May 5, 2025
First Nations, Inuit, Métis Rights and Alberta Separation: Constitutional and Legal Framework
Issue Summary
The Alberta government, led by the United Conservative Party (UCP), has introduced legislation that would make it easier to trigger a referendum on the province’s separation from Canada. This note provides a high-level overview of the proposed legislative changes, federal Clarity Act provisions, and constitutional considerations, particularly about Indigenous rights.
Background
- On April 29, 2025, the UCP tabled Bill 54, proposing amendments to Alberta’s election laws.
- Key changes include reducing the requirement for initiating a citizen-led referendum from 20% of eligible voters to 10% of actual voters from the last election, and extending the period to collect signatures from 90 to 120 days.
- Several Treaty First Nations in Alberta have expressed concern that the bill undermines constitutional principles and disregards Treaty relationships that define their status with the Crown.
The Clarity Act (2000) and Its Role
- Canada’s Clarity Act (Bill C-20), passed in 2000, was developed in response to the 1995 Quebec referendum and the subsequent 1998 Supreme Court ruling on Quebec secession.
- The Act outlines the process and legal thresholds required for any province to begin negotiations on separation.
- Notably, during the 1995 Quebec referendum, the Grand Council of the Cree’s held a separate vote affirming their right to remain in Canada, with over 96% voting in favor.
Key Elements of the Clarity Act
- There is no constitutional right for a province to unilaterally secede from Canada.
- Any move toward separation would require a constitutional amendment, which must be approved by the House of Commons, Senate, and all provincial legislatures.
- The House of Commons determines whether a referendum question is clear and whether its result represents a valid mandate to negotiate.
- Indigenous peoples, other provinces, and political parties must be consulted before any result is recognized.
- The Act doesn’t define a “clear majority,” but it implies a simple 51% threshold may not suffice.
- Until all legal requirements are met, Canada’s Constitution remains fully in effect.
Indigenous Rights and Constitutional Considerations
- The federal government recognizes the inherent right to self-government for Indigenous peoples
- The 2024 Supreme Court ruling on Indigenous child welfare legislation (2024 SCC 5) upheld federal recognition of Indigenous laws, but did not confirm that self-government is constitutionally protected under Section 35 of the Constitution Act.
- While the federal government has passed legislation (including the 2021 UNDRIP Act) to advance Indigenous rights, only British Columbia has enacted equivalent provincial legislation.
- Historic Treaties cover all of Alberta and Saskatchewan, influencing legal obligations around Indigenous governance and jurisdiction.
Provincial Implications and Obligations
- Alberta, through Treaty relationships, has legal obligations that cannot be overridden by provincial legislation or referenda.
- The province has a duty to consult Indigenous communities, particularly regarding legislation that could alter the constitutional order.
- Alberta should either:
- Formally inform the federal government of its intentions and request that consultations with First Nations and Métis be conducted, or
- Engage in direct consultations with Indigenous groups before moving forward with the bill.
- Alberta will also need to coordinate with Indigenous governments in Saskatchewan and British Columbia, given that Treaty territories extend across provincial boundaries.
Conclusion
- Alberta’s path to potential separation would be constitutionally complex, requiring extensive legal, political, and intergovernmental engagement.
- Indigenous rights and existing Treaty agreements would remain enforceable and must be accounted for at every step.
- As with the Quebec experience, Alberta is likely to face prolonged legal challenges if it pursues separation, with courts playing a central role in interpreting and enforcing the constitutional framework.
Supporting Materials
- Clarity Act (2000)
- Constitution Act, 1982 – Section 35
- Indigenous Rights in Canada
- Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples
- Inherent Right of Aboriginal Self-Government – Government of Canada