The Grand Council of the Crees

Questions to Supreme Court Reference to Quebec Secession

Questions to Supreme Court Reference to Quebec Secession

Posted: 1998-03-18

IN THE MATTER OF Section 53 of the Supreme Court Act, R.S.C. 1985, Chap. S-26

IN THE MATTER OF a Reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada, as set out in Order in Council P.C. 1996-1947, dated the 30th day of September, 1996
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INTERVENER GRAND COUNCIL OF THE CREES (EEYOU ESTCHEE) - REPLY TO WRITTEN RESPONSES BY THE ATTORNEY GENERAL OF CANADA AND THE AMICUS CURIAE TO QUESTIONS POSED BY THE SUPREME COURT OF CANADA

______________________________________________________________________________

Claude-Armand Sheppard Gowling, Strathy & Henderson
Robinson, Sheppard, Shapiro 160 Elgin Street, Suite 2600
800, Place Victoria Ottawa, Ontario
Bureau 4700 K1N 8S3
Montr?al, Qu?bec
H4Z 1H6

Tel: (514) 878-2631 Tel: (613) 232-1781
Fax: (514) 878-1865 Fax: (613) 563-9869

Counsel for Intervener Grand Agent for Intervener Grand Council
Counsel of the Crees (Eeyou Estchee) of the Crees (Eeyou Estchee)

TABLE OF CONTENTS

INTRODUCTION 1

PART I - WRITTEN RESPONSES BY THE ATTORNEY GENERAL OF CANADA

QUESTION 3
i) Section 35.1 of the Constitution Act, 1982

QUESTION 7
i) Justification tests
ii) Absence of additional parties in this Reference

THE RIGHT OF SELF-DETERMINATION

PART II - WRITTEN RESPONSES BY THE AMICUS CURIAE

QUESTION 14
i) Compensation under JBNQA

INTERVENER GRAND COUNCIL OF THE CREES (EEYOU ESTCHEE)

REPLY TO WRITTEN RESPONSES BY THE ATTORNEY GENERAL
OF CANADA AND THE AMICUS CURIAE TO QUESTIONS
POSED BY THE SUPREME COURT OF CANADA

INTRODUCTION

1. On February 18, 1998, at the close of oral arguments in this Reference, the Supreme Court of Canada convened the parties to appear the next day to respond to questions posed by the Court.

2. On February 19, 1998, the Court asked a number of different questions of the Attorney General of Canada and of the amicus curiae.

3. Although some oral responses were given by the Attorney General of Canada and by the amicus curiae on February 19, both counsel indicated that they would provide written responses to the questions posed to them. These responses were filed on March 6, 1998.

4. On March 13, 1998, the Attorney General of Canada filed a further written response entitled Reply of the Attorney General to Written Responses of the Amicus Curiae From the Supreme Court of Canada.

5. Some of the written responses advance new arguments or new clarifications that require, in some instances, a brief reply from the Intervener Grand Council of the Crees (the "Intervener" or "Grand Council"). The possibility that these written responses might give rise to a brief reply by Interveners was mentioned on February 19 by the Chief Justice.

6. The reply of the Intervener is set forth below. The numbering of the questions referred to is that used by the Attorney General of Canada and by the amicus curiae respectively. In regard to the written responses of the Attorney General of Canada, all references are to her response of March 6, 1998, unless indicated otherwise.

PART I - WRITTEN RESPONSES BY THE ATTORNEY GENERAL OF CANADA

QUESTION 3

7. Question 3, as posed by the Court, reads:

Does the position of the Attorney General mean that secession can only take place in compliance with the formal procedures set out in Part V of the Constitution [and in the preamble (as the Chief Justice subsequently modified the question)], or are there other ways in which a secession might also be carried out consistently with our constitutional law as a whole?

i) Section 35.1 of the Constitution Act, 1982

8. The written response of the Attorney General of Canada indicates that Part V of the Constitution Act, 1982 provides a defined and detailed framework for effecting constitutional change, including the possible secession of a province (para. 32). However, when proposed constitutional amendments directly affect Aboriginal peoples, the Attorney General modifies her views: "...although outside of Part V, the involvement of aboriginal Canadians is assured through the provisions of s. 35.1 of the Constitution Act, 1982 where their interests are directly affected" (para. 21, emphasis added).

9. In regard to procedures for constitutional amendment, s. 35.1(b) expressly provides for the participation of "representatives of the aboriginal peoples of Canada". It does not contemplate the involvement of "aboriginal Canadians", as stated by the Attorney General of Canada. In other words, Aboriginal peoples participate as recognized constitutional entities, that is, as distinct "peoples", and not as individual Canadians. In this way, s. 35.1 is a further affirmation that Aboriginal peoples are constituent elements of the federal principle under Canada's Constitution.

10. In addition, s. 35.1 refers solely to a modification of the provisions per se of s. 91(24) of the Constitution Act, 1867, and s. 25 and Part II (ss. 35 and 35.1) of the Constitution Act, 1982. Section 35.1 does not apply to the amendment of constitutionally-protected treaty rights under a specific treaty such as the James Bay and Northern Qu?bec Agreement (JBNQA). Otherwise, each time that a particular treaty were to be modified by the parties concerned, a constitutional conference involving all federal and provincial First Ministers and representatives of the "aboriginal peoples of Canada" would have to be convened - an absurd result. Moreover, this result would be wholly inconsistent with the historical treaty-making process between Aboriginal peoples and the Crown, including any practice of the parties in contemporary times.

11. Even in situations where s. 35.1 is applicable, the provision should not be interpreted in a vacuum, but should be read together with other relevant provisions in the Constitution. Although s. 35.1 provides for a process involving Aboriginal peoples in certain proposed constitutional amendments, s. 35.1 does not provide a complete scheme of the constitutional rights of Aboriginal peoples or of the constitutional obligations of federal and provincial governments and legislatures.

12. The Attorney General's written response contains additional recognition that, for such a far-reaching act as secession of a province, the constitutional amendment procedures affecting Aboriginal peoples go beyond the express provisions of Part V. In this regard, the written response states: "The Attorney General of Canada recognizes the relevance of aboriginal and treaty rights and of the fiduciary relationship to a consideration of any proposed constitutional amendment under Part V that would have such profound consequences as the secession of a province" (para. 63, emphasis added).

13. The constitutional amendment procedure for modifying the existing treaty rights of the James Bay Crees and other Aboriginal peoples is found in s. 35(1) of the Constitution Act, 1982 (Reply Factum of the Intervener, paras. 47 et seq.) and not in s. 35.1 or Part V.

14. The treaty rights of the James Bay Crees and Inuit under the JBNQA directly affect two-thirds of the present territory in the province of Qu?bec and is, therefore, a crucial consideration in this Reference.

15. As asserted in the written response of the Attorney General of Canada, "[i]t is, in part, because the rights of...Aboriginal peoples...stand to be affected by secession that the Government of Canada is seeking the confirmation by the Court in this Reference that the Canadian constitutional framework applies to a secessionist claim and that unilateral secession is illegal under the Constitution" (para. 56). In regard to constitutional amendment procedures, the right to give or withhold consent to any proposed amendments to the JBNQA treaty is one of the constitutionally-protected rights of the James Bay Crees and Inuit that go beyond Part V.

QUESTION 7

16. Question 7, as posed by the Court, reads:

What is your position with regard to the fiduciary duty owed to First Nations people if there should be a UDI? Do you consider your obligations to extend to consideration of territorial claims of First Nations people?

i) Justification tests

17. In the written response, it is stated that "the Attorney General of Canada recognizes the legal import of recent decisions of this Court, such as the Van der Peet trilogy and Delgamuukw, regarding the unique constitutional rights of the aboriginal peoples and the tests that must be met in complying with the Crown's fiduciary responsibilities" (para. 60, emphasis added).

18. In these cases, the Court applied justification tests to reconcile the exercise of federal or provincial government and legislative powers with the existence and exercise of Aboriginal and treaty rights. Although there may continue to be very different views as to what such tests should entail, this Court ruled that, where a prima facie infringement of an Aboriginal or treaty right is demonstrated, the onus shifts to the Crown to prove the infringement is justified.

19. However, in the post-1982 era, such tests have no application in respect to the amendment procedures under the Constitution of Canada. Without question, where an existing constitutional amendment procedure entails the consent of the Parliament of Canada or of a provincial legislature, the requirement of obtaining consent is respected. Similarly, in regard to modifying existing treaty rights under the amendment procedure in s. 35(1), the constitutional requirement of obtaining the consent of the Aboriginal peoples concerned should also be respected. There should be no double standard.

20. In R. v. Badger, [1996] 1 S.C.R. 771, the Supreme Court applied justification tests, when it considered the effects on an Indian treaty of the Constitution Act, 1930 and the Natural Resources Transfer Agreement. In that case, treaty rights were said to have been modified through the enactment of the Constitution Act, 1930. However, this event took place many decades before the treaty rights of Aboriginal peoples were constitutionally protected and a constitutional amendment procedure for modifying existing treaty rights was established under s. 35(1) of the Constitution Act, 1982. Therefore, for the purposes of this Reference, the situation in Badger is clearly distinguishable from that of treaties, such as JBNQA, where any modification of treaty rights arising from unilateral secession would occur solely in a post-1982 context.

21. In any event, in the case of UDI, the criteria in the justification tests set out by the Supreme Court of Canada could not be met. First, under the present circumstances, such secession could have no valid "compelling and substantial"objective. Indeed, unilateral secession per se would violate the rule of law in Canada. Even if the federal and provincial governments were to agree on Qu?bec secession, there is no valid legislative or other objective that would enable governments to remove Aboriginal peoples and their traditional territories from Canada against their will.

22. Second, forcible inclusion of Aboriginal peoples and their territories in a new "state" would be an act of neocolonialism that would deny such peoples their right to self-determination. Third, contrary to the Court's justification tests, forcible removal of Aboriginal peoples and their territories from Canada would be wholly inconsistent with existing treaty rights, the Crown/Aboriginal relationship and the Crown's fiduciary obligation.

23. Fourth, such forcible removal is likely irreversible and is extreme in its consequences. Therefore, it could not meet the Court's criterion of ensuring "as little infringement as possible" (Sparrow v. The Queen, [1990] 1 S.C.R. 1075 at 1119). Fifth, forcible removal of Aboriginal peoples and their territories from Canada would violate the fundamental objectives of s. 35(1). Rather than enable any reconciliation to take place in Canada, forcible removal would vitiate the very notion of reconciliation.

ii) Absence of additional parties in this Reference

24. The written response of the Attorney General of Canada (para. 67) declares: "Although four interveners representing aboriginal people appeared before the Court and presented their views, other interested parties, including other aboriginal groups in Qu?bec as well as most provincial governments, were not represented. It would be unfair to these parties, whose interests could be profoundly affected, to go beyond a general statement of principle on issues affecting aboriginal people without having heard their representations." The Intervener submits that this view is inconsistent with the Order in Council, P.C. 1996-1497, September 30, 1996 establishing the nature and scope of this Reference.

25. There is no such rule in Canadian law that, if some interested parties (including Interveners) choose not to appear and present their views in a Reference, the Court in issuing a response to the Reference Questions should not go beyond a general statement of principles on issues affecting such parties. Otherwise, the absence of interested parties, including the Qu?bec government, could prevent an appropriately detailed and adequate response in a Reference. Furthermore, the same objection could be raised in relation to dealing with the arguments of the Attorney General herself on the Constitution in the absence of all key provinces.

26. If this view of the Attorney General of Canada were accepted, it would cause significant prejudice to the Intervener and other parties who appeared and presented detailed arguments within the framework of the Reference Questions.

27. In addition, this view is inconsistent with other positions included in the written response. For example, in regard to Aboriginal peoples, it is stated: "The Attorney General of Canada agrees with aboriginal interveners that a UDI would clearly interfere with existing and on-going rights of aboriginal peoples and would be inconsistent with the present legal and constitutional position enjoyed by aboriginal peoples in Qu?bec" (para. 61). If so, why would such fundamental aspects not merit fair and balanced consideration by the Court in this Reference?

28. The written responses also state: "In summary, the Attorney General of Canada respectfully submits that the Court should answer the three questions submitted by the Governor in Council in this Reference...Not to answer these extremely important basic legal questions would leave not only governments but also the citizens and communities of Canada without any foundation for dealing with all the other important issues relating to the secession of a province from Canada" (para. 78). The Intervener submits that, within the context of the Reference Questions, such "foundation" necessarily includes fair and adequate consideration now of the fundamental rights of the James Bay Cree people and others in Qu?bec who would be directly affected by unilateral secession.

THE RIGHT OF SELF-DETERMINATION

29. In the March 13, 1998 written response (para. 27) of the Attorney General of Canada, it is provided: "There is a marked tendency in international law toward a broader conception of peoples but this is restricted to the context of the internal aspect of self-determination. Paragraphs 175 and 90 of the Attorney General of Canada's factum and reply respectively summarize the position of the Attorney General of Canada in this respect." The Intervener submits that this position, insofar as it relates to indigenous peoples, is erroneous and misleading.

30. First, the right of peoples to self-determination under international law is not automatically "restricted" to "internal" self-determination within existing states (original Factum of the Intervener, paras. 92, 94). As the March 13 written response itself confirms, exceptions exist, or can arise in the future, under certain circumstances, in regard to colonized peoples or those under alien domination or subject to gross oppression (para. 24).

31. Second, the March 13 written response affirms that para. 90 of the Reply Factum of the Attorney General of Canada in part summarizes her position. However, para. 90 mistakenly states that "...the draft UN Declaration on the Rights of Indigenous Peoples provides that indigenous peoples living within a State have a right of self-determination which must be exercised in a way that respects the political, constitutional and territorial integrity of democratic states - in other words, a right of internal self-determination." The draft Declaration makes no reference anywhere to "political, constitutional and territorial integrity of democratic states". Moreover, the notions of "political integrity" or "constitutional integrity" in the context of self-determination are vague, arbitrary and not helpful.

32. Rather, article 3 of the draft Declaration declares: "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." This language in the draft Declaration is virtually identical to that found in art. 1 of the international human rights Covenants: "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."

PART II - WRITTEN RESPONSES BY THE AMICUS CURIAE

QUESTION 14

i) Compensation under JBNQA

33. Question 14, as posed by the Court, reads:

Si je comprends bien, le peuple qu?b?cois s'adresse ? tous ceux qui habitent le territoire du Qu?bec et dans ce sens-l?, il n'y a pas de minorit?s dans le peuple qu?b?cois. Il est entier. Il est complet. Si je ne me trompe, alors pourquoi y a-t-il eu d?dommagement aupr?s des autochtones lors de la Baie James? Vous pourrez y r?pondre par ?crit.

[Unofficial translation] If I understand well, the Qu?bec people addresses all those who inhabit the territory of Qu?bec and in that sense, there are no minorities in the Qu?bec people. It is whole. It is complete. If I am not mistaken, then why has there been compensation to the Aboriginals in James Bay? You could respond to this in writing.

34. The written response of the amicus curiae (Question 14, p. 3) indicates that the rights and benefits in favour of the James Bay Crees and Inuit set forth in the JBNQA appear to be the consequence of an exchange of rights among the three parties to the Agreement, namely the government of Canada, government of Qu?bec and Aboriginal nations. In this context, the amicus curiae cites the purported "cession" clause in the JBNQA, s. 2.1.

35. The James Bay Crees are a "people" for purposes of self-determination not because there has been some form of compensation obtained through the JBNQA, but rather because they meet the relevant objective and subjective criteria under international law (original Factum of the Intervener, para. 81). As the written response of the amicus curiae points out (Question 14, pp. 1-2), there is no doubt that the Crees and other Aboriginal peoples are peoples under Canadian domestic and international law.

36. The legal and constitutional capacity of the James Bay Crees to enter into treaties, such as JBNQA, is further evidence that the Crees are a "people" distinct from any "Qu?bec people" or "French-Canadian people" in the province.

37. Any compensation for any purported "exchange of rights" cannot have the effect of denying the Aboriginal peoples concerned their right to self-determination. As the amicus curiae himself recognizes (Question 13, p. 1; Question 14, p. 2; Question 18, p. 2), and irrespective of any compensation received, each of the Aboriginal peoples in Qu?bec are a "people" with the right to self-determination.

38. In addition, the written response of the amicus curiae asserts that none of the numerous peoples in Canada, including the Qu?bec people and Aboriginal peoples, can claim to monopolize the exercise of the right to self-determination that belongs to each of them, by imposing themselves on others (Question 21, p. 7). Therefore, in the event of an actual secession, should Quebecers opt to secede from Canada and the James Bay Crees opt not to be separated from Canada, a division of territory presently included in the province of Qu?bec would have to take place. This conclusion underlines the fact that the right to self-determination of one people can only be exercised with due respect to the same right to self-determination of another people.

39. The right to self-determination is a human right of peoples and is inalienable. No compensation can erase the right to self-determination. No section in the JBNQA could be invoked to deny the James Bay Crees their right to self-determination. The text in section 2.1 of JBNQA refers to questions pertaining to land rights and titles. It does not address rights of self-determination or sovereignty.

40. Moreover, the JBNQA is based on a permanent federal constitutional arrangement (original Factum of the Intervener, paras. 56 et seq.). Consequently, no section of JBNQA, including s. 2.1, can be selectively invoked by Qu?bec authorities in the radically-different context of Qu?bec secession, so as to deny or otherwise undermine the fundamental rights of the Cree people.

41. While judicial scrutiny of s. 2.1 of JBNQA is not required for the purposes of this Reference, the Intervener reserves the right to challenge the validity and meaning of s. 2.1 in the future in the appropriate forum and circumstances.

All of which is respectfully submitted.

DATED at Montreal, this 18th day of March 1998.

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Claude-Armand Sheppard

Of Counsel for the Intervener Grand
Council of the Crees