If the goal of Alberta Court of King's Bench Justice Shaina Leonard was to fuel the separatist fire, she is doing an exquisite job. On Wednesday, Leonard quashed a petition that separatists in the province had organized to trigger an independence referendum in the fall. The reason? The chief electoral officer who allowed the petition to go forth in the first place did not adequately consult the Indigenous peoples of the province.
That is right. The very same duty to consult responsible for roadblocking major projects and hobbling the country's economy—and driving separatist sentiment among Albertans fed up with all of the above—is now being weaponized to prevent a democratic consultation of the general public.
Indigenous Rights vs. Democratic Rights
There will be Albertans who question why Indigenous people deserve to have priority input over other Albertans when it comes to democratic expression, and rightfully so. Some of these will see a separation referendum as a choice between racial hierarchy in Canada or equality in independent Alberta. It is not that simple, of course, but the idea of shedding the ever-tightening tethers of Indigenous rights by getting out gets more attractive by the week—especially this week, thanks to Leonard.
Reactions to the Ruling
Some of those gloating over the King's Bench judgment have been quick to sneer and finger-wag at the exasperated reactions to the ruling: "Don't you brainless chuds know that there is a duty to consult? Don't you know that the government cannot just go trampling on treaty rights?"
I can only speak for myself: it is obvious enough that an actual secession arrangement would have to cover the fate of reserve lands and treaties, and that this would involve conversing with the parties to those treaties.
Timing of Consultations
But you would reasonably expect this to happen near the end of the process. The legislation says that a successful petition triggers a referendum, and that a successful referendum "is binding" on the government—meaning that the executive must take steps to put the referendum result into practice. This is the earliest point where consultations should realistically happen. The actual crafting of a separation framework, a law, would be handled by the legislature, which does not have any duty to consult. After a referendum-implementing law is created, the job of following it would go back to the executive. Consultations could take place at that point, too.
Justice Leonard's reasoning was that consultations needed to happen before the petition was even approved because a successful petition triggers a cascade of steps that can lead to secession. But by ordering consultations so far upstream, Leonard is guaranteeing waste; obscene amounts of waste. It is already costly and time-intensive to consult on typical environment-related decisions where there is a long-established process: mine approvals and forest management plans take months, for example. Consultations on a broad, novel issue that the legislature has not even begun to work on could take years. And it will not even be meaningful, because there is no real discussion to be had when there is not even a draft of a bill.
