The Grand Council of the Crees

Bill 99

BILL 99 : A SOVEREIGN ACT OF DISPOSSESSION, DISHONOUR AND DISGRACE BRIEF OF THE GRAND COUNCIL OF THE CREES (EEYOU ISTCHEE) TO THE QU?BEC NATIONAL ASSEMBLY COMMITTEE ON INSTITUTIONS

Posted: 2000-02-01

SUMMARY

Qu�bec Premier Lucien Bouchard hails Bill 99 as a "charter of collective rights". This Brief demonstrates that nothing could be further from the truth. No charter of fundamental rights can be legitimate in Qu�bec, if it is illegal and unconstitutional. No bill is truly a charter of rights, if it simultaneously denies the fundamental status and human rights of Aboriginal Peoples.

The key strategy in Bill 99 is the creation of a single fictitious "Qu�bec people" throughout the province with the right of self-determination. All aspects of this right are to be controlled by the Qu�bec government and National Assembly. In this way, each of the Aboriginal Peoples in Qu�bec is to be effectively denied the status of a "People", the right to self-determination and the right to self-identification. These are grave violations of our human rights.

This central strategy of dispossession is in direct conflict with the conclusions of the Royal Commission on Aboriginal Peoples (RCAP), the Commission des droits de la personne du Qu�bec, and the United Nations Human Rights Committee. All of these renowned bodies recognize Aboriginal Peoples as Peoples with the right to self-determination.

Since the term "Qu�bec people", as used under Bill 99, is factually and legally incorrect, the integrity and coherence of virtually the whole Bill is gravely impacted. Most of the substantive sections (7 out of 11) of the Bill refer to an invented "Qu�bec people". As a result the Bill is a deception and is fatally flawed.

In regard to all future referendums concerning the "Qu�bec people", Bill 99 purports to confer absolute power and control to the Qu�bec government and National Assembly. The provisions in the Bill severely undermine our right, as a People, to hold our own referendums on Qu�bec secession or other questions. A referendum by one People, especially a fictitious "Qu�bec people", cannot determine the future of other self-determining Peoples within Qu�bec.

Bill 99 is allegedly a response to Ottawa�s Clarity Bill ( Bill C-20), which the Qu�bec government claims is anti-democratic. This view remains unsubstantiated. In any event, Qu�bec cannot justify in any way the denial of the basic status and rights of Aboriginal Peoples as effected through Bill 99.

The constitutional principle of democracy is much richer than the simplistic and self-serving notions that the Qu�bec government is seeking to impose in Bill 99. In the Secession Reference, the Supreme Court indicated that values inherent in the notion of democracy include a "commitment to social justice and equality", as well as "respect for cultural and group identity". In regard to Aboriginal Peoples, these are precisely the democratic values that are being disrespected in the Bill.

Furthermore, the right to self-determination is described in international legal literature as "the oldest aspect of the democratic entitlement". Yet the right of self-determination of Aboriginal Peoples is exactly what Bill 99 seeks to deny.

Most sections of the Bill appear to exceed, in whole or in part, the legislative jurisdiction of the National Assembly. This rampant unconstitutionality is no accident. It represents a blatant disregard for the rights of others and for the rule of law.

Yet Bill 99 goes even further. To some degree, it reflects a government and legislature that are proclaiming a unilateral declaration of independence (UDI). In many instances, virtually absolute powers and duties are declared. International law concepts are intentionally misappropriated. The international law principle of "territorial integrity" does not apply to provinces. However, it is still used so as to deny the James Bay Crees and other Aboriginal Peoples the right to determine our own future and that of our territories .

The Bill claims to be simply "reaffirming" various basic rights, duties and powers. The Qu�bec government is grossly misleading the public. To a large degree, the rights, responsibilities and jurisdiction being "reaffirmed" did not previously exist. Moreover, they run counter to both Canadian constitutional and international law.

In regard to Qu�bec secession, Bill 99 illegitimately takes Quebecers outside the legal and political framework established by the Supreme Court of Canada. Therefore, following a YES vote in a referendum, neither the Qu�bec government nor Quebecers would have any right to invoke any constitutional duty on the part of the rest of Canada to negotiate secession in good faith.

While Bill 99 purports to advance Qu�bec sovereignty claims, it actually does the opposite. It severely limits, in a wholly undemocratic and illegal manner, Quebecers� options for the future. The Qu�bec government is delegitimizing its own sovereignty ambitions.

Bill 99 serves as the most concrete example to date as to why clear and principled rules are urgently needed for any future secession initiative. The betrayal of democratic principles in the Bill, as well the blatant disregard for the status and human rights of Aboriginal Peoples, demand that specific norms be established. These rules must wholly conform to the judgment of the Supreme Court in the Secession Reference, in a fair and balanced manner.

Aboriginal peoples are entitled to identify their own national units for purposes of exercising the right to self-determination ... any self-identification initiative must necessarily come from the people actually concerned.

Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (Ottawa: Canada Communication Group, 1996), vol. 2(1)

The natives of Qu�bec don't have a right of self-determination. It doesn't belong to them.

Lucien Bouchard (then Bloc Qu�b�cois Leader), quoted in The [Montreal] Gazette (25 May 1994)

Et � mon avis, le fait que [les autochtones] constituent des peuples qui se sont autoqualifi�s comme peuples ... leur donnerait un droit � l'autod�termination au m�me titre que le Qu�bec ...

Testimony of Professor Daniel Turp in Assembl�e nationale, Journal des d�bats, Commission d'�tude des questions aff�rentes � l'accession du Qu�bec � la souverainet�, 9 Oct. 1991, No. 5

TABLE OF CONTENTS

INTRODUCTION

I. BACKGROUND - THE JAMES BAY CREES AND EEYOU ISTCHEE

II. FUNDAMENTAL DEFECTS OF BILL 99

2.1 Fabrication of a Single "Qu�bec People" in the Province

2.2 Denial of Right of James Bay Cree People to Self-Determination

2.3 Denial of Democratic Expression of Cree Will Through Referendums

2.4 Imposition of "Simple Majority" Rule Contrary to Secession Reference

2.4.1 Related notion of interdependence

2.4.2 "Secession" different from "admission"

2.5 Unconstitutional Conferral of Rights and Powers

2.5.1 Right to self-determination

2.5.2 Powers concerning referendums

2.5.3 Immunity from other Acts

2.5.4 Veto over territorial and boundary alterations

2.5.5 Assumption of full powers by "Qu�bec State"

2.6 Misappropriation of International Law Concepts

2.6.1 "National state" of Qu�bec

2.6.2 "Territorial integrity of Qu�bec"

2.7 "Reaffirmation" of Rights, Duties and Powers a Deception

2.8 Delegitimization of Qu�bec sovereignty by Qu�bec government

CONCLUSIONS

LIST OF AUTHORITIES

ANNEX I: BILL 99 (French and English versions)

ABBREVIATIONS

Am. J. Int�l L. ............................American Journal of International Law
A.F.D.I. ....................................Annuaire fran�ais de droit international
Aust. Int�l L. J. ..........................Australian International Law Journal
A.L.R. ......................................Australian Law Reports
Aust. YBIL ................................Australian Yearbook of International Law
Br. Y.I.L. ...................................British Yearbook of International Law
Brook. J. Int�l L. .........................Brooklyn Journal of International Law
C. de D. ....................................Cahiers de droit
Can. Bar Rev. ............................Canadian Bar Review
C.N.L.R. ....................................Canadian Native Law Reporter
Can. Y.I.L. .................................Canadian Yearbook of International Law
C.L.R. ........................................Commonwealth Law Reports
D.L.R. ........................................Dominion Law Reports
Eur. Parl. Doc. ............................European Parliament Document
I.C.J. ..........................................International Court of Justice
I.L.O. .........................................International Labour Organization
I.L.M. .........................................International Legal Materials
Mich. J. Int�l L .............................Michigan Journal of International Law
N.J.C.L. ......................................National Journal of Constitutional Law
Neth. Int�l L. Rev. .........................Netherlands International Law Review
R. du B. ......................................Revue du Barreau
R.J.Q. .........................................Recueil de jurisprudence du Qu�bec
R.S.Q. ........................................Revised Statutes of Qu�bec
Sask. L. Rev. ..............................Saskatchewan Law Review
S.C. ...........................................Statutes of Canada
S.C.C. ........................................Supreme Court of Canada
S.C.R. ........................................Supreme Court Reports
S.Q. ...........................................Statutes of Qu�bec
Transnat'l L. & Contemp. Probs. ...Transnational Law and Contemporary Problems
Tulsa J. Comp. & Int�l L. .............Tulsa Journal of Comparative & International Law
U.B.C. L. Rev. ...........................University of British Columbia Law Review

Introduction [top]

BILL 99 : A SOVEREIGN ACT OF DISPOSSESSION, DISHONOUR AND DISGRACE

1. Bill 99 is entitled An Act respecting the exercise of the fundamental rights and prerogatives of the Qu�bec people and the Qu�bec State. It is the subject of the present public hearings before the Qu�bec National Assembly Committee on Institutions. It is also the focus of the present Brief submitted by the Grand Council of the Crees (Eeyou Istchee).

Bill 99, An Act respecting the exercise of the fundamental rights and prerogatives of the Qu�bec people and the Qu�bec State, 1st Sess., 36th Leg., Qu�bec, 1999.

2. While this Brief necessarily makes references to Aboriginal Peoples, our mandate is to represent the positions and concerns of the James Bay Cree People. We do not purport to speak for other Peoples.

3. From the outset, we wish to state clearly that the Qu�bec government and the National Assembly do not represent the James Bay Cree People in any way whatsoever or for any purpose. We have our own institutions and our own leaders. Our appearance before this Committee on Institutions and the submission of our Brief do not constitute a recognition of any rights or jurisdiction over the James Bay Cree People or our traditional territory, Eeyou Istchee.

4. After reviewing Bill 99, we feel it is critical to assert our distinct status and our positions. This Bill seeks to enact unlawful and fabricated presumptions that undermine us as a People. The unilateral and illegitimate declarations of rights, duties and powers on behalf of the "Qu�bec people", "Qu�bec State" and National Assembly constitute a further prejudice that is ominous and far-reaching.

5. We are severely critical of the Qu�bec government strategies in Bill 99. However, our comments do not extend in any way to people in Qu�bec. It is important to emphasize that Quebecers are fair-minded people and we appreciate their support. They are not responsible for Bill 99. Most do not approve of the government�s ongoing secessionist tactics.

6. Based on the title of Bill 99, the draft Act deals with "fundamental rights and prerogatives". Therefore, one would expect that any such Bill would be fully and unequivocally respectful of the status and human rights of all Peoples in Qu�bec. One would also anticipate a Bill that is democratic, balanced and fair. Bill 99 totally fails to meet any of these standards.

7. Although the title of the Bill highlights "prerogatives", the text of the Bill does not disclose what specific prerogatives are being addressed. The title of the Bill refers to prerogatives of the "Qu�bec State" and the preamble refers to prerogatives of the National Assembly. Section 6 refers to a Qu�bec government duty to uphold the exercise and defend the integrity of "those prerogatives", without elaborating on what precisely "those" are in the context of the Bill.

8. In view of this legislative confusion, this Brief will not analyze "prerogatives". However, we emphasize here that any exercise of governmental or legislative prerogatives is still subject to a duty to respect human rights and the rule of law.

9. Qu�bec Premier Lucien Bouchard recently declared that Bill 99 would become a "charter of collective rights". Yet no charter of fundamental rights can be legitimate in Qu�bec, if it is illegal and unconstitutional. No bill is truly a charter of rights, if it simultaneously denies the fundamental status and human rights of Aboriginal Peoples.

R. S�guin, "Quebeckers show little interest in bill", Globe and Mail (20 January 2000) p. A6A (quote of Mr. Bouchard).

Human rights and fundamental freedoms are the birthright of all human beings, are inalienable and are guaranteed by law. Their protection and promotion is the first responsibility of government. Respect for them is an essential safeguard against an over-mighty State. Their observance and full exercise are the foundation of freedom, justice and peace. [Emphasis added.]

Charter of Paris for a New Europe, A New Era of Democracy, Peace and Unity, November 21, 1990, (1991) 30 I.L.M. 190.

10. In particular, it is an outrage for a Qu�bec "charter" to seek to deny Aboriginal Peoples our distinct status as "Peoples" and our human right to self-determination. Yet this is the intention and desired effect of Bill 99.

11. Our status and rights as a self-determining People are being negated in Bill 99. This is being done by creating a single, fictitious "Qu�bec people" throughout the province with the right of self-determination. In this way, our own Cree voices are being drowned out. We cannot express our own democratic will as the James Bay Cree People. An unstated purpose of Bill 99 is to ensure that we cannot determine the future of our People and Eeyou Istchee. As this Brief will substantiate, these dishonourable strategies of domination and dispossession are a central and definitive aspect of the Bill.

The Crees respect the right of all peoples in Canada, including Quebecers, to self-determination. We also respect the right of these peoples to seek a more satisfactory relationship with the rest of Canada. However, the exercise of these rights must not in any way prejudice or be at the expense of the status and fundamental rights of Aboriginal peoples (particularly our own Cree right to self-determination).

Grand Council of the Crees, Sovereign Injustice [:] Forcible Inclusion of the James Bay Crees and Cree Territory into a Sovereign Qu�bec (Nemaska, Qu�bec, 1995), at p. 430.

12. We question why the Qu�bec government would table in the National Assembly such an excessive, illegal and illegitimate bill. The government claims that Bill 99 is its response to Ottawa�s Bill C-20, or what is often referred to as the federal Clarity Bill.

Bill C-20, An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, 2nd Sess., 36th Parl., 1999.

13. According to Premier Bouchard, the federal Clarity Bill represents "a series of legislative padlocks to block the future of Quebeckers". We do not share this view. Nor do numerous Quebecers.

R. S�guin, "Quebeckers show little interest in bill", supra, p. A6A (quote of Mr. Bouchard).

14. For example, former Qu�bec Minister of Health, Claude Castonguay, has concluded that the federal Clarity Bill is not an attack on Qu�bec. The Bill solely transposes elements from the judgment of the Supreme Court of Canada in the Qu�bec Secession Reference:

... il m�appara�t difficile de voir dans ce projet de loi, qui ne limite aucunement les pr�rogatives de l�Assembl�e nationale, une attaque contre le Qu�bec. Il ne fait que transposer des �l�ments de l�arr�t de la Cour surpr�me, arr�t fut acceuilli avec enthousiasme par le gouvernement Bouchard.

C. Castonguay, "Nos plus grands d�fis ne proviennent pas de notre appartenance au Canada, La Presse (19 January 2000) p. B3.

See also J. Robinson, "How can Bouchard argue with need for clarity?", The [Montreal] Gazette (14 December 1999) p. B2.

Reference re Secession of Qu�bec, [1998] 2 S.C.R. 217.

15. Similarly, Lysiane Gagnon comments:

Dans le projet Dion, il n�y a pas un mot, pas un concept, qui ne puisse �tre justifi� par ce jugement.

L. Gagnon, "Un crime contre histoire?", La Presse (14 December 1999) p. B3.

16. This does not mean that no fair and balanced changes should be made to the Clarity Bill. Certainly, we the James Bay Crees are of the view that such amendments are essential. We will make every effort to ensure that these amendments are fairly considered and adopted.

17. Even if another government or entity were the author of real and extensive prejudice against Qu�bec institutions or people, this could not justify Qu�bec�s colonial strategies of domination and dispossession in Bill 99. In particular, it could never warrant the unjust denial of the basic status and rights of Aboriginal Peoples in Qu�bec.

18. Premier Bouchard has repeatedly expressed satisfaction with the Supreme Court decision in the Secession Reference. He has advocated a purely political approach to the secession question. However, the Supreme Court emphasized with equal weight the legal aspects of any secession project. In addition, the Court underlined that the political and other aspects of Qu�bec secession are not issues to be determined solely by Quebecers.

M. Cloutier, "P�quistes et lib�raux satisfaits", Le Devoir (21 August 1998) p. A1; L. Bouchard, "Premier Lucien Bouchard Reflects on the Ruling", in D. Schneiderman, ed., The Qu�bec Decision[:] Perspectives on the Supreme Court Ruling on Secession (Toronto: James Lorimer & Company Ltd., 1999) 77, at p. 95.

... it will be for the political actors to determine what constitutes �a clear majority on a clear question� in the circumstances under which a future referendum vote may be taken.

Reference re Secession of Qu�bec, supra, para. 153.

19. Since the Supreme Court has confirmed that secession "is a legal act as much as a political one", political actors in Canada are entitled to fully address this issue. However, they must all do so in a principled manner, in accordance with the legal and political framework established by the Court.

Reference re Secession of Qu�bec, supra, para. 83 (secession both a legal and political act).

20. Our purposes for submitting this Brief include the following:

i) to register our firm and unequivocal objection to Bill 99;

ii) to assert and defend, by democratic means, our status and rights as the James Bay Cree People;

iii) to inform and educate the National Assembly, its Members and the general public as to the pernicious nature of Bill 99; and

iv) to emphasize that, regardless of the nature and seriousness of government concerns, nothing justifies the adoption of laws that undermine the fundamental and inalienable human rights and status of Aboriginal and other Peoples.

21. The present Brief is not an exhaustive elaboration of Cree concerns and positions on the full range of matters arising from Bill 99. However, we briefly address the numerous fundamental defects inherent in the Bill. We also put forward our principal conclusions

I. BACKGROUND - THE JAMES BAY CREES AND EEYOU ISTCHEE [top]

22. The James Bay Cree People is an organized society, distinct Nation and People, which includes the nine Cree First Nation communities of Chisasibi, Eastmain, Mistissini, Nemaska, Ouj�-Bougoumou, Waskaganish, Waswanipi, Wemindji and Whapmagoostui. In addition, we are an Aboriginal People of Canada within the meaning of s. 35 of the Constitution Act, 1982.

23. Consistent with our constitutional status and our role in treaty-making, the Cree People is a distinct "political actor" in Canada. This is especially important for the purposes outlined by the Supreme Court of Canada in the Qu�bec Secession Reference and for Bill 99.

... it will be for the political actors to determine what constitutes �a clear majority on a clear question� in the circumstances under which a future referendum vote may be taken. Equally, in the event of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for the political actors to settle.

Reference re Secession of Qu�bec, supra, para. 153. See also paras. 98, 100, 101, 110.

24. For thousands of years, the James Bay Cree People has occupied, governed, used, protected, and managed its traditional territory, Eeyou Istchee, and continues to do so in a spirit of sharing. Our rights and interests with respect to our traditional territory, including lands, waters and resources, extend beyond the boundaries of Qu�bec and include offshore islands and waters in James Bay and Hudson's Bay.

25. Since our traditional territory extends beyond the boundaries of Qu�bec, it is erroneous and discriminatory to assume that the only boundary of legal or constitutional significance is that of the province. In this context, the Bill misappropriates the international law notion of "territorial integrity" so as to adversely affect our most basic rights and interests (see sub-heading 2.6.2 below).

26. This traditional territory of the Cree People, covers some 400,000 sq. km., most, if not all, of which did not form part of the province of Qu�bec at the time of Confederation in 1867. It was only in 1898 and 1912 that the traditional territory of the James Bay Crees was included in the province of Qu�bec, when the government of Canada annexed what is presently the northern two-thirds of the province to Qu�bec. These vast territorial annexations took place without the knowledge or consent of the Cree People.

Grand Council of the Crees, Sovereign Injustice [:] Forcible Inclusion of the James Bay Crees and Cree Territory into a Sovereign Qu�bec, supra, at pp. 199-217.

27. Throughout our history, the James Bay Cree People has suffered massive encroachment and dispossession in our traditional territory. These colonial actions - many of which still continue - have had far-reaching adverse effects on our lands, waters and other resources, and our northern environment. These acts serve to erode or otherwise undermine our fundamental status and rights. They illegitimately impede our ongoing development as a distinct People and Nation.

...it is of critical importance to underscore the cultural biases that contributed to the conceptual framework constructed to legitimize colonization and the various methods used to dispossess indigenous peoples and expropriate their lands, territories and resources. It is safe to say that the attitudes, doctrines and policies developed to justify the taking of lands from indigenous peoples were and continue to be largely driven by the economic agenda of States.

U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Human Rights of Indigenous Peoples: Indigenous people and their relationship to land, U.N. Doc. E/CN.4/Sub.2/1999/18 (1999) (E.-I. Daes, Special Rapporteur, Second progress report), at p. 9, para. 21.

28. In 1996, in R. v. C�t�, the Qu�bec government argued before the Supreme Court of Canada that no Aboriginal peoples have possessed any Aboriginal rights in any part of the province for the past 450 years. The government urged the Court to apply the doctrine of terra nullius ("land belonging to no one"). The use of this doctrine against indigenous peoples has been condemned internationally as being racially discriminatory and colonial.

... the [Qu�bec government's] proposed interpretation risks undermining the very purpose of s. 35(1) [of the Constitution Act, 1982] by perpetuating the historical injustices suffered by aboriginal peoples at the hands of colonizers who failed to respect the distinctive cultures of pre-existing aboriginal societies.

R. v. C�t�, [1996] 4 C.N.L.R. 26 (S.C.C.), para. 53.

In regard to the Qu�bec government�s positions in the C�t� case, see also Grand Council of the Crees, Never Without Consent [:] James Bay Crees� Stand Against Forcible Inclusion into an Independent Qu�bec (Toronto: ECW Press, 1998), at pp. 136-145; and Discriminatory and Colonial Positions Taken by the Government of Qu�bec Before Supreme Court of Canada: Denial of the Existence of Aboriginal Rights in Qu�bec, Resolution No. 11/96, Secretariat of the Assembly of First Nations of Qu�bec and Labrador, October 17, 1996.

Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind [i.e. terra nullius] can no longer be accepted. [Emphasis added.]

Mabo et al. v. State of Queensland, (1992) 107 A.L.R. 1 (High Court of Australia), at p. 42.

Terra nullius ... has no place in contemporary law. In the most literal sense, it is anachronistic ... But more important, the broader idea that the long-term inhabitants have no legally cognizable claim or title to is profoundly at odds with international human rights law and thus legally obsolete.

S. Ratner, Drawing a Better Line: Uti Possidetis and the Borders of New States, (1996) 90 American J. Int'l L. 590, at p. 615.

... any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere ...

International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, (1966) 5 I.L.M. 352, preamble.

29. In this historical context of dispossession, Bill 99 represents the most recent assault on our fundamental status and rights. The Bill�s colonial and anachronistic strategies further impair Cree/Qu�bec government relations. Despite government intentions, ongoing colonial treatment reinforces our claim to external self-determination in the Qu�bec secession context.

... le droit international est d'une grande pertinence parce que s'est d'abord lui qui le reconna�t le droit � l'autod�termination. ... Il ne semble pas, pourtant, qu'on puisse invoquer a priori ce principe au b�n�fice des peuples qui ne sont pas colonis�s au sens traditionnel. De ce point de vue les autochtones du Canada pourraient avoir de meilleures justifications � faire valoir que le peuple du Qu�bec. [Emphasis added.]

H. Brun & G. Tremblay, Droit constitutionnel, 2e �d. (Cowansville, Qu�bec: Les �ditions Y.Blais, 1990), at p. 236. This passage is cited in Bertrand v. B�gin et al., [1996] R.J.Q. 2393 (C.S.), at p. 2406.

... limitations [to the right to self-determination] are applicable only in certain circumstances, such as where internal self-determination has already occurred and where there are compelling reasons for them in the society concerned.

R. McCorquodale, "Human Rights and Self-Determination" in M. Sellers, ed., The New World Order [:] Sovereignty, Human Rights, and the Self-Determination of Peoples (Oxford/Washington, D.C.: Berg, 1996) 9 at p. 10.

30. For the past three decades, the Grand Council of the Crees has acted on behalf of and represented the James Bay Cree People in all matters pertaining to its status, rights and interests. Since 1987, the Grand Council has had consultative status as a Non-Governmental Organization (NGO) with the United Nations Economic and Social Council.

31. The Grand Council is also a party to, and a signatory of, the James Bay and Northern Qu�bec Agreement. This Treaty was approved, given effect and declared valid by federal and provincial legislation.

James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976-1977, c. 32

An Act approving the Agreement concerning James Bay and Northern Quebec, S.Q., 1976, c. 46

32. The Grand Council continues to strive, both in Canada and internationally, to safeguard and advance the Aboriginal, treaty and other constitutional and human rights of the James Bay Crees. At the same time, the Grand Council seeks to contribute to the recognition and respect of the fundamental rights of all Indigenous Peoples. We are committed to ensuring fairness and justice under domestic and international law.

II. FUNDAMENTAL DEFECTS OF BILL 99 [top]

33. Under the following sub-headings, the various defects in Bill 99 are briefly described.

Included are a broad range of deficiencies such as unconstitutional provisions, denial of Peoples� status and rights, violation of the constitutional principles highlighted in the Secession Reference, inconsistencies with international law and self-serving double standards.

34. The deficiencies outlined are so critical that they wholly preclude any claims of legitimacy and necessitate outright rejection of the whole Bill.

2.1 Fabrication of a Single "Qu�bec People" in the Province [top]

35. In the very first preamble of the Bill, it is stated that "the Qu�bec people possesses specific characteristics and a deep_rooted historical continuity in a territory over which it exercises its rights through a modern national state ..." Yet nowhere in the Bill is there an indication as to what "specific characteristics" are possessed by the "Qu�bec people". The Bill as a whole erroneously implies that there is only a single "Qu�bec people" within the whole province who will determine alone its future.

If the definition of a people were to be given such a broad scope as to extend to all Quebecers, then the wide definition would mean that other groups within Qu�bec, especially the Aboriginal people, would also have to be acknowledged as a people, with a like right to secede from Qu�bec.

P. Hogg, Principles Governing the Secession of Quebec, (1997) 8.1 N.J.C.L. 19, at p. 31.

... the inhabitants of the province of Qu�bec as a whole are not a single people, and therefore the province does not constitute a self-determination unit for the purposes of international law.

P. Russell & B. Ryder, Ratifying a Postreferendum Agreement on Qu�bec Sovereignty (Toronto: C.D. Howe Institute, 1997), at p. 4.

... the entire population of Qu�bec is not a single �people�. [new para.] There are no objective �ethnic� criteria that would make the Anglophones of Qu�bec or the Inuit [or] its various First Nations any less a �people� than the Francophones of Qu�bec...[new para.]...It is an affront to individual freedom and dignity to deny a place for self-identification in the determination of who is a �people�.

B. Schwartz, Last Best Hope: Qu�bec Secession - Lincoln�s Lessons for Canada (Calgary: Detselig Enterprises Ltd., 1998), at p. 25.

Similarly, see M.E. Turpel, "The Cultural Non-Homogeneity of Quebec: Secessionism, Indigenous Legal Perspectives and Inseparability" in D. Clark & R. Williamson, eds., Self-Determination: International Perspectives (New York: St. Martin�s Press, 1996) 284.

36. As suggested by the references in this Brief, some Quebecers view themselves as a part of the "French Canadian People". Others identify as part of a "Qu�bec People", which is composed of at least one but certainly not all of the Peoples in Qu�bec. We do not question how others define themselves. However, the Cree People, like other Peoples, have the right to self-identification.

37. Generally, commentators in Qu�bec do not share the view that there is a single "Qu�bec people" that is coincident with the boundaries of the province. The National Assembly cannot validly invent a different reality through the magic of vocabulary in Bill 99.

... on parle couramment de nation qu�b�coise. Ce qui est une erreur, sinon une mystification. Si nos concitoyens anglais du Qu�bec ne se sentent pas appartenir � notre nation, si beacoup d�allophones y r�pugnent, si les autochtones s�y refusent, puis-je les y englober par la magie du vocabulaire? L'histoire a fa�onn� une nation fran�aise en Am�rique; par quelle d�cision subite pense-t-on la changer en une nation qu�b�coise? D�finir la nation par des fronti�res territoriales, c'est affirmer que l'�tat s'identifie � elle; construction toute verbale et parfaitement artificielle de tacticiens politiques ... De tout mani�re, anglophones et autochtones ne seront pas dupes; ils verront sans peine que nous d�sirons simplement �pouser � notre profit une logique que nous reprouvons lorsqu'elle nous d�favorise. [Emphasis added.]

F. Dumont, Raisons communes (Montr�al: Bor�al, 1995) at pp. 63-64. See also J.-M. Leger, "Il n�y a pas de nation qu�b�coise", Le Devoir (8 October 1999) p. A11 (there exists a French-Canadian nation, but not a Qu�bec nation); L. Gagnon, "Nationalisme et confusion s�mantique", La Presse (13 December 1997) p. B3.

... il est odieux de refuser aux autres un droit qu'on s'accorde � soi-m�me. Si les Qu�b�cois ont le droit de d�cider qu'ils sont un peuple distinct du peuple canadien, les Am�rindiens ... ont un droit �quivalent. Ils peuvent d�cider qu'ils sont des peuples distincts du peuple qu�b�cois ou qu'ils ne sont pas des peuples distincts du peuple canadien. [Emphasis added.]

J.-P. Derriennic, Nationalisme et D�mocratie [:] R�flexion sur les illusions des ind�pendantistes qu�b�cois, (Montr�al: �ditions du Bor�al, 1995) at pp. 73-74.

Le Qu�bec n�est pas compos� d�un seul peuple comme les ind�pendantistes cherchent � le faire croire. On retrouve, sur le territoire du Qu�bec, les Premi�res Nations dont chaque groupe autochtone forme un peuple.

G. Bertrand, Plaidoyer pour les citoyens (Montreal: Les �ditions Balzac, 1996), at p. 40.

Les partenaires historiques de l�Union canadienne sont h�t�rog�nes: des provinces, des soci�t�s distinctes, des peuples anglophones, autochtones, francophones.

G. Laforest, "Se placer dans les souliers des autres partenaires dans l�union canadienne", in G. Laforest & R. Gibbons, eds, Sortir de l�impasse [:] les voies de la r�conciliation (Montreal: Institut de recherche en politiques publiques, 1998) 55, at p. 71.

See also D. Del�ge, "Les trois peuples fondateurs du Qu�bec", Le Devoir (24-25 July 1999) p. A9.

38. According to a CROP poll taken in Montreal within the last year, more Quebecers are of the view that the Crees and Inuit constitute a people (80%) and that Canadians constitute a people (86%) than they are that Quebecers constitute a people (77%). Religious, social and union leaders in Qu�bec have also recognized that there is not a single "Qu�bec people" in the province.

D. Lessard, "Les souverainistes cherchent un divorce � l�amiable", La Presse (27 March 1999) p. B1 (re CROP poll).

Le Forum paritaire reconna�t le droit � l�autod�termination des peuples vivant au Qu�bec, soit les onze peuples autochtones et le peuple qu�b�cois.

Forum paritaire qu�b�cois-autochtone, "Manifeste concernant l�avenir des relations entre les Autochtones et les Qu�b�cois, 1993", para. 4.1 in P. Trudel, ed., Autochtones et Qu�b�cois: La rencontre des nationalismes (Montreal: Recherches am�rindiennes au Qu�bec, 1995), Annex 1, at p. 180.

39. Yet Bill 99 erroneously stipulates in s. 1 that "[t]he right of the Qu�bec people to self_determination is founded in fact and in law." The Bill then declares in s. 2 that the "Qu�bec people" alone has the right to decide the political regime and legal status of Qu�bec." This latter declaration, if adopted, would be unconstitutional. It would violate our treaty, Aboriginal and other human rights, including our right to self-determination.

Les droits [des peuples autochtones] garantis par le Canada sont des droits inh�rents...Selon la Constitution et le droit international, le consentement des Autochtones est n�cessaire � tout modification du statut politique et constitutionnel du Qu�bec, dans la mesure o� leurs droits sont affect�s. [Emphasis added.]

�. Schwimmer, avec la collaboration de M. Chartier, Le Syndrome des Plaines d'Abraham (Montr�al: Les �ditions du Bor�al, 1995), at p. 182.

Le peuple canadien-anglais, le peuple qu�b�cois, le peuple acadien et les peuples autochtones d�tiennent tous, en parall�le, la l�gitimit� qui est inh�rente � leur statut de peuples et sont tous titulaires du droit � l�autod�termination. Aucun de ces peuples ne peut pr�tendre monopoliser l�exercice du droit � l�autod�termination qui appartient � chacun d�eux, en s�imposant aux autres. [Emphasis added.]

Amicus curiae, "R�ponses �crites aux questions pos�es par la Cour Supr�me du Canada � l�amicus curiae le 19 f�vrier 1998", 6 March 1998, (submitted to Supreme Court of Canada, in Reference re Secession of Qu�bec), Tab 21, p. 7.

40. In particular, it is a constitutional requirement that Cree treaty rights under the James Bay and Northern Qu�bec Agreement (JBNQA) not be amended without Cree consent. Every chapter of JBNQA is subject to a general consent provision, or else includes a specific requirement for Cree consent to any amendment or modification.

JBNQA, ss. 2.15 (general consent provision); 3.7; 5.6; 6.6; 7.5; 8.19; 9.0.4; 10.0.19; 11A.0.9; 11B.0.18; 12.0.3; 13.0.3.; 14.0.29; 15.0.27; 16.0.38; 17.0.88; 18.0.38; 19.4; 20.0.27; 21.0.20; 22.7.10; 23.7.10; 24.15.1; 26.0.10; 27.0.10; 28.18.1; 29.0.44.

[TheAgreement] was negotiated in a federal context, and it provides for continuing Government obligations, some of which are owed by the Government of Canada...and others by the Government of Qu�bec. The Agreement makes no provision for the fulfilment of Canada�s obligations in the event of Qu�bec becoming an independent state. Since Canada�s obligations could no longer be fulfilled in an independent Qu�bec, and would have to be assumed by the new state of Qu�bec, a secession would constitute a breach of the Agreement. The Agreement could be amended, of course, but only with the consent of the Aboriginal nations who are parties to it. [Emphasis added.]

P. Hogg, Principles Governing the Secession of Quebec, supra, at p. 44.

Le territoire actuel du Qu�bec s�est agrandi en 1898 et en 1912 par l�effet de deux lois du Parlement canadien ... les peuples demeurant sur ces territoires doivent consentir � un nouveau transfert, qui se ferait, dans notre hypoth�se, en faveur du Qu�bec nouveau.

R. Janda, La double ind�pendance [:] La naissance d�un Qu�bec nouveau et la renaissance du Bas-Canada (Montreal: Les �ditions Varia, 1998), at p. 93.

See also A. Orkin & J. Birenbaum, "The Aboriginal Argument: the Requirement of Aboriginal Consent" in D. Schneiderman, ed., The Qu�bec Decision[:] Perspectives on the Supreme Court Ruling on Secession, supra, 83.

41. In the absence of Cree consent, a significant change in the legal status of Qu�bec would constitute a fundamental breach of JBNQA. This is especially true, in the case of Qu�bec secession.

Unilateral secession of Qu�bec would mean that one level of government ... would no longer be able to carry out its obligations under the Agreement, and thus would constitute a fundamental breach of its terms. This would have the result of reopening the question of Aboriginal rights in the territories covered by the Agreement, as well as that of the inclusion of these territories in Qu�bec - which inclusion is, arguably conditional on the terms of the Agreement. [Emphasis added.]

R. Howse & A. Malkin, Canadians are a Sovereign People: How the Supreme Court Should Approach the Reference on Qu�bec Secession, (1997) 76 Can. Bar Rev. 186, at p. 210, n. 87.

42. Since the term "Qu�bec people", as used under Bill 99, is factually and legally incorrect, the integrity and coherence of virtually the whole Bill is gravely impacted. Most of the substantive sections (7 out of 11) of the Bill refer to an invented "Qu�bec people".

43. For example, the assertions of the right of the "Qu�bec people" to self-determination in ss. 1 and 3 become meaningless. This is because the holder of the right, namely a single "People" in Qu�bec, does not truly exist in fact or in law. This confusion is compounded when the Bill declares in s. 5 that the "Qu�bec State" derives its legitimacy from the will of the people. The fictitious term "Qu�bec people" is thus intimately tied to the notion of the "Qu�bec State". These widespread defects concerning the "Qu�bec people" constitute a huge deception. They render the Bill fatally flawed.

44. The fabrication in the Bill of a single "Qu�bec people" has other serious and far-ranging consequences. In particular, it seeks to deny Aboriginal Peoples our status as Peoples so as to deny us our right of self-determination. This would violate the principles of equality and non-discrimination.

In this Convention, the term �racial discrimination� shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. [Emphasis added.]

International Convention on the Elimination of All Forms of Racial Discrimination, supra. art. 1, para. 1. Similarly, see Charter of Human Rights and Freedoms, R.S.Q. c. C-12, s. 10.

The exclusion of an indigenous people from the status of being a �people� has at least the effect of creating discriminatory access to the special kind of freedom that other peoples enjoy, namely that of the human right to self-determination.

C. Scott, Indigenous Self-Determination and Decolonization of the International Imagination: A Plea, (1996) 18 Human Rts. Q. 814, at p. 817.

Je dois dire d�embl�e qu�il faut admettre le principe de l��galit� entre le peuple qu�b�cois et les onze peuples autochtones vivant en totalit� ou en partie sur le territoire de la province du Qu�bec.

M. Seymour, La Nation en question, (Montreal: �ditions de l�Hexagone, 1999), at p. 155.

45. Presently, the province of Qu�bec is made up of numerous peoples, including distinct Aboriginal Peoples. It cannot be said by the National Assembly or government of Qu�bec that there is a single "People" within the province for the purposes of exercising the right of self-determination.

Aboriginal Peoples are each a distinct "people" and "nation", as recognized under international and domestic law. The treaty-making capacity of Aboriginal Peoples is an important aspect and manifestation of their unique status.

First Nations in Qu�bec, "Fundamental Principles of Peaceful Co-Existence", adopted May 1998 (Secretariat of the Assembly of First Nations of Qu�bec and Labrador), Principle 2.

46. The common characteristics shared by the James Bay Cree People are very different from those "specific characteristics" shared by francophones and possibly other Quebecers. Aboriginal Peoples in Qu�bec each constitute a distinct people with a distinct history. We cannot be included as a part of a single "Qu�bec people" for self-determination or secession purposes, without our free and informed consent. This would be a violation of our own right to self-determination and self-identification.

Aboriginal peoples are entitled to identify their own national units for purposes of exercising the right to self-determination. Given the variety of ways in which Aboriginal nations may be configured and the strong subjective element, any self-identification initiative must necessarily come from the people actually concerned.

Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (Ottawa: Canada Communication Group, 1996), vol. 2(1), at p. 182.

Self-identification as indigenous or tribal shall be regarded as a fundamental criterion ...

Indigenous and Tribal Peoples Convention, 1989 (No. 169), I.L.O. Convention No. 169, I.L.O., 76th Sess., (1989) 28 I.L.M. 1382, art. 1, para. 2.

... indigenous peoples constitute distinct peoples and societies, with the right to self-determination, including the right to autonomy, self-government, and self-identification.

Nuuk Conclusions and Recommendations on Indigenous Autonomy and Self-Government, United Nations Meeting of Experts, Nuuk, Greenland, 24-28 September 1991, U.N. Doc. E/CN.4/1992/42 and Add.1, preamble.

47. It is also incorrect for the preamble to imply that there is a single "deep-rooted historical continuity" by the "Qu�bec people", in regard to territory in Qu�bec. As already described, the northern two-thirds of the province were only annexed to what is now Qu�bec in 1898 and 1912. This annexation took place without our knowledge or consent. For thousands of years, this vast region has been and continues to be the traditional territory of the James Bay Crees and other Aboriginal peoples. In contrast, in the southern portion of the province, Quebecers have only a history dating back a few hundred years.

An Act respecting the north-western, northern and north-eastern boundaries of the province of Quebec, S.C. 1898, c. 3

An Act respecting the delineation of the north-western, northern and north-eastern boundaries of the province of Quebec, S.Q. 1898, c. 6

An Act to extend the Boundaries of the Province of Quebec, S.C. 1912, c. 45

An Act respecting the extension of the Province of Quebec by the annexation of Ungava, S.Q. 1912, c. 7.

48. The fiction of a single "Qu�bec people" is not limited to Bill 99. It is also an integral part of the sovereignty argument in the policy programme of the Parti Qu�b�cois (PQ). Rather than build on the strengths of Quebecers, both Bill 99 and the PQ policy programme seek to accede to sovereignty at the expense of Aboriginal Peoples - i.e. by denying Aboriginal Peoples in Qu�bec their status as "Peoples" with the right to self-determination.

Le peuple qu�b�cois, compos� de l�ensemble de ses citoyennes et ses citoyens, est libre de d�cider lui-m�me de son statut et de son avenir.

Parti Qu�b�cois, La volont� de r�ussir: Programme et statuts du Parti Qu�b�cois (Montreal: Parti Qu�b�cois, 1997), at p. 1.

49. Both Bill 99 and the PQ policy programme refer to Aboriginal Peoples as "Nations", with the view of denying us our right to self-determination. Similarly, Qu�bec�s 1998 policy on Aboriginal affairs meticulously avoids use of the term "Peoples" (unless quoting the term from other instruments). These ruses with terminology undermine the PQ government�s own credibility, in respect to fundamental matters such as human rights.

Parti Qu�b�cois, La volont� de r�ussir: Programme et statuts du Parti Qu�b�cois, supra, at p. 18. See, generally, Secr�tariat aux affaires autochtones, Partnership, Development, Achievement (Qu�bec: Gouvernement du Qu�bec, 1998).

The Indian nations had always been considered as distinct, independent political communities, retaining their original rights, as the undisputed possessors of the soil, from time immemorial ... The very term �nation,� so generally applied to them, means �a people distinct from the others.�

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), at p. 559.

50. Despite Bill 99, the James Bay Crees continue to have both the objective elements (e.g. common language, history, culture, race or ethnicity, way of life, and territory) and subjective elements (the will to identify and assert its existence as a People) to constitute a "People" for purposes of self-determination under domestic and international law.

Indigenous peoples ... in Canada ... unquestionably constitute �peoples� for the purposes of self-determination status.

M. Bryant, "Aboriginal Self-Determination: The Status of Canadian Aboriginal Peoples at International Law", (1992) 56 Sask. L. Rev. 267, at p. 285.

For purposes of self-determination, Aboriginal peoples should be seen as organic political and cultural entities, not groups of individuals united by racial characteristics.

Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, supra, vol. 2(1), at p. 176.

51. In the Secession Reference, the Supreme Court expressly chose not to resolve the question of "Peoples" in the Qu�bec context for self-determination purposes. However, the Court indicated that the characteristics of a "People" include a common language and culture. This necessarily suggests that the Court is not moving towards any definition of a single "Qu�bec people", so as to coincide with Qu�bec�s geographical boundaries.

While much of the Quebec population certainly shares many of the characteristics (such as a common language and culture) that would be considered in determining whether a specific group is a "people", as do other groups within Quebec and/or Canada, it is not necessary to explore this legal characterization to resolve Question 2 appropriately. [Emphasis added.]

Reference re Secession of Qu�bec, supra, para. 125.

2.2 Denial of Right of James Bay Cree People to Self-Determination [top]

52. The right of Aboriginal peoples to self-determination is increasingly recognized both in Canada and internationally.

Indigenous peoples have the right of self_determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

United Nations Declaration on the Rights of Indigenous Peoples (Draft), in U.N. Doc. E/CN.4/1995/2 - E/CN.4/Sub.2/1994/56 (1994)105, (1995) 34 I.L.M. 541, para. 3.

... indigenous peoples have the right to determine their own destiny by choosing their institutions, their political status and that of their territory

Resolution on Action Required Internationally to Provide Effective Protection for Indigenous Peoples, Eur. Parl. Doc. PV 58(II) (1994), para. 2.

... indigenous peoples ... have the right to self-determination, and ... the existing State has a duty to accommodate the aspirations of indigenous peoples through constitutional reforms designed to share power democratically.

E.-I. Daes, Some Considerations on the Right of Indigenous Peoples to Self-Determination, (1993) 3 Transnat'l L. & Contemp. Probs. 1, at p. 9.

[The right of self-determination] now applies to all peoples in all territories, not just colonial territories, and to all peoples within a state.

R. McCorquodale, "Human Rights and Self-Determination" in M. Sellers, ed., The New World Order [:] Sovereignty, Human Rights, and the Self-Determination of Peoples, supra, at p. 9.

International law today includes a body of conventional and customary norms concerning indigenous peoples, grounded in the principle of self-determination.

S. J. Anaya, Indigenous Peoples in International Law (Oxford/New York: Oxford University Press, 1996), at p. 183.

53. Qu�bec�s own human rights commission and others in Qu�bec recognize that Aboriginal Peoples in Qu�bec have the right to self-determination.

La reconnaissance du droit � l'autod�termination et � l'autonomie politique des nations autochtones doit �tre explicite dans les lois fondamentales du Canada et des provinces.

Commission des droits de la personne du Qu�bec, M�moire de la Commission des droits de la personne pr�sent� � la Commission royale sur les peuples autochtones (Montr�al: November 1993) at p. 43.

... ces peuples-l� [nations autochtones et Qu�b�cois] vont devoir parler ensemble parce qu'ils ont tous les deux, ou tous, un droit � l'autod�termination. Je pense qu'il ne faut pas �viter cette question-l�. Il faut franchement en parler parce qu'au plan de la l�gitimit�, les peuples autochtones, les nations autochtones sur son territoire, ils ont une bonne longeur d'avance sur les francophones du Qu�bec, les anglophones du Qu�bec, tous les Europ�ens et autres nationalit�s sur ce territoire. [Emphasis added.]

Assembl�e nationale, Journal des d�bats, Commission d'�tude des questions aff�rentes � l'accession du Qu�bec � la souverainet�, 9 Oct. 1991, No. 5, at p. CEAS-137 (testimony of D. Turp).

... l'�galit� de droit des peuples autochtones et du peuple qu�b�cois doit �tre �tablie. Leur droit respectif � disposer d'eux-m�mes, � choisir librement leur statut politique et � assurer aussi librement leur d�veloppement �conomique, social et culturel doit �galement �tre affirm� avec conviction et sans reserve.

Groupe de r�flexion sur les institutions et la citoyennet� (GRIC), "Qu�b�cois-Autochtones: il faut relever le d�fi de la reconnaissance mutuelle", La Presse (2 April 1994) p. B3.

J�ose souhaiter qu�au Qu�bec , on ait ... une conception qui soit respectueuse du principe de l�autod�termination des peuples, tel qu�il s�applique non seulement pour nous, mais pour les autres aussi, y compris ceux qui vivent sur le territoire qu�b�cois.

P. Constantineau, "Le Canada, un �tat multinational?", Le Devoir (1 December 1998) p. A9.

The ultimate affront would be for us Canadians to deny that the Indians are a people. They are a people, according to any standard. They are therefore entitled to self-determination.

P. de Bellefeuille, "If Quebec rates sovereignty, why not Indians?", The [Montreal] Gazette (7 September 1978) p. 9.

54. The right of Peoples to self-determination is a human right and is a prerequisite for the enjoyment of all other human rights and freedoms. Therefore, in regard to Aboriginal Peoples, the effective denial of this right in Bill 99 is a grave violation of our human rights.

... it is certain that self-determination is now a human right in international law.

R. McCorquodale, "Human Rights and Self-Determination", supra at p. 11.

... human rights can only exist truly and fully when self-determination also exists. Such is the fundamental importance of self-determination as a human right and as a prerequisite for the enjoyment of all the other rights and freedoms.

U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination: Implementation of United Nations Resolutions, U.N. Doc. E/CN.4/Sub.2/405/Rev.1 (1980) (H. Gros Espiell, Special Rapporteur) at p. 10, para. 59.

See also United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, adopted June 25, 1993, U.N. Doc. A/CONF.157/24 (Part I) at 20 (1993), reprinted in (1993) 32 I.L.M. 1661, art. 2, para. 2 (denial of self-determination considered as a violation of human rights).

55. The right of self-determination, as provided in the international human rights Covenants, applies equally to Indigenous Peoples as it does to other peoples. In the Charter of the United Nations, the Purposes of the United Nations are said to include achievement of "international cooperation ... in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction ..."

Charter of the United Nations, Can. T.S. 1945 No. 76; [1976] Yrbk. U.N. 1043; 59 Stat. 1031, T.S. 993, Art. 1, para. 3.

All peoples have the right of self_determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

International Covenant on Civil and Political Rights, Art. 1, para. 1.

International Covenant on Economic, Social and Cultural Rights, Art. 1, para. 1.

Indigenous individuals and peoples are free and equal to all other individuals and peoples in dignity and rights, and have the right to be free from any kind of adverse discrimination, in particular that based on their indigenous origin or identity.

United Nations Declaration on the Rights of Indigenous Peoples (Draft), supra, Art. 2 [emphasis added].

The fact that Article 1 is reproduced in each of the two Covenants gives us a particular insight into the right of self-determination. Self-determination as a right, pertains not only to political status, but equally to economic, social and cultural development. As such, self-determination is a concept of sweeping scope that encompasses all aspects of human development and interaction, cultural, social, political, and economic.

T. Moses, "Self-Determination and the Survival of Indigenous Peoples: The Crucial Significance of this International Human Right", presentation at the Midnight Sun Workshop, 17-20 June 1999, Inari, Finland (publication forthcoming).

56. In Qu�bec, the James Bay Crees and other Aboriginal Peoples have each unequivocally asserted our right to self-determination, in full conformance with the international human rights Covenants.

Aboriginal Peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

First Nations in Qu�bec, "Fundamental Principles of Peaceful Co-Existence", supra, Principle 3.

57. The right to self-determination of Aboriginal Peoples is indivisible, interdependent and interrelated with all our other human rights - including our Aboriginal and treaty rights. Therefore, it is futile for Bill 99 to try to separate us from our right to self-determination. The human rights of all Peoples must be treated by governments with the same emphasis and priority. Human rights must be promoted and protected equally.

All human rights are universal, indivisible, interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. ... [I]t is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and freedoms.

United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, adopted June 25, 1993, U.N. Doc. A/CONF.157/24 (Part I) at 20 (1993), (1993) 32 I.L.M. 1661, para. 5.

A purposive approach to remedies for aboriginal rights will recognize that both the history and future of aboriginal rights involve elements of self-determination.

K. Roach, Constitutional Remedies in Canada (Aurora, Ontario: Canada Law Book, 1999), at p. 15-3.

58. The denial of Aboriginal Peoples� right to self-determination by the Qu�bec government and others is being criticized by the international community, as both hypocritical and discriminatory.

Denial of well-articulated Cree arguments for self-determination has forced the Qu�b�cois secessionist movement to adopt a blatant double-standard and a line of reasoning fraught with contradictions, which greatly undermines the legitimacy of their own claims and reveals the racist strain which often underlies the realpolitik application of self-determination theory.

R. Guglielmo, "Three Nations Warring in the Bosom of a Single State": An Exploration of Identity and Self- Determination in Qu�bec, (1997) 21 Fletcher Forum of World Affairs 197, at p. 198.

... international law does not grant autonomous regions or States within a federal government the right freely to determine their international status ...

The contrary view put forward by a number of authors, mostly of Qu�b�cois origin, is not substantiated by any valid legal arguments. It should be added that, strikingly, these commentators, while they advocate self-determination for Quebec, refuse any similar right for the indigenous populations of the region (about 60,000 Amerinds and Inuit ... ), for whom they are prepared to recognize only %aboriginal self-government&. [Emphasis added.]

A. Cassese, Self-Determination of Peoples [:] A legal reappraisal (Cambridge/New York: Cambridge University Press, 1995), at pp. 251-252.

59. It is worth noting that the government of Canada has formally declared in United Nations fora in Geneva that it is legally and morally committed to the non-discriminatory application of the right of self-determination to indigenous and non-indigenous Peoples.

[The right of self-determination] ... is fundamental to the international community, and its inclusion in the UN Charter, and in the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights bears witness to the important role that it plays in the protection of human rights of all peoples. ... Canada is therefore legally and morally committed to the observance and protection of this right. We recognize that this right applies equally to all collectivities, indigenous and non-indigenous, which qualify as peoples under international law.

Statements of the Canadian Delegation, Commission on Human Rights, 53rd Sess., Working Group established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995, 2nd Sess., Geneva, 21 October - 1 November 1996, cited in Consultations Between Canadian Aboriginal Organizations and DFAIT in Preparation for the 53rd Session of the U.N. Commission on Human Rights, February 4, 1997 (statement on art. 3, right to self-determination, on October 31, 1996).

60. Within the United Nations itself, increasing scrutiny is being given to how the right to self-determination is actually being implemented within Canada. In this regard, in its April 1999 report, the Human Rights Committee "urges [Canada] to report adequately on implementation of article 1 of the [International Covenant on Civil and Political Rights] in its next periodic report." Consequently, the discriminatory application of the right of self-determination in Bill 99 will be brought to the attention of the United Nations by the Grand Council of the Crees.

United Nations Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Covenant, 7 April 1999, CCPR/C/79/Add. 105 (Concluding observations of the Human Rights Committee), para. 7.

61. In the ongoing debate on Qu�bec secession, the Qu�bec government dismisses Canadian constitutional law when it is not useful and claims international law applies. When international law is also not helpful, the government declares that only the will of the "Qu�bec people" or the National Assembly need be respected. This type of unconstitutional, illegal and illegitimate deception is found in s. 10 of Bill 99:

10. The Qu�bec State and the National Assembly are, with regard to the exercise of the fundamental and inalienable right of the Qu�bec people to self_determination, bound only by the provisions of this Act and of applicable Acts enacted by the National Assembly.

No other parliament or government may reduce the powers, authority, sovereignty or legitimacy of the National Assembly.

%Ce qui est simple et fondamental, c'est qu'aucun juge, aucune loi, aucun tribunal n'emp�chera le peuple qu�b�cois, qui forment un peuple et une nation, de d�cider d�mocratiquement de son avenir&, a soutenu [le vice-premier ministre] M. Landry.

L. L�vesque, "%Les peuples, non pas les juges, d�cident de leur avenir& - Landry", La Presse (21 September 1996) p. A23.

Qu�bec's right to declare independence from Canada without the approval of the rest of the country, by means of a unilateral declaration of independence, is no business of the courts, [Minister of Intergovernmental Afffairs Jacques] Brassard said, %whether it is a lower court, the Superior Court, the Quebec Court of Appeal or the Supreme Court.&

And Deputy Premier Bernard Landry added that %even the international court in The Hague wouldn't be the right place because the sovereignty of nations is very fundmental law and does not have to be interpreted by this or by that. It is the sacred right of nations to be masters of their own destiny.&

E. Thompson & T. Wills, "Quebec scoffs at court test", The [Montreal] Gazette, (26 September 1996) p. A1.

62. Section 10 of Bill 99 characterizes the right of the "Qu�bec people" to self-determination as a "fundamental and inalienable" right. How then can this same "fundamental and inalienable" right be denied by the National Assembly to Aboriginal Peoples?

63. Bill 99 represents one of the worst examples of "rule by law". It violates the principles of democracy, federalism, rule of law and protection of Aboriginal and treaty rights. It runs roughshod over our human right to self-determination. It seeks to consolidate absolute power in Qu�bec�s political institutions. Ultimately, its illegitimacy even exceeds its rampant illegality.

On no account, however, can rule by laws ... be seen as a sufficient condition of legitimacy. Ultimately, one must still demonstrate to the subject people that �the law� is their law. A legal order is not merely procedure; it embodies a substantive vision of the proper ends and methods of governance ... Ultimately, it is not legality that renders an order legitimate, but legitimacy that renders an order - whether traditional, personalistic, or legalistic - a source of law.

B. Roth, Governmental Illegitimacy in International Law (Oxford: Clarendon Press, 1999), at p. 51.

2.3 Denial of Democratic Expression of Cree Will Through Referendums [top]

64. Although there exists no single "Qu�bec people", Bill 99 asserts in s. 3 that "[t]he Qu�bec people alone, acting through its own political institutions, has the right to decide the nature, scope and mode of exercise of its right to self_determination." In this way, s. 3 confers complete control of all aspects of the right of the "Qu�bec people" to self-determination to the Qu�bec government and National Assembly.

65. The Bill then purports to prohibit any "condition or mode of exercise" of this right to self-determination from having any effect, unless it is determined by the Qu�bec government or National Assembly. This prohibition includes any consultation of the "Qu�bec people" by way of referendum. Paragraph 2 of s. 3 declares:

No condition or mode of exercise of that right, in particular the consultation of the Qu�bec people by way of a referendum, shall have effect unless determined in accordance with the first paragraph.

66. Since Bill 99 incorrectly presumes that the James Bay Cree People are a part of a single "Qu�bec people", s. 3 makes no sense.

67. For example, how could any referendum consulting the Cree people comply with s. 3? Would the Crees be compelled to express our collective will solely as a part of the "Qu�bec people"? Would the result be that the James Bay Cree People would be denied the right to express its collective will through its own Cree referendums? Or would Cree referendums only be allowed to take place as determined by the political institutions of the "Qu�bec people"? If any one of these consequences might occur, then s. 3 further reinforces the undemocratic and discriminatory nature of Bill 99.

68. Section 3 seems to unlawfully limit what referendum rules might be adopted by the federal government or Parliament in the future. If a future federal referendum were to consult the population in Qu�bec (either alone or in a national referendum), then any condition or mode of exercising such vote would be determined by the "Qu�bec people" alone "through its own political institutions".

69. In addition, s. 4 of the Bill makes clear that:

When the Qu�bec people is consulted by way of a referendum under the Referendum Act, the winning option is the option that obtains a majority of the valid votes cast, namely fifty percent of the valid votes cast plus one.

70. Apparently, the intention of ss. 3 and 4 is to confer upon the Qu�bec government and National Assembly the power to ensure that all referendums concerning the "Qu�bec people" will be determined by a simple majority vote. This is to be the rule for all referendum questions, regardless of the subject or its importance.

71. No one questions the right of the government or National Assembly to consult Quebecers on any question and establish a simple majority vote. However, in regard to Qu�bec secession, ss. 3 and 4 run counter to the legal and political framework established by the Supreme Court in the Secession Reference (see also sub-heading 2.4 below). This would result in severely limiting the future options of Quebecers (see sub-heading 2.8 below).

... the initial impetus for negotiation, namely a clear majority on a clear question in favour of secession, is subject only to political evaluation, and properly so ... Only the political actors [in Canada] would have the information and expertise to make the appropriate judgment as to the point at which, and the circumstances in which ... ambiguities are resolved one way or the other.

Reference re Secession of Qu�bec, supra, para. 100.

72. In regard to the James Bay Crees, s. 4 adds again to the confusion. Is Qu�bec�s Referendum Act supposed to apply to the Cree People on matters relating to self-determination and secession, since we are compelled to identify as a part of the "Qu�bec people"? Will a simple majority vote by the "Qu�bec people", therefore, override a democratic expression of collective will by the James Bay Cree People?

73. Democratic expression of the collective will of a People is directly tied to its right of self-determination. This link is expressly recognized in the preamble of Bill 99 as follows:

... this principle [of self-determination] has applied on several occasions in the past, notably in the referendums held in 1980, 1992 and 1995 ...

74. Since there exist a number of distinct Aboriginal Peoples within the province, the Qu�bec government and National Assembly cannot ignore or deny our right to hold our own referendums on secession or other questions. Our position is wholly consistent with the principle of equal rights and self-determination of Peoples (referred to in Bill 99, s. 1). A referendum by one People, especially a fictitious "Qu�bec people", could never determine the future of other self-determining Peoples within Qu�bec.

Self-determination should be concerned primarily with people, not territory...[new para.]...If our concern is with peoples rather than territories, there is no reason to regard existing administrative or �republic� boundaries within states as sacrosanct. In most cases, the best way of determining the wishes of those within a new state would be through a series of plebiscites to redraw what were formerly internal boundaries. [Emphasis added.]

H. Hannum, "The Specter of Secession: Responding to Claims for Ethnic Self-Determination", in Foreign Affairs, vol. 77, no. 2, 1998, 13, at pp. 15, 17.

75. The Qu�bec government and the National Assembly have no authority to determine the destiny of the whole of the territory presently within the province of Qu�bec by creating a single "Qu�bec people" for self-determination purposes.

It is for the people to determine the destiny of the territory and not the territory the destiny of the people.

Western Sahara (Advisory Opinion), [1975] I.C.J. Rep. 6 at p. 32, para. 55.

It is when Qu�b�cois leaders would deny the same collective rights they have fought for and won to indigenous peoples within Qu�bec�s territory that the moral strength of their argument is utterly delegitimized, and their quest for equality degraded to nothing more than a bid for political power swathed in self-determination arguments.

R. Guglielmo, "Three Nations Warring in the Bosom of a Single State" [:] An Exploration of Identity and Self- Determination in Qu�bec, supra, at p. 217.

76. To date, the Qu�bec government and National Assembly have ignored or denied the results of Cree, Inuit and Innu referendums in 1995in the secession context. The results in favour of not being forcibly separated from Canada were in each instance over 95%. This ongoing government position, as evidenced by Bill 99, is a violation of the principles of democracy and equality and our right of self-determination.

For Aboriginal referendum results in regard to the Crees, Inuit and Innu (Montagnais) in 1995, see Y. Boisvert, "'N�mou�, disent les Cris � 96 p. cent", La Presse (26 October 1995) p. B5; A. Derfel, "'The message is clear: We won't go�: Coon Come has warning after vast majority of Crees reject Quebec independence", The [Montreal] Gazette (26 October 1995); C. Montpetit, "Inuits et Montagnais disent massivement NON", La Presse (29 October 1995) p. A2; A. Derfel, "Quebec Inuit strongly reject sovereignty in own vote", The [Montreal] Gazette (27 October 1995) p. A10.

77. In conclusion, in regard to the issue of referendums, the Qu�bec government�s position and Bill 99 are illegitimate and a violation of Aboriginal Peoples� human rights.

Pre-referendum votes by Inuit, Cree and Montagnais - with overwhelming federalist results - directly challenge the legitimacy of Qu�bec's majority deciding about the future of the whole of Quebec's territory. They challenge the legitimacy of the Quebec government claiming a mandate for sovereignty that would automatically include their peoples. [Emphasis added.]

A.C. Cairns, Why Is It So Difficult to Talk to Each Other?, (1997) 42 McGill L.J. 63 at p. 86.

Comment la doctrine souverainiste peut-elle refuser l�id�e qu�un r�f�rendum pan-canadien d�cide du futur du Qu�bec, alors qu�elle-m�me semble consid�rer qu�un r�f�rendum pan-qu�b�cois permettrait de d�cider du sort des peuples autochtones?

M. Seymour, La Nation en question, supra, at p. 183.

2.4 Imposition of "Simple Majority" Rule Contrary to Secession Reference [top]

78. As described above, ss. 3 and 4 of Bill 99 seek to establish a simple majority vote by the "Qu�bec people" in future referendums for all purposes. However, if the Qu�bec government or Quebecers wish to pursue secession in the future and give rise to a constitutional duty on the part of others to negotiate, they are obliged to respect all aspects of the Supreme Court�s judgment in the Secession Reference (see sub-heading 2.8 below).

79. In the Secession Reference, the Court repeatedly stipulated that there must be a "clear majority to a clear question" in any future referendum on Qu�bec secession. In regard to a "clear majority", the Court refused to specify what exact percentage would be necessary in order to trigger a constitutional duty on the part of other political actors to negotiate.

80. Rather, the Supreme Court emphasized that a "clear majority" was a "qualitative" evaluation.

In this context, we refer to a "clear" majority as a qualitative evaluation. The referendum result, if it is to be taken as an expression of the democratic will, must be free of ambiguity both in terms of the question asked and in terms of the support it achieves.

Reference re Secession of Qu�bec, supra, para. 87.

81. The Bouchard government has declared that, since the Court referred solely to a "qualitative" evaluation and did not also refer to a "quantitative" assessment, the simple majority rule (50% plus one) must apply.

... � aucun moment, la Cour supr�me n�a remis en cause cette r�gle, affirmant qu�il fallait une majorit� claire en sens "qualitatif" du terme, donc que les enjeux et la valeur du r�sultat doivent �tre clairs. Mais elle n�a d�lib�r�ment rien dit du sens qualitatif, c�est-�-dire du niveau de majorit� requis.

L. Bouchard, "�Un assaut contre le bon sens et la d�mocratie�", La Presse (16 December 1999) p. B3.

For opposing views, see the following:

The world has seen enough of regimes that reduce democracy to popular plebiscites to know that equating democracy with simple majority rule is a path that leads not to liberty but to tyranny. The Supreme Court of Canada�s dictum that �Democracy means more than simple majority vote� ought to be emblazoned on the banners of all societies that aspire to true democracy.

P. Russell, "The Supreme Court Ruling, A Lesson in Democracy", Cit� Libre, English ed., vol. 26, no. 4, October-November, 1998, 29, at p. 29-30.

See also J.-P. Derriennic, "Majorit� claire: mode d�emploi", Cit� Libre, vol. 26, no. 5, Dec. 1998, 33; J.-P. Derriennic, "User�s Guide to a Clear Majority", Cit� Libre, English ed., vol. 26, no. 5, Dec. 1998, 32; R. Howse & K. Knop, Federalism, Secession, and the Limits of Ethnic Accommodation: A Canadian Perspective, (1993) 1 New Europe L. Rev. 269, at 310.

82. It is disingenuous to argue that a qualitative evaluation does not include quantitative aspects. In fact, quantitative considerations are an integral part of making a qualitative assessment. In Black�s Law Dictionary, the term "quality" is defined as follows:

Quality is descriptive of organic composition of substance, expressed in definitive quantitative units, and definitive of character, nature and degree of excellence of an article. [Emphasis added.]

Black�s Law Dictionary 6th ed. (St. Paul, Minn.: West Publishing Co., 1990), at p. 1241.

83. For example, the percentage of fat or disease in meat when we go hunting is an important factor in determining the quality of the food secured. The percentage of impurities in diamonds or other jewels will obviously affect their quality. The relative percentages of sand, gravel and cement will affect the quality of concrete. The degree of cancer present in the body would clearly affect the quality of a person�s health. The number of illustrations, where quantitative considerations form an essential part of making qualitative assessments, are virtually endless.

84. Similarly, if a government is mainly representative of one distinct People and not all of the Peoples in a given state, it impairs the quality of democratic governance and participation.

... the government must be substantially representative of all distinct groups in the country. This is a logical interpretation of the phrase �[e]veryone has the right to take part in the government� in article 21 of the Universal Declaration...[T]his provision denotes an active participation beyond the initial consent usually expressed through free elections.

R. Ezetah, The Right to Democracy: A Qualitative Inquiry, (1997) 22 Brook. J. Int�l L. 495, at pp. 514-515.

Universal Declaration of Human Rights, U.N.G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 21.

85. Further, in recent newspaper advertisements against the federal Clarity Bill, the Qu�bec government has argued the following:

... by changing the 50% + 1 rule, the federalists would be giving themselves a mathematical advantage over the sovereignists. The fundamental principles of one person, one vote and the rights of all voters would be seriously compromised ... a dangerous precedent for a country that considers itself to be a model of democracy for the rest of the world.

Government of Qu�bec, "In the United Nations, democracy means 50% + 1 of the vote" (advertisement), The [Montreal] Gazette (27 November 1999) p. C9.

86. First, a higher percentage majority vote has absolutely nothing to do with conferring an advantage to one side over the other. It strictly relates to the importance attributed to a particular question. Such qualified majorities exist in every legal system in the world (e.g. shareholder votes, dissolution of a company, etc.). The legal system in Qu�bec is no exception.

87. Second, it is erroneous to indicate that the fundamental principle in Canada is absolutely "one person, one vote". The Supreme Court of Canada has confirmed that Canada is a representative democracy. The constitutional right to vote in Canada is not strictly defined in terms of "one person, one vote" (as in the United States), but rather in terms of ensuring effective representation. It is effective representation that is the hallmark of a free and democratic society in this country:

It is my conclusion that the purpose of the right to vote enshrined in s. 3 of the Charter is not equality of voting power per se, but the right to "effective representation". Ours is a representative democracy. (p. 185, emphasis added)

... it would be wrong to infer that in enshrining the right to vote in our written constitution the intention was to adopt the American model. On the contrary, we should assume that the goal was to recognize the right affirmed in this country since the time of our first Prime Minister, Sir John A. Macdonald, to effective representation in a system which gives due weight to voter parity but admits other considerations where necessary. (p. 185-186)

... the purpose of the guarantee of the right to vote is not to effect perfect voter equality, in so far as that can be done, but the broader goal of guaranteeing effective representation. (p. 186, emphasis added)

In the final analysis, the values and principles animating a free and democratic society are arguably best served by a definition that places effective representation at the heart of the right to vote. The concerns which Dickson C.J. in Oakes associated with a free and democratic society __ respect for the inherent dignity of the human person, commitment to social justice and equality, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals in society __ are better met by an electoral system that focuses on effective representation than by one that focuses on mathematical parity. (p. 188)

In summary, I am satisfied that the precepts which govern the interpretation of Charter rights support the conclusion that the right to vote should be defined as guaranteeing the right to effective representation. The concept of absolute voter parity does not accord with the development of the right to vote in the Canadian context and does not permit of sufficient flexibility to meet the practical difficulties inherent in representative government in a country such as Canada. In the end, it is the broader concept of effective representation which best serves the interests of a free and democratic society. (pp. 188-189, emphasis added)

Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158 (per McLachlin J.).

For a similar view by the Australian High Court, see Attorney_General (Aus.); Ex rel. McKinlay v. Commonwealth, (1975) 135 C.L.R. 1, at p. 57 (per Stephen J.).

88. In the Qu�bec Secession Reference, the Supreme Court makes clear that the principle of respecting the sovereign will of a people must not be overstated. There are different majorities throughout Canada and each have equal legitimacy.

It is, of course, true that democracy expresses the sovereign will of the people. Yet this expression, too, must be taken in the context of the other institutional values we have identified as pertinent to this Reference. The relationship between democracy and federalism means, for example, that in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level. No one majority is more or less "legitimate" than the others as an expression of democratic opinion, although, of course, the consequences will vary with the subject matter. (para. 66, emphasis added)

Canadians have never accepted that ours is a system of simple majority rule. Our principle of democracy, taken in conjunction with the other constitutional principles discussed here, is richer. (para. 76)

Reference re Secession of Qu�bec, supra.

89. In regard to a "clear majority" in any future referendum vote on secession, the Supreme Court added the adjective "clear" in virtually all instances. In the judgment, there are approximately 24 references to a "clear" majority or "clear" expression of will.

Reference re Secession of Qu�bec, supra, paras. 86, 87 (2 times), 88 (3 times), 92 (4 times), 93 (3 times), 100, 104, 139, 148, 150, 151 (4 times), 153, 154.

90. Moreover, the Court expressly left the determination of what constitutes a "clear majority" vote to the sole judgment of the political actors in Canada. The Court did not wish any strict legal "rule" to apply.

... the initial impetus for negotiation, namely a clear majority on a clear question in favour of secession, is subject only to political evaluation, and properly so. A right and a corresponding duty to negotiate secession cannot be built on an alleged expression of democratic will if the expression of democratic will is itself fraught with ambiguities. Only the political actors would have the information and expertise to make the appropriate judgment as to the point at which, and the circumstances in which, those ambiguities are resolved one way or the other.

Reference re Secession of Qu�bec, supra, para. 100. [Emphasis added.]

91. The constitutional principle of democracy is a much richer than the simplistic notion that the Qu�bec government is seeking to rigidly impose in Bill 99. In the Secession Reference, the Supreme Court indicated that values inherent in the notion of democracy include a "commitment to social justice and equality", as well as "respect for cultural and group identity". In regard to Aboriginal Peoples, these are precisely the democratic values that are being disrespected in the Bill.

Reference re Secession of Qu�bec, supra, para. 64.

92. Furthermore, the right to self-determination is described as "the oldest aspect of the democratic entitlement". Yet the right of self-determination of Aboriginal Peoples is exactly what Bill 99 seeks to deny.

... self-determination is the oldest aspect of the democratic entitlement ... Self-determination postulates the right of a people in an established territory to determine its collective political destiny in a democratic fashion and is therefore at the core of the democratic entitlement.

T. Franck, The Emerging Right to Democratic Governance, (1992) 86 Am. J. Int�l L. 46 at p. 52.

... the denial of self-determination is essentially incompatible with true democracy. Only if the peoples� right to self-determination is respected can a democratic society flourish ...

R. Stavenhagen, "Self-Determination: Right or Demon?" in D. Clark & R. Williamson, eds., Self-Determination: International Perspectives, supra, at p. 8.

93. A one-person, one-vote notion of democracy is not intended to respond to differing demands for self-determination by different Peoples. In terms of Qu�bec secession, Bill 99 seeks to strip us of collective decision-making about the future of the Cree People, its traditional territory and resources. It does this under the guise of simple majoritarian democracy that Qu�bec would never accept if imposed on Quebecers by Canada.

Among the pillars of human rights norms...the demands of democracy are generally seen to be fulfilled in a democratic system which ensures one-person, one-vote. However, ... these human rights norms were not intended to respond to demands for self-determination that include an ethnic, linguistic, or similar component and arise within an existing state. [Emphasis added.]

H. Hannum, Rethinking Self-Determination, (1993) 34 Virginia J. Int'l L. 1, at p. 60.

Free and democratic elections� frequently lead outcomes that can be characterized as undemocratic. An uncontroversial example is predatory majoritarianism, where elections empower a majority faction to oppress an ethnic minority: instead of conferring on all citizens equal influence over the collective decisions that affect their lives, the elections leave members of the minority group totally without influence on those decisions - a potentially fatal circumstance.

B. Roth, Governmental Illegitimacy in International Law, supra, at p. 421.

94. In recent advertisements, the Qu�bec government declares that each People has the right to decide its own destiny. This is said to be a part of the foundation of democracy. If so, why does the government use a discriminatory double standard against Aboriginal Peoples in Bill 99?

... tout le monde reconna�t que chaque peuple a le droit de d�cider de sa destin�e. Cela fait partie des bases m�me de la d�mocratie.

Gouvernement du Qu�bec, "Quand on joue avec la d�mocratie, c�est tout le Canada qui perd des plumes" (advertisement), Le Devoir (27 January 2000), p. A5.

... if a vote is registered in favour of sovereignty, it could legitimize the appropriation of aboriginal territories and the assumption of authority over them ... [new para.] Is a simple 50-plus-1 majority enough in these circumstances? If it was, this could mean that aboriginal peoples' self-determination rights would be overridden, as aboriginal peoples may simply be outvoted by larger populations in non-aboriginal regions of Qu�bec. This kind of referendum could not be upheld internationally as supporting accession to sovereignty because of its implications for aboriginal peoples. [Emphasis added.]

M.E. Turpel, "Does the Road to Qu�bec Sovereignty Run Through Aboriginal Territory?" in D. Drache & R. Perrin, (ed.), Negotiating With a Sovereign Qu�bec (Toronto: James Lorimer & Co., 1992) 93, at p. 105.

95. It has also been declared in advertisements by Qu�bec that, in the United Nations, democracy means 50% + 1. However, the countries used as examples are those who are in colonized situations and/or have been subjected to illegal annexations and other undemocratic actions. These countries have very different histories and circumstances than those in Canada. While colonized peoples have a recognized right of secession, this right does not exist for Quebecers since they exercise internal self-determination and are neither oppressed nor colonized.

In all secession referendums supervised or conducted by the United Nations, results are interpreted according to the rule of simple majority, in other words, 50% + 1 of the popular vote.

The cases referred to are those of the Eritrean Republic (1993), East Timor (1999) and the Western Sahara ...

Government of Qu�bec, "In the United Nations, democracy means 50% + 1 of the vote" (advertisement), The [Montreal] Gazette (27 November 1999), p. C9.

96. The fact that there is no clear precedent for the situation of Qu�bec secession has been recognized by Bloc MP and international law professor Daniel Turp. In addition, he has specifically confirmed that there is no international rule of 50% plus one to initiate a secession process. As reported in The [Montreal] Gazette, Turp has concluded:

There�s no country that has been created in the same kind of process that Qu�bec and the Parti Qu�b�cois and the Bloc Qu�b�cois intends to create the country. So there�s no precedent of that nature. ...

Turp was then asked, �Is it an international rule that 50 per cent plus one is a sufficient majority to set in process a secession?�

There�s no rule. ... No. There�s no rule. We can�t point our finger to any kind of rule in that area.

P. Wells, "�No rule� on 50% plus 1: BQ MP", The [Montreal] Gazette (13 June 1997) p. A10.

97. In keeping with the legal and political framework established in the Secession Reference, the determination of what constitutes a "clear majority" in any future referendum on secession will have to remain flexible. A referendum result is only one of a number of factors to consider. It can only be assessed by the political actors in Canada, in a principled manner, according to the prevailing circumstances at such time.

It is not useful to speculate on a magic number which must be achieved in a referendum to satisfy the subjective criteria of the unequivocal expression of a will to live separate and apart from Canada. However, in the example of the Baltic and Yugoslavian states ... , the level of support for unqualified independence was between 74-94%. Based on the precedents, a simple majority would be insufficient to support this claim. [Emphasis added.]

N. Finkelstein, G. Vegh & C. Joly, Does Qu�bec Have a Right to Secede at International Law?, (1995) 74 Can. Bar Rev. 225, at pp. 251-252.

98. However, in no case can a referendum vote by the "French Canadian People" or the "Qu�bec people" determine the future of the James Bay Cree People and Eeyou Istchee. As a distinct and self-determining People, we will conduct our own referendums in this regard.

It must also be recognized that there are a number of Aboriginal peoples within the province of Qu�bec whose right to self-determination - in both moral and legal terms - is as strong, if not stronger, as any that the Qu�b�cois people can claim. Therefore, a majority vote of Quebecers cannot be regarded as having the legal or moral authority to seal the constitutional destiny of Aboriginal peoples whose homeland is partly or entirely in Qu�bec.

P. Russell & B. Ryder, Ratifying a Postreferendum Agreement on Qu�bec Sovereignty, supra, at p. 5.

Certes, un peuple plus nombreux ne peut imposer sa volont� � un peuple moins nombreux en ce qui a trait au droit des peuples disposer d�eux-m�mes, c�est-�-dire � s�autod�terminer moralement.

M. Seymour, La Nation en question, supra, at p. 29.

2.4.1 Related notion of interdependence

99. A further reason why a simple majority vote is insufficient to give rise to a constitutional duty to negotiate secession is related to the notion of interdependence.

100. In the Secession Reference, the Supreme Court described the interdependence that exists in Canada. The close ties of interdependence are highlighted in economic, social, political and cultural forms. The Court also underlined that a democratic decision by Quebecers in favour of secession would put numerous long-held relationships "at risk".

In the 131 years since Confederation, the people of the provinces and territories have created close ties of interdependence (economically, socially, politically and culturally) based on shared values that include federalism, democracy, constitutionalism and the rule of law, and respect for minorities. A democratic decision of Quebecers in favour of secession would put those relationships at risk.

Reference re Secession of Qu�bec, supra, para. 149.

101. In relation to Aboriginal Peoples, both the dynamic of interdependence and our historical relationships have existed for hundreds of years. The Royal Proclamation of 1763 attests to this ancestral and ongoing context. We have extensive treaty and Aboriginal rights, including territorial rights, that extend beyond the borders of the province. Our historical and constitutional relationship with the federal Crown is of a fiduciary nature. No government can unilaterally sever or alter this dynamic of interdependence.

Indigenous empowerment involves achieving a relationship between peoples founded on the principle of autonomy and interdependence. To accommodate indigenous notions of nationhood and cease its interference in indigenous communities, the state need only refer to the federal principle.

T. Alfred, Peace, Power, Righteousness [:] An Indigenous Manifesto (New York: Oxford University Press, 1999), at p. 53.

102. In the event of secession, the Qu�bec government erroneously believes it can simply assume the fiduciary relationship of the federal Crown. However, the constitutional framework would be fundamentally altered which requires our free and informed consent. Moreover, we have the right to determine our own relationships which cannot be unilaterally terminated or modified by Qu�bec.

... Parliament and the Government of Canada recognize and affirm a special responsibility for the said Crees and Inuit ...

James Bay and Northern Quebec Native Claims Settlement Act, supra, preamble.

... indigenous peoples have the right freely to determine their relationships with States in a spirit of coexistence, mutual benefit and full respect ...

United Nations Declaration on the Rights of Indigenous Peoples (Draft), supra, preamble.

Aboriginal Peoples have the right freely to determine their own relationships in a spirit of peaceful coexistence, mutual benefit and full respect.

First Nations in Qu�bec, "Fundamental Principles of Peaceful Co-Existence", supra, Principle 15.

103. It would be difficult to deny the many layers of interdependence that have evolved over the centuries. Nor can one easily dismiss the difficulties that would arise in resolving all relevant matters in secession negotiations. Therefore, it is understandable why the Supreme Court did not rule that any future secession process should be triggered by a simple majority vote. Such an extended period of uncertainty and disruption to all Peoples and governments in Canada should not be taken lightly.

... secession would give rise to many issues of great complexity and difficulty. These would have to be resolved within the overall framework of the rule of law, thereby assuring Canadians resident in Quebec and elsewhere a measure of stability in what would likely be a period of considerable upheaval and uncertainty.

Reference re Secession of Qu�bec, supra, para. 96.

104. The close ties of interdependence forged over countless years is one reason why one cannot treat secession in the same manner as admission of a territory or province to Canada. This distinction is examined further under the following sub-heading.

2.4.2 "Secession" different from "admission" [top]

105. Admissions of new territories to federations are most often treated very differently from secessions. As Professor Wildhaber, Judge of the European Court of Human Rights, explains:

When speaking of external territorial modifications or changes in the number of member units, it is important to keep the difference between an increase or a loss of a territory in mind. Most federal states are open with respect to the admission of new territories or additional member states. However, they tacitly refuse a right of secession of member units or minorities, or the possibility of a separation or breakup.

L. Wildhaber, Territorial Modifications and Breakups in Federal States, [1995] Can. Y.I.L. 41, at pp. 53-54.

Il est parfaitement justifi� que les r�gles de sortie soient diff�rentes des r�gles d�entr�e...[Une]...association...cr�e des int�r�ts communs et des obligations r�ciproques qui ne peuvent pas �tre rompues unilat�ralement sans risques graves d�injustice. C�est pourquoi les proc�dures de s�paration comportent plus de pr�cautions, de d�lais, d�arbitrages, que les proc�dures d�union.

J.-P. Derriennic, "Majorit� claire: mode d�emploi", Cit� Libre, vol. 26, no. 5, Dec. 1998, 33, at p. 36.

... the secession of an established province is surely more consequential than the admission of a new province, especially when new provinces would likely be created in territories already forming part of the country. Comparable constitutions treat the two situations differently.

J. Webber, The Legality of a Unilateral Declaration of Independence under Canadian Law, (1997) 42 McGill L. J. 281, at p. 290, n. 22.

106. In regard to a simple majority vote, the Qu�bec government claims that the rules should remain the same as they were for the entry of Newfoundland to Confederation in 1949. This argument does not stand up to scrutiny.

See generally Grand Council of the Crees, Sovereign Injustice [:] Forcible Inclusion of the James Bay Crees and Cree Territory into a Sovereign Qu�bec, supra, at pp. 340-345.

107. In the case of Canada, the ten provinces that joined the federal union did so at various periods of history that were very different one from the other. New constitutional and international norms have developed, including the right to self-determination, that make any analyses of current situations highly distinguishable from earlier historical times. In particular, Newfoundland did not face self-determination claims from Aboriginal Peoples in the province (since they were most likely never informed).

En r�sum�, l�on constate donc que les dix provinces du Canada ont suivi une �volution sensiblement diff�rente. Quatre provinces ont �t� cr��es par la Loi constitutionnelle de 1867 ... Deux provinces ont �t� admises par arr�t� en conseil imp�rial ... Trois provinces ont �t� cr��s par une loi f�d�rale ... Enfin, Terre-Neuve a �t� rattach�e au Canada par une loi imp�riale de 1949.

J.-Y. Morin & J. Woehrling, Les Constitutions du Canada et du Qu�bec du r�gime fran�ais � nos jours (Montr�al: Th�mis, 1992), at p. 408.

108. In conclusion, secession entails a host of consequences and circumstances that are very different from admission of a new territory or province to Canada. The taking of these additional factors reasonably into account, in conformance with the Secession Reference, is not a violation of democratic principles.

2.5 Unconstitutional Conferral of Rights and Powers [top]

109. Most sections of Bill 99 appear to exceed, in whole or in part, the legislative jurisdiction of the National Assembly. We will examine these questions in greater detail at a later date. However, we feel it is urgent to presently highlight certain specific concerns.

110. Undoubtedly, the Qu�bec government is well-versed in the Constitution of Canada. Therefore, one must conclude that the inclusion of unconstitutional provisions is no accident. Regrettably, it represents a blatant disregard for the rights of others and for the rule of law.

111. Yet Bill 99 goes even further. To some degree, it reflects a government and legislature that are proclaiming a unilateral declaration of independence (UDI). In many instances, virtually absolute powers and duties are declared. International law concepts are intentionally misappropriated (see sub-heading 2.6 below).

112. In some respects, the Bill seeks to establish absolute domination by Qu�bec�s political institutions. It pursues a strategy of a secessionist government seeking to establish what is known in international law as "effectivity" or "effective control".

In essence, acceptance of a principle of effectivity would be tantamount to accepting that the National Assembly, legislature or government of Quebec may act without regard to the law, simply because it asserts the power to do so. So viewed, the suggestion is that the National Assembly, legislature or government of Quebec could purport to secede the province unilaterally from Canada in disregard of Canadian and international law.

Reference re Secession of Qu�bec, supra, para. 107.

... to be a state, an entity must possess a government or a system of government in general control of its territory, to the exclusion of other entities not claiming through or under it. [Emphasis added.]

J. Crawford, The Creation of States in International Law (Oxford: Clarendon Press, 1979), at p. 45.

113. Bill 99 is a concrete indication that the Qu�bec government has no intention of respecting the legal and political framework established in the Secession Reference. While the government selectively cites portions of the judgment in a self-serving manner, it simply disregards any aspects that it does not favour. Consequently, the possibility of good faith negotiations presently or in the future is being unilaterally excluded.

114. As suggested in this Brief, the Qu�bec government is attempting to manufacture a public outcry over the federal Clarity Bill. While the public focus of Qu�bec�s political strategy is the federal government, Bill 99 has prejudicial and far-ranging consequences for Aboriginal Peoples in the short and long term.

115. As already described (see sub-heading 2.1), most of the sections of the Bill relate to a single, fictitious "Qu�bec people". Therefore, Bill 99 may be seen as colourable legislation that has little or no valid legislative purpose. The fabrication of a single "Qu�bec people" may be viewed as an unconstitutional attempt to undermine or deny the status and rights of Aboriginal Peoples.

The �colourability� doctrine is invoked when a statute bears the formal trappings of a matter within jurisdiction, but in reality is addressed to a matter outside jurisdiction.

P. Hogg, Constitutional Law of Canada, Loose-Leaf Edition (Toronto: Carswell, 1997), vol. 1, at p. 15-16.

116. In determining the constitutionality of the sections referred to below, one must interpret them in the context of the Bill as a whole.

2.5.1 Right to self-determination [top]

117. Section 2 of the Bill indicates that the "Qu�bec people" alone has the right to decide the political regime and legal status of Qu�bec. However, as a result of the James Bay Northern Qu�bec Agreement, the legal status of Qu�bec cannot be changed without Cree consent (see sub-heading 2.1 above).

118. Section 3 of the Bill indicates that the "Qu�bec people" alone, acting through its own political institutions, has the right to decide the nature, scope and mode of exercise of its right to self-determination. This right is not absolute and would be limited by the constitutional and human rights of Aboriginal Peoples (see also sub-heading 2.3).

119. Section 10 of the Bill also addresses the right of self-determination of the "Qu�bec people". For a brief discussion of constitutional concerns, see sub-heading 2.5.3 below.

2.5.2 Powers concerning referendums [top]

120. The constitutionality of sections 3, 4 and 5 is discussed briefly under sub-heading 2.3 above.

2.5.3 Immunity from others Acts [top]

121. Section 7 of the Bill declares, in part, that the "Qu�bec State" is not bound by any "Act" in the areas under its jurisdiction, unless it has formally adhered to it by a decision of the National Assembly or the Government.

122. This provision is unconstitutional, at least to the extent that the term "Act" refers to constitutional instruments. It would suggest that, in the areas under its jurisdiction, the "Qu�bec State" is not bound by the Constitution Act, 1982, unless the National Assembly or government formally agrees. This runs counter to the Supreme Court decision in the Qu�bec Secession Reference (para. 47), where it is clearly concluded that the Constitution Act, 1982 is binding on Qu�bec.

123. To suggest that, in the areas under its jurisdiction, the "Qu�bec State" is not bound by the Constitution Act, 1982 is a direct repudiation of the rule of law. It would also necessarily mean that the "Qu�bec State" is not bound without its consent by ss. 25 and 35 of the same Act that pertain to Aboriginal peoples and our Aboriginal, treaty, and other rights.

124. In the self-determination context, s. 10 suggests that Qu�bec can generally ignore any right, duty or power possessed by other governments or peoples under the Constitution of Canada or international law. An exception is allowed to the extent that such right, etc. is consistent with an applicable Act enacted by the National Assembly. This provision well exceeds the constitutional authority of the National Assembly.

125. It is incorrect to declare that, with regard to the exercise of the right of the "Qu�bec people" to self-determination, the "Qu�bec State" and the Qu�bec government are bound solely by this or other Acts enacted by the National Assembly. The right to self-determination is not an absolute right to be defined at the discretion of the provincial legislature. It cannot be used to undermine the right to self-determination of other peoples.

The right of self-determination is not ... an absolute right without any limitations.

R. McCorquodale, "Human Rights and Self-Determination" in M. Sellers, ed., The New World Order [:] Sovereignty, Human Rights, and the Self-Determination of Peoples, supra, at p. 16.

126. The right to self-determination cannot be relied upon by Quebecers to claim a right to secession under Canadian or international law. This has not only been confirmed by the Supreme Court of Canada in the Secession Reference, but also in the 1992 study by the five international law experts that was commissioned by a committee of the National Assembly.

Reference re Secession of Qu�bec, supra, paras. 104, 138, 139, 154, 155.

D�s lors, le peuple qu�b�cois exerce effectivement son droit � disposer de lui-m�me dans le cadre de l�ensemble canadien et n�est pas juridiquement fond� � l�invoquer pour justifier son �ventuelle accession � l�ind�pendance. [Emphasis added.]

T. Franck, R. Higgins, A. Pellet, M. Shaw, & C. Tomuschat, "L'int�grit� territoriale du Qu�bec dans l'hypoth�se de l'accession � la souverainet�" in Commission d'�tude des questions aff�rentes � l'accession du Qu�bec � la souverainet�, Les Attributs d'un Qu�bec souverain, (Qu�bec: Biblioth�que nationale du Qu�bec, 1992), Expos�s et �tudes, vol. 1, 377, at p. 425.

2.5.4 Veto over territorial and boundary alterations [top]

127. Section 8 of the Bill stipulates that "[t]he territory of Qu�bec and its boundaries cannot be altered except with the consent of the National Assembly and the Government." To a significant degree, this provision seeks to create new powers or rights that do not exist presently under Canada�s Constitution.

128. As long as Qu�bec remains a province, its borders cannot be altered without the consent of the National Assembly. This guarantee already exists under the Constitution Act, 1871 (s. 3) and the Constitution Act, 1982 (s. 43). If this were all the Qu�bec government was seeking, then s. 8 would not be necessary at all.

129. However, s. 8 seeks to alter without authority the domestic and international law rules that are likely to govern any future secession. In this context, s. 8 purports to create a veto on territorial and boundary alterations, in favour of Qu�bec�s political institutions. This goes beyond any existing constitutional rights or powers of the National Assembly. Yet the Bill generally claims it is solely elaborating upon rights and powers in terms of a simple "reaffirmation" (see sub-heading 2.7 below).

As long as Qu�bec remains a province of Canada, it can claim the protection of section 3 of the Constitution Act, 1871, which provides that its boundaries can only be altered with its consent. This does not mean, as some sovereigntists have asserted, that a sovereign Qu�bec would have a right to maintain its existing borders. The act refers to the alteration of the boundaries of provinces within Canada; it has nothing to say about the removal of a province from Confederation.

P. Russell & B. Ryder, Ratifying a Postreferendum Agreement on Qu�bec Sovereignty, supra ,at p. 15.

130. In the Secession Reference, the Supreme Court of Canada underlined that provincial boundaries were matters that were to be the subject of any future secession negotiations. Boundary issues were highlighted by the Court to be important in regard to Aboriginal peoples, with particular regard to our northern lands (see sub-heading 2.6.2 below).

Reference re Secession of Qu�bec, supra, paras. 96 & 139.

En conclusion sur ce point, il m'appara�t que rien, selon l'Avis de la Cour, n'exclut que les n�gociations entre les Parties portent, le cas �ch�ant, sur la question des fronti�res, �tant entendu que le droit international ne l'impose pas.

A. Pellet, "Un Avis sommaire sur le Projet du loi donnant effet � l�exigence de clart� formul�e par la Court supr�me du Canada dans son avis sur le Renvoi sur la s�cession du Qu�bec", 13 December 1999.

131. In any future secession negotiations, the Court also ruled that there would be "no conclusions predetermined by law on any issue". Yet this is precisely what Bill 99 illegitimately and invalidly seeks to do.

Reference re Secession of Qu�bec, supra, para. 151.

132. To the extent that boundary modifications could be addressed in this Bill, it should be done in a fair and balanced manner. In particular, the consent of the Crees and other Aboriginal peoples would be an essential factor. Such consent relates to our traditional territories and our Aboriginal and treaty rights.

133. The Qu�bec government has repeatedly claimed that Quebecers have a right to choose to separate from Canada and that Canada must not become a "prison". Yet s. 8 seeks to create a "prison" for Aboriginal peoples and others who may choose not to be separated from Canada, should Quebecers opt to secede. This is an unacceptable double standard that is wholly discriminatory and undemocratic.

134. While the notion of alteration of boundaries is clear, the same cannot be said for an alteration of territory. An alteration of boundaries would at the same time modify the size of the territory in Qu�bec. But what would constitute an alteration of territory in the absence of an alteration of Qu�bec�s boundaries? This absolute power to control territorial changes is excessive and far-reaching. It is also vague and arbitrary.

135. The newly declared powers in s. 8 concerning territorial and boundary alterations erroneously presumes that Qu�bec is the sole interested party. Despite our occupation of our traditional territories for thousands of years, Aboriginal rights and interests are apparently non-existent or of no legal consequence.

2.5.5 Assumption of full powers by 'Quebec State" [top]

136. Section 9 stipulates:

Qu�bec State exercises, throughout the territory of Qu�bec and on behalf of the Qu�bec people, all the powers relating to its jurisdiction and to the Qu�bec public domain.

The State may develop and administer the territory of Qu�bec and, more specifically, delegate authority to administer the territory to municipalities or other mandated entities, as provided by law and in a manner respectful of the rights of the Aboriginal nations of Qu�bec.

137. The effect of s. 9 is to declare that the "Qu�bec State" exercises all legislative and administrative powers within its jurisdiction in Qu�bec. However, authority to administer the territory can be "delegated" to "mandated entities". This would incorrectly suggest that Aboriginal peoples have no inherent or pre-existing powers and no shared sovereignty.

138. As elsewhere in this Bill, s. 9 conveys an erroneous and imbalanced perspective of the constitutional and legal framework in Qu�bec. In particular, if the "Qu�bec people" includes the James Bay Crees, as the Bill pretends, it cannot be said that the "Qu�bec State" exercises all powers relating to its jurisdiction on behalf of the Crees. The James Bay Cree People has never conveyed any authority to Qu�bec to act on its own behalf.

139. In regard to the James Bay Crees and Eeyou Istchee, the Qu�bec courts have ruled that there are three sovereign orders under Canada�s Constitution. For example, in A.G. Canada v. Coon Come, the Court has indicated that, as a result of s. 35 of the Constitution Act, 1982, there are now three elements (federal/provincial/Aboriginal) that have to be taken into account when considering the division of powers under Canadian federalism. Therefore, it is incorrect and unjust for Bill 99 to claim that the "Qu�bec State" exercises all of the powers relating to its jurisdiction, throughout the territory of Qu�bec.

Dans la conception qui para�t ressortir de l'arr�t Sparrow, la constitutionnalisation des droits autochtones dans l'article 35 introduirait une troisi�me composante dans le fonctionnement du f�d�ralisme canadien, qui devrait �tre prise en compte dans la r�partition des pouvoirs entre les l�gislatures provinciales et le Parlement du Canada.

A.G. Canada v. Coon Come, [1991] R.J.Q. 922 (C.A.), at p. 939 (per Lebel J. on behalf of the court).

140. In addition, an impressive and growing number of jurists are of the opinion that s. 35 of the Constitution Act, 1982 includes the inherent right of self-government. However, s. 9 purports to unilaterally decide this issue against Aboriginal Peoples and in favour of Qu�bec. It declares that all powers within Qu�bec jurisdiction throughout the province are exercised by the "Qu�bec State". In this way, Bill 99 seeks to ensure that no internal self-determination will be exercised by Aboriginal Peoples in Qu�bec, except to the extent "delegated" by Qu�bec.

The right of self-determination is held by all the Aboriginal peoples of Canada ... It gives Aboriginal peoples the right to opt for a large variety of governmental arrangements within Canada, including some that involve a high degree of sovereignty.

Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, supra, vol. 2(1), at p. 172.

In regard to the inherent right of Aboriginal Peoples to self-government, see: P. Joffe, Assessing the Delgamuukw Principles: National Implications and Potential Effects in Qu�bec, (2000) 45 McGill L.J. (forthcoming); K. McNeil, Aboriginal Rights in Canada: From Title to Land to Territorial Sovereignty, (1998) 5 Tulsa J. Comp. & Int�l L. 253; P. Hogg & M.E. Turpel, Implementing Aboriginal Self-Government: Constitutional and Jurisdictional Issues, (1995) 74 Can. Bar Rev. 187; P. Macklem, Normative Dimensions of an Aboriginal Right of Self-Government, (1995) 21 Queen�s L.J. 173; A. Lafontaine, La coexistence de l�obligation fiduciaire de la Couronne et du droit � l�autonomie gouvernementale des peuples autochtones, (1995) 36 C. de D. 669; P. Hutchins, C. Hilling & D. Schulze, The Aboriginal Right to Self-Government and the Canadian Constitution: The Ghost in the Machine, (1995) 29 U.B.C. L. Rev. 251; B. Slattery, Aboriginal Sovereignty and Imperial Claims, (1991) 29 Osgoode Hall L.J. 681.

141. These actions by the Qu�bec government to deny or severely impede the exercise of our right to self-determination run counter to the principle of democracy and are a violation of our human rights.

... democracy is fundamentally connected to substantive goals, most importantly, the promotion of self-government.

Reference re Secession of Qu�bec, supra, para. 64.

142. The duty to respect the rights of Aboriginal nations in s. 9 should not be limited to Qu�bec�s jurisdiction to "develop" and "administer" the territory in Qu�bec. This adds little or nothing to what is already in s. 35 of the Constitution Act, 1982. As confirmed in the recent Lord case, Aboriginal and treaty rights limit the sovereignty of the federal government. The same conclusion is equally true in regard to Qu�bec.

Lord et al. v. Canada (A.G.), No. 500-05-043203-981, Qu�bec Superior Court, judgment rendered by the Croteau J., 24 November 1999, at p. 42.

143. The duty to respect the rights of Aboriginal nations in s. 9 does not remedy in any way the fundamental and pervasive defects in the Bill. In particular, it fails to alter the fabrication of a single, fictitious "Qu�bec people" in the province. It fails to redress the denial of Aboriginal Peoples� status as "Peoples" with the right of self-determination. It also fails to correct the extensive array of unconstitutional provisions in the Bill that seek to confer maximum, if not absolute, power to Qu�bec�s own institutions at our expense.

2.6 Misappropriation on International Law Concepts [top]

144. It would be difficult to dismiss the misappropriation of international law concepts in Bill 99 as an oversight or error on the part of the government of Qu�bec. Rather, it would appear to be part of an ongoing political strategy to advance its sovereignist claims. This is being effected, without regard for the rights of Aboriginal Peoples or the rule of law.

145. In the paragraphs below, two examples are given: i) use of the term "national state" to describe the "Qu�bec State"; and ii) use of the term "territorial integrity of Qu�bec", and the creation of absolute powers and duties in favour of Qu�bec political institutions.

146. In regard to Aboriginal Peoples, the unilateral imposition of international law and other concepts to ensure our subjugation by the Qu�bec government and National Assembly did not commence with Bill 99. Recent examples are found in the 1998 Qu�bec government policy on Aboriginal affairs; and in the October 6, 1999 Cabinet Decree approving the establishment of a Nunavik Commission to explore self-government in Nunavik.

Secr�tariat aux affaires autochtones, Partnership, Development, Achievement, supra.

Gouvernement du Qu�bec, D�cret, No. 1138 -99, 6 October 1999.

147. In Qu�bec�s 1998 Aboriginal policy, the government unilaterally imposes certain "fundamental reference points" that are all designed to ensure domination and control over Aboriginal Peoples and our territories, particularly in the event of sovereignty. The reference points specified are: "territorial integrity of Qu�bec", "sovereignty of the National Assembly", and "legislative and regulatory effectivity". While Bill 99 does not expressly refer to "effectivity" or "effective control", the overall effect of the Bill serves to reinforce this notion.

Secr�tariat aux affaires autochtones, Partnership, Development, Achievement, supra, at p. 12.

In regard to the rejection of Qu�bec�s 1998 Aboriginal policy, see M. Cloutier, "Les Premi�res Nations rejettent les propositions de Chevrette" Le Devoir, (20 May 1998) at p. A1; E. Thompson, "First Nations reject new policy", The [Montreal] Gazette (20 May 1998) A5.

148. In regard to the possibility of creating a new self-governing institution in Nunavik (northern Qu�bec), the October 6, 1999 Qu�bec Cabinet Decree seeks total domination and control over the Aboriginal People concerned. Specific pre-conditions include that any new government institution "must fall under the jurisdiction of Qu�bec and respect the integrity of its territory and the effectivity of its government".

ATTENDU QUE cette institution doit relever de la comp�tence du Qu�bec et respecter l�int�grit� de son territoire et l�effectitivit� de son gouvernement ...

Gouvernement du Qu�bec, D�cret, No. 1138 -99, 6 October 1999, preamble.

149. These pre-conditions violate the constitutional duty to negotiate in good faith with Aboriginal Peoples, as elaborated by the courts. The conditions shamelessly exploit the urgent need to ensure adequate exercise of rights and powers by Aboriginal Peoples.

... the honour of the Crown is always involved and no appearance of �sharp dealing� should be sanctioned ...

Sparrow v. The Queen, [1990] 1 S.C.R. 1075, at p. 1107

[This duty to negotiate in good faith] must include at least the absence of any appearance of �sharp dealing� ... , disclosure of relevant factors ... , and negotiation �without oblique motive� ...

Gitanyow First Nation v. Canada,[1999] 3 C.N.L.R. 89 (B.C.S.C.), at p. 105, para. 74.

150. Certainly, the Qu�bec government would never accept such pre-conditions if they were imposed on Quebecers or Qu�bec institutions by the Canadian government or Parliament.

2.6.1 "National state" of Qu�bec [top]

151. In the preamble of Bill 99, it is said that the "Qu�bec people ... exercises its rights through a modern national state". The term "national state" is highly questionable, since in the context of the Bill it inappropriately suggests a "state" in the international sense. Does this mean that all provinces in Canada are "national states", or is this for some unstated reason solely applicable to Qu�bec?

152. The term "State" is now used in the Qu�bec Civil Code to replace "the Crown in right of Qu�bec". However, Bill 99 goes beyond a civil code context. The Bill is allegedly a "charter". It applies potentially to any issue, including the secession of Qu�bec. The adjective "national" in the term "national state" suggests reference is being made to a country or nation as a whole (and not simply to a province). This confusion is compounded in the substantive provisions of the Bill, since a further international law concept, territorial integrity, is inappropriately applied to Qu�bec.

2.6.2 Territorial integrity of Qu�bec [top]

153. Section 8 of the Bill 99 stipulates that "[t]he Government must ensure that the territorial integrity of Qu�bec is maintained and respected." In this way, Bill 99 purports to create an absolute duty on the part of the Qu�bec government to safeguard the "territorial integrity of Qu�bec".

154. The Bouchard government often states that it is, and has always been, the traditional position of Qu�bec government leaders to safeguard the "territorial integrity of Qu�bec". This does not justify the invalid creation of an absolute position. The first and foremost consideration must always be the imperative to respect human rights. In particular, our right to self-determination must not be undermined. Nor can the government disregard existing legal principles under domestic and international law.

155. "Territorial integrity" is a recognized international law principle applicable to states.

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Charter of the United Nations, supra, art. 2, para.4;

See also Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, U.N.G.A. Res. 2625 (XXV), U.N. Doc. A/8028 (1971), reprinted in (1970) 9 I.L.M. 1292; Final Act of the Conference on Security and Co-operation in Europe (Helsinki Final Act), Principle IV, reprinted in (1975) 14 I.L.M. 1295.

156. At international law, the principle of "territorial integrity" clearly does not apply to provinces, such as Qu�bec.

... this principle [of territorial integrity] applies only with respect to limits established between existing States, not to administrative boundaries within a State.

T. Barto�, Uti Possidetis, Quo Vadis?, (1997) 18 Aust. YBIL 37, at p. 73.

... administrative boundaries as such are not intended to constitute permanent boundaries. Nor are they boundaries protected as such under international law. They are created and exist solely under municipal law.

M. Shaw, The Heritage of States: The Principle of Uti Possidetis Juris Today, (1996) 67 Br. Y.I.L. 75, at p. 117.

A secessionary entity has no such territorial integrity until it has achieved stable and effective independence. Moreover international law does not endorse inter-provincial or other internal boundaries unless and until they have become the boundaries of independent states.

J. Crawford, "Response to Expert Reports of the Amicus Curiae", January 8, 1998, in Supplement to Case, Experts' Response to Expert Reports of the Amicus Curiae (submitted to Supreme Court of Canada by Attorney General of Canada, in Reference re Secession of Qu�bec), at p. 14, para. 22.

157. Contrary to s. 8 of Bill 99, the principle of "territorial integrity" is not absolute and can only be invoked by a state if certain conditions are met.

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self_determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states.

Reference re Secession of Qu�bec, supra, para. 154.

... the ultimate purpose of territorial integrity is to safeguard the interests of the peoples of a territory. The concept of territorial integrity is therefore meaningful so long as it continues to fulfill that purpose to all the sections of the people.

U. Umozurike, Self-Determination in International Law (Hamden, Connecticut: Archon Books, 1972), at p. 234.

La doctrine souverainiste tient pour acquis que l�int�grit� territoriale du Canada peut �tre viol�e par un acte unilat�ral de s�cession. Elle ne peut par cons�quent pr�tendre que l�int�grit� de son propre territoire soit dans tous les cas inviolable.

M. Seymour, La Nation en question, supra, at pp. 182-183.

158. Even if the principle of territorial integrity were applicable to Qu�bec, it fails to meet any of the conditions required to assert this principle.

159. First, Qu�bec does not have a "government that represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination". In the two hundred years since its inception, the National Assembly has had only one Aboriginal person elected as a Member of the National Assembly.

The consent of the governed and true representative quality of the government are the substantive components of universal democracy, to which everyone has a right; both components are necessary to preserve the sanctity and inviolability of a state�s territorial integrity.

R. Ezetah, The Right to Democracy: A Qualitative Inquiry, supra, at pp. 514-515.

... a government may also be non-representative because it only represents part of the population and in this respect is discriminatory.

P.H. Kooijmans, Tolerance, Sovereignty and Self-Determination, [1996] Neth. Int�l L. Rev. 211, at p. 213.

160. The Qu�bec government is an alien institution. It is consistently unrepresentative of Aboriginal Peoples. Not only does it seek to impose policies against our interests, but it also insists on a purported extinguishment of our fundamental rights. The fact that such extinguishment runs counter to PQ programme policy appears to be of little consequence.

Parti Qu�b�cois, La volont� de r�ussir: Programme et statuts du Parti Qu�b�cois, supra, p. 22.

The fundamental rights of Aboriginal Peoples are collective and individual human rights and are not subject to surrender, extinguishment or other forms of destruction. These rights may be further elaborated, consistent with their recognition and affirmation under Canadian constitutional, international and Aboriginal law.

First Nations in Qu�bec, "Fundamental Principles of Peaceful Co-Existence", supra, Principle 22.

161. Second, as Bill 99 amply demonstrates, Qu�bec fails to respect the principles of self_determination in its internal arrangements. Instead, Bill 99 opts to deny the right of Aboriginal Peoples to self-determination and create blatant and prejudicial double standards.

By digging in their heels on the potential divisibility of Qu�bec, [the Parti Qu�b�cois leadership] could be seen as holding to a double-standard on self-determination: Canada can be divided to accommodate the nationalist aspirations of the Qu�b�cois, but Qu�bec itself cannot be divided to accommodate the clear will of the Cree and other native people of the North to remain in Canada.

R. Niezen, Defending the Land [:] Sovereignty and Forest Life in James Bay Cree Society (Needham Heights, Massachusetts: Allyn & Bacon, 1998), at p. 130.

The boundaries of the province of Quebec are not the only relevant boundaries in the Quebec case ... If you recognize Quebec should you not recognize that the Cree and Inuit have separate legal regimes in northern areas? These are not simply local, municipal-style rights. They relate to the national government, to the national constitution and to an emerging law on the rights of indigenous peoples.

D. Sanders, If Qu�bec Secedes From Canada Can the Cree Secede From Qu�bec?, (1995) 29 U.B.C. L.Rev. 143, at p. 158, n. 54.

Qu�bec ultimately must confront the paradox of sovereignty. If Canada is divisible, then why is Qu�bec indivisible? If Qu�bec is indivisible, then on what grounds should Canada be obliged to allow Qu�bec�s secession?

C. Doran, "Will Canada Unravel?"in Foreign Affairs, vol. 75, no. 5, 1996, 97, at p. 104.

Consistency requires that Qu�bec be willing to accord the same right to identifiable regions within its boundaries that do not wish to become part of a sovereign Qu�bec. In short, if Canada is divisible, then Qu�bec must also be divisible.

P. Monahan, M. Bryant & N. Cot�, Coming to Terms with Plan B: Ten Principles Governing Secession (Toronto: C.D. Howe Institute, June 1996), at p. 35.

162. "Territorial integrity" is being illegitimately appropriated by the Qu�bec government to deny us our right to self-determination, should the government take steps to secede. In the Canadian and international context, it is the "integrity" of Aboriginal Peoples and our rights and societies that have been recognized as a legitimate and ongoing concern.

1. Governments shall have the responsibility for developing, with the participation of the [indigenous and tribal] peoples concerned, co-ordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity.

2. Such action shall include measures for: ...

(b) promoting the full realisation of the social, economic, and cultural rights of these peoples with respect for their social and cultural identity, their customs and traditions and their institutions ... (Art. 2, paras. 1 & 2(b))

In applying the provisions of this Convention: ...

(b) the integrity of the values, practices and institutions of these peoples shall be respected ... (Art. 5, para. (b))

Indigenous and Tribal Peoples Convention, 1989, supra. [Emphasis added.]

Further, the draft U.N. Declaration on the Rights of Indigenous Peoples, provides that cultural genocide is associated with:

Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities ... (Art. 7, para. (a)). [Emphasis added.]

163. Bill 99 seeks to pre-determine that any future Qu�bec "state" will conserve all territory currently within the province. In this way, Aboriginal Peoples in Qu�bec will be illegitimately deprived of determining the future of our Peoples, territories and resources.

A much more far-reaching development is the growing assertion of a right of self-determination by indigenous populations and other communities in many parts of the world. In these cases, self-determination involves a complex chain of historical questions that go far beyond the issue of establishing a new state on the basis of a pre-existing territorial entity. Issues of identity, human rights and empowerment that have little to do with previous boundaries are also involved. [Emphasis added.]

Report of the Commission on Global Governance, Our Global Neighborhood (Oxford/New York: Oxford University Press, 1995) at p. 74.

[A]n internal right [to self-determination] directly challenges the legitimacy of regimes unresponsive to the opinions and diversity of their citizenries. Exclusionary undemocratic regimes are, under this and other theories, illegal under international law.

G. H. Fox, Self-Determination in the Post-Cold War Era: A New Internal Focus?, (1995) 16 Mich. J. Int�l L. 733, at p. 758.

164. The Qu�bec government often cites the 1992 study of five international law experts, commissioned by a committee of the National Assembly, to claim that the doctrine of uti possidetis would prevail in the Qu�bec secession context. Based on that study, the government argues that no changes can be made to Qu�bec�s current boundaries in the event of secession.

T. Franck, R. Higgins, A. Pellet, M. Shaw, & C. Tomuschat, "L'int�grit� territoriale du Qu�bec dans l'hypoth�se de l'accession � la souverainet�", supra, vol. 1, 377.

165. However, the Supreme Court of Canada has made clear in the Secession Reference that "any attempt to effect the secession of a province from Canada must be undertaken pursuant to the Constitution of Canada, or else violate the Canadian legal order". In the five-expert study, the authors explicitly highlight the fact that they have neither the mandate nor the competence to analyse in detail the exact meaning of constitutional provisions pertaining to Aboriginal peoples. Therefore, this study can hardly be relied upon to support Qu�bec�s position.

Reference re Secession of Qu�bec, supra, para. 104.

Il n'entre ni dans notre mandat, ni dans notre comp�tence, d'analyser dans le d�tail la signification exacte de ces dispositions constitutionnelles, qui ont suscit� des controverses doctrinales abondantes et souvent fort subtiles.

T. Franck, R. Higgins, A. Pellet, M. Shaw, & C. Tomuschat, "L'int�grit� territoriale du Qu�bec dans l'hypoth�se de l'accession � la souverainet�", supra, vol. 1, at p. 390.

166. In regard to boundary issues, the Supreme Court of Canada was very clear that such matters would "inevitably" be a part of any future secession negotiations. The Court then highlighted the importance of boundary issues, in relation to Aboriginal peoples and the right to self-determination. Therefore, Bill 99 cannot create an absolute duty to maintain the "territorial integrity of Qu�bec" and still respect in good faith all of the parameters of the Supreme Court decision.

Negotiations following a referendum vote in favour of seeking secession would inevitably address a wide range of issues, many of great import. ... Nobody seriously suggests that our national existence, seamless in so many aspects, could be effortlessly separated along what are now the provincial boundaries of Quebec.

Reference re Secession of Qu�bec, supra, para. 96.

We would not wish to leave this aspect of our answer to Question 2 [i.e. right to self-determination] without acknowledging the importance of the submissions made to us respecting the rights and concerns of aboriginal peoples in the event of a unilateral secession, as well as the appropriate means of defining the boundaries of a seceding Quebec with particular regard to the northern lands occupied largely by aboriginal peoples. However, the concern of aboriginal peoples is precipitated by the asserted right of Quebec to unilateral secession.

Reference re Secession of Qu�bec, supra, para. 139.

... a new claimant state ought not to be able to �take its indigenous peoples with it� from the old state by assuming its size and shape are determined by prior internal borders. An example arises in the case of the lands in Quebec inhabited by the Cree Indians. Their rights under international law affect not only the underlying lawfulness of Quebec's attempts at secession, but the contours of an independent Quebec as well. To assume that Quebec must encompass all these lands, even if the indigenous peoples indicate another preference, would ignore their special claim to land and extend, to a new state, antiquated notions of territorial sovereignty. [Emphasis added.]

S. Ratner, Drawing a Better Line: Uti Possidetis and the Borders of New States, supra, at p. 616.

The law has almost unlimited tolerance for paradox; but not for blatant unfairness ... For example ...What justice would be served if international law were to recognize Quebec's right to secede from Canada, but no right for the Ungava native peoples' region to secede from Quebec?

T. Franck, Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995), at p. 160.

167. Both the five expert study (sometimes referred to as the "Pellet Report") and the Badinter Arbitration Opinions in Yugoslavia have been supportive of using the uti possidetis principle in certain contexts. However, in both instances, there has been a strong critical reaction among international jurists.

Qu�bec with its dominant French-speaking population has minority English and indigenous native populations, many of whom live in parts of Qu�bec that adjoin the rest of Canada .... The Qu�bec minority populations and many in the rest of Canada have warned that unilateral secession by Qu�bec could lead to violence .... To minimise the prospects of the type of violence that occurred in Croatia the implementation of the Badinter Commission and the Pellet Report approach to the borders of an independent Qu�bec is arguably the most inappropriate approach to adopt.

P. Radan, The Borders of a Future Independent Qu�bec: Does the Principle of Uti Possidetis Juris Apply?, (1997) Australian Int�l L. J. 200 at p. 214. [Emphasis added.]

... whenever federalists have argued that division of territory would have to be negotiated, Quebec has always trotted out this 1992 legal opinion as proof that any such negotiations would be out of the question. [new para.] The Supreme Court now has effectively exploded that argument. [new para.] ... In fact, the court goes out of its way to draw specific attention to the claims of aboriginal peoples in northern Quebec and states that �appropriate means� would have to be devised to �define the boundaries of an independent Quebec.� [Emphasis added.]

P. Monahan, "Bertrand deserves thanks", The [Montreal] Gazette (11 February 1999) p. B3.

See also M. Pomerance, The Badinter Commission: The Use and Misuse of the International Court of Justice�s Jurisprudence, (1998) 20 Mich. J. Int�l L. 31, at pp. 50 et seq.; S. Ratner, Drawing a Better Line: Uti Possidetis and the Borders of New States, supra, at p. 613 ("commission...erred in its comprehension of the nature and purpose of uti possidetis"); M. Craven, The European Community Arbitration Commission on Yugoslavia, (1995) 66 Br. Y.I.L. 333, at pp. 386-389; C. Warbrick, "Recognition of States: Recent European Practice" in M.D. Evans, ed., Aspects of Statehood and Institutionalism in Contemporary Europe (Brookfield, Vermont: Dartmouth Publishing Company, 1996) 9, at p. 28; S. Lalonde, Uti Possidetis and Internal Administrative Boundaries, Unpublished Doctoral Dissertation, University of Cambridge, 1997, at pp. 205-206; B. Kingsbury, Claims by Non-State Groups in International Law, (1992) 25 Cornell Int'l L.J. 481, at p. 507; R. Falk, "The Relevance of the Right of Self-Determination of Peoples under International Law to Canada's Fiduciary Obligations to the Aboriginal Peoples of Quebec in the Context of Quebec's Possible Accession to Sovereignty", in Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec (Ottawa: Minister of Supply and Services Canada, 1995), vol. 1, International Dimensions, 41, at p. 65.

[Note: It would appear that Professor Alain Pellet was the author or principal drafter of both the Badinter Commission Opinions and the five expert study referred to above. See G. H. Fox, Self-Determination in the Post-Cold War Era: A New Internal Focus?, supra, at p. 750, n. 82 (Pellet described as "the actual author of the Badinter opinions"); and T. Franck, R. Higgins, A. Pellet, M. Shaw, & C. Tomuschat, "L'int�grit� territoriale du Qu�bec dans l'hypoth�se de l'accession � la souverainet�", supra, at p. 380, para. 1.6 (present study drafted by Pellet, in close cooperation with four other signatories), and p. 381, para. 1.10.]

168. It is important to distinguish between the international law notions of "territorial integrity" and "uti possidetis". However, neither would apply to Qu�bec in any future secession negotiations.

... respect for territorial integrity is not synonymous with uti possidetis. Whereas the former dictates respect for the established territory of existing States, the latter establishes what the territory of new States is.

T. Barto�, Uti Possidetis, Quo Vadis?, (1997) 18 Aust. YBIL 37, at p. 56.

Applying the principle of uti possidetis to the internal boundaries of a sovereign and independent state is ... questionable from a jurisdictional standpoint. The maintenance or alteration of internal boundaries of an independent state is a matter which falls within the domestic jurisdiction of that state; it does not fall within the jurisdiction of international law.

T. Musgrave, Self-Determination and National Minorities (Oxford: Clarendon Press, 1997), at p. 235.

See also J.-M. Sorel & R. Mehdi, L�Uti possidetis entre la cons�cration juridique et la pratique: essai de r�actualisation, (1994) 40 A.F.D.I. 11 at p. 22 (numerous states take erroneous view that uti possidetis renders any claim for boundary changes a violation of frontiers)

169. Bill 99 sets the stage for the use of force against the James Bay Crees and other Aboriginal Peoples in Qu�bec. First, Bill 99 is adopted by the National Assembly, creating self-serving and absolute powers and duties concerning the "territorial integrity of Qu�bec". Later, this same "law" would allegedly provide the justification for the use of force. This could occur, should we as Aboriginal Peoples seek to defend our traditional territories against unilateral inclusion in a new Qu�bec "state".

La rigidit� p�quiste a �t� symbolis� par les d�clarations de Jacques Brassard, il y a un an et demi, qui n'�cartait pas l'usage de la force, en affirmant que l'�tat qu�b�cois prendrait tous les moyens pour garantir l'int�grit� du territoire qu�b�cois: %�a veut dire les lois, les tribunaux et les forces polici�res, qui sont aussi des institutions, des instruments d'un �tat.&

A. Dubuc, "Les d�rapages autochtones", La Presse (17 February 1996) p. B2.

'If [federalist municipalities and regions] do not respect the laws of Quebec, the state would see to it that the laws be enforced�, [Intergovernmental Affairs Minister Jacques Brassard] said. 'It's that simple. [new para.] It's called the effective authority of the state.�

R. S�guin, "Iron hand possible, Quebec minister says", Globe and Mail (30 January 1997) p. A4.

See also M. Adam, "Le PQ n'exclut pas l'usage de la force pour s'imposer dans un Qu�bec souverain", La Presse (11 June 1994) p. B2; "Sovereign Quebec would use police against dissident natives, PQ official says", Ottawa Citizen (31 May 1994) p. A3.

170. In conclusion, Bill 99 should not be misappropriating such international law concepts as "territorial integrity", so as to advance the government�s sovereignty ambitions. Aboriginal Peoples in Qu�bec are well aware of how this principle is to be used against us. The government�s misguided and illegal strategy is clearly another form of colonialism that must be condemned.

Notions of territorial integrity, non-Aboriginal sovereignty and legislative or regulatory "effectivity" shall not be imposed on Aboriginal Peoples, so as to result in inequality, domination or other forms of colonialism.

First Nations in Qu�bec, "Fundamental Principles of Peaceful Co-Existence", supra, Principle 25.

We [First Nations] affirm the Nation-to-Nation relationship based on equality and peaceful co-existence of peoples;

We reject and dismiss the concept of territorial integrity of Qu�bec ...

"Declaration of the First Nations of Qu�bec and Labrador", Resolution adopted at Lac Delage, Secretariat of the Assembly of First Nations of Qu�bec and Labrador, October 13, 1994

2.7 "Reaffirmation" of Rights, Duties and Powers a Deception [top]

171. The "reaffirmation" of rights and powers is the stated purpose of Bill 99. According to its Explanatory Notes, the Bill "reaffirms the fundamental rights and prerogatives of the Qu�bec people and the Qu�bec State." It also "reaffirms the characteristics and the jurisdiction of the Qu�bec State in various areas, including matters involving the territory of Qu�bec." Such reaffirmations are confirmed in the Bill itself.

172. In view of recent federal actions (e.g. tabling of Clarity Bill), the preamble of Bill 99 indicates that "it is necessary to reaffirm the fundamental principle that the Qu�bec people is free to take charge of its own destiny, determine its political status and pursue its economic, social and cultural development". However, the right of self-determination of a single, fictitious "Qu�bec people" in the province cannot be reaffirmed. This is because this right has never been validly established in the first place (see sub-headings 2.1 and 2.5.1).

173. The preamble further indicates that it is necessary "to reaffirm the collective attainments of the Qu�bec people, the responsibilities of the Qu�bec State and the rights and prerogatives of the National Assembly with respect to all matters affecting the future of the Qu�bec people". Again, most of the rights, duties and powers of the Qu�bec government and the National Assembly "reaffirmed" in Bill 99 run counter to Canadian constitutional law or international law (see sub-headings 2.3, 2.5 & 2.6).

174. In claiming to be simply "reaffirming" the various rights, duties and powers, the Qu�bec government is grossly misleading the public. Rather than create a legitimate and valid "charter", Bill 99 is an attempt to illegally consolidate absolute power and control within the Qu�bec government and National Assembly. Even the right to self-determination of the mythical "Qu�bec people" is to be controlled by these political institutions.

2.8 Delegitimization of Qu�bec sovereignty by Qu�bec government [top]

175. Sovereignist leaders often suggest that, in the Secession Reference, the Supreme Court of Canada legitimized Qu�bec�s sovereignty project. This conclusion is inaccurate.

176. While the Supreme Court confirmed that exceptional circumstances can exist where the right of a people to self-determination may give rise to a right of unilateral secession, it was emphasized that these circumstances do not presently apply to Qu�bec. As a result, Qu�bec authorities cannot rely on any right of self-determination to effect the secession of Qu�bec from Canada unilaterally.

Such exceptional circumstances are manifestly inapplicable to Qu�bec under existing conditions. Accordingly, neither the population of the province of Qu�bec, even if characterized in terms of �people� or �peoples�, nor its representative institutions, the National Assembly, the legislature or government of Qu�bec, possess a right, under international law, to secede unilaterally from Canada.

Reference re Secession of Qu�bec, supra, para. 138.

177. The judgment also suggests that the Supreme Court never assessed the legitimacy of Qu�bec�s sovereignty project, except to declare that no project could be effected unilaterally.

... Question 1 does not ask how secession could be achieved in a constitutional manner, but addresses one form of secession only, namely unilateral secession. Although the applicability of various procedures to achieve lawful secession was raised in argument, each option would require us to assume the existence of facts that at this stage are unknown.

Reference re Secession of Qu�bec, supra, para. 105.

178. The Court in effect recognized that any secession scenario in Qu�bec could change with changing circumstances. Therefore, it refrained from determining which amendment procedures might apply until clear facts actually existed.

In accordance with the usual rule of prudence in constitutional cases, we refrain from pronouncing on the applicability of any particular constitutional procedure to effect secession, unless and until sufficiently clear facts exist to squarely raise an issue for judicial determination.

Reference re Secession of Qu�bec, supra, para. 105.

179. Instead, the Secession Reference judgment establishes a legal and political framework in which future secession projects could possibly be specifically and democratically considered. The Court thus elaborates upon a principled constitutional framework whereby legitimacy may be acquired by the Qu�bec population or Qu�bec authorities to "pursue" secession.

The legal framework having been clarified, it will be for the population of Quebec, acting through the political process, to decide whether or not to pursue secession. As will be seen, the legal framework involves the rights and obligations of Canadians who live outside the province of Quebec, as well as those who live within Quebec.

Reference re Secession of Qu�bec, supra, para. 27

180. The Supreme Court indicates that the right of Qu�bec authorities to "pursue" secession, if a clear majority of Quebecers chooses that goal, can acquire and maintain legitimacy - "so long as in doing so, Qu�bec respects the rights of others".

The rights of other provinces and the federal government cannot deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others. [Emphasis added.]

Reference re Secession of Qu�bec, supra, para. 92.

181. Should a political majority in Qu�bec or in the whole of Canada fail to respect the underlying constitutional principles - namely, democracy, federalism, constitutionalism and the rule of law, and protection of Aboriginal and treaty rights - its legitimacy would be jeopardized as a result.

A political majority that does not act in accordance with the underlying constitutional principles we have identified puts at risk the legitimacy of the exercise of its rights.

Reference re Secession of Qu�bec, supra, para. 93.

182. Failure to respect these underlying constitutional principles can be so serious that it can put the whole secession negotiations process "at risk".

Refusal of a party to conduct negotiations in a manner consistent with constitutional principles and values would seriously put at risk the legitimacy of that party's assertion of its rights, and perhaps the negotiation process as a whole.

Reference re Secession of Qu�bec, supra, para. 95.

[The Court] ... said that all parties - including Quebec - have an obligation to participate in good faith in any secession negotiations. A failure to act in good faith by any party, says the court, would put at risk �that party�s assertion of its rights and perhaps the negotiation as a whole.� What this means is that if Quebec refused to negotiate the issue of borders, it would have no right to insist that the Canadian government sit down to negotiate sovereignty at all. [Emphasis added.]

P. Monahan, "Bertrand deserves thanks" in The [Montreal] Gazette (11 February 1999) at B3.

183. A failure by Qu�bec to undertake and pursue negotiations "according to constitutional principles" may also undermine the government�s claim to legitimacy in the eyes of the international community. The same would be true for all other political actors in the process.

To the extent that a breach of the constitutional duty to negotiate in accordance with the principles described above undermines the legitimacy of a party's actions, it may have important ramifications at the international level. Thus, a failure of the duty to undertake negotiations and pursue them according to constitutional principles may undermine that government's claim to legitimacy which is generally a precondition for recognition by the international community.

Reference re Secession of Qu�bec, supra, para. 103.

184. As elaborated in this Brief, Bill 99 fails to respect "the rights of others" as required by the Supreme Court. The Bill also fails to respect the four constitutional principles that the Court has specifically highlighted. If adopted by the National Assembly, this illegal and illegitimate Bill will constitute a fundamental part of Qu�bec�s laws. It would therefore constitute part of the legal framework in Qu�bec for any future referendum.

185. If adopted, the Bill�s prejudicial parameters and effect will preclude any claims of legitimacy by the Qu�bec government. As a result, Quebecers will be prevented from pursuing secession in accordance with the legal and political framework established by the Supreme Court of Canada in the Secession Reference.

A future Qu�bec referendum on secession could only acquire legitimacy, as set out in the judgment, if the Qu�bec government first accepts that it is bound, like all other political actors in Canada, by all aspects of the judgment. Otherwise, from the outset, there would be no common legal and constitutional framework for any secessionist project.

P. Joffe, "Qu�bec Secession and Aboriginal Peoples: Important Signals from the Supreme Court" in D. Schneiderman, ed., The Qu�bec Decision[:] Perspectives on the Supreme Court Ruling on Secession, supra, at p. 138.

186. The unavoidable conclusion is that Bill 99, as currently drafted, will delegitimize the legitimacy claims of any future sovereignty project. This merits sober reflection by Quebecers and others. While Bill 99 purports to advance Qu�bec sovereignty claims, it actually does the opposite. It severely limits, in a wholly undemocratic and illegal manner, Quebecers� options for the future.

187. Furthermore, in regard to Qu�bec secession, the enactment of Bill 99 can seriously affect the legitimacy of any future referendum result. The rights and powers of the "Qu�bec people", the "Qu�bec State" and the National Assembly in this "law" are likely to be relied upon by future voters. This is because virtually all of the Bill�s provisions have a direct and far-reaching relevance to the secession issue. Should these rights and powers prove to be invalid and unconstitutional, then it would put into question the meaning or relevance of any future referendum result.

188. In other words, the clarity of any future referendum question can be significantly affected by the terminology in, and crafting of, the question itself. It can also be seriously impacted by external factors. One of these factors is the adoption of laws by the National Assembly that misleadingly convey to voters that they and their institutions already possess a wide range of rights, powers and control in a secession context. Yet, in reality, these rights, etc. largely do not validly exist in law.

189. The Qu�bec government maintains it is not bound by the Supreme Court of Canada judgment in the Qu�bec Secession Reference. While references are technically of an advisory character, "[i]n practice, reference opinions are treated in the same way as other judicial opinions." This practice is, and has always been, followed in Qu�bec.

P. Hogg, Constitutional Law of Canada, supra, vol. 1, at p. 8-17.

CONCLUSIONS [top]

Purpose and scope of Bill 99

1. The stated purpose of Bill 99 is to "reaffirm" the collective rights of the "Qu�bec people", the responsibilities of the "Qu�bec State" and the rights and prerogatives of the National Assembly. This purpose, however, is never achieved in the Bill either in terms of legitimacy or legality.

2. Premier Lucien Bouchard has referred to Bill 99 in terms of a "charter of collective rights". Yet no charter of fundamental rights can be legitimate in Qu�bec, if it is illegal, discriminatory and unconstitutional. No bill is truly a charter of rights, if it simultaneously denies the fundamental status and human rights of Aboriginal Peoples. Bill 99 fails to qualify as a "charter" for all of these reasons.

3. The rights, duties and powers referred to in the Bill are said to relate to all matters affecting the future of the "Qu�bec people". Therefore, the scope of the draft law is vast. The Bill potentially applies to virtually any issue, regardless of whether Quebecers remain in Canada or pursue a secessionist option.

4. The Bill is intended to be a direct response to the tabling by the federal government of its Clarity Bill (Bill C-20). Consequently, it is especially critical to assess Bill 99, in relation to the Qu�bec secession issue and the judgment of the Supreme Court of Canada in the Qu�bec Secession Reference.

5. While the public focus of Qu�bec�s political strategy is the federal government, Bill 99 has prejudicial and far-ranging consequences for Aboriginal Peoples in the short and long term. These adverse effects on Aboriginal Peoples are clearly intentional. A transparent but unstated strategy in the Bill is to ensure that Aboriginal Peoples in Qu�bec will be under the total domination and control of the Qu�bec government and National Assembly, both now and in the future.

Fabrication of a single "Qu�bec people" in the province

6. The key strategy in Bill 99 is the creation of a single fictitious "Qu�bec people" throughout the province with the right of self-determination. In this way, each of the Aboriginal Peoples in Qu�bec is to be effectively denied the status of a "People" and the right to self-determination.

7. The fabrication of a single "Qu�bec people" in the Bill is entirely consistent with the official policy programme of the Parti Qu�b�cois. In the PQ policy, for purposes of self-determination and secession, there is also a single fictitious "Qu�bec people". It is said to be composed of all citizens in the province. Aboriginal Peoples are classified as "Nations" under the heading of "Minorit�s historiques". However, a minority who is not also a "People" does not possess the right to self-determination.

8. Bill 99 does not expressly indicate that there is solely a single "Qu�bec people" with the right of self-determination in the whole province. Nor does the Bill indicate who is included. However, this is the necessary implication and conclusion in considering the Bill as a whole.

10. For example, the Bill declares that the "Qu�bec people" alone has the right to decide the political regime and legal status of Qu�bec (s. 2). If the term "Qu�bec people" did not include Aboriginal Peoples within its meaning, then this section of the Bill would violate principles of equality and non-discrimination. The National Assembly has no authority to empower any one "People" in the province to determine alone the legal status of Qu�bec and exclude other "Peoples". This would imply a tyranny that no legislature should entertain.

11. According to any reasonable standard, Bill 99 is undemocratic and discriminatory. By forcibly including Aboriginal Peoples as a part of the "Qu�bec people", the Bill is denying us our right to self-identification. We are also being denied our right to freely express our collective will as distinct Aboriginal Peoples and to determine our own future. These dishonourable strategies of domination and dispossession are a central and definitive aspect of the Bill.

12. Presently, the province of Qu�bec is made up of numerous peoples, including distinct Aboriginal Peoples. There is no Canadian or international law principle that would compel Aboriginal peoples against their will to identify as one people with Quebecers.

13. The National Assembly cannot force the James Bay Cree People to suppress its identity and become a part of a single fictitious "Qu�bec people". Any alteration of our status as a distinct People, under Canadian constitutional, international and Aboriginal law, is beyond the jurisdiction of the National Assembly.

14. The James Bay Crees continue to have both the objective elements (e.g. common language, history, culture, race or ethnicity, way of life, and territory) and subjective elements (the will to identify and assert its existence as a People) to constitute a "People" for purposes of self-determination under domestic and international law. Premier Bouchard�s proposed "charter" cannot validly alter this distinct reality.

15. Some Quebecers view themselves as a part of the "French Canadian People". Others identify as part of a "Qu�bec People", which is composed of at least one but certainly not all of the Peoples in Qu�bec. Quebecers have a right to freely identify themselves as they wish. However, in no case can one possibly conclude that there is a single "Qu�bec people" throughout the whole province.

Qu�bec contradicts human rights bodies

15. The central strategy in the Bill to fabricate a single "Qu�bec people" is manipulative, unjustifiable and an affront to human rights. It contradicts the findings of the Royal Commission on Aboriginal Peoples, which has determined that Aboriginal peoples are distinct peoples with the right to self-determination. Similarly, it goes against the stated position of the Commission des droits de la personne du Qu�bec. It also conflicts with the perspectives of fair-minded Quebecers, who recognize that there exist a number of distinct Aboriginal Peoples in the province.

16. Furthermore, the Bill conflicts with the opinion of the United Nations Human Rights Committee in Geneva. In April 1999, the Committee requested Canada to elaborate on how the right of self-determination in the International Covenant on Civil and Political Rights is being implemented in regard to Aboriginal Peoples. Canada has been urged to include this assessment in its next periodic report

Bill 99 fatally flawed

17. Since the term "Qu�bec people", as used under Bill 99, is factually and legally incorrect, the integrity and coherence of virtually the whole Bill is gravely impacted. Most of the substantive sections (7 out of 11) of the Bill refer to an invented "Qu�bec people".

18. As a result, the assertions of the right of the "Qu�bec people" to self-determination in the Bill become confusing and meaningless (ss. 1 & 3). This is because the holder of the right, namely a single "People" in Qu�bec, does not truly exist in fact or in law.

19. This confusion is compounded when the Bill declares that the "Qu�bec State" derives its legitimacy from the will of the people (s. 5). The fictitious term "Qu�bec people" is thus intimately tied to the notion of the "Qu�bec State". These widespread defects concerning the "Qu�bec people" constitute a huge deception. They render the Bill fatally flawed.

Denial of human right to self-determination

20. The right of Peoples to self-determination is a human right and is a prerequisite to the enjoyment of all other human rights and freedoms. Therefore, in regard to Aboriginal Peoples, the effective denial of this right in Bill 99 is a grave violation of our human rights.

21. The right to self-determination of Aboriginal Peoples is indivisible, interdependent and interrelated with all our other human rights - including our Aboriginal and treaty rights. Therefore, it is futile for Bill 99 to try to separate us from our right to self-determination. As international instruments confirm, the human rights of all Peoples must be treated by governments with the same emphasis and priority. Human rights must be promoted and protected equally.

22. In 1996, the government of Canada formally declared in United Nations fora in Geneva that it is legally and morally committed to the non-discriminatory application of the right of self-determination to indigenous and non-indigenous Peoples. Qu�bec�s Bill 99 utterly fails to comply with this standard of equality.

23. Bill 99 characterizes the right of the "Qu�bec people" to self-determination as a "fundamental and inalienable" right (s. 10). The National Assembly cannot then deny the same "fundamental and inalienable" right to Aboriginal Peoples. This would violate the principle of equal rights and self-determination of Peoples.

Requirement of Cree consent

24. Bill 99 erroneously declares that the "Qu�bec people" alone has the right to decide the political regime and legal status of Qu�bec" (s. 2). This latter declaration, if adopted, would be unconstitutional. It would violate our treaty, Aboriginal and other human rights, including our right to self-determination.

25. In particular, it is a constitutional requirement that Cree treaty rights under the James Bay and Northern Qu�bec Agreement (JBNQA) not be amended without Cree consent. Every chapter of JBNQA is subject to a general consent provision, or else includes a specific requirement for Cree consent to any amendment or modification.

26. In the absence of Cree consent, a significant change in the legal status of Qu�bec would constitute a fundamental breach of JBNQA. This is especially true, in the case of Qu�bec secession.

Denial of democratic expression of Cree will through referendums

27. Bill 99 confers complete control of all aspects of the right of a single "Qu�bec people" to self-determination to the Qu�bec government and National Assembly. In this context, the holding of a referendum to consult the "Qu�bec people" is viewed as an exercise of self-determination.

28. The Bill purports to control the setting of all rules, in regard to any future consultation of the "Qu�bec people" by way of referendum. Any conditions or mode of exercise of the right to self-determination, through such referendums or otherwise, are to be determined solely by the Qu�bec government or National Assembly.

29. Since Bill 99 includes the James Bay Cree People as a part of a single "Qu�bec people", these rules on the exercise of self-determination and on future referendums are intended to also apply to us. We do not accept that any aspect of the right of the Cree People to self-determination is to be determined by alien political institutions.

30. The James Bay Cree People has its own institutions and its own leaders. The Qu�bec government and the National Assembly do not represent us in any way whatsoever or for any purpose. Qu�bec�s political institutions act against our most fundamental interests. As illustrated by Bill 99, they seek to deny us our distinct status and fundamental human rights.

31. Since there exist a number of distinct Aboriginal Peoples within the province, the Qu�bec government and National Assembly cannot ignore or deny our right to hold our own referendums on Qu�bec secession or other questions. Yet this is the intended effect of Bill 99.

32. A referendum by one People, especially a fictitious "Qu�bec people", cannot determine the future of other self-determining Peoples within Qu�bec. This is a basic principle of democracy. It also flows from the principle of equal rights and self-determination of Peoples. These principles are openly violated by Bill 99.

33. To date, the Qu�bec government and National Assembly have ignored or denied the results of Cree, Inuit and Innu referendums in 1995 in the secession context. The results in favour of not being forcibly separated from Canada were in each instance over 95%. Bill 99 would perpetuate this unjust government policy. It would create a legislative framework in Qu�bec to permanently deny us the free exercise, as distinct Peoples, of our own democratic rights.

Imposition of "Simple Majority" Rule Contrary to Secession Reference

34. Qu�bec�s political institutions have the right to freely consult Quebecers on any matter based on a simple majority vote. However, if the Qu�bec government or Quebecers wish to pursue secession in the future and give rise to a constitutional duty on the part of others to negotiate, they are obliged to respect all aspects of the Supreme Court�s judgment in the Secession Reference.

35. The Supreme Court has repeatedly stipulated that there must be a "clear majority to a clear question" in any future referendum on Qu�bec secession. In regard to a "clear majority", the Court refused to specify what exact percentage would be necessary in order to trigger a constitutional duty of other political actors to negotiate.

36. Rather, the Supreme Court emphasized that a "clear majority" was a "qualitative" evaluation to be made by the political actors in Canada (not solely Qu�bec). Therefore, Qu�bec�s political institutions are not free to unilaterally determine that a simple majority vote will be sufficient in all future referendums on secession. Yet a simple majority rule is being imposed in Bill 99.

37. The Qu�bec government is incorrect in stating that qualitative evaluations exclude quantitative aspects. In fact, quantitative considerations are an integral part of making a qualitative assessment.

38. A higher percentage majority vote has absolutely nothing to do with conferring an advantage to one side over the other. It strictly relates to the importance attributed to a particular question. Such qualified majorities exist in every legal system in the world (e.g. shareholder votes, dissolution of a company, etc.). The legal system in Qu�bec is no exception.

Qu�bec government has simplistic notion of democracy

39. Further, it is erroneous to declare that the fundamental principle in Canada is absolutely "one person, one vote". The Supreme Court of Canada has confirmed that Canada is a representative democracy. The constitutional right to vote in Canada is not strictly defined in terms of "one person, one vote" (as in the United States), but rather in terms of ensuring effective representation.

40. It is effective representation that is the hallmark of a free and democratic society in Canada. This principle is critical for Aboriginal Peoples who are most often excluded from genuine and meaningful participation in political decision-making in Canada.

41. The constitutional principle of democracy is a much richer than the simplistic notion that the Qu�bec government is seeking to rigidly impose in Bill 99. In the Secession Reference, the Supreme Court indicated that values inherent in the notion of democracy include a "commitment to social justice and equality", as well as "respect for cultural and group identity". In regard to Aboriginal Peoples, these are precisely the democratic values that are being disrespected in the Bill.

42. Furthermore, the right to self-determination is described as "the oldest aspect of the democratic entitlement". Yet the right of self-determination of Aboriginal Peoples is exactly what Bill 99 seeks to deny.

43. A one-person, one-vote notion of democracy is not intended to respond to differing demands for self-determination by different Peoples. In terms of Qu�bec secession, Bill 99 seeks to strip us of collective decision-making about the future of the Cree People, its traditional territory and resources. It does this under the guise of simple majoritarian democracy that Qu�bec would never accept if imposed on Quebecers by Canada.

44. In keeping with the legal and political framework established in the Secession Reference, the determination of what constitutes a "clear majority" in any future referendum on secession will have to remain flexible. A referendum result is only one of a number of factors to consider. It can only be assessed by the political actors in Canada, in a principled manner, according to the prevailing circumstances at such time.

45. However, in no case can a referendum vote by the "French Canadian People" or the "Qu�bec people" determine the future of the James Bay Cree People and Eeyou Istchee. As a distinct and self-determining People, we will conduct our own referendums in this regard.

Dynamic of interdependence and historical relationships

46. In relation to Aboriginal Peoples, both the dynamic of interdependence and our historical relationships have existed for hundreds of years. The Royal Proclamation of 1763 attests to this ancestral and ongoing context. We have extensive treaty and Aboriginal rights, including territorial rights, that extend beyond the borders of the province. Our historical and constitutional relationship with the federal Crown is of a fiduciary nature. No government can unilaterally sever or alter this dynamic of interdependence.

47. In the event of secession, the Qu�bec government erroneously believes it can simply assume the fiduciary relationship of the federal Crown. However, the constitutional framework would be fundamentally altered which requires our free and informed consent. Moreover, we have the right to determine our own relationships which cannot be unilaterally terminated or modified by Qu�bec.

48. It would be difficult to deny the many layers of interdependence that have evolved over the centuries. Nor can one easily dismiss the difficulties that would arise in resolving all relevant matters in secession negotiations. Therefore, it is understandable why the Supreme Court did not rule that any future secession process should be triggered by a simple majority vote. Such an extended period of uncertainty and disruption to all Peoples and governments in Canada should not be taken lightly.

Unconstitutional Conferral of Rights and Powers

49. Most sections of Bill 99 appear to exceed, in whole or in part, the legislative jurisdiction of the National Assembly. Undoubtedly, the Qu�bec government is well-versed in the Constitution of Canada. Therefore, one must conclude that the inclusion of unconstitutional provisions is no accident. Regrettably, it represents a blatant disregard for the rights of others and for the rule of law.

50. Yet Bill 99 goes even further. To some degree, it reflects a government and legislature that are proclaiming a unilateral declaration of independence (UDI). In many instances, virtually absolute powers and duties are declared. International law concepts are intentionally misappropriated.

51. In some respects, the Bill seeks to establish absolute domination by Qu�bec�s political institutions. It pursues a strategy of a secessionist government seeking to establish what is known in international law as "effectivity" or "effective control".

52. Most of the sections of the Bill relate to a single, fictitious "Qu�bec people". Therefore, Bill 99 may be seen as colourable legislation that has little or no valid legislative purpose. The fabrication of a single "Qu�bec people" may be viewed as an unconstitutional attempt to undermine or deny the status and rights of Aboriginal Peoples.

53. Aspects of Bill 99 that appear to be, in whole or in part, unconstitutional include

* fabrication of a single, fictitious "Qu�bec people", so as to deny Aboriginal Peoples our basic status and rights (ss. 1 et seq.)

* discriminatory and undemocratic application of the principle of equal rights and self-determination of Peoples (ss. 1 et seq.)

* denial of Aboriginal peoples� distinct role in determining the political regime and legal status of Qu�bec (s. 2)

* violation of Cree treaty rights under the James Bay and Northern Qu�bec Agreement (JBNQA), including the requirement of Cree consent (ss. 2 et seq.)

* discriminatory application of referendum rules and undemocratic restrictions on Aboriginal Peoples� referendums (ss. 3-5)

* declaration to the effect that the "Qu�bec State" is not bound by the Constitution Act, 1982 (s. 7)

* new or expanded vetos on territorial and boundary alterations concerning Qu�bec (s. 8)

* declaration that "Qu�bec State" exercises, on behalf of the "Qu�bec people", all of the powers relating to its jurisdiction (s. 9)

* declaration to the effect that, in regard to the exercise of the right of the "Qu�bec people" to self-determination, the "Qu�bec State" and the National Assembly is not bound by any constitutional or other Act enacted outside Qu�bec (s. 10)

* absolute immunity of the National Assembly in the self-determination matters of the "Qu�bec people" (s. 10).

54. These unconstitutional aspects are fundamental and far-reaching. They put into serious question both the coherence and validity of the Bill itself. As a result, the Bill - if adopted in its present form by Qu�bec�s National Assembly - could possibly be declared unconstitutional and invalid in its entirety by the courts.

Incompatibility with international law

55. Bill 99 also runs counter to international law. The Bill inappropriately applies international law concepts to Qu�bec and its institutions (e.g. "national state", territorial integrity). It also misinterprets, in a completely self-serving manner, various concepts or principles of international law (e.g. "Peoples", self-determination, territorial integrity).

56. In the secession context, the Bouchard government has always declared that its actions were entirely consistent with international law. However, Bill 99 fails to conform to international law, Canadian constitutional law, or Aboriginal law.

"Territorial integrity of Qu�bec"

57. Bill 99 stipulates that "[t]he Government must ensure that the territorial integrity of Qu�bec is maintained and respected" (s.8). In this way, Bill 99 purports to create an absolute duty on the part of the Qu�bec government to safeguard the "territorial integrity of Qu�bec".

58. "Territorial integrity" is a recognized international law principle applicable to states. This international law principle clearly does not apply to provinces, such as Qu�bec.

59. Contrary to Bill 99, the principle of "territorial integrity" is not absolute and can only be invoked by a state if certain conditions are met. This has been confirmed by the Supreme Court in the Secession Reference.

60. Even if the principle of territorial integrity were applicable to Qu�bec, the government fails to meet any of the conditions required to assert this principle.

61. First, Qu�bec does not have a "government that represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination". Second, as Bill 99 amply demonstrates, Qu�bec fails to respect the principles of self_determination in its internal arrangements.

62. The principle of "territorial integrity" is being illegitimately appropriated by the Qu�bec government to deny Aboriginal Peoples the right to self-determination, in the event Qu�bec take steps to secede.

63. In the Canadian and international context, it is the "integrity" of Aboriginal Peoples and our rights and societies that have been recognized as a legitimate and ongoing concern. In light of ongoing encroachments by governments, safeguarding the integrity of Aboriginal territories is an ongoing priority.

64. Bill 99 seeks to pre-determine that any future Qu�bec "state" will conserve all territory currently within the province. In this way, Aboriginal Peoples in Qu�bec will be illegitimately deprived of determining the future of our Peoples, territories and resources.

65. In regard to boundary issues, the Supreme Court of Canada was very clear that such matters would "inevitably" be a part of any future secession negotiations. The Court then highlighted the importance of boundary issues, in relation to Aboriginal peoples and the right to self-determination. Therefore, Bill 99 cannot create an absolute duty to maintain the "territorial integrity of Qu�bec" and still respect in good faith all of the parameters of the Supreme Court decision.

66. It is important to distinguish between the international law notions of "territorial integrity" and "uti possidetis". However, neither would apply to Qu�bec in any future secession negotiations.

"Territorial integrity" and the use of force

67. Bill 99 sets the stage for the use of force against the James Bay Crees and other Aboriginal Peoples in Qu�bec. First, Bill 99 is adopted by the National Assembly, creating self-serving and absolute powers and duties concerning the "territorial integrity of Qu�bec". Later, this same "law" would allegedly provide the justification for the use of force. This could occur, should we as Aboriginal Peoples seek to defend our traditional territories against unilateral inclusion in a new Qu�bec "state".

68. Aboriginal Peoples in Qu�bec are well aware of how this principle of "territorial integrity" is to be used against us. The government�s misguided and illegal strategy is clearly another form of colonialism that must be condemned.

"Reaffirmation" of Rights, Duties and Powers a Deception

69. Bill 99 and its explanatory notes claim to be "reaffirming" certain rights, responsibilities and jurisdiction of the "Qu�bec people" and "Qu�bec State". Yet it is hardly possible to "reaffirm" any such rights, etc. if they have not existed or been validly affirmed in the past.

70. To a large degree, the rights, responsibilities and jurisdiction being "reaffirmed" run counter to both Canadian constitutional and international law. In claiming to be simply "reaffirming" the various rights, duties and powers, the Qu�bec government is grossly misleading the public.



71. Bill 99 is not a legitimate and valid "charter" that reaffirms equally the rights of all Peoples in the province. Instead, it is an attempt to illegally consolidate absolute power and control within the Qu�bec government and National Assembly in a self-determination context. This would be done at the expense of Aboriginal Peoples, among others.

Delegitimization of Qu�bec sovereignty by Qu�bec government

72. The Supreme Court�s judgment in the Secession Reference did not legitimize any specific sovereignty project of the Qu�bec government The judgment clearly suggests that there were insufficient facts for the Court to make any such judicial determination.

73. Instead, the Secession Reference judgment establishes a legal and political framework in which future secession projects could possibly be specifically and democratically considered. The Court thus elaborates upon a principled constitutional framework whereby legitimacy may be acquired by the Qu�bec population or Qu�bec authorities to "pursue" secession.

74. The Supreme Court indicates that the right of Qu�bec authorities to "pursue" secession, if a clear majority of Quebecers chooses that goal, can acquire and maintain legitimacy - "so long as in doing so, Qu�bec respects the rights of others".

75. Should a political majority in Qu�bec or in the whole of Canada fail to respect the underlying constitutional principles - namely, democracy, federalism, constitutionalism and the rule of law, and protection of Aboriginal and treaty rights - its legitimacy would be jeopardized as a result.

76. Failure to respect these underlying constitutional principles can be so serious that it can put the whole secession negotiations process "at risk".

77. Bill 99 fails to respect "the rights of others" as required by the Supreme Court. The Bill also fails to respect the four constitutional principles that the Court has specifically highlighted. If adopted by the National Assembly, this illegal and illegitimate Bill will constitute a fundamental part of Qu�bec�s laws. It would therefore constitute part of the legal framework in Qu�bec for any future referendum.

78. Bill 99 illegitimately takes Quebecers outside the legal and political framework established by the Supreme Court of Canada. Therefore, following a YES vote in a referendum, neither the Qu�bec government nor Quebecers would have any right to invoke any constitutional duty on the part of the rest of Canada to negotiate secession in good faith.

79. This merits sober reflection by Quebecers and others. While Bill 99 purports to advance Qu�bec sovereignty claims, it actually does the opposite. It severely limits, in a wholly undemocratic and illegal manner, Quebecers� options for the future.

Lack of integrity, legality and legitimacy

80. Bill 99 represents one of the worst examples of "rule by law". It violates the principles of democracy, federalism, rule of law and protection of Aboriginal and treaty rights. It runs roughshod over our human right to self-determination. It seeks to consolidate absolute power in Qu�bec�s political institutions. Ultimately, its illegitimacy even exceeds its rampant illegality.

81. The elements of integrity, legality and legitimacy should be the hallmark of any legislative instrument. All of these elements are clearly absent in relation to Bill 99.

Need for principled rules

82. Bill 99 serves as the most concrete example to date as to why clear and principled rules are urgently needed for any future secession initiative. The betrayal of democratic principles in the Bill, as well the blatant disregard for the status and human rights of Aboriginal Peoples, demand that specific norms be established. These rules must wholly conform to the judgment of the Supreme Court in the Secession Reference, in a fair and balanced manner.

83. While the federal Clarity Act may have initiated this process, we firmly believe that amendments are required to reflect the Supreme Court�s judgment in a more balanced way. In view of the draconian nature of Bill 99, a more comprehensive and principled framework should be seriously considered by all political actors concerned.

84. If new rules are to be principled, they must be fully respectful of the fundamental status and rights of Aboriginal peoples. This would include a full and direct participatory role at every stage of any secession-related process. These rules must also be consistent with the imperatives of equality, non-discrimination and respect for human rights.

Bill 99 wholly rejected

85. Based on all of the above reasons, we totally reject this discriminatory and unconstitutional Bill. Its colonial and undemocratic nature is unworthy of any principled legislature. Its disrespect for, and denial of, fundamental and inalienable human rights contradicts domestic and international norms. It is replete with double standards.

86. The Qu�bec government would never accept such a Bill, if analogous terms were imposed on Quebecers by Canada.

87. Qu�bec parliamentarians have a duty to act fairly and equally in respect to all Peoples in Qu�bec. Based on these and other standards referred to in this Brief, Bill 99 should be scrapped. Adoption of this deceptive and dishonourable Bill would mark a low point in the 200-year history of the National Assembly. It would also cause further divisions and generate a lasting distrust.

LIST OF AUTHORITIES [top]

Legislation and Cabinet Decrees

An Act approving the Agreement concerning James Bay and Northern Quebec, S.Q., 1976, c. 46

An Act respecting the delineation of the north-western, northern and north-eastern boundaries of the province of Quebec, S.Q. 1898, c. 6

An Act respecting the extension of the Province of Quebec by the annexation of Ungava, S.Q. 1912, c. 7

An Act respecting the north-western, northern and north-eastern boundaries of the province of Quebec, S.C. 1898, c. 3

An Act to extend the Boundaries of the Province of Quebec, S.C. 1912, c. 45

Bill 99, An Act respecting the exercise of the fundamental rights and prerogatives of the Qu�bec people and the Qu�bec State, 1st Sess., 36th Leg., Qu�bec, 1999

Bill C-20, An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, 2nd Sess., 36th Parl., 1999

Charter of Human Rights and Freedoms, R.S.Q. c. C-12

Constitution Act, 1871, (U.K.), 34-35 Vict., c. 28

Constitution Act, 1982, Schedule B to the Canada Act, 1982, (U.K.), 1982, c. 11

Gouvernement du Qu�bec, D�cret, No. 1138 -99, 6 October 1999 (re Nunavik commission for self-government)

James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976-1977, c. 32

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Black�s Law Dictionary 6th ed. (St. Paul, Minn.: West Publishing Co., 1990)

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M. Shaw, The Heritage of States: The Principle of Uti Possidetis Juris Today, (1996) 67 Br. Y.I.L. 75

B. Slattery, Aboriginal Sovereignty and Imperial Claims, (1991) 29 Osgoode Hall L.J. 681

J.-M. Sorel & R. Mehdi, L�Uti possidetis entre la cons�cration juridique et la pratique: essai de r�actualisation, (1994) 40 A.F.D.I. 11

R. Stavenhagen, "Self-Determination: Right or Demon?" in D. Clark & R. Williamson, eds., Self-Determination: International Perspectives (New York: St. Martin�s Press, 1996) 1

M.E. Turpel, "Does the Road to Qu�bec Sovereignty Run Through Aboriginal Territory?" in D. Drache & R. Perrin, (ed.), Negotiating With a Sovereign Qu�bec (Toronto: James Lorimer & Co., 1992) 93

M.E. Turpel, "The Cultural Non-Homogeneity of Quebec: Secessionism, Indigenous Legal Perspectives and Inseparability" in D. Clark & R. Williamson, eds., Self-Determination: International Perspectives (New York: St. Martin�s Press, 1996) 28

U. Umozurike, Self-Determination in International Law (Hamden, Connecticut: Archon Books, 1972)

C. Warbrick, "Recognition of States: Recent European Practice" in M.D. Evans, ed., Aspects of Statehood and Institutionalism in Contemporary Europe (Brookfield, Vermont: Dartmouth Publishing Company, 1996) 9

L. Wildhaber, Territorial Modifications and Breakups in Federal States, [1995] Can. Y.I.L. 41

Government Studies, Policies, Documents, etc.

Assembl�e nationale, Journal des d�bats, Commission d'�tude des questions aff�rentes � l'accession du Qu�bec � la souverainet�, 9 Oct. 1991, No. 5, (testimony of D. Turp)

Commission des droits de la personne du Qu�bec, M�moire de la Commission des droits de la personne pr�sent� � la Commission royale sur les peuples autochtones (Montr�al: November 1993)

Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (Ottawa: Canada Communication Group, 1996), vols. 1-5

Secr�tariat aux affaires autochtones, Partnership, Development, Achievement (Qu�bec: Gouvernement du Qu�bec, 1998)

Statements of the Canadian Delegation, Commission on Human Rights, 53rd Sess., Working Group established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995, 2nd Sess., Geneva, 21 October - 1 November 1996, cited in Consultations Between Canadian Aboriginal Organizations and DFAIT in Preparation for the 53rd Session of the U.N. Commission on Human Rights, February 4, 1997 (statement on art. 3, right to self-determination, on October 31, 1996)

Cases

Attorney_General (Aus.); Ex rel. McKinlay v. Commonwealth, (1975) 135 C.L.R. 1 (Aust. H.C.)

A.G. Canada v. Coon Come, [1991] R.J.Q. 922 (C.A.)

Bertrand v. B�gin et al., [1996] R.J.Q. 2393 (C.S.)

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, 153 D.L.R. (4th) 193, (1998) 37 I.L.M. 268

Gitanyow First Nation v. Canada,[1999] 3 C.N.L.R. 89 (B.C.S.C.)

Lord et al. v. Canada (A.G.), No. 500-05-043203-981, Qu�bec Superior Court, judgment rendered by the Croteau J., 24 November 1999

Mabo et al. v. State of Queensland, (1992) 107 A.L.R. 1 (High Court of Australia)

R. v. C�t�, [1996] 4 C.N.L.R. 26

Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158

Reference re Secession of Qu�bec, [1998] 2 S.C.R. 217

Sparrow v. The Queen, [1990] 1 S.C.R. 1075

Western Sahara (Advisory Opinion), [1975] I.C.J. Rep. 6

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)

Aboriginal Peoples� Treaties, Resolutions, etc.

Discriminatory and Colonial Positions Taken by the Government of Qu�bec Before Supreme Court of Canada: Denial of the Existence of Aboriginal Rights in Qu�bec, Resolution No. 11/96, Secretariat of the Assembly of First Nations of Qu�bec and Labrador, October 17, 1996

"Declaration of the First Nations of Qu�bec and Labrador", Resolution adopted at Lac Delage, Secretariat of the Assembly of First Nations of Qu�bec and Labrador, October 13, 1994

First Nations in Qu�bec, "Fundamental Principles of Peaceful Co-Existence", adopted May 1998 (Secretariat of the Assembly of First Nations of Qu�bec and Labrador)

James Bay and Northern Quebec Agreement and Complementary Agreements, 1997 Edition (Qu�bec: Les Publications du Qu�bec, 1996)

International Instruments, Documents, Treaties, etc.

Charter of Paris for a New Europe, A New Era of Democracy, Peace and Unity, November 21, 1990, (1991) 30 I.L.M. 190

Charter of the United Nations, Can. T.S. 1945 No. 76; [1976] Yrbk. U.N. 1043; 59 Stat. 1031, T.S. 993

Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, U.N.G.A. Res. 2625 (XXV), U.N. Doc. A/8028 (1971), reprinted in (1970) 9 I.L.M. 1292

Final Act of the Conference on Security and Co-operation in Europe (Helsinki Final Act), Principle IV, reprinted in (1975) 14 I.L.M. 1295

Indigenous and Tribal Peoples Convention, 1989, I.L.O. Convention No. 169, I.L.O., 76th Sess., (1989) 28 I.L.M. 1382 (not yet in force in Canada)

International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, (1966) 5 I.L.M. 352 (entered into force 4 January 1969, ratified by Canada 14 October 1970)

International Covenant on Civil and Political Rights, 19 December 1996, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47, 6 I.L.M. 368 (entered into force 23 March 1976, accession by Canada 19 May 1976)

International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966); Can. T.S. 1976 No. 46 (entered into force 3 January 1976, accession by Canada 19 May 1976)

Nuuk Conclusions and Recommendations on Indigenous Autonomy and Self-Government, United Nations Meeting of Experts, Nuuk, Greenland, 24-28 September 1991, U.N. Doc. E/CN.4/1992/42 and Add.1

Resolution on Action Required Internationally to Provide Effective Protection for Indigenous Peoples, Adopted by the European Parliament in its plenary session, Strasbourg, February 9, 1994, Eur. Parl. Doc. PV 58(II) (1994)

United Nations Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties Under Articles 16 and 17 of the Covenant, U.N. Doc. E/C.12/1/Add.31, 4 December 1998

United Nations Declaration on the Rights of Indigenous Peoples (Draft), in U.N. Doc. E/CN.4/1995/2 - E/CN.4/Sub.2/1994/56 (1994)105, (1995) 34 I.L.M. 541

United Nations Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Covenant, 7 April 1999, CCPR/C/79/Add. 105 (Concluding observations of the Human Rights Committee)

U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Human Rights of Indigenous Peoples: Indigenous people and their relationship to land, U.N. Doc. E/CN.4/Sub.2/1999/18 (1999) (E.-I. Daes, Special Rapporteur, Second progress report)

U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of the Problem of Discrimination Against Indigenous Populations, U.N. Doc. E/CN.4/Sub.2/1986/7 & Adds. 1-4 (1986) (J. Mart�nez Cobo, Special Rapporteur)

U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination: Implementation of United Nations Resolutions, U.N. Doc. E/CN.4/Sub.2/405/Rev.1 (1980) (H. Gros Espiell, Special Rapporteur)

United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, adopted June 25, 1993, U.N. Doc. A/CONF.157/24 (Part I) at 20 (1993), (1993) 32 I.L.M. 1661

Universal Declaration of Human Rights, U.N.G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948). Adopted by the U.N. General Assembly on December 10, 1948

News articles

M. Adam, "Le PQ n'exclut pas l'usage de la force pour s'imposer dans un Qu�bec souverain", La Presse (11 June 1994) p. B2

Y. Boisvert, "'N�mou�, disent les Cris � 96 p. cent", La Presse (26 October 1995) p. B5

L. Bouchard, "�Un assaut contre le bon sens et la d�mocratie�", La Presse (16 December 1999) p. B3

C. Castonguay, "Nos plus grands d�fis ne proviennent pas de notre appartenance au Canada, La Presse (19 January 2000) p. B3

M. Cloutier, "Les Premi�res Nations rejettent les propositions de Chevrette" Le Devoir, (20 May 1998) p. A1

M. Cloutier, "P�quistes et lib�raux satisfaits", Le Devoir (21 August 1998) p. A1

P. Constantineau, "Le Canada, un �tat multinational?", Le Devoir (1 December 1998) p. A9

P. de Bellefeuille, "If Quebec rates sovereignty, why not Indians?", The [Montreal] Gazette (7 September 1978) p. 9

D. Del�ge, "Les trois peuples fondateurs du Qu�bec", Le Devoir (24-25 July 1999) p. A9

A. Derfel, "Quebec Inuit strongly reject sovereignty in own vote", The [Montreal] Gazette (27 October 1995) p. A10

A. Derfel, "'The message is clear: We won't go�: Coon Come has warning after vast majority of Crees reject Quebec independence", The [Montreal] Gazette (26 October 1995)

A. Dubuc, "Les d�rapages autochtones", La Presse (17 February 1996) p. B2

L. Gagnon, "Nationalisme et confusion s�mantique", La Presse (13 December 1997) p. B3

L. Gagnon, "Un crime contre histoire?", La Presse (14 December 1999) p. B3

Gouvernement du Qu�bec, "Quand on joue avec la d�mocratie, c�est tout le Canada qui perd des plumes" (advertisement), Le Devoir (27 January 2000), p. A5

Government of Qu�bec, "In the United Nations, democracy means 50% + 1 of the vote" (advertisement), The [Montreal] Gazette (27 November 1999) p. C9

Groupe de r�flexion sur les institutions et la citoyennet� (GRIC), "Qu�b�cois-Autochtones: il faut relever le d�fi de la reconnaissance mutuelle", La Presse (2 April 1994) p. B3

J.-M. Leger, "Il n�y a pas de nation qu�b�coise", Le Devoir (8 October 1999) p. A11

D. Lessard, "Les souverainistes cherchent un divorce � l�amiable", La Presse (27 March 1999) p. B1

L. L�vesque, "%Les peuples, non pas les juges, d�cident de leur avenir& - Landry", La Presse (21 September 1996) p. A23

P. Monahan, "Bertrand deserves thanks", The [Montreal] Gazette (11 February 1999) p. B3

C. Montpetit, "Inuits et Montagnais disent massivement NON", La Presse (29 October 1995) p. A2

J. Robinson, "How can Bouchard argue with need for clarity?", The [Montreal] Gazette (14 December 1999) p. B2

R. S�guin, "Iron hand possible, Quebec minister says", Globe and Mail (30 January 1997) p. A4

R. S�guin, "Quebeckers show little interest in bill", Globe and Mail (20 January 2000) p. A6A

"Sovereign Quebec would use police against dissident natives, PQ official says", Ottawa Citizen (31 May 1994) p. A3

E. Thompson, "First Nations reject new policy", The [Montreal] Gazette (20 May 1998) p. A5

E. Thompson & T. Wills, "Quebec scoffs at court test", The [Montreal] Gazette, (26 September 1996) p. A1

P. Wells, "�No rule� on 50% plus 1: BQ MP", The [Montreal] Gazette (13 June 1997) p. A10