Dog With A Bone Society

History of Clause 2(4) in the Citizen Initiative Act

by | Nov 3, 2025 | Cochrane

I was told and reported that the problematic clause 2(4) [“An initiative petition proposal must not contravene sections 1 to 35.1 of the Constitution Act, 1982”], in the Citizen Initiative Act, which is holding up the Alberta Prosperity Project’s (APP’s) question in the Court, was put into the amended Act by the Minister of Justice, Mickey Amery, at the last minute at third reading in May 2025.  By going back and tracking the history of this bill and clause 2(4), I have found that not to be the case.  However, as I will explain in due course, I also found that he is not off the hook.

The Citizen Initiative Act was originally brought in by the Jason Kenney government.  The legislation was introduced as Bill 51 on March 16, 2021 by Kaycee Madu, Kenney’s Minister of Justice and Solicitor General at the time. Clause 2(4) appeared in the tabled bill as follows:
   An initiative petition proposal must not contravene sections 1 to 35.1 of the Constitution Act, 1982 or otherwise limit or adversely impact the rights protected under sections 1 to 35.1 of the Constitution Act, 1982 in a manner that is not demonstrably justified in a free and democratic society.

However, prior to the bill being passed on June 9, 2021, clause 2(4) was amended by Minister Madu by striking out “or otherwise limit or adversely impact the rights protected under sections 1 to 35.1 of the Constitution Act, 1982 in a manner that is not demonstrably justified in a free and democratic society”, such that one ended up with 2(4) simply stated as:
  An initiative petition proposal must not contravene sections 1 to 35.1 of the Constitution Act, 1982.

It is of interest that during the debate on that amendment, which occurred at a Committee of the Whole meeting on June 2, 2021, Minister Madu assured the Committee that “there is nothing in Bill 51 that would strip Albertans, minority communities, minority groups, any institution protected by section 1 all the way to section 35.1 of the Constitution Act, 1982, of their rights”, revealing the clear intent of that clause in the Act.

In May 2025, amendments to the Citizen Initiative Act were considered under Bill 54, the Election Statutes Amendment Act, 2025. Noteworthy that Mr. Amery did not use this opportunity to strike clause 2(4) from the Citizen Initiative Act, nor was there any attempt to do so by any of the other sitting UCP MLAs. In fact, he added more substance to clause 2(4) by including a section (Question to the Court), 2.1(1) to 2.1(3), added after section 2, explaining how the legal referral of a constitutional referendum proposal was to take place.

                                                                                Question to the Court

  • The Chief Electoral Officer (CEO) may, in considering a citizen initiative application, state a question in the form of a special case to the Court seeking the opinion of the Court as to whether the proposal conforms with the requirements of section 2(3), being an application with respect to a legislation proposal must not exceed the jurisdiction of the Legislature, and section 2(4), being an initiative petition proposal must not contravene section 1 to 35.1 of the Constitution Act, 1982 (s.2.1(1)).
  • The CEO will provide written notice to the applicant and to the Minister of Justice within 7 days of stating the question, and the clerk of the Court will set the hearing date to be within 10 days (s.2.1(2)).
  • The applicant may appear and participate in the proceeding (s.2.1(3)).
  • The CEO must state a question no more than 30 days after the elector applied for the initiative petition (s.2.1(4)).

However more noteworthy, not only did he not strike section 2(4) from the Citizen Initiative Act, but he made a last-minute third reading amendment to the Referendum Act whereby referenda executed by the government under the Referendum Act would be restricted not to affect Aboriginal and treaty rights as per section 35 of the Constitution Act, 1982.

He explained his amendment on page 3494 of the Hansard record for the May 14, 2025 meeting of the Legislature as follows:
“I propose to amend the new section 8.11 of the Referendum Act to add a new subsection (3) that would read as follows:
    Nothing in a referendum held under this Act is to be construed as abrogating or derogating from the 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 proposed House amendment is in addition to the current, already existing requirement in 2(4) of the Citizen Initiative Act that states that,
           An initiative petition proposal must not contravene sections 1 to 35.1 of the Constitution Act, 1982.
Alberta’s government has heard concerns from First Nations regarding how a referendum question may impact existing treaties between First Nations and the Crown. We are listening and we recognize the importance of protecting treaty rights, which is why we’re proposing this amendment.”

So, even if the APP question was able to escape the legal hurdle placed on it by clause 2(4) in the Citizen Initiative Act, which seems doubtful, it would, nonetheless, be eventually confined by the amendment (8.11(3)) made to the Referendum Act. Once again, the peoples’ hands are tied by the Alberta government’s own legislation

In his article, “The Referendum goose is cooked”, legal professor Bruce Pardy speculated about a possible way around section 2(4):
“But let’s say that at the hearing, the APP promised the Court that the new Alberta would honour and reproduce Charter and Aboriginal rights in its own constitution…If the judge were to accept the APP’s undertaking, he could make Alberta’s independence conditional on that promise. The Court could tie Alberta’s hands in its negotiations. It could prevent Alberta from developing a new constitution of its own design, instead obliging Alberta to keep the Canadian model. That would defeat the purpose of becoming independent. A successful referendum would become a Pyrrhic victory”.

The APP has declared that it is looking for Danielle Smith to expunge clause 2(4) from the Citizen Initiative Act, but with the matter currently before the court, such action would appear to be too late.

 

It would appear that the best outcome in this complex affair would be to allow matters to unfold as expected according to clause 2(4), that is, the Court would decide that the APP’s question would violate sections 1 to 35.1 of the Canadian Constitution, 1982, and, therefore, would not be approved by Elections Alberta’s Chief Electoral Officer. Hopefully, that would then force Smith and her Minister of Justice, Mickey Amery, both of whom had declared that they wanted the APP question to go forward, to initiate an independence referendum under the Alberta Referendum Act, which hopefully would give time to push the Alberta government and legislature to amend the Act by striking provision 8.11(3).