Court Finds Proposal for Alberta Independence Contravenes Treaties with Alberta First Nations

Press Release

December 10, 2025

The Alberta Court of King’s bench has found that the proposed referendum on Alberta independence contravenes the Charter and the Treaty and Aboriginal rights guaranteed under section 35 of the Constitution Act, 1982, siding with Athabasca Chipewyan First Nation (“ACFN”) and a host of other First Nations intervenors. The decision means that the Chief Electoral Officer of Alberta is required to reject the proposed referendum, stalling a months-long campaign by the Alberta Prosperity Project to launch the referendum using Alberta’s Citizen Initiative Act.[1]

What is the case about?

The case came to the Court of King’s Bench as a reference. The Court was asked to decide whether a proposal under the Citizen Initiative Act, SA 2021, c C-13.2 (the “Act”), that “Alberta shall become a sovereign country and cease to be a province in Canada” (the “proposal”), contravenes the Charter or Treaty rights. The proposal was put forward by Mitch Sylvestre (the “Proponent”), a private Alberta citizen who commenced the process. If successful, it would result in a province-wide referendum on the issue of Alberta independence from Canada.

What were the issues?

Before proceeding past the proposal stage, under sections 2(4) and 3(1) of the Act the Chief Electoral Officer (“CEO”) must reject a proposal that would contravene sections 1-35.1 of the Constitution Act, 1982. The legislation allows the CEO to refer this question of constitutionality to the Court under section 2.1, which is ultimately what happened in this case. The issue for the Court to consider was specifically whether the proposal could be initiated under the Act, which established a statutory bar against unconstitutional referenda. The Court therefore had to interpret the meaning of “proposal” and “contravene” under the Act, before applying that interpretation to the facts.

Statutory Interpretation and the Charter

The Court had no trouble holding that a “proposal” meant “the substance of the constitutional referendum proposal as an accomplished fact”,[2] rejecting the Proponent’s submission that the subject of the inquiry was nothing more than the act of holding a referendum.[3] The Court also found that – given that the proposal was from a private citizen and not the Crown – the word “contravene” must mean “prima facie infringement” for the purposes of the Act, as argued in ACFN’s written submissions.[4] There was simply no basis for a justification analysis and the wording of the provision did not require one. The correct interpretation of section 2(4) is that it permits amendments to section 1-35.1, but does not permit amendments that would detract from those rights.[5]

Applying this interpretation, the promise to substitute a charter of human rights and freedoms in a forthcoming Alberta constitution may ultimately be justified, but at this stage it cannot be said that it would be equivalent to the constitutional guarantee that each Canadian presently enjoys.[6] By virtue of the fact that an independent Alberta would necessarily have a new and different constitutional order, the Court found that Alberta independence contravenes the Constitution Act, 1982, ss 1-35.1.[7]

What does Alberta Independence mean for Treaty and Aboriginal rights?

Though his finding that the proposal contravenes the Charter could have resolved the issue on its own, Justice Feasby nonetheless consider the implications of independence for First Nations and their section 35 rights. The Court accepted the two main arguments advanced by ACFN and other intervenors, namely that (1) unilaterally substituting Alberta as a Treaty party would contravene the numbered treaties, and that (2) the introduction of an international border would necessarily infringe upon treaty rights.

Alberta is not a party to the treaties

Justice Feasby considered and rejected the argument of the Proponent and Alberta that an independent Alberta would step into the shoes of the Crown in right of Canada by operation of law. Obligations under the numbered treaties cannot be assumed by an independent foreign state.[8] More importantly, however, Justice Feasby emphasized that Canada has been the main treaty partner, or ‘obligor’, responsible for the implementation of treaty promises that were made before the province of Alberta even existed. Even if the Proponent was right that Treaty obligations did devolve to Alberta as a matter of law, as a practical matter it would mean the dissolution or substantial impairment of the treaty relationship with the Crown in right of Canada.

To assess whether the substitution of Canada for Alberta as treaty partner would have been in keeping with the promises of the numbered treaties, the Court reviewed contract law, international law, nêhiyaw (Cree) law, and Blackfoot history. In reviewing relevant contract and international law principles, the Court referred to the concept of novation in National Trust Co v Mead and the treaty amendment (art. 39) and termination/withdrawal (art. 54) provisions of the Vienna Convention on the Law of Treaties.[9] Furthermore, in reviewing nêhiyaw law regarding changes to the treaty relationship, the Court relied heavily on the evidence given by Dr. Darcy Lindberg and the joint submissions of Sturgeon Lake Cree Nation and Mikisew Cree First Nation, highlighting the importance of considering First Nations laws when interpreting the Numbered Treaties.[10] All of these legal regimes pointed to the same conclusion: consent is required to change a party to the Numbered Treaties.[11] Substituting an independent Alberta as the entity responsible for fulfilling treaty obligations would amount to a contravention of the numbered treaties.

International boundaries infringe treaty rights

Last but not least, the Court considered the implications of running an international boundary through a treaty territory, severing communities from their kin and traditional territories. Justice Feasby prefaced his reasons regarding treaty rights with an overview of the history of Rupert’s land, the signing of the numbered treaties and the role those treaties play in the legal foundations of the present day province of Alberta. He concluded that both treaty boundaries and provincial boundaries have constitutional status. Relying heavily on the evidence of ACFN Chief Allan Adam and Dené Lands and Resource Management Executive Director, Lori Cyprien, Justice Feasby considered and accepted ACFN’s argument that the ability to freely move through the territory was essential to the Crown’s promise in Treaty 8.[12] The introduction of an international border would substantially impede the exercise of Treaty rights in ACFN territory and complicate their ability seek redress from the Courts.[13]

Implications of the decision

In addition to the immediate implications of this decision for the independence movement in Alberta, this decision makes several contributions to the law that are worth noting. First, Justice Feasby made a point of noting that Alberta’s arguments with respect to the interpretation of s. 2(4) of the Act were not only wrong, but dishonourable in light of the Minister’s statements to the legislature, which stressed that the provision provided a protection for Treaty rights. This is a good reminder that the Courts will seek to hold Ministers accountable for what they have said about legislation in the legislature,[14] but also the reality that the honour of the Crown extends to the work of advocacy before the Courts.

Secondly, the decision embarked on a novel comparative legal analysis to determine how a party to the numbered treaties could be replaced or succeeded. While emphasizing that the numbered Treaties are sui generis in the sense that they are neither domestic contracts nor international legal instruments, Justice Feasby looked to the principles of contract and international law, nêhiyaw law and Blackfoot history, taking into account the arguments brought forward by the First Nations intervenors to develop an answer consistent with the laws and intentions of all the Treaty parties.[15] The authors find this approach to be a valuable framework for future cases.

Finally, the decision provides important judicial recognition that a mobility right necessarily inheres in the promises contained in the numbered treaties, and Treaty 8 in particular.[16] Concluding, Justice Feasby observed:

Regardless of the undecided legal questions of whether contraventions of Treaty rights
may be justified or if First Nations hold a veto over Alberta independence, there can be no
reasonable objection to First Nations having an important voice in any discussion of Alberta independence. First Nations’ consent to non-Indigenous settlement in what is now Alberta, memorialized in the Numbered Treaties, led to the creation of Alberta and continues to confer legitimacy on Alberta. First Nations, as founding partners in the creation of Alberta, cannot be ignored or bypassed as Alberta contemplates its future whether that is as part of Canada or not.[17]

OKT was proud to represent ACFN and to work with all of the First Nation intervenors on this important case.

[1] Citizen Initiative Act, SA 2021, c C-13.2.

[2] Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 at para 24.

[3] Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 at para 84.

[4] Written Submissions of the Intervener, Athabasca Chipewyan First Nation, Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712, at paras 32, 47-52.

[5] Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 at paras 77, 124-129.

[6] Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 at para 128, citing Bertrand v Quebec (Procureur General), 127 DLR (4th) 408 at paras 65-67.

[7] Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 at para 129.

[8] Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 at para 188.

[9] Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 at paras 194-196 citing National Trust Co v Mead, [1990] 2 SCR 410 at 427 and Vienna Convention on the Law of Treaties, Can TS 1980 No 37 (entered into force 27 January 1980) art. 39, 54. Both of these authorities were highlighted by ACFN in its submissions: Written Submissions of the Intervener, Athabasca Chipewyan First Nation, Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712, at para 71; Brief of Law of the Proposed Intervenor, Athabasca Chipewyan First Nation, Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 552, at para 19.

[10] Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 at paras 197–209.

[11] Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 at para 213.

[12] Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 at paras 221-223.

[13] Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 at paras 231-233.

[14] For another such example, see Francis v. Ontario, 2021 ONCA 197, at para 129.

[15] Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 at paras 193–214.

[16] Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 at para 231.

[17] Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 at para 248.

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