Imagine an independent Alberta able to set its own rules and tax rates. Yet even as a sovereign entity, it would still face the same duty to respect Indigenous rights. In Haida Nation v. British Columbia (2004) and Mikisew Cree First Nation v. Canada (2005), the Supreme Court of Canada made clear that governments must consult and accommodate Indigenous claims before approving projects that affect those rights. Any plan for separation that delays these talks risks legal injunctions, high costs, and damage to relationships.
No government—federal, provincial, or independent—can sidestep its legal duties to Indigenous peoples. Haida Nation and Mikisew Cree show that consultation must happen early, and private companies cannot fill the Crown’s role.
Any separatist plan that defers these talks until after independence risks immediate legal injunctions, crippling costs, and fractured relationships with First Nations and Métis communities.
What Separatists Are Planning—and Why It Fails
Separatist designers acknowledge that treaty rights “will be a required subject for discussion and negotiation in the context of the development of the constitution for the Commonwealth of Alberta,” but they explicitly frame this as a future step—after independence and fiscal redesign—rather than a precondition for any land-use or resource decision. Their draft constitution even allows for a “continued role for the Crown of Alberta in the context of any future constitutional arrangements,” suggesting that Indigenous consultation can be delayed until after a new legal framework is in place. In practice, this means Alberta plans to proceed immediately with major projects on Crown land—pipelines, roads, mining—and only later turn to treaty negotiations when writing its own constitution.
This approach directly conflicts with Haida Nation and Mikisew Cree, which require consultation before any action that may affect unproven or treaty-protected rights. Courts have made clear that deferring talks invites injunctions the moment projects begin, and no post-hoc constitutional deal can erase an injunction filed at project start. By treating the Crown’s duty to consult as negotiable and postponable, separatists risk costly legal challenges, stalled infrastructure, and a breach of trust that underpins reconciliation. True respect for treaty rights demands early, good-faith engagement—not a “talk later” promise once political independence is secure.
Before examining how consultation must occur, it helps to understand the legal foundation underpinning these duties. At the heart of this framework lies the honour of the Crown, which gives rise to a formal duty to consult Indigenous peoples. Recognizing these principles makes clear why any delay or deferral of talks cannot stand.
Honour of the Crown
The honour of the Crown is a foundational legal principle requiring the government to deal fairly with Indigenous peoples. It springs from the promises made when treaties were signed. Under this principle, the Crown must act in good faith even if an Indigenous land claim is not yet confirmed in court. In practice, this means that the Crown cannot ignore potential rights simply because they remain unproven. Any action that might affect those rights triggers the Crown’s duty to consult and accommodate.
Duty to Consult
The duty to consult flows directly from the honour of the Crown. Once the government knows—or reasonably ought to know—about an Indigenous claim that could be harmed, it must meet with the affected community before making any decision. The depth of consultation depends on two factors:
1. Strength of the Claim: A strong, credible claim demands more thorough talks.
2. Severity of Impact: A high-impact project—like a pipeline crossing traditional lands—requires deep, ongoing engagement and real efforts to reduce harm.
For example, minor projects might only need formal notice and a meeting. Major developments call for detailed plans, joint problem solving, and written records of concerns and responses. Courts have held that consultation is procedural: it does not give Indigenous groups a veto, but it guarantees a meaningful chance to shape outcomes.
Private Parties and the Crown’s Responsibility
Companies and other private parties can play a supporting role—organizing meetings, providing data, or paying for travel—but they do not carry the legal duty to consult. That duty remains firmly with the Crown. If the Crown fails to consult properly, courts can halt any project regardless of how diligently a company has behaved. This division ensures that the government remains accountable for balancing public interests with Indigenous rights.
Haida Nation’s Landmark Decision
In Haida Nation v. British Columbia, the Haida people challenged the province’s renewal of logging licences on their unproven traditional territories.
Ruling: The Court sided with Haida Nation. It confirmed that only the Crown owes the duty to consult, not the logging company.
Key Outcome: From the first hint of an Indigenous claim, the government must consult before decisions that risk harming that claim.
This case set the standard: no project on Crown land can proceed without early and good-faith talks, irrespective of later court rulings on title.
Mikisew Cree’s Warning on Living Treaties
In Mikisew Cree First Nation v. Canada, Canada approved a winter road through Treaty 8 territory without proper consultation.
Ruling: The Court found Canada in breach of its duty and sent the project back for meaningful talks.
Key Outcome: Treaties are “living” agreements. Even though Treaty 8 allowed the Crown to “take up” land, every new project still required consultation under the honour of the Crown.
The Court stressed that consultation is continuous. Governments cannot treat treaty promises as one-time events at signing; they must consult for each action that affects rights.
Why Delaying Consultation Fails
Separatist blueprints often propose writing a new constitution and negotiating Indigenous issues after independence. Both Supreme Court decisions make this approach impossible:
1. Consult First, Act Later: Courts insist consultation happens before any approval. Post-separation negotiations cannot undo injunctions filed at project start.
2. Obligations Survive Sovereignty Shifts: If Alberta inherits Crown lands, it inherits all Crown duties. Treaty-protected rights to hunt, fish, and trap remain enforceable.
3. Hidden Financial Risks: Budgets that ignore consultation must later cover legal fees, court delays, and compensation claims—costs that often exceed projected savings.
4. Trust and Unity at Stake: Ignoring early talks fractures relationships with First Nations and Métis communities, undermining the very unity separatists claim to seek.
Conclusion
Haida Nation and Mikisew Cree make one thing clear: the honour of the Crown—and its duty to consult—does not dissolve with political borders. Any independent Alberta will inherit the same obligations to engage Indigenous peoples early and in good faith on every project affecting their lands or rights. Plans that promise rapid growth and deferred negotiations ignore Supreme Court rulings, risk costly litigation, and betray the spirit of reconciliation. Alberta’s future will be stronger and fairer if it commits to meaningful consultation from the outset, rather than trying to rewrite its most fundamental duties later.