Alberta will hold a vote this fall on whether to pursue a referendum on separation from Canada. The situation might seem comical if it weren’t so dangerous — both for the majority of Albertans who don’t support separation and for Indigenous treaty people, whom Premier Danielle Smith has accused of undermining the democratic process.
When the Athabasca Chipewyan First Nation and Blackfoot Confederacy won a joint court case earlier this month, effectively arguing that a separatist referendum would contravene their treaty rights, it prevented Smith and her government from putting separation directly on the ballot.
In light of Justice Shaina Leonard’s decision, Alberta separatists and their enablers, including Smith, are now being forced to reckon with the inconvenient reality that Indigenous Peoples have inherent and treaty rights that predate the formation of Alberta itself. These rights transcend Alberta’s borders.
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Settler colonial borders
Treaties 4, 6, 8 and 10 cross the Alberta-Saskatchewan border. And now that Smith has targeted Section 35(1) of Canada’s Constitution Act, which recognizes and affirms the existing aboriginal and treaty rights of First Nations, Inuit and Métis people in Canada, her finger-pointing is cause for even greater concern.
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In a recent televised address to the province, Smith called the court’s application of treaty rights a legal error that her government will appeal. She also called the court’s decision undemocratic since it silences “hundreds of thousands of Albertans.”
As National Indigenous Peoples Day approaches, it’s worth remembering that Canada is a constitutional democracy with an independent judiciary that helps safeguard the Constitution and both individual and collective rights. Indigenous Peoples across Canada have historically had to defend their constitutional rights in the courts precisely because politicians like Smith routinely ignore them.
For Smith to consider Indigenous opposition to separation undemocratic, she must essentially erase Indigenous people from Albertan and Canadian society. She must also have forgotten the decades of treaty rights jurisprudence that have established precedents for Leonard’s ruling.
These precedents stress the importance of the honour of the Crown, characterize treaties as dynamic, not frozen in time, and indicate that they are to be given large, liberal and generous interpretations in favour of Indigenous Peoples.
THE CANADIAN PRESS/Jeff McIntosh
Targeting Indigenous Peoples
Smith and the separatists’ denial of treaty rights carries an exclusionary logic because it erases Indigenous Peoples and their rights from the lands that separatists claim as part of “Albertan sovereignty.”
Smith’s position has shifted from denying treaty rights to targeting treaty rights holders themselves. She has criticized what she calls overly broad judicial interpretations of treaty rights and indicated a desire to amend the Constitution.
At this week’s western premiers meeting in Kananaskis, she got into a disagreement with Manitoba Premier Wab Kinew over Section 35 and the duty to consult. Constitutional changes are difficult to execute, but they’re on Smith’s radar.
“My reading of (Section 35),” she said at a recent news conference, “is that it was never intended to continue being open-ended and redefined by the courts, to create new and increasing rights over and over again with each new decision.”
Smith’s insistence that the interests of a small group of separatists should be prioritized over constitutionally protected rights violates the rule of law in Canada, which is why she is now clamouring for changes to the Constitution and targeting Indigenous Peoples for defending their rights.
THE CANADIAN PRESS/Jeff McIntosh
Using First Nations as a shield
While separation is unpopular in Alberta, it has strong support within Smith’s United Conservative Party. She supports staying in Canada, but knows that keeping her job means placating the separatists. First Nations and the courts are convenient scapegoats she can blame for derailing the referendum she promised to the separatists in her base.
It’s a well-worn trope. Right-wing populists like Smith seek to galvanize public support by purporting to defend “the real people” against marginalized populations deemed a threat and their defenders.
United States President Donald Trump and his Republican allies, for example, regularly blame various social ills, from crime to inflation, on immigrants and on Democratic politicians, who they claim are too soft on the border.
Likewise, Smith is currently stirring up resentment against Indigenous Peoples and the courts for supposedly quashing the democratic will of “real” Albertans.
It’s noteworthy that Smith’s government is also putting forward referendum questions on immigration that implicitly blame immigrants and the federal government for the economic challenges Alberta is facing. For Smith, there are “real Albertans” to defend — and newcomers and those who have always been in the province are in the way.
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THE CANADIAN PRESS/Jeff McIntosh
Stoking racism
Both Indigenous people and immigrant communities have reported increases in racism since the separation question has been amplified by Smith’s government.
This dangerous situation is likely to worsen now that Smith has pinpointed Indigenous people as a barrier to real Albertans and their democratic rights.
Smith has carefully focused her condemnation on the courts more than the First Nations who continue to defend their treaty rights, but the implication of her statements is clear: those rights and the people who hold them are a threat to Albertan democracy.
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Section 25 of the Constitution, which stipulates that the rights and freedoms guaranteed to all Canadian citizens must be interpreted in ways that respect and uphold the collective rights of Indigenous Peoples, says otherwise.
The explosive political climate Smith has stoked is now bigger than provincial separation alone; it risks Constitutional unravelling, further harm to treaty rights and real violence against those she suggests are a threat to her agenda.
If all this comes to pass, Smith’s divisive rhetoric will be to blame.
