The Court of King’s Bench of Alberta ruled Friday that the proposed referendum to separate the province of Alberta from Canada contravenes the Canadian Constitution Act, 1982, and that citizens may not initiate the referendum under the provincial Citizen Initiative Act (CIA). Justice Colin Feasby clarified that the ruling does not forbid Alberta from holding a separation referendum altogether.

The key issue before the court was whether the CIA allows a citizen to make a constitutional referendum proposal for the independence of the province of Alberta. While the act allows citizens to propose political, legislative and constitutional referendum proposals, section 2(4) requires that the proposal must not contravene sections 1 to 35.1 of the Constitution Act, 1982, also known as the Canadian Charter of Rights and Freedoms, or Aboriginal and Treaty rights.

The court held that the act does not permit the proposed constitutional referendum because Alberta independence, as proposed, would infringe upon constitutional rights. First, the proposed referendum does not provide for any constitutional rights that would exist in an independent Alberta. Therefore, the court cannot guarantee that the rights guaranteed by the Charter would be equally guaranteed after independence. Second, as the Canadian federal government and First Nations are the only parties to the Numbered Treaties, Aboriginal and Treaty rights affirmed by these treaties would not apply to an independent Alberta. For these reasons, the act does not allow the proposal, as it contravenes Charter and Aboriginal and Treaty rights.

In 1998, the Supreme Court of Canada similarly ruled that the Quebec government cannot declare independence unilaterally. The high court found that even if there is a clear majority from the province demanding independence, it is for the provincial and federal governments to negotiate the rights entitled to Canadians both inside and outside the province. Quoting this case, Justice Feasby said, “the outcome of this case should not be a surprise to anyone.”

Just one day before the judgment was released, Alberta’s Ministry of Justice tabled Bill 14 in the provincial legislature. The bill seeks to repeal section 2(4) requirements and discontinue all ongoing court proceedings brought based on CIA section 2.1, which the chief electoral officer relied on to bring this case to the court.

In his postscript, Justice Feasby expressed disappointment to the proposed amendment, for the provincial government’s disregard for court resources, and disrespect for the administration of justice. He also wrote:

The legal consequence of discontinuing this proceeding prior to a decision would be to silence the Court. Legislating an end to litigation is extraordinary. Even the Referendum Proponent who stands to benefit from Alberta’s actions wrote to the Court last night expressing concern that “the Legislature is interfering in a duly convened judicial process.”

Alberta Justice Minister Mickey Amery said, in a press conference on Thursday that the amendment seeks to create a permissive environment to initiate a referendum that is independent of the court process. He also reiterated that the court is entitled to decide on any questions put forward to it.