Dear Premier Smith,
I write on behalf of the Treaty 8 First Nations in Alberta in my capacity as Grand Chief. This letter constitutes formal correspondence between our Nations and your government.
We are compelled to write because recent public statements made by your government, and by you personally, regarding Section 35 of the Constitution Act, 1982, the duty to consult and the proposed referendum on Alberta sovereignty have placed this province on a course towards direct constitutional conflict with Treaty 8 First Nations.
That conflict is not abstract. It is immediate, documented and already before the courts.
Treaty 8: The Foundation That Predates Alberta Itself
Treaty No. 8, signed in 1899, predates the Province of Alberta by six years. Alberta was created in 1905 as a creature of Confederation. It entered Confederation subject to existing Treaty obligations, not above them. Your government is not, and has never been, a party to Treaty No. 8. The Crown obligations established by Treaty No. 8 are borne by the federal Crown and bind every successor government exercising authority within Treaty 8 territory. They cannot be extinguished by a provincial premier’s reinterpretation of constitutional law. Treaty 8 encompasses a vast territory spanning what is now northern Alberta, northeastern British Columbia, northwestern Saskatchewan and the southern Northwest Territories. Alberta’s separation, as currently proposed, would carve an international border through the heart of Treaty 8 territory without the free, prior and informed consent of the Nations whose ancestors signed that Treaty. This would not merely breach a constitutional provision. It would rupture a solemn promise recognized under Canadian law that predates Alberta, and violate the integrity of our people’s lands and rights as recognized under international law.
We state this plainly so that there can be no misunderstanding: there is no lawful path by which Alberta can pursue separation from Canada while bypassing the rights, consent, and constitutional status of Treaty 8 First Nations. That consent has not been sought. It has not been given. Nor will it be given under duress or through any process designed to circumvent our constitutional rights.
Your Statements on Section 35: A Constitutionally Unacceptable Position
On or about 22 May 2026, you stated publicly that Section 35 of the Constitution Act, 1982 “was never intended to remain open-ended or to be redefined by the courts in a way that creates new and expanding rights with each new decision”. You have also raised the prospect of amending Section 35 as a means of addressing what your government characterizes as legal uncertainty. Further, the duty to consult is not limited to major projects. It applies to Crown conduct, decisions, processes, and authorizations that may adversely affect our inherent and Treaty rights.
We reject that characterization entirely and call on you to retract it without qualification.
Section 35 is not a policy instrument subject to periodic reinterpretation by the executive branch of a provincial government. It is a constitutional provision that recognizes and affirms the existing Aboriginal and Treaty rights of the Indigenous Peoples of Canada. It was entrenched in the Constitution as a solemn promise to Indigenous Peoples, and ratified by both Canada and by Great Britain on that basis.
The courts have interpreted Section 35 over the decades since 1982, as courts interpret every constitutional provision. That is not a failure of the constitutional order. It is the constitutional order functioning as it must. Decisions of the Supreme Court of Canada in cases such as Haida Nation, Taku River Tlingit and Mikisew Cree First Nation, all of which flow from Section 35 and the honour of the Crown, are not errors for a provincial government to “correct” in pursuit of separation. They are binding precedent.
Your suggestion that Section 35 should be amended because its judicial interpretation is inconvenient to your political objectives is not a defensible legal position. It is an attack on the constitutional architecture of Canada and signals an intention to subordinate the rights of First Nations to the preferences of a provincial government. Any attempt to amend or weaken Section 35 in order to avoid the duty to consult would be understood by Treaty 8 First Nations as a direct attack on our peoples, our Treaties, and our constitutional place within Canada.
Your Statements on the Duty to Consult: A Deliberate Mischaracterization
At the Western Premiers’ Conference on 26 May 2026, you stated that the duty to consult and accommodate applies only to major resource projects, such as pipelines, and not to citizen-initiated petitions or referendums. You have relied on that characterization to resist the finding of Justice Leonard of the Court of King’s Bench that the duty to consult was triggered by the separation petition process.
That position is wrong in law, and it has now been rejected in two related proceedings before the Alberta Court of King’s Bench. First, in proceedings addressing the constitutional implications of Alberta separation for Section 35 and Treaty rights; and second, in proceedings quashing the separation petition because Alberta failed to discharge the duty to consult.
The duty to consult is not a bureaucratic inconvenience. It is a constitutional obligation that arises whenever the Crown contemplates action, or authorizes processes under its authority, that may adversely affect Treaty rights. A referendum that could result in Alberta’s separation from Canada, and that would place an international border through Treaty 8 territory, represents one of the most profound adverse impacts on Treaty rights that it is possible to contemplate. The suggestion that such a process falls outside the duty to consult is not a tenable legal argument. It is a rationalization.
But despite these clear findings, your government has used the Referendum Act to add a referendum question scheduled for 19 October, in what has been characterized as a deliberate attempt to evade the legal consequences of the consultation obligation. These are not the actions of a government that respects the constitutional order. They are the actions of a government seeking to engineer an outcome that has already been rejected in related
proceedings before the Alberta Court of King’s Bench.
We also note that, at the same Western Premiers’ Conference on 26 May 2026, Manitoba Premier Wab Kinew directly contradicted your characterization of the duty to consult, making clear that the obligation rests with the provincial government, not with the citizens who signed a petition and not with First Nations to manage around.
His position is consistent with recent court rulings and the settled constitutional jurisprudence of this country.
The Broader First Nations and Intergovernmental Context
We note that opposition to your approach to Section 35, the duty to consult, and the separation referendum has been expressed not only by Treaty 8 First Nations, but broadly and consistently by First Nations leaders across Canada. First Nations people and their leaders across Treaty territories have made clear that Canada’s future cannot be determined by bypassing First Nations. We are not stakeholders in a process designed by others. We are Treaty partners who helped build what is now Canada and Alberta, and we must be fully involved as founding Nations in any decisions that affect the future of this country.
This is not a fringe legal argument advanced by one or two dissatisfied Nations. It is the settled constitutional position of First Nations people in this country, affirmed by the courts, supported by legal scholars and recognized by other heads of government. Your government stands alone in contesting it.
Conclusion
Premier Smith, the Treaty relationship is not a political position. It is a sacred, solemn and legally binding covenant entered in good faith, in perpetuity, and with the full authority of the Crown. It has endured for more than 125 years, and it will endure through this moment as well. The question is not whether Treaty rights will prevail, they will. The question is whether your government will meet its obligations honourably or continue down a course already found unlawful by the courts of this province and condemned by First Nations across the country.
We therefore demand that your government immediately cease any attempt to proceed with a separation referendum or related process without full consultation, accommodation, and the free, prior, and informed consent of the Treaty 8 First Nations. We further demand that your government uphold the Constitution of Canada, respect Section 35, and act consistently with the Honour of the Crown.
Sincerely,
Trevor Mercredi
Grand Chief of Treaty 8 First Nations of Alberta