Alberta’s top elections official has been temporarily blocked from certifying the results of a provincial independence petition until a court ruling on a pair of First Nations legal challenges.
On Friday afternoon, Court of King’s Bench Justice Shaina Leonard issued her first, limited ruling in the case — on a stay application from the Athabasca Chipewyan First Nation and the Blackfoot Confederacy.
The nations asked Leonard to temporarily block Alberta’s chief electoral officer from certifying the separatist petition pending her final decision in the case. While stressing that signature gathering may continue through the May 2 deadline, Leonard said the nations met the test for an order temporarily preventing Gordon McClure from taking any next steps in the referendum process — including certifying signatures and referring them to the provincial cabinet for a decision on holding a fall independence referendum.
“The stay contemplated here would be in effect for approximately one month while this court reviews and considers the voluminous materials provided, the oral submissions heard over two days and makes a final determination,” Leonard said. “The issues raised by the (nations) are serious ones, and, as I have found, the (nations) have established irreparable harm.”
Leonard said she would issue her full decision “as expeditiously as possible.”
Sturgeon Lake Cree Nation, which is involved in similar litigation heard earlier this week, counted Leonard’s initial ruling as a win.
“We are delighted to see that the court is allowing this limited pause to consider this momentous case on its merits,” lawyer Orlagh O’Kelly said in a statement. “We look forward to the final decision in a month’s time,” says Orlagh O’Kelly.
“This has been a team effort mounted by our nations, and supported by many nations,” said Sturgeon Lake Chief Sheldon Sunshine.
“We’re looking forward to the court’s final decision on this harmful process, set in motion by Alberta without any authority under our treaty. We also expect Alberta will follow this court order and not move the goal posts on us while the court deliberates.”
Harm ‘irreparable and ongoing’
Leonard issued her ruling Friday afternoon after
three days of arguments from the First Nations
, the Alberta government, the chief electoral officer and separatist petitioner Mitch Sylvestre.
She concluded the Blackfoot and Athabasca Chipewyan had met test for a stay pending her broader judicial review of whether McClure was right to approve Sylvestre’s Citizen Initiative Act petition earlier this year.
McClure issued the petition after King’s Bench Justice Colin Feasby ruled a citizen initiative on separation was unconstitutional given its impact on treaty rights. The UCP government subsequently passed Bill 14, which removed the Citizen Initiative Act’s constitutional screening provisions, allowing Sylvestre’s petition to move forward.
Leonard found the Blackfoot and Athabasca Chipewyan had met the three-part test for a stay. She was convinced they had proven there was a “serious issue” to be tried; that they would suffer “irreparable” harm (which “cannot be quantified in monetary terms … cannot be cured, or … compensated in damages”) without a stay; and that the “balance of convenience” (which party will suffer the greater harm if an injunction is granted or refused) favoured the nations.
“I find that the balance of convenience favors a stay in these circumstances,” Leonard wrote. “As noted, there are numerous, serious issues for this court to analyze in making a final determination. The alleged harm is irreparable and ongoing.”
“In contrast, the stay sought is for a short time and only seeks to enjoin steps by the chief electoral officer once petition signature sheets are submitted.”
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