Treaty 8 chiefs in Alberta are demanding that Premier Danielle Smith call off the referendum scheduled this fall. Trevor Mercredi claims the premier shirked the “duty to consult” and said the province is “on a course towards a direct constitutional conflict” with Treaty 8 bands.

The chief's language leans into a threatening tone, as he has accused the provincial government of being lawless as they added an ominous “or else” to their demand letter.

Chief Mercredi talked about blocking resource projects and “getting out on the highway” if their demands aren’t indulged.

Despite the claims of the oft-aggrieved chiefs, there is no implicit or explicit duty to consult within Canadian law or the Constitution when it comes to holding a non-binding referendum.

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Section 35 of the Constitution is what people often reference when claiming there is a constitutional duty to consult native folks on things. The word consult doesn’t appear anywhere in Section 35, however, much less consent.

Section 35 of the Constitution Act states:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection

(1) are guaranteed equally to male and female persons.

That’s it. That’s all. It doesn’t confer a right to consult on anything.

That said, a Supreme Court ruling in 2004 did read a duty to consult into the Constitution with a decision in the Haida case. It should be noted, that the same ruling also expressly said Indigenous bands do not have a right of veto over anything.

The duty to consult is only to apply when something may impact treaty rights. There is utterly nothing within a non-binding referendum which may impact treaty rights in any way.

Treaties are simple documents that mostly determine the boundaries of a reserve while ceding land to the Crown forever. Over 98% of Alberta’s land mass was permanently ceded in the treaties. Non-binding referenda won’t impact that.

The chiefs would be well served to study what the duty to consult actually means before threatening Albertans over the holding of a democratic exercise.

They should also read the Critical Infrastructure Defence Act created by former premier Jason Kenney, which offers severe penalties for obstructing utility infrastructure or highways before considering whatever they mean by “or else.”