ABSTRACT

Connecting the dots with respect to why the Alberta Prosperity Project’s question related to Alberta’s independence from Canada ended up in the court, and what are the possible outcomes.

FULL BLOG

Looking Good for the Birth of a Referendum on Alberta Independence

On July 4, 2025, the date that the amendments to Alberta’s Citizen Initiative Act took effect, the Alberta Prosperity Party (APP) submitted an application to Alberta’s Chief Electoral Officer for a citizen-initiated constitutional referendum question, namely,
“Do you agree that the province shall become a sovereign country and cease to be a province of Canada?”

That date was important because under the old rules the number of signatures required for a successful petition to put a constitutional question on a referendum ballot was approximately 600,000 (20% of the eligible voters). However, with the amendment to the Citizen Initiative Act that number was reduced to 177,000 signatures (10% of the total number of votes cast in last municipal election) to get it on a referendum ballot, and, as well, the time period allowed to collect the signatures was increased from 90 days to 120 days. Given that the APP had collected the names of over 250,000 Albertans who expressed an intent to provide their signature on the petition when the time to collect was approved, things were really looking up that the citizens of Alberta will be able vote in a referendum to determine if Alberta would remain in Canada. As well, the large, often standing room only, crowds attending the educational town halls hosted by the APP across the province were encouraging and showed a growing momentum and excitement about the possibilities.

If the submitted constitutional question had been approved by the Chief Electoral Officer by the end of July, then following the Citizen Initiative Act process, allowing for 120 days to collect the signatures, 21 days for the petition verification process, by approximately the end of December 2025 the constitutional referendum proposal would have been forwarded to the Lieutenant Governor in Council for the purpose of a constitutional referendum. Then it would be up to Premier Smith through Order in Council to set a date for the referendum, assuming that there would be an allowance of a two-month campaign period to precede the vote date. If she had so chosen, a referendum on Alberta independence hypothetically could have been held as early as March 2026.

The fixed date for the next Provincial General Election is October 18, 2027. Note, according to the above, that the approximately 5-month process of completing the collection of signatures and verifying the signatures must occur before October 18, 2026. Otherwise, the referendum will be held some time after the provincial election in October 2027.

Approval of Constitutional Question Derailed

However, on August 14, 2025, the process was brought to a halt with Justice Colin Feasby, of the Court of King’s Bench deciding that the APP’s potential referendum question on Alberta separating from Canada would need to be subject to a court hearing to determine if the APP’s question contravenes sections 1 to 35.1 of the Constitution Act, 1982, where sections 1-34 are commonly known as the Canadian Charter of Rights and Freedoms and sections 35 and 35.1 concern Aboriginal and treaty rights.

The conclusion from his full statement with respect to the case of the Chief Electoral Officer of Alberta v Sylvestre is reproduced below:

In doing so, the judge, who was appointed in 2021 by Justin Trudeau, rejected APP’s application to strike (quash) the referral from the Chief Electoral Officer, with the APP arguing that such a requirement was premature and an abuse of process. Nonetheless, the APP spun that setback as “not a loss” in that the delay would provide more time to educate Albertans and prepare for the referendum. As well, the APP expressed confidence that “the court will find the question to be constitutional”. However, there is no assurance of that and, as far as more time, a delay, may blunt enthusiasm.

At that hearing on August 14, the judge provided direction for the hearing of the reference question.

Consistent with the principles that the Chief Electoral Office must be impartial and objective, he has not taken a position on the constitutionality of the APP’s proposal but, instead, “recommended that the Court appoint amici curiae to ensure that all perspectives on the issue are represented before the Court”. (An amicus curiae (Latin: “friend of the court”) is someone who is not a party to a case but offers information that bears on the case). The judge decided to do so, going along with Edmonton lawyer Matthew Woodley and University of Alberta law Professor Eric Adams, who were identified as potential amici curiae by the counsel for the Chief Electoral Officer. Their mandate is to articulate the best arguments that the APP’s proposal is unconstitutional as well as any weaknesses in their arguments. In an interview with the CBC in May, Mr. Adams gave some of his thoughts on Alberta separating, regarding it as “not quite a serious political movement…that is on the precipice of succeeding”. He pointed out that he couldn’t see that a province that claims about being landlocked “can solve that problem by becoming a landlocked independent country”. He expressed the view that the movement for Alberta independence is “short lived”. In a participation with CBC B.C. in May, he observed “Of course, first nations people have already in this province said that they don’t even accept the premise of separation as a starting point”.

With respect to setting a process for intervenor applications, the judge “committed to keeping the number of intervenors to a manageable number to ensure that the reference may be completed within a reasonable timeframe”. While evidence is not typically received in reference proceedings, the judge, nonetheless, decided “that the only potential intervenors who could assist the Court by providing evidence are First Nations”.

Applications to the Court of King’s Bench for status to participate as intervenors in this reference question are to be made by September 17, 2025.

The court is set to reconvene on November 19 and a final decision is to be expected in 2026. So instead of the opportunity to vote in a referendum on Alberta independence in early 2026 as hypothetically suggested above if all had proceeded smoothly, we will only be receiving a decision from the court as to the constitutionality of the APP question.

With all this confusion, time to connect the dots. Why did this happen and where will this possibly lead us?

Why Did This Happen?

As Gordon McClure, appointed by the Smith government as Chief Electoral Officer in November 2024, had referred the potential referendum question on Alberta separating from Canada to the court for confirmation that the question doesn’t violate the Constitution, he bore the brunt of the ire from the public supporting the question for his having done so. But that ire was misplaced, as he was virtually invited to do so given the inclusion of a Question to the Court section in the amended Citizen Initiative Act and section 2(4) of the Act setting out the requirement that “An initiative petition proposal must not contravene sections 1 to 35.1 of the Constitution Act, 1982.”

In essence the Smith government teed it up and the Chief Electoral Officer, given the authority, and even expectation, to do so, followed through. In that respect, rebukes from Premier Smith and justice minister Mickey Amery, asking the province’s chief electoral officer to withdraw his court reference, were rather disingenuous, presumably to deflect attention away from their responsibility for what had transpired.

As well, asking the Chief Electoral Officer to to withdraw his court reference was inconsistent with lawyers for Alberta Justice Minister Mickey Amery advising Justice Feasby that they did not wish to take a position on APP’s request to quash the referral but were prepared to act as intervenors, the latter signalling they were okay with having the judicial review proceed. They took this position not to support APP’s request to quash the referral despite a statement from Amery’s office declaring that “Alberta’s government believes that the proposal is not unconstitutional and therefore should be approved and permitted to proceed”.

So instead of blaming the Chief Electoral Officer for putting a brake on the citizen initiative process, the blame needs to be placed squarely where it belongs, namely, with the Smith government.

Lawyer Bruce Pardy appreciated that as well, observing, “The cause of this little circus is an Alberta statute, the Citizen Initiative Act. Section 2(4) says ‘An initiative petition proposal must not contravene sections 1 to 35.1 of the Constitution Act, 1982’. That is, a “made-in-Alberta problem”, created by the UCP Government.

Makes No Sense for a Referendum Proposing Separation

As noted by legal scholar Bruce Pardy, requiring that “An initiative petition proposal must not contravene sections 1 to 35.1 of the Constitution Act, 1982…makes no sense for a referendum proposing separation.”

The Citizen Initiative Act empowers the CEO to refer questions, including whether a proposal is unconstitutional. If so, one can ask why did Smith’s requirement for determining the constitutionality of the constitutional question as per Section 2(4) stop at section 35.1 of the Constitution Act 1982?  Thus, Section 36(2) of the Constitution Act 1982 enshrines the principle of equalization payments, stating “Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.”

Including Section 36(2) as a section of the Constitution Act, 1982 not to be contravened by a constitutional question, clearly reveals the senselessness of requiring a question on independence from Canada not contravening aspects of the Constitution Act, 1982. An independent Alberta would certainly no longer be making equalization payments! This example shows how preposterous this process requirement imposed via the amended Citizen Initiative Act is, requiring a question to separate from Canada to comply with the existing Canadian constitution that one seeks to be free of by becoming independent.

This goes along with the judge in section 69 of his decision on August 14 giving the curious example of how Alberta independence puts Section 6, mobility rights of the Charter guaranteeing the right of citizens to “enter, remain in and leave Canada” at risk and thereby “illustrates why it is not plain and obvious that the Referendum Proponent’s proposal is constitutional”. What this illustrates once more is that requiring adherence to the Constitution “makes no sense for a referendum proposing separation” from Canada and its Constitution.

By its very nature a constitutional question to separate would, if successful, lead to a new independent country where the existing Canadian Constitution would no longer apply, that is, a constitution which we Albertans seek to be rid of and will be rid of by becoming independent.

Basically saying that you can have a question on independence from Canada provided it does not contravene aspects of the Constitution that you are seeking to be free of by achieving a successful referendum on that question. Simply makes no sense.

How Will the Court Case be Argued?

Accordingly, for the upcoming court case, or “little circus” as Pardy calls it, it will be very interesting how those who wish to see the referendum question, as presented, to be approved by the Chief Electoral Officer, will argue their case.

In a recent interview, Bruce Pardy was asked what kind of fight Ottawa will likely wage against Alberta’s independence movement. In his response (starting around 1:20:38), he noted that “Ottawa and its allies will do everything that it can to discredit this as an illegitimate process”. And especially when it came to the matter of Aboriginal Rights (Section 35.1 of the Constitution Act 1982), which he has argued against, he observed, “Now, it would not be a stretch to imagine that Ottawa and its allies would say, ‘See, this is not legitimate. Your advocates are proposing to do away with rights, you know.’ You’re intentionally going to eliminate rights that are constitutionally protected in the Canadian Constitution. We can’t have that. That is unacceptable. And therefore, we are going to oppose this with all our might…they are going to try to suggest that the process does not have enough legitimacy to stand even if you go through the steps…There’s no guarantee that the goalposts won’t be changed.”

He thereby put his finger on what could well be a major stumbling block with respect to the court’s acceptance of the APP’s question re Alberta separating from Canada.

From the perspective of indigenous chiefs in Alberta, who were vehemently opposed to the lowering of the threshold for a citizen-initiated petition that could lead to a referendum on Alberta independence, a referendum on separation was regarded as a violation of the treaty relationship between First Nations and the Crown and, thereby, contravenes section 35.1 of the Constitution Act 1982. From the perspective of first nations chiefs in Alberta, “This is treaty country and any talk of separation is really insanity, because there is no pathway to separation. You can have all the referendums you want, but there is no way”.

If the proponents for accepting APP’s question as is, choose to be obliged to be constrained by the Citizen Initiative Act statute, then their approach will likely be to argue that the substance of their question to separate from Canada does not contravene sections 1 to 35.1 of the Constitution Act, 1982, specifically section 35.1(which reads: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”).

Or, alternatively, will they appropriately argue that such a requirement “makes no sense for a referendum proposing separation”?

Arguing by the former approach raises a concern that this court case may lead to yielding up some kind of modification to APP’s independence question with respect to aboriginal rights. For example, could we end up with an APP question amended as follows:
“Do you agree that the province of Alberta should cease to be a province of Canada and become an independent nation that recognizes treaty and aboriginal rights?”?

Noteworthy that during the court hearing held on August 7, 2025, counsel for the APP, Jeff Rath, argued “that other rights, most notably Aboriginal and treaty rights, must be respected in negotiations between Alberta and Canada”, so there may well be a willingness to agree to an amendment of that sort to get approval for the APP’s question.

Where is the Court Case Headed?

As far as connecting the dots, I believe that is very likely where this court circus may be heading. I am more convinced of that likelihood knowing that Bill 54 as well as bringing about amendments to the Citizen Initiative Act also brought about amendments to the Referendum Act, adding a section ‘Considerations respecting aboriginal peoples”. Specifically, 8.11(3) states, “Nothing in a referendum is to be construed as abrogating or derogating from existing aboriginal and treaty rights of the aboriginal peoples of Canada that are recognized and affirmed by section 35 of the Constitution Act, 1982”. The government in making this amendment understood (see section 71 of Justice Feasby’s court decision) that it was complementing section 2(4) of the Citizen Initiative Act setting out the requirement that “An initiative petition proposal must not contravene sections 1 to 35.1 of the Constitution Act, 1982.”

No wonder “Alberta Premier Danielle Smith recently said that an independent Alberta would honour Aboriginal rights.”

So, the Smith government with its amendments through Bill 54 has not only boxed-in the Citizen Initiative Act but has also boxed-in the Referendum Act. That is of interest, since as the Act allows the Lieutenant Governor in Council to order a referendum on constitutional questions, some have suggested that Premier Smith could jump in to get around a court bottleneck by ordering a referendum. However, I suspect a lot of Albertans would not support a referendum locked in by those conditions which predetermines how indigenous rights will be handled in an independent Alberta, essentially accorded special status. Thus, if the question survives the hearing as is, which seems questionable, it will still be caught up by the amendment made to the Referendum Act by the Smith Government.

As noted by lawyer Bruce Pardy, “Aboriginal rights are widely regarded as the natural and proper order of things. In fact, they are the opposite. In a free country governed by the rule of law, Aboriginal rights should not exist.” And, “In a free country, laws apply not to distinctive peoples, but to people, period.”

Not being satisfied with the status quo should not be construed, but will likely be so construed, as having antipathy towards indigenous people in Alberta.

Many citizens are concerned by what Frances Widdowson and Albert Howard described as the “aboriginal industry” in their book, “Disrobing the Aboriginal Industry: The Deception Behind Indigenous Cultural Preservation”, whereby the main benefactors of this industry are lawyers, lobbyists and band chiefs.

They argue that “Despite the billions of dollars devoted to aboriginal causes, native people in Canada continue to suffer all the symptoms of a marginalized existence.” They “expose the industry that has grown up around land claim settlements, showing that aboriginal policy development over the past thirty years has been manipulated by non-aboriginal lawyers and consultants”, arguing “that the policies proposed to address these problems – land claims and self-government – are in fact contributing to their entrenchment”.

A 2024 article, “Indian Industry Cronyism”, by Brian Giesbrecht, a retired judge and a Senior Fellow at the Frontier Centre for Public Policy, pointed out how former Justice Minister David Lametti upon his departure from government “took up immediate acceptance into an expensive law firm that makes millions from indigenous issues is a recent example of what has long been called ‘The Indian Industry’ at work”.

Not being satisfied with such a situation does not warrant accusing one of having antipathy towards indigenous people in Alberta.

In a recent article, “Federal Indigenous spending almost tripled to projected $32 billion—but modest improvement in Indigenous living standards due to unrelated federal child benefit”, Tom Flanagan, Senior Fellow of the Fraser Institute, has demonstrated that simply throwing money at the situation hasn’t helped. According to his article, even though, “The annual Indigenous budget has almost tripled from 2015 to 2025, growing (in nominal dollars) from roughly $11 billion to more than $32 billion”, the article pointed out that the federal government’s policies of throwing an ‘avalanche of money’ toward first nations did little to improve their lot.

And yet, the APP’s Draft Fiscal Plan, “The Value of Freedom“, calls for the provincial Indigenous Services budget (p. 11) to be increased 3-4-fold to “$4.2–5 billion annually ($1.2–1.8 billion base + $2.4–3.2 billion new funding) to support the transition to sovereign, self-governing Indigenous communities.” In a recent interview, Jeff Rath commented that the money saved by Alberta separating from Canada could be beneficial in “tripling the spend on indigenous people in the province”.

Again, not being satisfied with such a situation, shouldn’t be construed as having antipathy towards indigenous people in Alberta; nor should those holding to a vision of a new nation based upon blind justice, that is, where the law treats everybody in the same way without regard to their lineage, be accused of undermining the success of an independence referendum.
(Also see, Feedback on “Alberta’s Sovereign Indigenous People in an Independent Alberta, with respect to pages 26-28 of “The Value of Freedom – A Draft Fully Costed Fiscal Plan for an Independent Alberta”.)

Regardless of the decision by the court in this case, it still may continue to be tied up in the court. Note, as discussed earlier, the Minister responsible for the Citizen Initiative Act must receive the verified signatures (the entire process taking up to 5-months) before October 18, 2026. Otherwise, the referendum will be held some time after the provincial election in October 2027.

Bottom Line:  This Court Case May Put a Successful Referendum on Alberta Independence in Jeopardy

Sadly, Alberta’s ability to become an independent nation may well be jeopardized by the division created over this matter. Is that worth sacrificing Alberta becoming an independent nation free of Ottawa’s abuse and eventually all of us, including the indigenous residents of Alberta, going down with this sinking ship captained by the radical globalist, Mark Carney?