Western separatism would have to face treaty nations, say First Nations leaders
'I don't think anyone is up for that kind of constitutional battle,' says constitutional law expert
Prairie First Nation leaders say Alberta and Saskatchewan can't separate without their consent because the legal underpinnings allowing Canada to settle the region are based on the signing of the numbered treaties.
The election of a minority Liberal government led by Justin Trudeau and the dominance of the Conservative party in Saskatchewan and Alberta — winning every riding except one — has again sparked talk of Western separation.
"This is our land, we are staying here," said Marlene Poitras, Assembly of First Nations regional chief for Alberta and a member of the Mikisew Cree First Nation that is part of Treaty 8.
"Right now, I am really not paying any attention to that until there is some move toward that. Then, like I said, they will have to deal with the First Nations."
While Alberta Premier Jason Kenney has called the separatist movement "irrational," he is pushing ahead with plans for a referendum on equalization and is striking a panel to discuss the province's place in confederation with Albertans.
Saskatchewan Premier Scott Moe has said that talk of Western separatism is "alive and well" in the province and blamed Ottawa for its rise.
"Wexit" websites for Alberta, Saskatchewan and Manitoba have popped up and a VoteWexit Facebook page has garnered more than 250,000 members.
The movement appears strongest in Alberta and Saskatchewan.
For Poitras, the separatism movement has a menacing aspect. She said racism swirls around the idea of Western separation.
"It's really unfortunate, some of the hate that comes out directed at First Nations," said Poitras.
"People need to educate themselves and understand the true nature of our treaties. We existed before contact on this land."
'Provincial boundaries came after treaty territories'
The British Crown signed 11 treaties with First Nations between 1871 and 1921 to allow for the settlement of the West. The treaties covered areas from northern and western Ontario through the Prairies and into parts of northern B.C., Yukon and the Northwest Territories.
The Crown offered certain benefits, like health care and education, in exchange for land.
While sometimes called cede and surrender treaties, many treaty First Nations say the original signatories never saw land as something that could be surrendered.
Assembly of First Nations National Chief Perry Bellegarde, whose home community of Little Black Bear First Nation is a member of Treaty 4 in Saskatchewan, said the Western separatism movement has to respect the inherent rights of the treaty First Nations.
"We have always said under treaty, that is the greatest act of co-operation in Canada on how we are sharing the land and resources together," said Bellegarde.
"Even the provincial boundaries came after treaty territories.... You have to be careful when you down that road of Western alienation, Western exit. We have inherent rights; we have treaty rights, and those are international agreements with the Crown."
Saskatoon Tribal Council Chief Mark Arcand said any Western separatism movement has to go through First Nations before anything can happen.
"At the end of the day, the province of Saskatchewan, the province of Alberta does not have the authority to decide if they want to separate," said Arcand.
"We have treaty rights that we manage inside Treaty 6 territory. There has to be consultation in regards to this process. That is going to affect our treaty and inherent rights."
'I don't think anyone is up for that kind of ... battle'
James (Sákéj) Youngblood Henderson, a constitutional and treaty expert, said Western Canada was "firmly built on treaties" between First Nations and the Crown.
"Canada is the the so-called beneficiary of those treaties. All the lands transferred were never purchased by Canada," said Henderson, who is a research fellow at the University of Saskatchewan's Native Law Centre.
In 1930, through the Natural Resources Transfer Acts, treaty lands held by Ottawa were transferred to Manitoba, Saskatchewan, Alberta and British Columbia which is how those provinces came to control their natural resources, said Henderson.
"If the western provinces decided to secede they would have to breach the agreement of 1930 and that takes you back to the treaties and the treaty people who have to make their decision," said Henderson.
"Then the treaties would be invigorated and it will have to be part of the negotiations. I don't think anyone is up for that kind of constitutional battle."
Could foster political unity among treaty nations
Paul Chartrand, a constitutional expert who was an adviser during the first ministers' meetings on Aboriginal constitutional reform in the 1980s, said any serious move to separate would give treaty First Nations leverage at the negotiating table.
"In a live political situation, where the provinces would threaten to separate, it would bring in the First Nations, it would bring in the treaty nations and their negotiating advantage would be heightened," said Chartrand, who served as a commissioner on the Royal Commission on Aboriginal Peoples.
"Treaty nations operate, generally, as individual bands — they are very small communities that have very little political clout. In my mind, it would provide an incentive for political unity in the Prairie provinces and that is a powerful factor."
There is also the additional tangle of reserve lands, which are under federal jurisdiction, which would also have to get sorted out, said Chartrand.
But he doubts Western separatism could ever really gain traction.
"I think it's something that has very little chance of developing," he said.