Judge calls Alberta bill on referendum drives undemocratic, disrespect to rule of law

EDMONTON — An Alberta judge tasked with reviewing the constitutionality of a proposed referendum question on the province separating from Canada is calling a new government bill undemocratic, as it aims to render his decision moot.

Court of King’s Bench Justice Colin Feasby, in a decision issued Friday, wrote that the question as proposed goes against provincial referendum rules — but those rules are set to be changed to let those behind the campaign start collecting signatures regardless of the decision.

Justice Minister Mickey Amery said Thursday that his bill provides a “reset,” as the government doesn’t want to see the courts delay direct democracy.

The bill would allow those behind the separation campaign to reapply with their question at no cost, while also removing a number of factors Elections Alberta had to consider before allowing the signature collection process to begin, including whether the question to be asked is constitutional.

“If those seeking independence believe that they have the support for it, this is their chance to prove it,” Amery said Thursday.

The question Feasby was reviewing was referred to him for an opinion on constitutionality by Alberta’s chief electoral officer this past summer. Gordon McClure said at the time that he was just following the rules laid out for him, but Premier Danielle Smith’s government criticized him for creating red tape.

Feasby, in his decision Friday, wrote that the government’s choice to end the proceeding before it finishes is “extraordinary” and undermines the administration of justice.

He wrote that the government has every right to change the rules, but doing so after he and the parties involved, including First Nations interveners, spent a great deal of time and resources reviewing the question ran “contrary to the rule of law.”

“The rule of law plays a critical role with respect to the democratic process where stability of the governing legal regime enhances legitimacy and public confidence in the outcomes of elections and referendums,” Feasby wrote.

“Changing legislation to circumvent a valid legal process commenced by the independent officer of the legislative assembly responsible for administering democratic processes is the antithesis of the stable, predictable and ordered society that the rule of law contemplates, and democracy demands.”

Feasby also said the government is showing a “cavalier disregard” for scarce court resources.

Amery, in a statement, said the judge’s comments interfered “with well-established democratic processes.”

“The separation of powers is an important constitutional principle,” Amery said.

“The assembly has been elected by the people of Alberta to freely debate and pass legislation in the public interest.”

Feasby wrote that he decided to issue the decision because the bill hasn’t become law yet, and because Albertans deserve to understand the complex legal issues at play if the province was to quit Confederation — or at least if they were ever asked to vote on doing so.

“These reasons are delivered despite the anticipated change to the law because reason giving is democratic,” Feasby wrote.

“The public is entitled to the fruits of this process that has been conducted largely at their expense so that if they are asked to vote on Alberta independence, they have a tool that may help them make sense of the legal dimensions of the secession of Alberta from Canada.”

Feasby wrote that until the government’s bill passes, the rules surrounding citizen-initiated referendums prohibit referendums on separation because separating would violate the Constitution and treaty rights unless the Constitution was amended, which he wrote is a necessary step for a province to separate anyways.

He said this doesn’t mean Alberta could never have a referendum on independence, it just means one couldn’t be spurred directly by citizens under the current rules.

However, Feasby wrote, that prohibition doesn’t exist in a separate provincial law that governs referendums initiated by the government.

According to the decision, those behind the separation push, the Alberta Prosperity Project, argued that the limitation they were subject to wasn’t fair. Lawyers for the government agreed, and argued Feasby’s interpretation of the law was wrong.

“The government’s interpretation of its own laws may or may not be legally correct,” Feasby wrote.

While the 65-page decision touches on a number of considerations about what would need to happen or what could happen if Alberta were to become its own country, the judge ultimately concluded that separating from Canada would contravene treaty rights.

Whether those rights mean Alberta is forever prevented from becoming its own country would require further consideration and negotiation, he wrote.

Amery said the government strongly disagreed with Feasby’s decision on the question, but also said it will have no effect given the legislation he tabled Thursday.

“That bill will clarify and simplify the rules relating to citizen-initiated petitions, making the process more efficient, and encouraging citizen participation in our democracy,” he said.

The judge also noted the government, after hearing concerns from First Nations, made a change to the act that governs what referendums the province can initiate earlier this year to affirm that under no circumstance can a referendum disregard treaty rights.

That concern was brought up after the province substantially lowered the number of signatures that need to be collected in order for citizens to get a referendum question on a ballot.

Jeff Rath, a lawyer for the Alberta Prosperity Project, said in a statement Friday that the judge’s decision wasn’t unexpected, and he’s calling on the government to walk back the change Feasby noted.

“Justice Feasby has provided us a road map to an independence referendum,” Rath said.

“I am pleased that both the conclusion of the court proceeding and (the government’s new bill) will allow … Albertans for a free and independent Alberta to start gathering petition signatures in January.”

The Confederacy of Treaty Six First Nations applauded the decision for recognizing that treaty rights are binding.

Trevor Mercredi, the grand chief of Treaty 8 First Nations, said in a statement that he, too, commended the decision and that he expects the province to respect Feasby’s decision.

“Decisions that affect treaties cannot be advanced through political shortcuts, legislative manoeuvring or processes that exclude the peoples whose rights are at stake,” Mercredi said.

“The sovereign chiefs of Treaty 8 will continue to defend the promises our ancestors made with the Crown, for our children and for all future generations, for as long as the sun shines, the grass grows and the rivers flow.”

This report by The Canadian Press was first published Dec. 5, 2025.

Jack Farrell, The Canadian Press