ATHABASCA CHIPEWYAN FIRST NATION v ALBERTA (CHIEF ELECTORAL OFFICER)

The Proponent, Mr. Sylvestre, applied for the issuance of a constitutional referendum which would ask Albertans the following question: “Do you agree that the Province of Alberta shall become a sovereign country and cease to be a province in Canada” (the “First Proposal”), which was later amended pursuant to an adapted statutory scheme to “Do you agree that the Province of Alberta should cease to be a part of Canada to become an independent state” (the “Second Proposal”). The Second Proposal was approved by the Chief Electoral Officer (the “CEO”) in Alberta and the question was to be posed to Albertans by Elections Alberta (the “CEO Decision”).

Four First Nations applied for Judicial Review of the CEO Decision. The First Nations filed Affidavits in support of their Applications, and filed Notices of Constitutional Question seeking clarity on the constitutionality of certain provisions of the Citizen Initiative Act, SA 2021, c C-13.2 (“CIA”). Alberta applied to strike all or portions of the Affidavits filed by the First Nations.

In response to Alberta’s Application to strike the Affidavits, Justice Leonard applied Rule 3.22 which addresses evidence on a Judicial Review, and held that affidavit evidence is generally inadmissible with narrow exceptions. The Court held these exceptions apply when Rule 3.22(b.1) is not engaged. When Rule 3.22(b.1) is engaged, such that an originating application seeks relief other than an order in the nature of certiorari or an order to set aside a decision or act, the court retains its ordinary gatekeeping function and the evidence must still remain relevant and material. Further, Leonard J. noted that the Court may strike out all or part of an affidavit that contains frivolous, irrelevant, and improper information pursuant to Rule 3.68(4).

Justice Leonard found that the relief sought by the Applicants went beyond an Order in the nature of certiorari and, as such, Rule 3.22(b.1) was engaged and provided a statutory basis for the admissibility of the Affidavits. The Court went on, however, to review each Affidavit for general admissibility on the basis of relevance/materiality and struck one Affidavit and parts of another for failing to be relevant and material. Leonard J. also found some paragraphs within Affidavits to be legal argument/conclusion and directed that those paragraphs be given no weight.

Ultimately, the Court overturned the CEO Decision on three main grounds (each of which is explained briefly below): 1) Error of law in applying transitional provisions, 2) Failure to follow prior binding decision, and 3) Breach of the Crown’s duty to consult.

1. Error in law: The CEO treated the First Proposal as if it had never been made which the Court held to be unreasonable.
2. Failure to follow prior binding decision: Justice Leonard held that the CEO erred in failing to apply the reasons for decision in Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712, which required rejection of the Second Proposal on the basis that it contravened Section 35 of the Constitution Act, 1982.
3. Breach of the Crown’s duty to consult: The Court considered the government’s duty to consult with First Nations pursuant to Section 35.1 of the Constitution Act, 1982. Alberta’s duty to consult was triggered by the CEO decision. The CEO has implied jurisdiction, pursuant to the amended CIA to decide questions of law. The Court declined to determine the constitutionality of the CIA on the basis of its aforementioned ruling.