In the wake of Canada’s rapid catalyzation of national unity, spurred entirely by President Donald Trump’s threats of a United States takeover, economic or otherwise, one province is seemingly left behind. Talk of secession in Alberta is not new. Besides Quebec, historically Alberta likely boasts the highest number of provincial patriots, with it not being uncommon to hear murmurs of fiscally dubious proposals on what an independent Alberta would resemble. Lately, there exists a marked difference in the sentiment and seriousness behind such wishes for independence. No longer discussed only in backrooms and bars, talk of Alberta separation has progressed to citizen-initiated petitions, and, consequently, Alberta courtrooms. The conclusion of the story on Alberta’s future is far from close, with a referendum looming this October.

Whether a miscalculation or purposeful ignorance, separation discussions often ignore a key principle about Alberta’s geographical and legal realities: Alberta’s energy economy sits, with few exceptions, on Treaty land. Alberta is primarily home to Treaties 6, 7, and 8, with energy projects such as electricity lines and pipeline corridors crossing over the lands of the Numbered Treaties. Energy lawyers in Canada will be intrinsically familiar with the legal duties that stem from projects that infringe on the rights conferred by the Numbered Treaties. For decades, the duty to consult, the honour of the Crown, and the substantive content of Treaty promises have accordingly been working tools of energy law practice.

Two recent Alberta King’s Bench decisions authored by Justice Leonard have provided a window into the legal difficulties that Alberta separation could entail, specifically in regard to Indigenous Treaty rights. Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer) (ACFN)^[1] and Sturgeon Lake Cree Nation v Alberta (Sturgeon Lake)^[2] both arise out of Alberta’s Citizen Initiative Act^[3] and the campaign, mounted through that statute, to put a question of Alberta’s independence from Canada to a province-wide referendum. To be clear, neither decision was affirmative enough to decide whether or not Alberta will remain in the Dominion of Canada, nor whether it even remains possible for a binding referendum on Alberta’s fate to be held. Further, ACFN is pending a full hearing in the Alberta Court of Appeal, with a preliminary decision already issued allowing Elections Alberta to begin the verification process for the impugned separatist petition. Nevertheless, the petition cannot advance to a province-wide formal referendum until the appeal in ACFN is fully heard and decided.

Despite that procedural uncertainty, the two decisions already establish important parameters for any future separation process. Through different results, both cases clarify that any attempt to advance a referendum on Alberta’s independence must consider the impact of such a gravitational shift on Treaty rights.

THE CITIZEN INITIATIVE ACT

The CIA, passed into law in 2021, was designed to allow electors to trigger referendums on questions of a legislative, policy, or constitutional nature, once a threshold number of signatures was achieved. Petitions with the requisite number of signatures would then be referred to the Chief Electoral Officer (CEO) of Alberta, in preparation for a public vote on the issue. Previously, the CIA was not without guardrails. In what the Court in Sturgeon Lake called the “Previous CIA”, no citizen petitions authorized by the CEO were to contain a question that contravened sections 1 to 35.1 of the Constitution Act, 1982, under section 2(4) of the Previous CIA.^[4] Further, the CEO retained the ability to refer questions of a petition’s constitutional muster to the Court of King’s Bench for further review.^[5]

In May 2025, the Legislature passed Bill 54, which lowered the signature threshold and lengthened the collection period for citizen-initiated referendums.^[6] The amendments drew immediate opposition from First Nations across Alberta, prompting Premier Danielle Smith to assure the Legislature that “there can be no referendum question that goes forward that violates their section 35 rights,”^[7] and prompting Minister of Justice Mickey Amery to confirm, in the same debate, that section 2(4) would continue to guarantee that outcome.^[8]

THE SYLVESTRE CASE

The precursor to the recent separation litigation was the case of Chief Electoral Officer of Alberta v Sylvestre.^[9] The premise of the case is simple. Mitch Sylvestre, a proponent of Alberta separatism, sought to bring a citizen-initiated petition for Alberta independence. On July 4, 2025, Sylvestre applied to the CEO for an initiative petition asking whether “the Province of Alberta shall become a sovereign country and cease to be a province in Canada” (the First Proposal).^[10] As expected, the petition question engaged questions of constitutional validity, and therefore was referred by the CEO to the Alberta courts, under section 2.1 of the Previous CIA.^[11]

On December 4, 2025, one day prior to the conclusion of oral arguments in Sylvestre, the Government of Alberta tabled Bill 14.^[12] Whether a convenient coincidence or otherwise, Bill 14 proposed to repeal sections 2(4) and 2.1 of the Previous CIA, with the new “Amended CIA” containing few of the constitutional guardrails available to the courts.^[13] The Court released its decision in Sylvestre the next day,^[14] holding that the First Proposal did not comply with section 2(4) because Alberta independence would contravene the Numbered Treaties as both a legal and a practical matter.^[15] The Court also declined to treat the still-pending Bill 14 as having already discontinued the special case, holding that a matter which has been fully argued cannot be legislated out of existence before judgment is rendered.^[16]

Three days later, on December 8, 2025, the CEO formally rejected the First Proposal under the pre-amendment CIA.^[17] Mr. Sylvestre subsequently submitted a near-identical question in form to the first, asking “Do you agree that the Province of Alberta should cease to be a part of Canada to become an independent state?” (the Second Proposal).^[18] The Amended CIA, free of the requirement to peruse petition questions for any potential constitutional quandaries, approved the Second Proposal quickly, on December 22, 2025.^[19]

The approval of the Second Proposal sent Alberta barrelling towards an inevitable separation referendum, with all intermittent legal hurdles seemingly cleared. However, separated into two decisions, both decided by Justice Leonard, ACFN involved applications for judicial review from the Athabasca Chipewyan First Nation and the Piikani Nation, Siksika Nation, and Blood Tribe (the Blackfoot Nations). The second case, Sturgeon Lake, was initiated by the Sturgeon Lake Cree Nation (SLCN), arguing for an injunction against the operation of Bill 14, pending the Court’s ruling on its constitutionality. Both cases, despite approaching the constitutional concerns with Bill 14 differently, turned on how the Bill held legal space for Treaty rights, in light of any potential separation.

NUMBERED TREATIES & CONSTITUTIONAL RESTRUCTURING

Despite the fact that the applicant Nations in ACFN were successful in their request to, at least temporarily, suspend any binding referendum on Alberta separation, and the applicants in Sturgeon Lake were not, both cases demonstrated that Treaty rights in Canada are not merely a roadblock to constitutional restructuring. Neither ACFN nor Sturgeon Lake was asked to relitigate Sylvestre’s substantive Treaty analysis, and neither did so; both simply adopted it as the starting point for the questions actually before the Court.^[20] Both ACFN and Sturgeon Lake focused on what Sylvestre concluded regarding the relationship between separation and Treaty rights: that Alberta independence would contravene the Numbered Treaties “both as a matter of law and as a practical matter,” because it would remove Canada and substitute an independent Alberta as the entity responsible for fulfilling Treaty obligations without the consent of the Treaties’ First Nations parties.^[21] Ultimately, whatever protections an independent Alberta might choose to write into its own constitution, Alberta cannot simply step into Canada’s shoes as Treaty partner without the consent of the Nations who treated with the Crown in right of Canada, not with a province.^[22]

From an energy law perspective, the result in ACFN demonstrates the inherited legal architecture that is associated with Alberta’s expansive network of energy infrastructure, likely touching on Treaty land. That architecture depends on a legal connection to Canada, not strictly Alberta, and one that is not simply broken by separation. The Blackfoot Nations put the point squarely in ACFN, arguing that the CEO Decision would substitute an independent Alberta as the entity responsible for Treaty obligations, contravene the right to move around Treaty tracts, and eliminate the continuity of the constitutional obligations that guarantee Treaty promises are kept.^[23] Justice Leonard agreed, finding “a direct causal connection between the CEO Decision and the Treaty rights that are engaged” sufficient to ground both a duty to consult and, ultimately, the quashing of the decision.^[24]

DUTY TO CONSULT & MULTI-STAGE STATUTORY PROCESSES

Energy law practitioners are constantly alive to the legal realities of navigating multi-stage statutory processes in the development of energy projects. Within Justice Leonard’s decisions is commentary on how the duty to consult attaches to such multi-step processes. Alberta’s position throughout ACFN was that the CEO Decision was nothing more than a non-discretionary step permitting a proponent to gather signatures, involving no governmental policy development or strategic decision-making, and that any duty to consult would only be engaged, if at all, once a referendum had actually produced a result the Government proposed to implement.^[25] In performing the Haida analysis, to assess the strength of ACFN’s claims that the duty to consult was necessary, Justice Leonard rejected the Government’s framing at every stage.^[26]

On the issue of knowledge, the Court found the Crown had actual, not merely constructive, notice of the Treaty rights being engaged, because the CEO’s own statutory obligation to notify the Minister of Justice of the Second Proposal supplied that notice, and because the Minister had himself been a party to Sylvestre, litigated on the same essential question weeks earlier.^[27] On Crown conduct, Alberta and the CEO argued that the CEO, as an independent officer of the Legislature insulated from ministerial direction, could not be equated with “the Crown” for consultation purposes.^[28] Justice Leonard accepted that the CEO’s institutional independence is real and important, but held, applying the Supreme Court’s reasoning in Clyde River (Hamlet) v Petroleum Geo-Services Inc,^[29] that once a statutory body exercises executive power conferred by the Legislature to make a decision with binding downstream consequences, “any distinction between its actions and Crown action quickly falls away.”^[30]

As a result of the CEO’s decision to allow the petition, a mandatory statutory sequence was triggered, ultimately potentially amounting to a mandatory referendum should the signature threshold be met. Therefore, the end result invoked a determination that Crown conduct was indeed constituted, notwithstanding the arm’s-length status of the CEO to the Government.^[31] On potential adverse effect, the Court found a direct causal link between the CEO Decision and Treaty rights, reasoning that the entire point of the sequence set in motion by that decision is to place a binding secession question before the electorate, and that a requirement to implement secession without prior First Nations’ involvement would self-evidently affect Treaty rights.^[32]

Two aspects of this analysis should give energy regulatory counsel pause, even outside the secession context. First, the decision applies the “strategic, higher-level decision” language from Rio Tinto to an early, administrative, formally non-discretionary step in a longer regulatory process.^[33] Second, the decision confirms that institutional independence from Cabinet, the Government’s executive branch, a feature shared by Alberta’s energy and utilities regulators, does not remove a decision-maker from “the Crown” for duty-to-consult purposes. What matters is whether the decision-maker is the vehicle through which the Crown brings about a legally consequential outcome, not whether a minister directs its day-to-day operations.^[34] Together, these principles provide energy counsel with a recent Alberta authority on the timing of consultation obligations in multi-stage regulatory approvals.

LEGISLATING AROUND LITIGATION

Running through Justice Leonard’s decision in ACFN, relevant to energy law practice, is the firm declaration that legislation cannot validly substitute a pending litigation decision. Bill 14, modifying the terms of the CIA, was tabled one day prior to the conclusion of oral arguments in Sylvestre. Alberta’s own counsel had told the Court, in a letter dated December 4, 2025, that “once this legislation takes legal effect, this Action will be discontinued.”^[35] The Court in Sylvestre refused to treat the pending amendment as predisposing its conclusions in the case, ultimately ruling that legislating an end to a matter already fully argued would be “the antithesis of the stable, predictable, and ordered society that the rule of law contemplates, and democracy demands.”^[36]

In pulling from the conclusions of the Court in Sylvestre, ACFN further commented on the separation between legislation and litigation. Justice Leonard disagreed with the CEO’s approval of the Second Proposal on the strength of its transitional provisions, following the imposition of Bill 14.^[37] Justice Leonard concluded that the CEO’s willingness to accept the Second Proposal, identical in language to the First Proposal, could not be reconciled as a reasonable decision. Ultimately, a proposal rejected three days before the amendments came into force was not, on a plain reading, still “pending” within the meaning of section 71.1(1), and nothing in the record suggested an intention to retroactively revive it.^[38] Justice Leonard deemed that no matter the intentions of the Legislature in proposing Bill 14 and reducing the necessary constitutional guardrails in the CIA, the legal consequences of the CEO’s decision in approving the wording of the Second Proposal were still a live issue.

Energy law practitioners should keep this particular element of ACFN front of mind. ACFN is a useful, recent illustration of just how far Alberta courts will and will not let such legislative responses reach. The Legislature’s authority to change the law prospectively, even in direct response to litigation it is losing, is not in doubt.^[39] What the Court will resist, on this authority, is any attempt to use that authority to retroactively erase a specific, already-crystallized legal consequence.

SAME VEHICLE, DIFFERENT RESULTS

It is worth pausing on the fact that these two applications, grounded in substantially the same Treaty rights and the same statutory scheme, produced opposite results. ACFN and the Blackfoot Nations succeeded. The CEO’s Decision was quashed on three independent grounds, and the initiative petition process now stands halted pending a fresh decision that properly grapples with the Transitional Provisions, Sylvestre, and the duty to consult.^[40] SLCN, despite persuading the Court it had raised serious issues, and despite a balance of convenience the Court found favoured an injunction, was refused relief because it could not establish irreparable harm.^[41]

The explanation lies in procedural posture more than in the underlying merits, which the Court treated as substantially aligned across both proceedings. Judicial review targets a decision already made, on a record that is largely complete, and asks whether it was reasonable or correct under the Vavilov framework.^[42] Where the error is central to the outcome, quashing follows without any need to prove forward-looking injury. An interlocutory injunction is different. It asks a court to intervene before a full record exists and before the merits are tried, and the tripartite test in RJR-MacDonald Inc v Canada (Attorney General)^[43] exists to guard against exactly that kind of early intervention. Irreparable harm is rarely a formality. It was the outcome-determinative branch for SLCN.

The lesson is not that judicial review always wins out. Quashing only ever addresses the decision quashed, and ACFN declined to reach the constitutionality of the Impugned Provisions once quashing was available on narrower grounds,^[44] leaving Bill 14 available for the Legislature to revisit, as Bill 23, tabled during the Sturgeon Lake hearing itself, already suggests it will.^[45] Nor is the lesson that interlocutory relief is not worth pursuing. The balance of convenience findings, and the Court’s view that SLCN’s claim is strong,^[46] may matter a great deal at trial. The real lesson is narrower. Where a reviewable decision exists and the objective is to stop it, judicial review is the more direct route. Where none exists, or the real objection is to an entire legislative scheme, an injunction may be the only tool available, but counsel should build the record for irreparable harm from the outset, not as an afterthought.

IMPLICATIONS GOING FORWARD

Three practical points follow for energy counsel monitoring this file. First, nothing about either decision resolves the underlying question of whether, or how, Alberta could ever lawfully put a binding secession question to referendum. ACFN quashed a single decision on statutory-interpretation and duty-to-consult grounds without reaching the constitutionality of the Amended CIA;^[47] SLCN’s underlying action, alleging breach of Treaty and of the duty of diligent implementation, remains to be tried on its merits.^[48] The Legislature had already tabled further amendments to the CIA, Bill 23, before the Sturgeon Lake hearing concluded,^[49] confirming that this is an evolving statutory target rather than a settled one. Energy clients with long-dated capital committed in Alberta should treat the separatist file as continuing, not closed, litigation, and counsel advising on political and regulatory risk should expect further rounds of legislative amendment, further judicial review applications each time the CEO acts on a revived proposal, and quite possibly appellate review of both decisions discussed here.

Second, and more durably useful regardless of how the secession question resolves, ACFN’s extension of the Clyde River Crown-conduct reasoning to an independent officer of the Legislature is authority energy counsel should keep on file. Alberta’s energy regulatory landscape includes several bodies that are structurally independent of Cabinet in much the same way the CEO is, and that make early-stage, formally non-discretionary decisions which nonetheless set mandatory statutory sequences in motion. ACFN supports the proposition that such decisions can constitute Crown conduct for duty-to-consult purposes notwithstanding that independence, wherever the decision-maker can fairly be described as the vehicle through which a statutorily mandated outcome is set in train. Any regulator, or regulated party, assuming that arm’s-length status forecloses a duty-to-consult argument at an early approval stage should revisit that assumption in light of this decision.

Third, for all the uncertainty the secession campaign has generated, both decisions offer energy lawyers, and by extension their clients, lenders, and insurers, a measure of reassurance about the legal durability of the Treaty foundation beneath Alberta’s energy economy. Two independently argued applications, decided by applying ordinary administrative and equitable principles rather than any special secession-specific doctrine, each concluded that the Numbered Treaties impose real, judicially enforceable constraints on any attempt to restructure Alberta’s constitutional relationship with Canada, and that those constraints cannot be legislated around, deferred to a post-referendum afterthought, or satisfied by ministerial assurance alone.^[50] Whatever one’s view of Alberta separatism as a political project, that is a conclusion energy counsel, and the industry more broadly, can reasonably rely on: the Treaty relationships that already underpin consultation frameworks, impact-benefit agreements, and regulatory approvals across the province’s resource base are not artifacts a referendum majority can simply vote away.

CONCLUSION

ACFN and Sturgeon Lake reach different results on different applications, but tell a consistent doctrinal story regarding the legal relationship between the duty to consult and potential Alberta separation. Ultimately, the decisions demonstrated that the duty to consult attaches earlier in Alberta’s secession machinery than the Government assumed, and such a duty is not properly delegated to the CEO. Further, the courts clarified that passing legislation on the barometer of scrutiny required for such a petition does not negate the rule of law’s imposition on the real limits of how far the Legislature may reach back to erase the legal consequences of decisions it does not like. None of that turns on any special theory of secession law; each principle is drawn from the ordinary furniture of Crown-Indigenous and administrative law that energy lawyers already carry into every consultation file, regulatory hearing, and impact-benefit negotiation in the province.

The referendum question that gave rise to both decisions may or may not ever reach Alberta voters. However, if it ever does reach a formal vote, both the ACFN and Sturgeon Lake decisions ensure that due consideration of Treaty rights will need to be explicitly had.

• * Kyle Paziuk is a Student-at-Law with Alberta Counsel. He holds a Bachelor of Arts in Political Science, with Distinction, a Master of Arts in Policy Studies, and a Juris Doctor from the University of Alberta.

  ¹ Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 [ACFN].

• ² Sturgeon Lake Cree Nation v Alberta, 2026 ABKB 373 [Sturgeon Lake].

• ³ Citizen Initiative Act, SA 2021, c C-13.2 [CIA].

• ⁴ ACFN, supra note 1 at para 11.

• ⁵ Sturgeon Lake, supra note 2 at para 13.

• ⁶ Bill 54, Election Statutes Amendment Act, 2025, 1^st Sess, 31^st Leg, Alberta, 2025; Sturgeon Lake, supra note 2 at para 12.

• ⁷ Alberta, Legislative Assembly, Alberta Hansard, 31^st Leg, 1^st Sess (13 May 2025) at 3390, as cited in Sturgeon Lake, supra note 2 at para 13.

• ⁸ Alberta, Legislative Assembly, Alberta Hansard, 31^st Leg, 1^st Sess (14 May 2025) at 3494, as cited in Sturgeon Lake, supra note 2 at para 14.

• ⁹ Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 [Sylvestre].

• ¹⁰ ACFN, supra note 1 at para 12.

• ¹¹ Sturgeon Lake, supra note 2 at para 83.

• ¹² Bill 14, Justice Statutes Amendment Act, 2025, 2^nd Sess, 31^st Leg, Alberta, 2025; ACFN, supra note 1 at para 15.

• ¹³ Bill 14, Justice Statutes Amendment Act, 2025, 2^nd Sess, 31^st Leg, Alberta, 2025.

• ¹⁴ Sylvestre, supra note 9.

• ¹⁵ Ibid at paras 214, 231, 245, as cited in ACFN, supra note 1 at para 160.

• ¹⁶ Sylvestre, supra note 9 at paras 250, 252, as cited in Sturgeon Lake, supra note 2 at para 20.

• ¹⁷ ACFN, supra note 1 at para 17.

• ¹⁸ Ibid at para 18.

• ¹⁹ Ibid at para 20.

• ²⁰ Ibid at paras 159–64, 216; Sturgeon Lake, supra note 2 at paras 96–97, 110.

• ²¹ Sylvestre, supra note 9 at para 214, as cited in ACFN, supra note 1 at para 160.

• ²² Ibid.

• ²³ ACFN, supra note 1 at para 212.

• ²⁴ Ibid at para 238.

• ²⁵ Ibid at paras 199, 225.

• ²⁶ Applying Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 35 [Haida], and Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at para 31 [Rio Tinto].

• ²⁷ ACFN, supra note 1 at para 217.

• ²⁸ Ibid at paras 225, 229–31; Election Act, RSA 2000, c E-1, s 2(2); Anglin v Resler, 2020 ABCA 184 at para 30.

• ²⁹ Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 at para 28 [Clyde River].

• ³⁰ Ibid at para 29, quoted in ACFN, supra note 1 at para 233.

• ³¹ ACFN, supra note 1 at para 234.

• ³² Ibid at paras 237–38.

• ³³ Rio Tinto, supra note 26 at para 44, discussed in ACFN, supra note 1 at paras 223–24.

• ³⁴ Clyde River, supra note 29 at para 29.

• ³⁵ Sylvestre, supra note 9 at para 250, as cited in ACFN, supra note 1 at para 123.

• ³⁶ Sylvestre, supra note 9 at para 252, as cited in Sturgeon Lake, supra note 2 at para 20.

• ³⁷ ACFN, supra note 1 at para 94.

• ³⁸ Ibid at paras 108–16, 151.

• ³⁹ Alberta v Kingsway General Insurance Company, 2005 ABQB 662 at para 149, discussed in ACFN, supra note 1 at paras 130–31.

• ⁴⁰ ACFN, supra note 1 at paras 244–46.

• ⁴¹ Sturgeon Lake, supra note 2 at paras 176–80.

• ⁴² Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 99–101 [Vavilov], applied in ACFN, supra note 1 at paras 86–93.

• ⁴³ RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 at 332–33 [RJR-MacDonald].

• ⁴⁴ ACFN, supra note 1 at paras 242–43, 246.

• ⁴⁵ Bill 23, Justice Statutes Amendment Act, 2026, 2^nd Sess, 31^st Leg, Alberta, 2026, referenced in Sturgeon Lake, supra note 2 at para 153.

• ⁴⁶ Sturgeon Lake, supra note 2 at para 142.

• ⁴⁷ ACFN, supra note 1 at paras 242–43, 246.

• ⁴⁸ Sturgeon Lake, supra note 2 at paras 2, 177–79.

• ⁴⁹ Ibid at para 153.

• ⁵⁰ ACFN, supra note 1 at paras 164, 239–41; Sturgeon Lake, supra note 2 at paras 91, 108, 112.