Alberta separatists have new hoops to jump through. What happens now?

A judge has thrown out an Alberta separation petition, saying the province had a duty to consult First Nations. CTV News Nahreman Issa has the latest.

The Alberta legislature session ended on an unseasonably chilly day and a veritable cliffhanger Thursday as a group of separatists must now hurdle over legal complications in its campaign to separate from Canada.

The dust was still settling Thursday on an Edmonton’s judge’s decision to throw away a petition on separating from Canada on the grounds that its proponents had a duty to consult with First Nations.

The legal and constitutional next steps of Stay Free Alberta leaders – and the more than 300,000 people who signed the group’s petition – are now in the air.

The group’s legal counsel Jeff Rath says it intends to appeal the court decision.

Petition leader Mitch Sylvestre said Wednesday that the group wasn’t surprised, but confirmed it was now expecting Premier Danielle Smith to call a referendum on separation nonetheless.

• What would it take for Alberta to become independent?

“I think that she’s been basically staying on the fence about this … Then again, she’s also the person that allowed us to get to this point, and we’re aware of that,” he told CTV News Edmonton.

“We’ve got 700,000 Albertans that want to vote on independence. I think she’s got a mandate there, and I think she’s well within her rights to call (a referendum). Let’s clear the air. Let’s let the people of Alberta vote on this issue.”

Sylvestre is referring to both his group and Forever Canadian, the pro-federalist group that gathered and verified around 400,000 signatures in support of keeping Alberta part of the country.

Appeal, referendum: who pays?

On Wednesday, Smith called the court’s ruling “undemocratic” and promised an appeal from her government.

Justice minister Mickey Amery echoed that promise Thursday and said the government had begun the process of mounting an appeal already but could not give details yet.

When asked why the province would spend taxpayer money on an appeal process, Amery said the government must “respect the process generally.”

“My motivation still lies with defending the legislation itself, to make sure that a citizen-led initiative process is preserved and protected here in Alberta. We’ll defend it, regardless of the question … that’s exactly what we’re going to do by moving forward with this appeal,” he told reporters.

He said it was too early to tell whether there would be a question on separation on an unrelated referendum ballot scheduled for Oct. 19.

Piikani Nation Chief Troy Knowlton, whose First Nation was part of those who launched the court challenge, says they are prepared to legally retaliate against any appeal of the court’s decision.

“If you want to invoke democracy, call an election today and run on a platform of separation,” he told CTV News on Thursday.

Political analyst Duane Bratt says any path Smith ultimately takes leaves her in “a real bind.”

Putting a separation question on the ballot, he said, would not be in keeping with her “refrain about a sovereign Alberta, united Canada,” especially as Alberta continues to work with Prime Minister Mark Carney on a pipeline memorandum of understanding.

“If, on the other hand, she does not intervene and just says, ‘Let’s let the legal process play itself out, we’re going to appeal,’ then you’re going to have separatists possibly mobilizing against her,” Bratt told Alberta Primetime.

Sylvestre confirmed Smith’s inaction would likely contribute to separatist ire on Wednesday while talking of potential upcoming rallies in Edmonton and Calgary.

“I know it’s going to anger everybody on my side, and I think there’s going to be some kind of a reaction,” he said.

As of Thursday afternoon, no members of the UCP caucus had committed to putting a separation question on a referendum ballot.

Opposition NDP leader Naheed Nenshi said Albertans deserved answers ahead of the summer break.

“This government thrives on creating division, anger and chaos. They want people to be mad. That’s their entire political strategy … Albertans are sick of it, and they’re tired of it,” he told reporters on Thursday.

Background and reaction

Lawyers for several First Nations argued last month that Alberta’s referendum process and its use by separatists is unconstitutional as there was no requirement for Indigenous consultation. They also said separation would violate treaty rights.

• A roundup of Alberta separation petition discussions

In Wednesday’s ruling, Justice Shaina Leonard said Alberta’s chief electoral officer should never have issued the referendum petition to Stay Free Alberta.

It was the second time a judge had quashed the group’s cause.

In December, Justice Colin Feasby ruled the question of Alberta’s independence from Canada unconstitutional.

In the same month, the Alberta government passed a bill amending the citizen-initiated referendum process that removed the requirement that proposed questions be constitutional.

Those changes also made it possible for groups to reapply should a court be reviewing an application by the time the bill took effect.

The bill came into force three days after Feasby had already ruled on the separation issue, Leonard said.

She said her judgement on the petition’s constitutionality was not relevant because the chief electoral officer should therefore have never allowed the separatists to reapply for a new petition to begin with after the last ruling.

Elections Alberta spokesperson Michelle Gurney said the chief electoral officer had accepted the Stay Free Alberta petition based on “his interpretation of the legislation.”

“The Court of King’s Bench has now set aside the CEO’s decision and provided direction on how the transitional provisions should be interpreted,” read her statement to CTV News on Thursday.

“The Chief Electoral Officer accepts the role of the courts in reviewing his decision and will abide by the Court’s decision.”

With files from The Canadian Press and CTV News Calgary