The ink on Premier Smith’s televised address was barely dry before Treaty 8 First Nations of Alberta issued their response. Grand Chief Trevor Mercredi, signing on behalf of the chiefs of the 24 Treaty 8 First Nations within the province, condemned what the press release called “Alberta Government’s Continued Attempts to Advance Separation” and announced that Treaty 8 would be formally writing to Prime Minister Carney, requesting that Parliament review Alberta’s proposed referendum question under the Clarity Act.
The announcement was swift, confident in tone, and legally premature in its most important claim. It was also the opening move in a campaign of escalating accusations that has grown more politically reckless as it has grown more legally indefensible.
As argued in my previous piece on the Leonard decision, the duty to consult is a discovered constitutional obligation, grounded in section 35 of the Constitution Act, 1982, and the courts have properly enforced it. Justice Leonard’s ruling demonstrated the doctrine’s political force and the risks of stretching it.
The Treaty 8 press release stretches it further still, and adds several argumentative moves that do not withstand scrutiny. The most legally consequential of those moves is the Clarity Act referral. It is the one that sounds most formidable and is, in fact, the most straightforwardly misdirected.
As with Justice Leonard’s decision, these events are already stretching the rhetoric, perhaps to the limits of what can be sustained without lasting damage.
