One of the most complicated questions surrounding a possible independent Alberta is what would happen to First Nations treaties, reserve lands and constitutionally protected Indigenous rights.

The Alberta Transition Council's newly released Alberta Transition Plan argues those rights would not disappear with independence and proposes a First Nation-by-First Nation negotiation process rather than transferring federal Indigenous responsibilities directly to Alberta.

The report says First Nations must be treated as constitutional rights-holders and treaty partners rather than stakeholders in a provincial transition. It says Aboriginal and treaty rights, reserve interests, Indian status, funding, records and services would need to continue while future arrangements were negotiated. 

Treaties 6, 7 and 8 were signed before Alberta became a province in 1905. The plan points to the 1930 Natural Resources Transfer Agreement as an example of government responsibilities changing while reserves remained under federal administration and treaty harvesting rights continued.

The report proposes several possible arrangements.

A First Nation could maintain much of its existing relationship with Canada, agree to have Alberta assume selected federal responsibilities, negotiate a new treaty or self-government relationship with Alberta or adopt a combination of Canadian and Alberta responsibilities.

The report says those decisions would have to be made individually by First Nations and that no Nation should be forced into an arrangement to meet Alberta's transition timetable.

It also rejects the idea that reserve lands would simply become Alberta property. The report says reserve lands, designated lands, mineral interests and trust assets would continue to be held for First Nations unless a different arrangement was negotiated. Reserve oil and gas would also not automatically become Alberta Crown resources. 

That framework has not resolved the objections raised by Indigenous leaders opposing separation.

Leadership from Treaty 6, Treaty 7 and Treaty 8 publicly joined in opposition to Alberta separation in January, saying the numbered treaties predate Alberta and the province cannot unilaterally alter the relationship between Treaty Nations and the Crown.

Treaty 8 leadership has argued that separation could place an international border through Treaty 8 territory, which also extends beyond Alberta into British Columbia, Saskatchewan and the Northwest Territories. It maintains that Alberta must consult First Nations before advancing a process capable of changing the constitutional and treaty relationship. Treaty 8 repeated concerns about separation-related initiatives as recently as September.

The Blackfoot Confederacy has taken a similar position. Its leadership supported a May Court of King's Bench ruling that found Alberta had breached its duty to consult before a citizen-initiated separation petition was allowed to proceed.

The Otipemisiwak Métis Government has also opposed separation. President Andrea Sandmaier has argued that Métis constitutional rights and relationships with the Crown cannot be ignored when Alberta considers decisions that could fundamentally alter the country's constitutional structure.

The dispute has already reached the courts.

In Athabasca Chipewyan First Nation v. Alberta (Chief Electoral Officer), Justice Shaina Leonard quashed approval of the Stay Free Alberta separation petition in May. The court found that the process triggered Alberta's constitutional duty to consult affected First Nations and that consultation had not occurred. The decision found there could be no doubt that Alberta's secession could affect Treaties 7 and 8.

Alberta and the petition organizer appealed. In June, the Alberta Court of Appeal granted a partial stay allowing Elections Alberta to verify petition signatures but did not allow the petition process to advance to a referendum while the appeal remains unresolved. The Court of Appeal has not yet decided the merits of the underlying appeal.

Premier Danielle Smith has disputed the lower court's interpretation. Her government argues the Oct. 19 referendum is different because it does not itself authorize separation. The question asks whether Alberta should remain in Canada or begin the legal process required to hold a later binding referendum. Smith has said the government believes that preliminary question does not trigger the same legal problem identified by the court.

Canadian constitutional law provides some guidance but does not predetermine every outcome.

Section 35 of the Constitution Act, 1982 recognizes and affirms existing Aboriginal and treaty rights, including those of First Nations, Inuit and Métis peoples.

In the 1998 Reference re Secession of Quebec, the Supreme Court of Canada ruled that a province could not legally secede unilaterally. A clear vote for secession could create an obligation to negotiate, but the Court said the terms would not be predetermined and specifically noted that Aboriginal interests would have to be considered during those negotiations.

That leaves an important distinction at the centre of Alberta's debate.

The Transition Plan argues treaty rights, reserves and Indigenous services can be protected through continuity guarantees and negotiations tailored to individual First Nations. Indigenous governments opposing separation argue the treaty relationship itself means they must be involved before Alberta advances a constitutional process capable of changing that relationship.

Both positions therefore recognize that Alberta's Indigenous treaties cannot simply be erased on independence day. The unresolved question is what Indigenous agreement and consultation would be required before Alberta could ever reach that day.