The Alberta Court of King’s Bench has ruled that Alberta independence would contravene the Charter and Treaty rights of Aboriginal peoples in Alberta. This ruling was cited by the Government of Alberta when they announced a non-binding referendum question. Some of the legal questions around Alberta’s referendum laws remain outstanding.
Consideration of Alberta’s possible secession from Canada remains highly contentious and legally uncertain in the context of its impact on the Aboriginal rights that are protected under section 35(1) of the Constitution Act, 1982. Several Alberta court cases, some initiated by Mitch Sylvestre and others by the Athabasca Chipewyan First Nation and the Blackfoot Nations of Alberta, have attempted to clarify these important questions.
The Citizen Initiative Act (CIA) of 2021 is Alberta’s main statutory framework that allows citizens to propose initiatives. As it stood previously, section 2(4) of the CIA prohibited initiative petitions that contravened sections 1 to 35.1 of the Constitution Act, 1982.
Mitch Sylvestre brought forward a citizen initiative petition called “A Referendum Relating to Alberta Independence” under the CIA with enough signatures to meet the threshold to move forward. The Chief Electoral Officer (CEO) referred the question to the Alberta Court of King’s Bench to check the constitutionality, as required by the statute at the time.
In the Sylvestre I court case, the Court rejected Sylvestre’s argument that the CEO’s referral of the question to the courts was premature, an abuse of process or an affront to democracy.
In Sylvestre II, the Court emphasized that Aboriginal and Treaty rights issues cannot be adjudicated without First Nations’ participation.
In Sylvestre III, Justice Feasby of the Court of King’s Bench ruled on December 5, 2025, that Alberta independence would contravene both Charter and Treaty rights. The Court found that international borders would impair section 35 Treaty rights by dividing traditional territories of First Nations whose lands extend beyond Alberta. The Court accepted that under both common law and Cree law principles, First Nations are not required to accept Alberta as a replacement to Canada as a treaty party.
Following these decisions, the Government of Alberta amended the CIA to remove the provision that prohibited proposals contravening the Constitution. It also removed the ability to refer questions about citizen’s initiative proposals to the court.
Following this change, Mitch Sylvestre filed a second citizen initiative in January 2026 which was accepted by the CEO.
The Athabasca Chipewyan First Nation and the Blackfoot Nations of Alberta then applied for a judicial review of the CEO’s decisions. Justice Leonard of the Court of King’s Bench quashed the CEO’s decision, finding that the CEO erred by approving the second citizen’s proposal, since they were substantially the same question. The Court said that the CEO still had to consider the constitutional principles of the question in spite of the legislative changes to the CIA. Determining whether a proposal engaged the Constitution is a legal question, which provides the implied jurisdiction to the CEO to decide questions of law.
Furthermore, the Court found that the CEO had jurisdiction to consider if a referendum proposal engages the duty to consult – a legal principle that is well entrenched through past Supreme Court of Canada decisions. The Court found that the duty to consult was indeed triggered in this instance.
In light of the court decision that the Sylvestre independence question violated Treaty rights, the Government of Alberta announced on May 28, 2026, that a non-binding referendum would be held on October 19, 2026.
Meanwhile, Mitch Sylvestre submitted the signature papers from his citizen’s initiative to the CEO. But because of the Court’s recent decision, the CEO did not immediately proceed to verify the signatures that had been collected. Sylvestre asked the Alberta Court of Appeal to stay the decision in the Athabasca Chipewyan First Nation case and to permit the CEO to complete the signature validation process.
The Court of Appeal granted a partial stay, concluding that there are serious questions to be determined on appeal. Most importantly:
The Court of Appeal found that the referendum on October 19 will address and resolve any harm suffered by Mr. Sylvestre because his proposed question was not advanced to a referendum. Elections Alberta did verify the signatures on the citizen initiative and announced the results on July 24, 2026.
The Court of Appeal has not yet made a decision on the merits of appeal, including the “serious questions” yet to be determined.
Mr. Sylvestre’s citizen initiative remains on hold with Elections Alberta. Next steps will depend on the outcome of the appeal.
