It was right around this time that the Alberta government decided to change the law once again. As this court reference clearly posed a problem for the separatists’ efforts, Bill 14 put an end to the chief electoral officer’s ability to refer such matters to court, leaving that power solely in the hands of the justice minister (the bill was further amended to say that neither could make any future court references).
Justice Feasby even made note of Bill 14 in his ruling, criticizing the government for “legislating to pre-emptively end this court proceeding,” which he said “disrespects the administration of justice.” He further accused the government of displaying a “cavalier disregard for court resources and lack of consideration for the parties and First Nations intervenors who participated in this proceeding in good faith.”
So while the government was clearly going out of its way to reduce or eliminate barriers for the separatist petition to proceed, these underlying issues never went away.
Which now brings us to this month. Given the issues highlighted in Justice Feasby’s ruling, a coalition of Alberta First Nations are now looking to the courts to block this petition effort altogether.
Last week, Court of King’s Bench Justice Shaina Leonard issued a stay order, which temporarily blocks the chief electoral officer from certifying that petition until she makes her final ruling.
That doesn’t stop the efforts to gather signatures ahead of the May 2 deadline. The separatist group behind the petition recently announced that they’d already reached the required 177,732 signatures, although obviously that hasn’t been confirmed or verified.
There was clearly frustration and disappointment from the separatist side, although it’s possible that the idea of an unelected judge potentially scuttling their efforts to give Albertans a say on their future could prove politically useful to them.
A recent Pollara poll illustrates how politically delicate this all is. While the separatist cause trails badly — 69 to 27 per cent — there’s an additional 15 per cent of Albertans who are open to “sending a message,” which could put potential separatist support into the 40s. On top of that, support for separation among identified UCP supporters sits at 55 per cent.
Which is why the separatist movement believes — or hopes — that the premier could be their saviour here.
Even if the courts were to quash this petition, it doesn’t close the door on this issue. Even Justice Feasby conceded that nothing in his decision “should be understood to mean that the Constitution cannot be amended or that Alberta cannot hold a referendum on separation.”
In other words, the premier could simply put a separation vote on the ballot. We already have a referendum day set aside — Oct. 19 — where Albertans will be voting on nine questions put forth by the government. They certainly have the prerogative to add another.
It’s one thing for the premier to tinker with existing legislation, but it’s quite another for her to be the one to decide that a vote on separation will occur. Lord knows, there was zero talk of that when she last asked Albertans for a mandate. Is that a step too far for her now?
As it happens, the government has just embarked on yet another change to the citizen-initiative law. Among other things, Bill 23 establishes a 12-month blackout period before and after a provincial election when it comes to launching or continuing a referendum petition.
Now, the courts could still reject the challenge from these First Nations. There’s also still the matter of the petition by the pro-federalist Forever Canadian group. They far surpassed the previous, higher threshold, but the government has been dragging its feet on dealing with that petition (a committee is finally set to convene later this month to discuss it), presumably to allow the separatists’ petition effort to proceed.
Forever Canadian founder and former MLA Thomas Lukaszuk has said their preferred course of action was merely for their question —”Do you agree that Alberta should remain within Canada?” — to be put to a vote in the legislature. But if there must be a referendum, they’d prefer their own question over that of the separatists. The premier and the separatists might not see it that way, though.
An early election, however, could be a reset on everything and give the UCP a clearer mandate on subjecting Albertans to a vote on separation. Bill 23 could just be the government’s escape hatch here,
Rob Breakenridge is a Calgary-based podcaster and writer. He can be found atrobbreakenridge.ca and and reached at rob.breakenridge@gmail.com
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Using lawfare, Liberal-appointed judges, and Liberal-funded chiefs to tell the population that they aren't even allowed to express themselves is the riskiest possible option.
It is literally telling 30% (at least) of Albertans that there is no legal democratic solution within our current political system, despite the clear precedent of Quebec.
I can't thing of anything more likely to lead to trouble, including for the First Nations participating in this folly.
Personally, I think they should go ahead with the Thomas Lukaszuk question, and run the referendum based on that.
Who cares that he personally doesn't want that? IT was his own folly that got him here - he thought he was being SO clever, co-opting the separatist agenda by setting his own preferred question and gathering his signatures first. His intent was to leverage the "only one question on a topic" rule and bar the separatists from even getting started.
It seems to have not occurred to him until after spending his whole summer running around the province gathering signatures... that ANY yes/no question is, for all intents and purposes, a separatism question.
...at which point he pivoted, and asked for his signatures to NOT be applied to a referendum. Suddenly he wanted the Legislature to hold a "purity test" vote on his question instead, as if that would AT ALL calm the waters on the topic.
And now he and his acolytes try very hard to pretend that he never wanted a referendum, ever - which is just objectively untrue. The people who thronged to sign his petition thought they were signing to agree with a referendum question.
So let's hold a petition based on his question. He did submit the paperwork....