Indigenous Treaty Rights Could Block Alberta and Quebec Separation
Issue 06 | April 2026
I will never forget the 1995 Quebec referendum. I was 17 years old, in my final year of high school, when I heard about the Unity Rally in Montreal.
My francophone mother normally would not have let me skip school, but when I asked if a couple friends and I could take the bus from Ottawa to attend, she agreed. Being among tens of thousands of people expressing their support for a united Canada left a mark.
That experience has stayed with me. It was the last time separation felt real in this country until recently. But the conversation Canada is having now is very different.
We’re now at a point where Alberta separation is moving from political rhetoric into legal reality, facing active legal challenges from First Nations that have already paused elements of the referendum pathway.
Quebec is not far behind. With an election expected in the next 12-18 months, and the Parti Québécois currently leading in several polls, the conditions for renewed public debate on sovereignty are re-emerging. That is not to say separation is imminent, but it is no longer a dormant issue.
This time the debate is running into something Canada has never had to deal with at this level.
Indigenous Treaty Rights are at the centre of it.
Canada has only ever tested secession in a pre-Section 35 mindset. The Quebec referendums and the legal framework that followed were developed before the full implications of constitutionally protected Aboriginal and treaty rights were understood in practice.
In 1995, the debate focused on federalism, economics, and identity. Indigenous rights were in the Constitution, but they were not driving the conversation. Modern Treaties were fewer. Self-government was still emerging. Indigenous governments were not positioned as central decision-makers in questions about the future of the country.
But at the time of the 1995 referendum, only a handful of modern treaties were in place, largely confined to northern Quebec and the western Arctic. Yukon Agreements were just rolling out; the Nunavut Agreement was signed but would not be in effect for four more years; and most BC Treaties were still being negotiated. The governance landscape Canada faces today did not yet exist.
We have never tested what separation looks like in a country shaped by Modern Treaties, Self-Government agreements, and increasingly assertive Indigenous jurisdiction.
Treaties are part of the constitutional order
Before getting to Treaties, it is worth grounding what separation would actually require.
The Supreme Court made clear that a province cannot leave Canada on its own. A clear referendum result would force negotiations with the federal government and other provinces to change the Constitution.
In practice, that means separation would require a constitutional amendment. Depending on the scope, this could engage the general amending formula requiring approval from Parliament and at least seven provinces representing 50 percent of the population, or potentially unanimity if core constitutional structures are affected.
That process would unfold in a constitutional environment where treaty and Aboriginal rights are explicitly recognized and affirmed under Section 35 of the Constitution Act, 1982.
That is where it gets difficult. Treaties are part of Canada’s constitutional architecture. Historic numbered Treaties across the Prairies, and Modern Treaties across the North, British Columbia, and Quebec, establish enduring relationships between Indigenous nations and the Crown.
These are not provincial arrangements. They are nation-to-nation agreements that structure land, resource, and governance authority.
A province cannot leave Canada and treat all lands within its borders as provincial assets, because in many cases:
Under historic numbered Treaties, Indigenous nations retain constitutionally protected rights across large territories, including harvesting, land use, and governance-related authorities; and
Under Modern Treaties, Indigenous governments often hold defined ownership of lands, resource rights, and law-making powers set out in constitutionally protected agreements
For example, in Quebec, agreements such as the James Bay and Northern Quebec Agreement and subsequent Cree governance arrangements have transferred significant land ownership, management authority, and jurisdiction to Indigenous governments across large parts of the province.
These are not abstract rights. They are operating governments.
Why separation will break down
If Alberta or Quebec attempted to separate, the issues show up immediately:
Treaty relationships would need to be renegotiated: They do not transfer automatically. Indigenous governments would need to agree to any new constitutional or legal arrangement.
Constitutional amendment becomes multi-party: Changes affecting Section 35 rights would be difficult to advance without the participation, and likely consent, of Indigenous rights holders.
Territory is not cleanly divisible: Large portions of both provinces are subject to treaty rights or modern land ownership regimes. These are overlapping jurisdictions, not blank provincial space.
Indigenous governments are decision-makers in the outcome: There is no single Indigenous position. Multiple governments, with different agreements and interests, would need to be engaged.
Courts will shape the process: They already are in Alberta. Any broader attempt at separation would trigger sustained constitutional litigation.
This is not a two-party negotiation between a province and Canada. It is a multi-party constitutional process.
The last time Canada faced a real prospect of separation, treaties were largely absent from the conversation, they will not be next time. Any province looking to leave Canada will have to answer a harder question than it did in 1995. Not just whether Canada is divisible. But whether the Treaty relationships that underpin it are.
And that is a question no referendum can settle on its own.
Modern Treaty Hub
Kitselas treaty legislation triggers opposition in BC: Nine Allied Tribes and Lax Kw’alaams have raised concerns with the Government of British Columbia’s plan to introduce legislation to ratify the Kitselas treaty, stating they were not adequately consulted or accommodated. They argue the proposed treaty would extend Kitselas rights into their asserted territories and have called for the legislation to be paused while issues are addressed. (NationTalk)
Wei Wai Kum calls for pause on K’ómoks treaty ratification: Wei Wai Kum First Nation is continuing to call for a pause to the ratification of the K’ómoks treaty, stating it would infringe on the rights and title of Liǧʷiłdax̌ʷ Nations. The Nation has signalled potential legal action if the process proceeds without addressing its concerns, while K’ómoks has stated it remains open to continued dialogue during implementation. (CHEKnews.ca)
New chief commissioner appointed to BC Treaty Commission: Former B.C. cabinet minister George Abbott has been appointed as chief commissioner of the BC Treaty Commission, the independent body overseeing treaty negotiations in the province. Abbott will take over from Celeste Haldane, who was first appointed as a commissioner in 2011, and appointed chief commissioner in 2017. The appointment was approved by the province and the First Nations Summit, with federal approval still pending. (Winnipeg Free Press)
Study highlights Indigenous incarceration rates in Newfoundland and Labrador: A new report from First Light finds Indigenous people in Newfoundland and Labrador are incarcerated at a rate eight times higher than non-Indigenous residents. The Nunatsiavut Government says the findings are concerning but consistent with longstanding trends. (NationTalk)
