Consultation on Separation

Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 and Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABCA 216

Recent Separatist Activity in Alberta

Although the Alberta separatist movement has been around since at least the 1970s,[1] it has had a recent resurgence spearheaded by Mitch Sylvestre (the Petitioner), who coins himself as a “Bonnyville business owner” who is “leading Alberta’s fight for sovereignty through democratic action.”[2] The movement arises out of perceived frustrations with the federal government.

The Petitioner has sought petitions under the Citizen Initiative Act, SA 2021, c C-13.2 (the CIA) which ask whether Alberta should cease to be part of Canada. Pursuant to the CIA, Albertans can bring forward petitions for proposals on laws, policies, or referenda.

The Petitioner’s first proposal under the CIA was referred to the Court to be approved by the Chief Electoral Officer (the CEO). The proposal was ultimately denied by the Court in Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 [Sylvestre], finding that the CIA did not give citizens the power to initiate a referendum on the question of independence from Canada and that Alberta could not succeed to the Numbered Treaties without the consent of First Nations signatories to those treaties. The Court in Sylvestre also noted that the changing of international borders would significantly impair the exercise of treaty rights by First Nations.

Key to the decision in Sylvestre was section 2(4) of the CIA which states:

(4)  An initiative petition proposal must not contravene sections 1 to 35.1 of the Constitution Act, 1982.

Pursuant to section 35.1 of the Constitution, the Government of Canada has a duty to consult and, where appropriate, accommodate Indigenous peoples when existing rights may be impacted.[3] The Court found that, to be constitutional, a referendum proposal cannot contravene Aboriginal or treaty rights, and that section 2(4) provides a constitutional screen to ensure proposals do not subtract from constitutional rights.

The Sylvestre case turned on the interpretation of section 2(4) of the CIA. Alberta argued for a very narrow interpretation of section 2(4), where section 2(4) would only be engaged if the initiative proposal failed to recognize and affirm Treaty rights. Justice Feasby found this argument absurd, noting:

Alberta’s argument is not just wrong, it is dishonourable. The Justice Minister cannot stand in the Legislative Assembly in May citing CIA s 2(4) as a protection for Treaty rights and then send his lawyers into Court in November to make a technical argument that CIA s 2(4) is not protection for Treaty rights. Reconciliation demands that governments do better than this.

(emphasis added)

Statutory Amendments

Immediately following the Sylvestre decision, the Government of Alberta amended the CIA on December 4, 2025.[4] The amendments included a removal of section 2(4) of the CIA, thereby doing away with any explicit reference to section 35 of the Constitution.

The Petitioner made a second proposal to the CEO, again seeking a petition as to whether Alberta should secede from Canada. In light of the amendments, the CEO granted the initiative petition to the Petitioner (the CEO Decision).

The Second Proposal is Considered by the Court

The Athabasca Chipewyan First Nation, the Piikani Nation, Siksika Nation, and the Blood Tribe (collectively, the Applicants) brought applications for judicial review and a stay[5] of the CEO Decision. The Applicants also raised constitutional questions, challenging the constitutionality of the CIA.

The Applicants argued that despite the removal of section 2(4) of the CIA, the CEO continued to be bound by the Constitution. In other words, they argued that the CIA did not require an explicit reference to the Constitution for it to apply. The Court agreed and issued Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 [Athabasca I]. Consistent with Sylvestre, the Court in Athabasca I confirmed that a petition which proposes secession of Alberta from Canada is unconstitutional and contrary to section 35 of the Constitution. In Athabasca I, the Court confirmed the reasoning in Sylvestre continues to apply - section 2(4) of the CIA is not necessary for the constitutional requirement. The CIA cannot allow unconstitutional citizen petitions to proceed. The Court concluded:

The omission of the CEO to consider Sylvestre and the findings within do not inspire confidence in the outcome reached by the CEO. Approving the Second Proposal, in the face of the findings in Sylvestre, was unreasonable and the CEO erred in granting the approval. […]

Further, the repeal of s 2(4) of the Previous CIA cannot diminish the CEO’s obligation to act in accordance with the written and unwritten principles of the Constitution.

The Court granted the judicial review application and quashed the CEO Decision on this basis.

When does the Duty to Consult Arise on a Citizen Petition?

The Crown’s duty to consult arises when the:[6]

• Crown has real or constructive knowledge of an Aboriginal or Treaty right; and
• Crown contemplates conduct which has potential adverse effects on the right.

When the petitioner makes an application to the CEO, the CEO must then give notice to the Minister of Justice. The Court in Athabasca I found that when the CEO gives notice to the Minister, that constitutes knowledge on behalf of the Crown. Once the initiative petition is approved and the minimum number of signatures are collected, executive action is contemplated under the CIA. The second petition contemplates Alberta’s secession, therefore satisfying the second part of the test for the duty to consult once the signatures are collected.

It is important to note that although the CEO Decision triggers a duty to consult, it is not the CEO who engages in consultation. Rather, it is the government that must engage in the consultation.

The Stay Pending Appeal

Following Justice Leonard’s decision in Athabasca I, the Petitioner applied for a stay pending appeal. The stay was heard and determined in Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABCA 216 [Athabasca II]. The stay would permit the CEO to verify the alleged 301,620 signatures on the separatist petition. The typical process would have been as follows:

• If 177,732 signatures, representing 10% of the total votes cast in the prior Alberta election, are verified the CEO would submit a copy of the proposal to the Minister of Justice and would communicate the results of the petition to the public;
• The Minister would then refer the proposal to the Lieutenant Governor in Council for the purpose of a constitutional referendum in accordance with the Referendum Act, RSA 2000, c R-8.4.

The stay application was heard before the Honourable Justice A. Woolley of the Alberta Court of Appeal, who found:

1. The Petitioner raised serious questions for appeal;
2. The only irreparable harm of not granting a stay is with respect to practical problems that may arise from a delay in the signature verification process; and
3. The balance of convenience favours granting a partial stay.

Justice Woolley directed a partial stay which will permit the CEO to complete the signature verification process but will not permit the full typical process to proceed since a full stay could result in a referendum proceeding before the appeal is determined. The Court determined that the upcoming October 19 non-binding referendum resolves any further harm to the appellant.

She further found that an expedited appeal will not occur.

What comes next?

Athabasca I has been widely reported as halting the Alberta separation petition for Alberta’s failure to consult with First Nations as required pursuant to the Constitution Act, 1982.

At a news conference on May 26, 2026, Premier Smith stated, “We want to make sure that we have a very clear understanding of what the duty to consult really means and what it doesn’t mean, and I think at the moment there’s a lack of clarity on that”. In response, Manitoba Premier Wab Kinew responded that Ms. Smith was “not correct”.[7]

Further, on May 28, 2026, Premier Smith confirmed that there will be a non-binding referendum on October 19 which will ask Alberta voters to choose whether Alberta should remain in Canada or should “commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada”.[8] What does this mean for the separation petition?

Athabasca I has been appealed by both the government and the Petitioner. While we await the judicial outcome of those appeals, the signatures on the separation petition will be verified.

The Court of Appeal took notice of growing political pressure stating:

The efforts made by the appellant to collect signatures, and the support for a referendum such signatures reflect, have thus had an observable political consequence.

Take Away

Section 35 of the Constitution and the duty to consult are applicable regardless of whether Legislature has explicitly adopted reference to them in the legislation. The Government must ensure that treaty and Aboriginal rights are respected, and that the Indigenous peoples living on the lands now known as Alberta are properly consulted on petitions which engage these issues.

[1] “In the ‘70s and ‘80s, some wanted Alberta to separate from Canada”, CBC (October 24, 2019), online: https://www.cbc.ca/archives/alberta-separation-talk-1980-1.5332287

[2] Mitch Sylvestre “Alberta Prosperity Project” (2026), online: https://www.mitchsylvestre.com/

[3] Constitution Act, 1982 s 35.1

[4] Bill 14, Justices Statutes Amendment Act, 2025, 2nd Sess, 31st Leg, 2025. Note that is has subsequently been further amended, the current version coming into force on May 1, 2026.

[5] The stay was granted in Athabasca Chipewyan First Nation v Chief Electoral Officer of Alberta, 2026 ABKB 278, and the Court ordered that the CEO could not certify the second petition results or refer the matter to the Minister of Justice until the judicial review was determined.

[6] Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 at para 205 citing Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 35 and Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at para 31.

[7] Matthew Black “‘That is not correct’: Manitoba’s Kinew challenges Alberta’s Smith over Indigenous consultation”, Edmonton Journal (May 26, 2026), online: https://edmontonjournal.com/news/politics/manitobas-kinew-challenges-albertas-smith-over-indigenous-consultation

[8] Lisa Johnson and Jack Farrell “Alberta Premier Smith’s government formalizes Oct. 19 separation question”, Global News (28 May 2026), online: https://globalnews.ca/news/11872687/alberta-finalizes-referendum-question/