Alberta Justice Finds that Alberta Independence Would Contravene Treaties with First Nations (Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712)
- reconciliactionyeg
- 2 hours ago
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By Megan Reti
On December 5, 2025, Justice Feasby of the Court of King’s Bench of Alberta, issued his decision in Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 regarding whether a referendum on Alberta Independence proposed under the Citizen Initiative Act, SA 2021, c C-13.2 would contravene the Constitution Act, 1982 . Justice Feasby found that Charter rights would no longer be guaranteed, and thus Alberta independence would contravene the Constitution. Justice Feasby also found that Alberta independence would contravene Treaties 6, 7, and 8, which combined cover virtually all of Alberta.
This decision is important because it is an example of a non-Indigenous justice engaging meaningfully with Indigenous law. Justice Feasby engaged with nȇhiyaw (Cree) law, through Dr. Darcy Lindberg as an expert witness. Justice Feasby specifically recognized the kinship systems that make up nȇhiyaw social and political organization, the nȇhiyaw legal principles of wȃhkȏtowin, which allowed for the creation of “fictive kinship” where no natural familial ties existed, wîtaskêwin, which he describes as “neighbourliness”, and pȃstȃhowin, which he described as “transgressing outside of the boundaries individuals, families, societies, and governments are entitled to” [para 202-203]. While he lamented that there was no comparable expert evidence on Blackfoot or Dene law, Justice Feasby did also engage with the Blackfoot concept of treaty-making, Innaihtsiini, which was described by Councillor Dorothy First Rider of the Blood Tribe.
It was also an important decision because it recognized the importance of the numbered Treaties to the settlement of Western Canada and the ongoing obligations between the Canadian Crown and the First Nations signatories.
Treaties are sui generis, meaning they are a unique type of legal agreement. Justice Feasby held that, while First Nations did not have the characteristics of a state, individually or collectively, the “Numbered Treaties, then, exist in a liminal space between international treaties and domestic agreements. The use of the word “treaty”, however, indicates that the parties to these agreements saw each other to be, in some sense, sovereign in ways analogous to independent states” [para 170]. He also states that recent jurisprudence has made it clear that Treaties are more than just contracts. From a Constitutional perspective, Justice Feasby held that, while rights flowing from Treaties are recognized and affirmed by section 35 of the Constitution Act, 1982, the constitutional status of the numbered Treaties themselves are not clear [para 173]. Justice Feasby recognized that Treaties were meant to establish a relationship that would continue in perpetuity and that they were not negotiated between parties of equal bargaining power. He relied on the principles of historic treaty interpretation outlined in Justice McLachlin’s (as she was then) dissent in R v Marshall, [1999] 3 SCR 456.
Justice Feasby then considered whether Alberta Independence would contravene the Numbered Treaties by changing the parties to the Treaties or if the relationship would continue with the Alberta Crown. Relying on the holding in Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48 that the Crown is indivisible, Justice Feasby found that the obligations under the Numbered Treaties cannot be assumed by an independent foreign state (such as an independent Alberta), even if that state is a constitutional monarchy with King Charles III or his heirs and successors as the nominal head of state. Further, Justice Feasby held that, because the numbered Treaties are a bargain between Canada and the First Nations, not between any of the provinces and First Nations, and because the Constitution Act, 1867 s 91(24) assigns responsibility for “Indians, and Lands reserved for the Indians” to the federal Canadian government, Alberta independence would prevent the government of Canada from being able to fulfill its duties under the Treaties. Application of the law of contracts, the law surrounding international treaties, Cree law, and what may be inferred from the Blackfoot history and practice of treaty-making, all lead to the conclusion that First Nations’ consent would be required to assign the Treaties to the Alberta Crown or to create replacement Treaties. Justice Feasby further held that:
“[a]n essential part of First Nations culture that must be considered when interpreting the Numbered Treaties is their law. First Nations law was the prism through which they made sense of the reciprocal obligations created by the Numbered Treaties. Whatever else the Numbered Treaties may be, they memorialize inter-cultural moments, where each side made sense of what was happening using their own cultural tools, mainly their separate legal understandings of what it meant to make an agreement or treaty” [para 197].
After concluding that substituting the Alberta Crown for the Canadian Crown would contravene the treaties, Justice Feasby declined to comment on whether such a contravention could be justified pursuant to R v Sparrow, 1990 CanLII 104 (SCC). He also noted the effects of the creation of an international border dividing the treaty tracts. The intervening First Nations advised that their traditional lands extend outside of Alberta and, in the case of Onion Lake Cree Nation, their reserve lands lie on both sides of the Alberta-Saskatchewan border. Justice Feasby determined that an international border would infringe First Nations peoples’ ability to exercise their Treaty Rights.
In the midst of the proceeding, Alberta wrote to the Court to advise that Bill 14: Justice Statutes Amendment Act, 2025 had been tabled, which would legislate that any existing special case would be discontinued. This bill effectively legislated an end to this litigation, which Justice Feasby called “extraordinary” [para 250] and “contrary to the rule of law” [para 252]. However, the proceedings continued, as Bill 14 had not yet been passed into law and Justice Feasby held that there was no efficiency to be gained by declining to hear the Blackfoot First Nations intervenors who were ready to make their submissions and in fact, declining would bring “the administration of justice into disrepute” [para 251].
This decision confirms that Treaties 6, 7, and 8 are between the First Nations and the Canadian Crown and that Alberta becoming a new nation would contravene these important agreements. It is also one of the first decisions where the Court of King’s Bench of Alberta has engaged in Indigenous legal principles in its analysis of a legal question.
NOTE: Litigation around this topic has been ongoing, including the subsequent decision of Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375.
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