On May 26, at the Western Premiers Conference in Kananaskis, Manitoba Premier Wab Kinew corrected Danielle Smith on camera about a constitutional obligation her government has already been found by two courts to have breached. The exchange lasted less than two minutes. The question underneath it has been waiting for an answer since before Alberta was a province.
That question is what this piece is about.
Key Facts: Alberta Separation and Treaty Rights
For reference and research:
Treaties 6, 7, and 8 were signed in 1876, 1877, and 1899 with the British Imperial Crown. Alberta became a province in 1905. The treaties predate the province by up to 29 years.
The entirety of Alberta sits within treaty territory. This is distinct from reserve land, which accounts for approximately one per cent of Alberta’s total land area. Treaty territory covers the whole province.
Treaty 8 alone spans parts of Alberta, northeastern British Columbia, the northwestern corner of Saskatchewan, and the Northwest Territories. An independent Alberta would draw an international border through that territory.
Two Alberta Court of King’s Bench judges have ruled on the separation question and reached the same conclusion. Justice Colin Feasby (December 2025): converting provincial borders into international borders would contravene the Numbered Treaties. Justice Shaina Leonard (May 13, 2026): Alberta breached its duty to consult before the separation petition was approved.
The duty to consult is a constitutional Crown obligation established through decades of Supreme Court decisions, including Haida Nation (2004). It is triggered at the planning stage, not only when action is taken.
No organization involved in the Alberta separation movement, including the Alberta Prosperity Project and the Stay Free Alberta petition group, has published a plan addressing treaty obligations in an independent Alberta.
Kananaskis
On Tuesday, at a mountain resort west of Calgary, two premiers had a conversation that most Canadians didn’t see coming.
Danielle Smith had just finished telling reporters that Section 35 of the Canadian Constitution, the section that affirms the rights of Indigenous peoples, deserves “a second look.” She suggested there is a “lack of clarity” around what the duty to consult actually means and what it doesn’t mean.
Wab Kinew, the Manitoba premier, was seated at the same table.
“I think we know that is not correct, a lot of what you just said there, Premier Smith,” he said. He did not raise his voice. He did not hedge. He had spent the previous day meeting with Alberta First Nations, and he had something specific to say.
“It is not up to the petition gatherers to fulfill the duty to consult. It is up to you, as the Alberta government, to fulfill the duty to consult.”
Then he thanked the First Nations who had taken the separation question to court for “hitting the pause button.”
Manitoba Premier Wab Kinew responds to Danielle Smith at the Western Premiers Conference, Kananaskis, May 26, 2026.
The exchange only lasted about three minutes. It was not a debate. It was a premier being told, in public, by a colleague, that she had mischaracterized a constitutional obligation her own government had already been found by two courts to have breached.
What Kinew named in that moment is a question that has been sitting at the centre of Alberta’s separation debate since the beginning. The courts have now said it twice. The separation movement has not answered it once. The question is simple: if Alberta leaves Canada, what happens to the land?
The Land Before the Province
Most Canadians, if asked, would guess that Alberta has been Alberta for a long time. The chinooks, the oil fields, the particular brand of western grievance, it all feels settled and old.
The province of Alberta is 121 years old. It entered Confederation in 1905.
The treaties governing the land it sits on are older than that.
Treaty 6 was signed in 1876. Treaty 7 in 1877. Treaty 8 in 1899. Together, they cover the vast majority of what is now Alberta, and they were negotiated and signed with the British Imperial Crown, not with a province that did not yet exist. Alberta was created inside a treaty territory, not the other way around.
That is not a minor distinction. That is the whole argument.
When First Nations leaders signed those agreements, they were entering into a relationship with the Crown: a nation-to-nation relationship that carried obligations on both sides. Hunting, fishing, and trapping rights across traditional territories. The ability to move across the land as their ancestors had. A shared arrangement for how settlers and Indigenous peoples would coexist on that land.
What they did not sign was an agreement with a provincial government. Provincial governments, as a legal matter, did not hold the other side of that relationship then, and they do not hold it now.
It helps to understand the difference between treaty territory and reserve land, because the two are often confused in public debate. Reserve land, the specific parcels set aside for First Nations use, accounts for approximately one per cent of Alberta’s total land area. Treaty territory is something else entirely. It refers to the land where treaty obligations and Indigenous rights apply. That covers the whole province. Every city, every oil field, every quarter section of farmland sits within a treaty territory.
The separation movement has spent a year debating how to leave. It has not spent a day on whether it legally can.
Chiefs of Treaties 6, 7, and 8 said exactly this when the separation movement began gaining momentum. The land covered by those treaties, they said, “is held in trust by the Crown for the benefit of the Treaty First Nations, not as property of the provincial government.” Their statement was unambiguous on one further point: those treaties predate Alberta’s entry into Confederation. The agreements came first. The province came after.
The separation movement is proposing to dissolve the political entity that came second, while leaving entirely unanswered what happens to the obligations that came first.
What the Courts Have Actually Said
This is not a theoretical argument. Two Alberta judges have now looked directly at the separation question and reached the same conclusion, six months apart.
In December 2025, Court of King’s Bench Justice Colin Feasby ruled on an earlier attempt to force a separation referendum question onto a ballot. His language was not ambiguous.
“First Nations, as founding partners in the creation of Alberta, cannot be ignored or bypassed as Alberta contemplates its future whether that is part of Canada or not,” he wrote. “The transformation of provincial and territorial borders into international borders would contravene the Numbered Treaties by significantly impairing the exercise of treaty rights by First Nations.”
Not a footnote. Not a consultation checkbox. Founding partners.
Five months later, on May 13, 2026, Justice Shaina Leonard reached the same conclusion from a different angle. The case before her involved the Stay Free Alberta petition, which had gathered more than 300,000 signatures and been approved by Elections Alberta’s chief electoral officer. Leonard found that approval was an error in law.
The officer, she ruled, had failed to account for Justice Feasby’s earlier decision. He had also failed to recognize that the legislation setting Alberta’s separation process in motion was itself enough to trigger the Crown’s duty to consult First Nations, regardless of whether a referendum had actually been called yet.
“As a matter of logic and common sense,” Leonard wrote, “there can be no doubt that Alberta’s secession from Canada will have an impact on Treaties 7 and 8.”
No consultation had occurred. Alberta had breached its duty. The judge did not appear to find this a close call.
Premier Smith called the ruling “anti-democratic” and announced an appeal. Her government’s lawyers had argued in court that consultation was premature, that the duty would only arise if a referendum actually passed and the province took steps to follow through. The judge rejected that position entirely. The process of setting separation in motion, she found, was already enough.
Chief Samuel Crowfoot of the Siksika Nation offered a response that cut through the legal language cleanly. Treaties, he said, are not historical documents. They are “living constitutional agreements” between First Nations and the Crown. He added that his nation did not want to be a roadblock. What they wanted was to be part of improving Alberta. The court challenge was not opposition for its own sake. It was the only available mechanism to force a conversation that the Alberta government had declined to have.
In Their Own Words
The leaders of Alberta’s First Nations have not been quiet about this. They have been saying the same things, clearly and consistently, for more than a year. The separation debate has not always made room for those voices. The record is worth reading directly.
Grand Chief Joey Pete of the Confederacy of Treaty No. 6 First Nations said the planned referendum demonstrates what he called a lack of respect and ignorance of treaty and constitutional responsibilities. His government was not consulted on anything, including the referendum question itself. He also named something that gets less attention in the broader coverage: he believes the separatist movement is dividing people in the province and contributing to an increase in racism. That is not a peripheral concern. It is a consequence of a political movement that has treated the people whose title sits underneath the separation argument as an inconvenience rather than as parties to a legal relationship.
FSIN Chief Bobby Cameron, whose Federation of Sovereign Indigenous Nations represents 74 First Nations in Saskatchewan, was equally direct. The treaties, he said, were signed with the Imperial Crown, not with provincial governments.
“We never knew no provincial boundaries,” he told CBC News, “and many of us still don’t abide by those provincial boundaries.”
That sentence deserves a moment. The borders that Alberta is proposing to convert into international boundaries are borders that many First Nations have never recognized as having authority over their movement, their hunting, their way of life. Treaty 8 alone covers parts of Alberta, British Columbia, Saskatchewan, and the Northwest Territories. An international border drawn through that territory would convert the ordinary movement of people exercising constitutionally protected rights into a customs problem. That is not a footnote either.
Cameron went further on the legal standing. “They trump provincial law, they trump federal law,” he said of treaty and Indigenous rights. “Supreme Court case after Supreme Court case have always sided with us. We’re in 2026, but those are international, binding contracts that are still legal.”
Grand Chief Trevor Mercredi of Treaty 8 First Nations called for a full pause on separation and referendum processes until meaningful consultation occurs. His non-confidence vote in the Alberta government, passed unanimously by First Nations chiefs in February, did not come solely from the referendum question. But the referendum was, in his words, the final straw, arriving on top of a pattern of legislation introduced without Indigenous consultation.
These are not fringe voices or protest statements. They are the leaders of the nations that hold the treaty relationship the separation movement has not addressed. They have been consistent, they have been specific, and they have now been upheld twice in court.
The Constitutional Ground Has Shifted
There is a version of this debate that Alberta separatists are having, and it is essentially the Quebec debate from 1995. A province with a distinct identity and legitimate grievances puts a question to its people. The federal government watches. The Clarity Act provides a framework. Negotiations follow if the vote is clear.
That version of the debate is thirty years out of date.
The 1998 Secession Reference, the Supreme Court decision that established the legal framework for how a province could leave Canada, made no mention of Aboriginal and treaty rights. Not because the issues were not there. The Cree of northern Quebec had already been asserting for years that their territories would remain part of Canada even if Quebec separated. But the court treated those questions as secondary.
They are not secondary now.
In the thirty years since that ruling, Canadian courts have issued a cascade of decisions affirming Indigenous land and title claims, Indigenous rights to self-governance, and the Crown’s legal duty to consult Indigenous peoples on decisions that may affect them. The Supreme Court’s Haida Nation decision in 2004 established that the duty to consult is triggered early, at the planning stage, not only when action is taken. Tsilhqot’in Nation in 2014 recognized Aboriginal title over a specific territory for the first time in Canadian history. The principle has been building, case by case, toward the position that Indigenous rights are not a footnote to Canadian constitutional law. They are foundational to it.
Canada incorporated the United Nations Declaration on the Rights of Indigenous Peoples into federal legislation in 2021, federal legislation that Canada is bound to implement. UNDRIP establishes that states shall not make decisions affecting Indigenous peoples without their free, prior, and informed consent.
There is one further layer. The separation movement has not mentioned it once. The 1930 Natural Resources Transfer Agreement gave the prairie provinces control over Crown lands and natural resources. Alberta’s oil wealth, its fiscal grievances, its argument that Ottawa has taken too much for too long, all of it flows through that agreement. But that agreement was layered over treaty territories without the consent of the nations whose rights those treaties protected. The wealth that Alberta is now proposing to take with it into independence was extracted from land whose underlying legal status remains, in fundamental ways, unresolved.
Two Alberta courts have now read this changed constitutional landscape and reached the same conclusion. The separation movement is operating on a legal map drawn in 1995. The courts are working from a different map entirely.
The Question That Has Never Been Answered
Indigenous leaders across the circumpolar world have lived experience of exactly what happens when an international border bisects a territory that was organized around something older and more continuous than any state boundary. It is not theoretical. It is documented, and for many communities it is living memory.
The Inughuit of northwestern Greenland used traditional hunting routes across what became international boundaries for centuries. When those borders hardened, ordinary movement became regulated. Travel routes became official crossings requiring permits. Kinship networks that stretched across hundreds of kilometres became cross-border ties subject to the administrative logic of states that had no part in creating them. Seasonal practices were forced into year-round systems designed somewhere else, for someone else’s purposes. The land did not change. The people did not change. The border changed everything around them.
In a piece published in January on this site, I wrote about the circumpolar Arctic as an already international world, one shaped by Indigenous nations long before modern states arrived to map it. That history is not a distant analogy. It is precisely what Chief Bobby Cameron was pointing to when he said that Treaty 8 First Nations have never recognized provincial boundaries, and many still don’t abide by them.
Treaty 8 is not a small territory. It covers the northern half of what is now Alberta, a portion of northeastern British Columbia, the northwestern corner of Saskatchewan, and land south of the Hay River and Great Slave Lake in the Northwest Territories. Members of Treaty 8 nations hunt, fish, and travel across all of it. An international border drawn around Alberta would not be an administrative adjustment. It would bisect a living treaty territory, converting the movement of people exercising constitutionally protected rights into cross-border activity subject to the laws of a new state that did not sign those treaties and has made no credible plan to honour them.
This is the question the Alberta separatist movement has never answered.
Not one document produced by Stay Free Alberta, the Alberta Prosperity Project, or any other separatist organization has addressed what happens to treaty obligations in an independent Alberta. Not one. In a movement that has produced townhalls, petitions, op-eds, rallies, and a Washington fact-finding mission, nobody has written that plan. Not one page of it.
The separatist answer, to the extent one exists, appears to be that a new Alberta would simply assume the Crown’s side of the treaties. But as leaders of Treaties 6, 7, and 8 have been clear: those treaties were signed with the Imperial Crown, not with a provincial government, and not with a hypothetical successor state. Grand Chief Joey Pete put it simply. There has been no respect for treaty whatsoever. No consultation on anything, including the referendum question itself.
Chief Cameron went further. Treaty and Indigenous rights, he said, trump provincial law and federal law. Supreme Court decisions have consistently upheld this. And then he said the thing that the separation movement has no answer for: “We’re in 2026, but those are international, binding contracts that are still legal.”
International. Binding. Still legal.
A newly independent Alberta would face immediate legal challenges from multiple First Nations over land title, resource rights, and the physical disruption of treaty territories by a new international border. Those challenges would not be procedural nuisances. They would go to the foundational question of whether Alberta had the legal authority to create itself as a sovereign state on land whose underlying title has never been fully resolved, whose treaty relationships belong to a Crown that would no longer have jurisdiction, and whose peoples have said clearly and repeatedly that they do not consent.
The separation movement has answered none of this. They have been too busy arguing about the referendum question to address the more fundamental one beneath it.
Back to Kananaskis
On a Tuesday afternoon in the mountains west of Calgary, Wab Kinew said what needed to be said.
He did not deliver a lecture. He did not invoke history at length. He simply corrected the record, in public, in front of other premiers, and named where the obligation actually sits.
It is not up to petition gatherers. It is not up to the courts to keep saying it. It is up to the Alberta government, as the Crown, to fulfill the duty to consult.
Two courts have now reached the same conclusion. The Athabasca Chipewyan First Nation, Blood Tribe, Piikani Nation, and Siksika Nation have gone to court not to stop a political debate but because it was the only mechanism available to force a conversation the Alberta government declined to have.
Chief Crowfoot called the treaties living constitutional agreements. Chief Cameron called them international, binding contracts that are still legal. Grand Chief Pete said the movement is dividing people and contributing to racism in the province. Grand Chief Mercredi said stop, pause, consult, and show us you mean it.
The separation movement has called court rulings anti-democratic. It has called judges wrong. It has called the duty to consult a misapplication of constitutional law. It has not called a single meeting with Treaty First Nations to ask what separation would mean for them.
That is not a procedural gap. It is not a technicality to be resolved before the October vote. It is the foundational question underneath the entire argument, and it has been there since the beginning.
The question Alberta separatists have never answered is not whether Albertans are frustrated, or whether equalization is fair, or whether Ottawa has listened carefully enough. Those are real debates worth having.
The question is simpler and older than any of them.
Whose land is this, under whose authority, and with whose agreement?
The courts have said it. Indigenous leaders have said it. A Manitoba premier said it to Danielle Smith’s face on a Tuesday afternoon in May.
The separation movement has not answered it.
Not once.
Leni Spooner is a Canadian writer, researcher, and civic storyteller, and the founder of Between the Lines Canada. Between the Lines Canada explores Canadian politics, policy, and public life through accessible, story-driven analysis.
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Love this analogy from https://www.firstpeopleslaw.com/public-education/blog/alberta-secession-requires-more-than-consultation
"The idea that Alberta can unilaterally secede from Canada is as absurd as suggesting that a child has the power to annul their parents’ marriage. "
This is a superb untangling of the issues. The separatists really have no case. The courts have already ruled. The treaties hold as the first principle. The fact that the various separatist factions are now flailing against the judges is telling. Would the new country of Alberta they envision have no courts? No judges? No laws?
Thanks for this remarkable work, Leni. It is a study in the formation of Canada, not just in terms of Alberta, but of the whole country. The history and circumstances vary across the nation. The treaties remain. They are living documents, and breathe as fully and inescapably as the long border between Canada and the USA.