Introduction
For the second time in six months, an Alberta judge ruled that Treaty rights of First Nations must be considered before approving a referendum on Alberta’s independence.
In Chief Electoral Officer of Alberta v Sylvestre (“Sylvestre”)[1], issued December 5, 2025, the Court found that the proposed referendum, which asked whether Alberta should become a sovereign, independent country, contravened the Charter and historic treaties between Canada and certain Alberta First Nations.
Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer) (“Athabasca”)[2], issued May 13, 2026, set aside the approval of a referendum on substantially the same question. The Court found, among other things, that the Treaty First Nations were owed a duty to consult before the referendum could proceed[3].
Background
Before May 2026, Alberta’s Citizen Initiative Act (“CIA”) allowed citizen-initiated referendum proposals if they did not contravene the Constitution Act, 1982, including section 35, which affirms Aboriginal and Treaty rights[4].
In Sylvestre, the Court found that Alberta’s secession would fundamentally contravene Treaty 7 and Treaty 8 by unilaterally removing Canada as the Treaty partner. The Crown’s obligations under the treaties cannot be assumed by an independent foreign state (i.e., an independent Alberta). Secession would also turn provincial boundaries into international borders, thereby dividing Treaty territory and disrupting First Nations’ ability to move across Treaty lands to exercise their Treaty harvesting rights.
Shortly after Sylvestre, Alberta amended the CIA to remove the constitutional screening mechanism, and Alberta’s Chief Electoral Officer approved the referendum question. Several Treaty First Nations challenged the approval, arguing that Alberta failed to consult despite the serious Treaty impacts identified in Sylvestre. The Court agreed, ultimately setting aside the approval on the basis that, among other things, Alberta failed to meet its duty to consult[5]. The Court noted that the Government of Alberta cannot legislate its way out of their constitutional obligation to consult with First Nations before making administrative decisions that affect Aboriginal and Treaty rights[6].
Under the CIA, once a petition is approved by the Chief Electoral Officer and sufficient signatures are gathered, Alberta is legally required to hold a binding referendum and take steps to implement the result[7]. Given this statutory mandate, the Court found that Alberta was obliged to consult First Nations before any petition is approved. As found in Sylvestre, Alberta’s secession would adversely affect Treaty rights by altering borders, changing the Treaty partner, and weakening constitutional protections[8].
This case illustrates the breadth of circumstances in which the courts have found the duty to consult is triggered. These circumstances include high-level and strategic decisions, even where impacts are indirect or occur in the future. The Court found that waiting until after a referendum would inhibit the ability of First Nations to influence decisions affecting their rights, particularly once the process moves into the political sphere, beyond judicial oversight[9].
Conclusion
The decision in Athabasca raises issues of the interplay between provincial independence and Indigenous rights protected in the Canadian Constitution. Section 35 of the Constitution serves to recognize the prior occupation of Canada by Indigenous societies and to reconcile their contemporary existence with Crown sovereignty. The Alberta Court found that these Indigenous rights would be affected if Alberta were to secede from Canada, and therefore the Alberta First Nations ought to have been consulted early in the process, in advance of calling a referendum.
Alberta has stated that it will be appealing the decision and Premier Danielle Smith of Alberta has announced that her government will add the question of whether Albertans want to stay in Canada, or hold another referendum to secede, to Alberta’s October 19 referendum vote[10].
