FN chiefs raise concerns about government and separatist lawyers talking outside of court

By Jeremy Appel, Local Journalism Initiative Reporter 

(ANNews) – On the final day of court submissions aiming to halt the process of initiating an Alberta independence referendum, three First Nations leaders are raising concerns about the perceived proximity of government and separatist lawyers. 

On April 9, Justice Shaina Leonard of the Court of King’s Bench heard arguments from lawyers for Athabasca Chipewyan First Nation (ACFN) and Blackfoot Confederacy, as well as the provincial government, Stay Free Alberta CEO Mitch Sylvestre and chief electoral officer Gordon McClure. 

ACFN and the Blackfoot nations, consisting of the Piikani, Siksika and Kainai bands, are asking Justice Leonard to order a stay on the chief electoral officer’s counting of the Stay Free Alberta petition signatures until she rules on whether the petition can proceed.

Meanwhile, Sturgeon Lake Cree Nation (SLCN) Chief Sheldon Sunshine and Mikisew Cree First Nation (MCFN) Chief Billy-Joe Tuccaro issued a statement focused on their shared concern that even if the independence referendum is halted in court, Premier Danielle Smith will put it on the ballot in October. 

The court heard arguments on April 7 from SLCN, which is asking for an injunction against the section of the Justice Statutes Amendment Act (Bill 14) that amended the Citizen Initiative Act to permit referendums that could violate constitutional rights, including Indigenous rights. 

The legislation received royal assent after Court of King’s Bench Justice Colin Feasby ruled that an independence referendum couldn’t proceed under the act as it was then written, because Alberta independence would by definition remove Canadian constitutional protections. 

MCFN has also filed a lawsuit against Alberta’s “referendum regime,” which will be heard at a later date. 

“In and out of Court, we have watched Alberta’s lawyers openly collaborate with separatist lawyers,” reads the April 9 statement from Chiefs Sunshine and Tuccaro. 

“Now it has come to our attention that the Premier will conspire to call the referendum at the demand of the separatists.” 

Chief Allan Adam of ACFN posted a photo on Facebook the previous day of separatist lawyer Jeffrey Rath speaking with government lawyers, including Neil Dobson and Jennifer Kelliher, outside the courtroom. 

Chief Sunshine told Alberta Native News that he repeatedly saw the team of lawyers enter a private room when they saw him. “It’s just not a good look,” he said. 

The apparent collaboration between Rath and the provincial government lawyers reflect the “cozy relationship” between Premier Danielle Smith and the separatist movement, Sunshine added.

Rath previously represented SLCN in an agricultural benefits claim case against the Canadian government, for which Rath received a $28.6-million contingency fee that was overturned in 2024 by the Court of King’s Bench. 

Chief Adam told this newspaper that the provincial government “should completely stay neutral from the separatist legal advisors,” likening the separatist movement to “some kind of a cult.” 

“When you see the representatives that are supporting the separation movement, and then you’ve got the province of Alberta lawyers standing beside hand-in-hand talking about what’s going on, what does that tell you?” asked Adam. 

Inside the courtroom, lawyer Mary Macaulay, representing Piikani Nation, argued that the chief electoral officer had a “duty to consult” the First Nations whose Treaty rights would be impacted by an independence referendum, because he was acting on behalf of the Crown. 

“The duty to consult arises before a decision is made,” she said. 

Paul Reid, another lawyer for the Blackfoot Confederacy, argued that McClure should have declared the sections of the Citizen Initiative Act that enabled him to approve the separatist petition “constitutionally defective.”

Dobson argued on behalf of Alberta Justice that there’s no duty to consult at this point in the referendum process, because there’s no guarantee a referendum will occur. 

“The only issue that’s under review here is the decision to allow the collection of signatures,” he said. “What harm is the collection of signatures?”

Rath told the court that the petition is “nothing more than a legislatively mandated process of communication between the citizens of Alberta and their elected officials in the Legislature.”

“Nobody’s rights have been suspended. Nobody’s rights have been infringed, even the smallest, tiniest little bit by the gathering of signatures,” said Rath.

Echoing Dobson, he argued that the government is under no obligation to ensure that Alberta independence will make it to a referendum. 

Rath cited that section one of the Referendum Act, which says that the government “may order that a referendum be held [emphasis added]” on a constitutional issue.  

He told Justice Leonard that the First Nations’ lawyers “misled you and have misstated the law” when they argued that the government is obligated to proceed with a citizen-initiated referendum.

“You’d kind of think that [when] people are telling you that the statute says something, they would have read it first,” said Rath.

The Referendum Act deals with government-initiated referendums, whereas the Citizen initiative Act relates to referendum petitions.

Ken Hille, a lawyer for the ACFN, noted in response that section 16(1) of the Citizen Initiative Act states that the government “shall refer [emphasis added]” a constitutional referendum petition to a referendum, overriding the discretion in the Referendum Act. 

Justice Leonard said that she intends to “work very quickly” on the First Nations’ request for a stay on counting the independence petition signatures, aiming to have a decision on that aspect of the case early next week. 

The First Nations’ lawyers requested that Leonard issue her written decision before May 2, the deadline for the collection of signatures.