Court quashes bid for Alberta independence referendum in favour of First Nations treaty rights

Friday, May 15, 2026

In a decision delivered May 13th, 2026, Justice Shaina Leonard of the Alberta Court of King’s Bench (the “Court”) has quashed the Chief Electoral Officer of Alberta’s (“CEO”) approval of an initiative petition on Alberta independence under the Citizens Initiative Act (“CIA”) put forward by separatists in Alberta.¹ The initiative petition, if successful, would have triggered a province-wide referendum on Alberta independence. 

This decision represents a substantial win for Athabasca Chipewyan First Nation (“ACFN”) and other First Nations in Alberta, who have been fighting tirelessly for the Alberta government to recognize the threat Alberta independence poses to treaty rights in the province and to protect their constitutional rights. 

What is the Case About? 

On January 2nd, 2026, ACFN filed an Application for Judicial Review of the CEO’s decision to issue an initiative petition under the CIA for the question: “Do you agree that the Province of Alberta should cease to be a part of Canada to become an independent state?”. That Application was later followed by a similar application from the Piikani Nation, Siksika Nation and Blood Tribe (“Blackfoot Nations”).² 

The initiative petition proposal on Alberta independence was put forward by Mitch Sylvestre, a leader of the separatist movement in Alberta. This was his second attempt to have the petition issued under the CIA. The initial proposal was rejected by the Court in the case of Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 (“Sylvestre”) and subsequently rejected by the CEO, before the legislation was amended in December.  

ACFN and the Blackfoot Nations argued that the CEO’s decision to approve Mitch Sylvestre’s second initiative petition on Alberta independence (the “Second Petition Proposal”) under the amended CIA should be set aside on the basis that: 

• the CEO erred in law in interpreting and applying the Transitional Provisions of theamendedCIA (particularly s 71.1(1)) to allow Mitch Sylvestre’s Second Petition Proposal on Alberta Independence; 
• the CEO erred by not rejecting the initiative petition proposal in the face of Sylvestre;
• the Crown did not meet its duty to consult with ACFN and the Blackfoot Nations; and
• the provisions of the amended CIA that mandated the CEO’s decision are inconsistent with s. 35 of theConstitution Act, 1982, ss 92 and 96 of theConstitution Act, 1867 or unwritten constitutional  

The Court’s Decision 

Justice Leonard ruled in favour of the applicants, setting aside the CEO’s decision to approve the Second Petition Proposal on multiple grounds.  

The Amended CIA did not Require the CEO to Issue the Petition 

First, Justice Leonard agreed with ACFN’s submission that the CEO was wrong to allow the Second Petition Proposal to be resubmitted and issued under s. 71.1 of the amended Act (the “transitional provisions”).³ That provision applied to pending proposals before the CEO, which were “deemed to have never been made”.⁴ It did not apply to an application which a Court had already ruled would contravene s 35 rights, and which had already been rejected under the former act.⁵ Importantly, the Court concluded that when the CIA was amended it was not the legislature’s intention to allow unconstitutional questions to proceed to a referendum, and the CEO erred when he initiated a process that would do so.⁶ 

The CEO failed to Consider the Court’s Decision in Sylvestre 

Second, Justice Leonard found that the CEO erred by failing to reject the initiative petition proposal in the face of the Court’s prior decision in Sylvestre.⁷  Sylvestre, summarized in a previous OKT Blog Post, dealt with Mitch Sylvestre’s first initiative petition proposal on Alberta independence and ultimately found that Alberta independence would, on its face, contravene s. 35 of the Constitution Act, 1982. Justice Leonard found that as an administrative decision-maker the CEO was required to consider the findings on the constitutionality of a question on Alberta independence in Sylvestre when deciding whether to approve the second initiative petition proposal and that failing to do so was unreasonable.⁸ 

The Crown Failed to Fulfill its Duty to Consult 

Lastly, Justice Leonard found that the Crown acted dishonourably in failing to consult affected First Nations, including ACFN, whose treaty rights were imperilled by the petition and the prospect of Alberta independence. The Court held that while the CEO himself was not required to engage in consultation, his decision to approve the petition triggered the Province’s duty to consult. This is because the provincial government would be required to hold a referendum and ultimately implement secession if the petition and referendum were successful.⁹ In coming to this decision Justice Leonard recognized that, “[g]iven the findings in Sylvestre, and as a matter of logic and common sense, there can be no doubt that Alberta’s secession from Canada will have an impact on Treaties 7 and 8.”¹⁰ The Court ultimately found that the government of Alberta had failed to take any steps to consult affected First Nations, thereby breaching its duty to consult.¹¹ 

The Constitutionality of the Amended CIA was not Decided 

Given her conclusions and findings on the earlier grounds of review, Justice Leonard declined to address the constitutionality of the CIA.¹²  

Implications of the Decision 

The Court’s decision in Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 represents a significant win for the protection of First Nation’s treaty rights in Alberta in the face of the current independence movement. The decision makes clear that the Government of Alberta cannot legislate out of its constitutional obligation to consult with First Nations before making administrative decisions that imperil Treaty rights. Even if the administrative decision maker is an independent officer of the Legislature with no authority to discharge the duty, he has jurisdiction to consider whether the duty is triggered. In so doing he must consider and abide by prior court rulings and decline to act when doing so would result in a breach of the duty.  

The decision also sets a precedent in holding that affected Indigenous communities have a right to be consulted in advance of the province taking steps towards independence, and specifically in advance of calling a referendum on Independence. This finding could have implications for independence movements that may arise in other provinces across the country. 

OKT was proud to represent ACFN and to work with all of the First Nation applicants on this important case. While Danielle Smith has announced the Province’s intention to appeal this decision, we look forward to continuing this fight for the proper recognition of First Nations’ treaty rights in Alberta. 

[1]  Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375; Citizen Initiative Act, SA 2021, c C-13.2.

[2] Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 at paras 1, 18.

[3] Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 at paras 140, 155.

[4] Citizen Initiative Act, SA 2021, c C-13.2, s. 71.1.

[5] Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 at paras 140, 155.

[6] Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 at paras 141, 149-150.

[7] Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 at para 164.

[8] Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 at para 164

[9] Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 at paras 240-24; See also para 85, where Justice Leonard determined that when read together, the Referendum Act and the amended CIA would require the government to hold a referendum on Alberta independence if the initiative petition was successful and that the result of the referendum would be binding on government.

[10] Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 at para 238.

[11] Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 at paras 240-241.

[12] Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 at para 243.