‘It’s a Pandora’s box’: Legal expert weighs in on what Alberta separation could look like

Alberta’s possible separation referendum question continues to draw feedback from Premier Smith. Jeremie Charron reports.

A crucial fall referendum in Alberta will determine if the province moves ahead with an official vote on whether to separate from Canada.

This week, Alberta Premier Danielle Smith announced that a question on independence will be added to the already-set Oct. 19 referendum in Alberta.

Though the question does not specifically ask Albertans if they want to leave Canada, it does open the door to a separate binding referendum on separation down the road.

“It can’t be anywhere close to what she’s put forward. It has to be a very simple clear question,” said Errol Mendes, a constitutional law expert.

CTV News spoke with Mendes about the prospect of separation, and what would happen if a majority of Albertans were to choose to separate in a binding vote.

“It’s a Pandora’s box,” said Mendes, in reference to what could unfold in the lead up to and the aftermath of a separation referendum.

The Clarity Act

If a majority of Albertans were to vote in favour of separation in a separate binding referendum on the issue, it would trigger something called the Clarity Act.

The legislation was designed after the 1995 Quebec referendum and became law in 2000.

It sets out to establish if the referendum process meets specific legal and political criteria and conditions, that would prompt the government to enter into negotiations with a province looking to separate.

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Specifically, the Clarity Act is designed to establish whether the question itself was “clear and direct” before a vote took place, and if a “clear majority” of voters support secession.

“Now, there wasn’t actually a clear definition of what that would mean by the Supreme Court of Canada,” Mendes said.

He also suggests First Nations groups would need to be consulted.

“When you talk about the province, you’re also talking about a substantial part of the province (being) under treaty lands, and under the treaties that were concluded with the Crown, not just Canada,” said Mendes.

Earlier this month, an Alberta judge threw out a pro-separation petition submitted to Elections Alberta, citing a lack of consultations with First Nations.

Constitutional roadblock

There is also a lack of clarity over how a province would proceed with separation even if the referendum were to pass the Clarity Act’s initial tests.

The Canadian constitution doesn’t allow for a province to separate unilaterally.

“There’s no question of separating under the Canadian Constitution. You have to have the majority of provinces and Parliament agreeing to your separation, so how would that ever happen?” said Mendes.

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It would require the Supreme Court’s involvement and a negotiated agreement between all provinces and the federal government.

“Negotiating on things such as, for example, with Alberta, what happens to the military assets in Alberta, what happens to the Canada Pension Plan in Alberta? A whole bunch of issues, which is going to be very, very difficult,” said Mendes.

He says the process, although unclear, would likely take years if not decades.