EDMONTON – Legal counsel and Alberta independence advocate Jefferey Rath delivered a spirited argument to the court on Thursday for why the Stay Free Alberta independence petition should be allowed to continue, and defended against claims that an independent Alberta would violate First Nations rights. Rath told the Court of King's Bench Justice Shaina Leonard that the group's petition calling for a referendum on Alberta independence was a legislative-mandated communication channel between Alberta citizens and elected officials, in which they were simply saying "yes" or "no" to a vote on the topic. His comments were part of his defence on behalf of Mitch Sylvestre, who, in addition to Alberta's Chief Electoral Officer and the Government of Albert, is listed as a defendant in a pair of judicial review applications from First Nations groups seeking to have Leonard squash Sylvestre's second Alberta independence petition. Counsels for the Athabasca Chipewyan First Nation and the Blackfoot Confederacy argued on Wednesday and Thursday that the CEO was wrong to issue a second independence petition after Justice Collin Feasby ruled that an independent Alberta would breach Treaty rights. .The CEO shut down the initial petition following Feasby's ruling in December, but issued a second petition in January after the UCP government passed Bill 14, which removed the question-screen process from the CEO, allowing questions to be posed to Albertans regardless of their constitutionality. Additionally, portions of Bill 14 reset the timeline on petition applications that had not yet been issued at the time of the bill, as was the case with the first petition when the legislation was first read. Under these grounds, the CEO said they were forced to issue a second petition, despite Feasby's ruling. The First Nations told Leonard on Wednesday that the CEO misunderstood the UCP's intent behind the bill, and said there was no obligation to reissue a petition on a topic the courts had already ruled unconstitutional. Neil Dobson, counsel for the Government of Alberta, said there was no misinterpretation and that the UCP had the opportunity to amend the bill before passing it in the legislature if they felt it needed clarification, but they did not. .The application called for Leonard to squash the Stay Free Alberta petition by reading down Bill 14 and providing proper context, namely that the bill was not intended to allow petitions on topics already ruled unconstitutional to move forward. Rath told Leonard that the request was not seeking a reapplication of Bill 14 under the UCP's "actual" intention; the applicants wanted her to rewrite legislation to add language that the provincial government had intentionally removed. The First Nations counsels also spent time trying to convince Leonard that, by granting another petition on independence, the CEO had essentially given the approval for a mandatory referendum on a topic violating Treaty rights, that the provincial government would have no choice but to hold. Rath rejected their notion that the petition would lead to a "mandatory" referendum, saying the Citizen Initiative Act defaults the matter to the Referendum Act. "The Lieutenant Governor in Council may order that a referendum be held on any question relating to the Constitution of Canada or relating to or arising out of a possible change to the Constitution of Canada," reads section 1.1 of the Referendum Act. He emphasized the word "may" and said the government can choose not to hold a referendum on a citizen initiative question if it chooses not to. Further, he pushed back on claims that Feasby said there can not be a referendum on Alberta independence because it would be unconstitutional, pointing to paragraph 249 of his decision."The Lieutenant Governor in Council may order that a referendum be held on any question relating to the Constitution of Canada or relating to or arising out of a possible change to the Constitution of Canada," reads Feasby's decision. .Rath also claimed the Supreme Court of Canada ruled that holding a referendum on secession does not violate anyone's rights. As for what happens if there is a "yes" vote in a potential referendum, Rath and Dobson said legislation gives the provincial government the option of imposing the referendum results, and that First Nations would be able to seek judicial intervention at that time. The First Nations also claimed that the Government of Alberta failed to fulfill its obligations as the Crown to consult with them before taking an action that could violate their Treaty rights when it issued the independence petition. Dobson argued against this by saying that issuing the petition was not a direct government action but was part of the legislative process and thus did not trigger the duty to consent. .The judicial review application also asked Leonard to issue a stay order preventing the Stay Free Alberta petition from advancing past the signature-collection phase until she has had sufficient time to issue a final ruling on their claims. Granting a stay would require the First Nations to demonstrate how the petition is creating a serious issue and causing irreparable harm to them. Leonard suggested it would be reasonable for her to grant the stay and suspend the petition for a short time while she weighs the facts and considers her potentially significant ruling on the full review. The provincial government's counsel argued against the stay, saying no rights were currently being violated and that any potential harm or violations were purely hypothetical, hinging on a referendum being called and ending in favour of Alberta independence. Leonard closed Thursday's hearing, which also capped off three days of Alberta independence cases, by saying she will take the facts under consideration and try to make a decision on the stay within a week. She did not provide a timeline for when the full review will be completed.
