—Leah Trueblood, Senior Lecturer in Law, University of Surrey
In the significant recent Canadian case of Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 (Athabasca), Justice Leonard of the Alberta Court of King’s Bench ruled that Alberta’s Chief Electoral Officer (CEO) made an error of law in approving a citizen initiative petition. The petition at issue, submitted by Mitch Sylvestre under Alberta’s Citizen Initiative Act 2021 (CIA), proposed that the province of Alberta secede from the country of Canada. Although there were multiple reasons for Justice Leonard’s decision, the finding of broadest significance was that the CEO’s approval of Sylvestre’s petition violated the Crown’s legal duty to consult First Nations. This is a consequential decision for Alberta, Canada, and the law of democracy.
This post has three parts. First, it explains the political, and then legal, background to the decision in Athabasca. The second part of the post focuses on the substance of the legal arguments about the Crown’s duty to consult. The third part of the post places the decision in Canadian and comparative context. The difficult question is at what point, or points, in the CIA process the Crown’s duty to consult is triggered. This post will draw both on the Supreme Court of Canada’s Secession Reference, and the approaches of five other democracies with related legal frameworks, to raise some possible answers to that question.
1. The Background to Athabasca
A. Political Background
Alberta is one of ten provinces, and three territories, that make up the federation of Canada. What is now Canada has been inhabited by Indigenous peoples for thousands of years. First Nations, Inuit, and Métis peoples have distinct traditional territories and communities, many of which predate and transcend Canada’s contemporary provincial, territorial, and international boundaries.
On Monday 19 October of this autumn, citizen residents in Alberta over the age of 18 may vote on 10 questions on the ballot under Alberta’s Referendum Act. These ballot questions include matters of immigration, access to social services, and judicial appointments, but the most contested question is question ten which asks:
Should Alberta remain a province of Canada, or should the Government of Alberta commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada?
While the subject matter of this ballot question is related to that of the citizen initiative at issue in Athabasca, this autumn’s vote was triggered by a different legal mechanism. The referendum on 19 October was ordered by an Order in Council under s 5.1 of Alberta’s Referendum Act 2020 on ‘non-constitutional referendums.’ Paragraph four of the Order expressly provides that the result of this autumn’s vote is ‘non-binding,’ meaning it has no automatic legal effect. Crucially, this autumn’s referendum was ordered after the process to hold a related referendum via Sylvestre’s petition under the CIA was paused by the decision in Athabasca, which is nowpending appeal.
B. Legal Background
Section 2(d) of Alberta’s Citizen Initiative Act 2021 allows electors in Alberta to put forward legislative, policy, and constitutional referendum proposals. To make such a submission, a petition must include the signatures of 10% of voters in the previous provincial general election (s 6(2)) and those signatures must be verified. The piece of the legal framework at the heart of the decision in Athabasca is that if the CEO approves such a petition, then the Government of Alberta is automatically, legally obliged to hold a referendum on the proposal, and to give effect to that proposal if it secures a 50%+1 majority of the votes of Albertans. When the CEO approved Sylvestre’s petition, Justice Leonard held that this violated the Crown’s duty to consult with First Nations and was so an error of law. Let us consider that duty to consult now.
2. The Crown’s Duty of Consultation
There exists in Canadian law a duty on the Crown to consult with First Nations peoples on issues adversely affecting their treaty rights. Treaties are legal and political agreements with First Nations peoples. Some treaties were signed with the British Crown before confederation in 1876, and others with the Provincial or Federal Governments in Canada. Section 35 of the Canadian Constitution recognises and affirms the rights of these treaties and establishes both that Governments cannot ignore these treaties and have a duty to consult First Nations on issues adversely affecting these rights.
The judicial review applications in this case were brought by four Treaty First Nations: the Athabasca Chipewyan First Nation, a Treaty 8 Nation, and three Treaty 7 Blackfoot Nations, the Piikani Nation, Siksika Nation, and Blood Tribe (Kainai), each of which argued that Alberta’s proposed secession implicated its constitutionally protected Treaty rights, for instance to hunting and fishing because exercise of rights cuts across provincial borders, and this triggered the Crown’s duty to consult. The three parts to the test for the duty to consult are laid out in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [35]. Under Haida, the duty to consult is triggered where (i) the Crown has actual or constructive knowledge of a potential Aboriginal or Treaty right; (ii) the Crown contemplates conduct; and (iii) that conduct may adversely affect the right. Justice Leonard found all three elements of the duty to consult were satisfied in this case. The first of the three requirements, knowledge of the Treaty rights, was straightforwardly held to be satisfied. Given the litigation on a previous initiative petition submitted by Sylvestre, Justice Leonard said: ‘there can be no doubt the Crown has knowledge of treaty rights.’ [219]
The latter two Haida criteria to trigger the duty to consult are trickier. One of the legal questions at stake in Athabasca was whether the decision by the CEO, an officer independent of the Government, to approve the petition amounted to Crown conduct for the purposes of a duty to consult. The government of Alberta argued that the approval of a petition was ‘a non-discretionary decision dealing with the approval of an application for a citizenship petition.’ [225] The CEO’s decision, the Government of Alberta argued simply ‘allowed signatures to be collected.’ Judge Leonard did not agree, finding that the ‘cascading effect’ [226] of approval of a petition meant the approval of the petition amounted to Crown conduct. Justice Leonard said ‘once an initiative petition is approved and the required signatures are obtained, the executive must hold a referendum and must implement the results of a referendum.’ [232] So, in these circumstances, ‘the distinction between statutory entity and the executive fall away’ [233] and the approval of the petition amounted to Crown conduct.
There are two other points worth making about the duty to consult in Athabasca. [236] First, Leonard J rejected the suggestion that consultation could simply occur at a later stage. Once a successful referendum had occurred, she reasoned, the process contemplated by the Secession Reference would move into the political sphere, in which the courts would have a limited supervisory role [235–36]. The timing of consultation was therefore itself constitutionally significant. Second, Alberta’s own constitutional arrangements also demonstrate that province-wide majoritarian decision-making is not invariably sufficient. Sections 5 and 7 of the Constitution of Alberta Amendment Act, 1990require, in specified circumstances concerning the Métis Settlements, the agreement of Métis institutions or approval by settlement members themselves. Those provisions do not establish a Métis veto over secession, but they demonstrate that Alberta’s constitutional order already recognises circumstances in which the affected Indigenous community possesses a constitutional voice distinct from that of the provincial electorate.
3. Canadian and Comparative Context
A. Canadian Context
In understanding the legality of the Government of Alberta’s approach, a key case is the Supreme Court of Canada (SCC)’s Secession Reference. The ratio of the case is that a clear answer, to a clear question, by voters in a secession referendum does not give rise to a unilateral right to secede, but it does create ‘reciprocal’ duties on the part of the province desiring to secede (in that case: Quebec), and other parties to confederation, to negotiate constitutional changes. [88]
The Secession Reference is also important, however, because of its reliance on unwritten constitutional principles. The case identified four such principles: democracy, the rule of law, federalism, and respect for minorities. The Canadian Court was clear that ‘democracy’ means more than simple majority rule [64]. Further, although the Secession Reference predates Haida, the SCC expressly contemplated that a clear democratic expression in favor of secession would produce negotiations in which ‘aboriginal interests would be taken into account’ [139]. The broader constitutional question is therefore not whether First Nations’ constitutional interests would be engaged by Alberta’s secession – they plainly would – but when the Crown’s duty to consult is triggered in the process that might lead to secession. For guidance on this question, international comparators may offer some help as to what constitutional democracy requires.
B. Comparative Context
Citizen-initiated democratic processes around the world are subject to legal scrutiny, and statutory forms of consultation, before a vote takes place. Comparative experience reveals a variety of mechanisms: what differs is who performs the oversight functions and what the substance of those mechanisms allows or requires.
Switzerland permits a popular initiative to be declared invalid by the Federal Assembly on specified substantive grounds, including incompatibility with mandatory international law. Italy’s Constitutional Court conducts pre-referendum admissibility review. Californian courts may intervene before an election where an initiative exceeds the constitutional scope of the people’s initiative power, while Colorado subjects initiatives to pre-ballot constitutional requirements including its single-subject rule. None provides a direct analogue to the duty to consult in Athabasca. Collectively, however, they demonstrate that legal scrutiny of a proposed exercise of direct democracy before the electorate votes is neither constitutionally anomalous nor necessarily anti-democratic.
A different and particularly interesting comparator is New Zealand’s Citizens Initiated Referenda Act 1993(CIRA). Proposed citizen referendum questions are subject to a statutory consultation process before signatures can be collected. There is no specific statutory duty to consult Māori, but s 9 of CIRA gives the Clerk of the House of Representatives a broad consultation power when settling the referendum question: the Clerk must consult the promoter and “may consult with such other persons as the Clerk thinks fit.” The resulting referendums are indicative rather than binding.
As just mentioned, the CIRA does not itself impose a specific obligation to consult Māori. New Zealand law does, however, recognize through the principles of the Treaty of Waitangi that the Crown’s obligation to make informed decisions may require consultation with Māori: New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA). There appears to have been no case in which that obligation has been held to apply to the CIRA process. Nevertheless, the New Zealand legislation illustrates one possible institutional response to the problem raised by Athabasca: creating a legally designated period of consultation between submission of a proposed question and the collection of signatures. Whether consultation must occur at precisely that point is a different question, but such a process could provide one means of reconciling a statutory right of citizen initiative with the Crown’s antecedent constitutional obligations to Indigenous peoples.
Conclusion
In the appeal of Athabasca, the Government of Alberta argued that the finding caused ‘irreparable practical harm’ to the democratic rights of those making a petition. That argument is difficult to sustain as a matter of comparative constitutional practice: nowhere are rights of citizen initiative wholly free from legal qualification. It is equally difficult to sustain as a matter of Canadian constitutional law: the Supreme Court has been clear that democracy means more than majority rule. Above all, the Government of Alberta’s approach cannot be sustained as a matter of liberal constitutionalism. Some of the arguments the Government of Alberta are advancing in this case should worry Albertans, Canadians, and anyone interested in the law of democracy.
Suggested citation: Leah Trueblood, Citizen Initiatives and the Crown’s Duty to Consult: Athabasca Chipewyan First Nation v Alberta, Int’l J. Const. L. Blog, Sept. 17, 2026, at: http://www.iconnectblog.com/citizen-initiatives-and-the-crowns-duty-to-consult-athabasca-chipewyan-first-nation-v-alberta/