The Grand Council of the Crees

Supreme Court Reference on Quebec Secession

Supreme Court Reference on Quebec Secession

Posted: 0000-00-00

IN THE SUPREME COURT OF CANADA

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

------------------------------------------------------------------------

FACTUM OF THE INTERVENER GRAND COUNCIL OF THE CREES (EEYOU ESTCHEE) -
REPLY TO FACTUM OF AMICUS CURIAE

------------------------------------------------------------------------

Claude-Armand Sheppard Gowling, Strathy & Henderson
Robinson, Sheppard, Shapiro 160 Elgin Street, Suite 2600
800, Place Victoria Ottawa, Ontario
Bureau 4700 K1N 8S3
Montréal, Québec
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

PART I 1
ARGUMENT 1
NATURE AND SCOPE OF REFERENCE QUESTIONS
INITIAL COMMENTS ON FACTUM OF AMICUS CURIAE: AN OVERVIEW

QUESTION I
I. Canadian Constitutional Considerations
1.1 Relevant Amendment Procedures under the Constitution of Canada
1.1.1 "Secession" different from "admission" of a province
1.1.2 Significance of the "democratic" and "federal" principles
1.2 Purposive Analysis of S. 35(1) of the Constitution Act, 1982
1.3 Constitutional Amendment Procedure for Treaty Rights of Aboriginal Peoples
1.3.1 Fiduciary obligations complement amendment procedures
1.4 Combining Amendment Procedures for Québec Secession

QUESTION II
I. International Law
1.1 "Peoples" and "Self-Determination" in the Québec Context
1.2 Unilateral Secession in Québec Attainable Solely Through Revolution

QUESTION III
1.1 Three Reference Questions are Interrelated

PART II
TABLE OF AUTHORITIES

FACTUM OF THE INTERVENER GRAND COUNCIL OF THE CREES (EEYOU ESTCHEE) - REPLY TO FACTUM OF AMICUS CURIAE

PART I

ARGUMENT
NATURE AND SCOPE OF REFERENCE QUESTIONS

1. The Intervener Grand Council of the Crees (the "Intervener" or "Grand Council") shares the view expressed in the report by one of the amicus curiae's experts, Malcolm Shaw, that an adequate response by this Court to the three Questions in this Reference requires a broad approach, as indicated by the preamble of the Order in Council P.C. 1996-1497 (Tab 120). This includes consideration of human rights and other related aspects of Canadian constitutional and international law:
"...the core of concern around which the questions themselves fall to be determined is the uncertainty of Canadian citizens with regard to the situation that might result from a unilateral declaration of independence by Québec, coupled with a generalized reference to the principles of self-determination and certain other seminal human rights...It can only be concluded, therefore, that the questions themselves must be interpreted and discussed in the light of the specified preambular considerations [in Order in Council P.C. 1996-1497]." (M. Shaw, "Re: Order in Council P.C. 1996-1497 of 30 September 1996" in Amicus curiae, Supplément au dossier [:] Rapports d'experts de l'amicus curiae, Tab 191,at 5, para. 11)

2. On the other hand, the Intervener does not agree with the narrow approach taken by the amicus curiae in addressing the Reference Questions. In regard to unilateral secession, he fails to consider or address in any way the fundamental rights and interests of Aboriginal and other peoples in Canada that would be compromised or otherwise prejudiced. Also, he virtually dismisses or ignores the relevance of different constitutional norms and amendment procedures. These issues are further elaborated upon in this Reply.

3. There is an essential interrelationship between constitutional amendment procedures, fiduciary obligations and the safeguarding of constitutional rights. All of these limit the scope of constitutional power of government authorities, and are central to any judicial pronouncement regarding the unilateral secession of Québec from Canada. It is vital for this Court not only to determine whether the constitutional rights of Aboriginal peoples and others would be violated or compromised by unilateral secession, but also to indicate which amendment procedures, if any, would be contravened. These matters are within the four corners of the three Questions and would serve "to make the answer of assistance in resolving the dispute":
Re Canada Assistance Plan, [1991] 2 S.C.R. 525, Tab 143, at 547, per Sopinka J.

INITIAL COMMENTS ON FACTUM OF AMICUS CURIAE: AN OVERVIEW

4. The Intervener disagrees with the views expressed by the amicus curiae that s. 101 of the Constitution Act, 1867 and s. 53 of the Supreme Court Act does not give this Court jurisdiction, but defers to the Attorney General of Canada to respond to this issue.

5. The Factum of the amicus curiae (paras. 28-44) argues that the three Reference Questions are theoretical, political and unripe and, therefore, should not be considered by the Court. The Intervener contests this assessment.

6. There is no "political questions" doctrine in Canada as in the United States. Regardless of the alleged political character of a question, or whether it arises from executive or legislative action, the Court must answer the question if a possible constitutional violation is involved. As the Factum of the amicus curiae concedes (paras. 10, 32, 37), consideration of theoretical and political questions and determination of their ripeness are subject to the discretion of the Court:
Mahe v. Alberta, [1990] 1 S.C.R. 342, Tab 140, at 392

Bertrand v. Bégin et al., [1996] R.J.Q. 2393 (C.S.), Tab 138, at 2409, per Pidgeon J.

Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, Tab 141, at 459, 472

P. Hogg, Constitutional Law of Canada, Loose-leaf Edition (Toronto: Carswell, 1997), vol. 2, Tab 168, at 33-12

7. The argument of the amicus curiae (paras. 28, 29, 33) that consideration of the present Reference Questions should await the tabling or adoption of relevant legislation is not credible. As indicated in the original Factum of the Intervener (paras. 105-106), unilateral secession is effected by a unilateral declaration of independence (UDI) and the attainment of "effective control". A revolution or coup d'état in Québec is not predicated on any law being adopted or tabled in the National Assembly prior to the proclamation of a UDI. Moreover, the fundamental rights of peoples and governments in Canada, the constitutional order, and the well-being of the country are at stake. The consequences of a unilateral secession in Québec are both far-reaching and probably irreversible. Therefore, it is irresponsible to argue that the judicial opinion of this Court should not be sought or is not timely, despite the express objectives, continuing threats of unilateral secession and declared timetable of the government of Québec:
E. Thompson, "Jan. 1, 2001 - that's our sovereignty date: Bouchard", The Gazette, Montreal, June 14, 1997, Tab 198, at A15

8. In regard to the issue of the Court's timely consideration of the Reference Questions, the mechanical application by the amicus curiae (para. 36) of certain precedents concerning absolute doctrines of British parliamentary sovereignty is ill-suited to the constitutional restrictions governing Canadian federalism:
A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. (London: MacMillan, 1959), Tab 157, at 39-40

Re: Remuneration of Judges of the Provincial Court of P.E.I. et. al., v. Manitoba (Minister of Justice), September 18, 1997, File Nos. 24508/24778/24831/24846, at 184, para. 309, per Laforest J. (dissenting), Tab 144

9. The amicus curiae argues (paras. 115ff), in regard to Question 1, that the principle of "effectivity" or "effective control" is a part of the Constitution of Canada; that it is a necessary and inherent norm of Canadian constitutional law (para. 135); that it is of a supra-constitutional nature (para. 136); and is compatible with the rule of law in Canada (para. 138). This is tantamount to pleading that the right to revolution - provided it succeeds - is part of the rule of law. Although domestic courts will address the factual results of a revolution that takes place, this does not mean that effective control is a part of the Canadian Constitution or the rule of law.

10. Effective control through revolution is the antithesis of the rule of law and destructive of the existing constitutional order. There is no "right" to overthrow the legal order under the Constitution of Canada. Nor is revolution, per se, "permitted". Otherwise, any group or government in Canada would be permitted to carry out a revolution under Canada's Constitution by unilaterally attempting to establish effective control. Were such arguments of the amicus curiae to be accepted, one would have to read into the preamble of the Canadian Charter of Rights and Freedoms: "Whereas Canada is founded upon principles that recognize...the rule of law, including the successful overthrow of the existing constitutional order."
"In strictly legal terms, however, there is no such right: no constitutions establish a cognizable right to revolution, in the sense of a legal entitlement enforceable at law, and most do not permit revolution." (T. Franck, "Opinion directed at question 2 of the Reference" in Amicus curiae, Supplément au dossier [:] Rapports d'experts de l'amicus curiae, Tab 164, at 7, para. 2.7) [Emphasis in original.]

11. Unilateral secession seeks to replace the existing constitutional order in Québec with another framework. Such an extreme action would violate the constitutional rights, procedures and norms that pertain to the James Bay Cree people, among others. Unilateral secession could not be based on the use of government prerogatives or parliamentary privileges (see Factum of the amicus curiae, paras. 2, 9, 54ff), since there exist no such absolute powers. If the government or National Assembly of Québec choose to exercise their respective prerogatives or privileges, it must be done within the context of existing constitutional rights, procedures and norms, including the federal principle:
B. Slattery, First Nations and the Constitution: A Question of Trust, (1992) 71 Can. Bar Rev. 261, Tab 100, at 278

P. Hogg, Constitutional Law of Canada, Loose-leaf Edition (Toronto: Carswell, 1997), vol. 1, Tab 168, at , 1-11, 1-15 - 1-16; vol. 2, at 34-9 - 34-10

12. Nor can it be concluded that unilateral secession or rebellion is essentially a phenomenon of international law (Factum of the amicus curiae, para. 114). Until Québec secession were in fact successful (which might not ever occur), international law clearly treats the issue as an internal one subject to Canadian domestic law. Consequently, the federal government in Canada would be entitled to adopt legislation or other rules to regulate or counter any secession attempt in any province, consistent with the maintenance of peace, order and good government in Canada and with the Crown's constitutional and fiduciary responsibilities to Aboriginal peoples:
G. Abi-Saab, "L'effectivité requise d'une entité qui déclare son indépendance pour être considérée comme un État en droit international", in Amicus curiae, Supplément au dossier [:] Rapports d'experts de l'amicus curiae, Tab 147, at 5 [Emphasis added.]

M. Shaw, International Law, 4th ed. (Cambridge: Cambridge University Press, 1997), Tab 190, at 798 [Emphasis added.]

13. For the most part, the Factum of the amicus curiae focuses on the unilateral secession of Québec, in the context of a "successful" attainment of effective control by Québec authorities. However, it virtually ignores all key stages of such a revolution leading up to the accession of independence.

14. Except for the absurd argument that effective control is one of the unwritten norms under the Constitution of Canada, the Factum makes little or no attempt to examine the substantive and procedural elements of Canadian law relevant to unilateral secession in Québec. In particular, the constitutional rights, procedures and norms pertaining to the James Bay Cree people in Québec are ignored. Such an approach by the amicus curiae is wholly selective and precludes fair and balanced analysis. It runs counter to the interpretive rule established by the Supreme Court of Canada that the "Constitution is to be read as a unified whole":
Re: Remuneration of Judges of the Provincial Court of P.E.I. et. al., supra, Tab 144, at 83, para. 107, per Lamer C.J., Tab

15. Similarly, in terms of international law, the Factum of the amicus curiae (paras. 73ff) ignores in its response to Question 2 the status and rights of the Crees and other Aboriginal peoples in Québec. Regardless of whether Québec secession is being considered in a domestic or international court, it is essential that Aboriginal peoples' status and rights be fully considered and respected in this context:
"If potential or latent indigenous claims must be raised and examined sua sponte by the [International] Court, in cases where they have been ignored in submission agreements and pleadings by the litigating states, it is because such claims raise issues of international law that the Court cannot itself ignore: curia novit lex...
The critical point is that, as a substantive matter, the Court should not ignore indigenous [peoples'] rights and transfer title or confirm possession by a state as if the territories involved were vacant. To do this simply reenacts the tragedy of colonialism." (M. Reisman, Protecting Indigenous Rights in International Adjudication, (1995) 89 Am. J. Int'l L. 350, Tab 184, at 358-359)

"The various Aboriginal peoples affected by the division of the existing state of Canada would clearly have an appropriate participatory right in any negotiations, presumably as full and equal participants so far as their interests were at stake." (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 S.J. Anaya, et al., 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, Tab 161, at 61) [Emphasis added.]

16. In the response to Question 2, the Factum of the amicus curiae offers slogans instead of arguments when it proclaims: "le peuple québécois est" (para. 105). This begs the issue. He fails to provide any analysis as to who constitute the "peuple québécois" for purposes of exercising the right to self-determination in the context of unilateral secession; whether there exist one or more "peoples" in the province of Québec; whether they have a common will to identify as a single "people" for self-determination purposes; and on what basis does he reach his conclusion.

QUESTION I

I. Canadian Constitutional Considerations

1.1 Relevant Amendment Procedures under the Constitution of Canada

17. In regard to Question 1, the Intervener disagrees with the Factum of the amicus curiae (para. 137) that the amendment procedures in the Constitution of Canada have no practical utility in regard to the secession of Québec - purportedly because they are there to maintain the Canadian political union and its foundations. Rather, in determining whether there is a right of Québec authorities to effect such unilateral secession, the existing amendment procedures must be fully considered in the context of the whole Constitution. Such approach must be taken, irrespective of the gravity of the changes contemplated.

18. To substantiate the position of the James Bay Cree people, the Intervener finds it necessary to elaborate on: i) the relevance and limitations of certain amendment procedures for Québec secession; ii) the differences between "secession" and "admission" of a province; iii) the significance of the "democratic" and "federal" principles; iv) how s. 35(1) of the Constitution Act, 1982 constitutes an amendment procedure for the modification of existing treaty rights of the James Bay Crees and other Aboriginal peoples in the context of Québec secession; and v) how the Crown's fiduciary obligations owed to Aboriginal peoples serve to complement amendment procedures under the Canadian Constitution.

19. The Intervener shares the view of the amicus curiae (para.137) that Québec secession could not be implemented by a simple amendment of the Constitution. Consequently, it is necessary to determine which combination of amendment procedures would have to be relied upon to effect Québec secession. In this way, the Court can make clear in its response to Question 1 which amendment procedures would be violated should Québec attempt to secede unilaterally.

20. Amendment procedures are generally provided under, but not limited to, Part V of the Constitution Act, 1982 (Tab 136). This view is wholly consistent with s. 52(3) of the Act, which provides: "Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada." [Emphasis added.]

R. Howse and A. Malkin, Canadians are a Sovereign People: How the Supreme Court Should Approach the Reference on Québec Secession, (1997) 76 Can. Bar Rev. 186, Tab 170, at 192-193

21. Additional amendment procedures are found in various other provisions of the Constitution Act, 1867 and the Constitution Act, 1871, as well as in Part II of the Constitution Act, 1982. There are numerous provisions of the Constitution Act, 1867 that can be amended by the federal Parliament alone, by Québec alone, or by a limited number of provinces. Also, ss. 3 and 4 of the Constitution Act, 1871 are considered to be amendment procedures that are still in force:
Constitution Act, 1867, ss. 35, 40, 41, 47, 130, and 131 ("[u]ntil the Parliament of Canada otherwise provides"); ss. 72 & 78 (by Québec alone); and ss. 68, 83, 84, 134, 135, & 136 (by a limited number of provinces), Tab 135

Constitution Act, 1871, ss. 3 & 4, Tab 134

B. Pelletier, La Modification Constitutionnelle au Canada (Toronto: Carswell, 1996), Tab 181, at 22-23, n. 64-67; 87-88; 94-95 and 247

F. Gélinas, Les conventions, le droit et la Constitution du Canada dans le renvoi sur la sécession du Québec: le fantôme du rapatriement, (1997) 57 R. du B. 291, Tab 165, at 329, 334

J.-Y. Morin & J. Woehrling, Les Constitutions du Canada et du Québec du régime français à nos jours (Montréal: Thémis, 1992), Tab 179, at 406, 518

22. In regard to Québec secession, various amendment procedures may be relevant depending on the different constitutional classes of subjects, circumstances and regions within the province that are being addressed. In relation to the James Bay Crees and Inuit of Nunavik and their traditional territories in northern Québec, it is submitted that s. 35(1), per se, of the Constitution Act, 1982 constitutes an amendment procedure that must be respected. An inherent and essential part of this procedure in s. 35(1) is the consent of the Aboriginal peoples concerned to the formal creation and modification of their constitutionally-protected treaty rights. This conclusion is reached from a purposive analysis of s. 35(1). These treaty-related aspects are elaborated further under sub-headings 1.2 and 1.3 below.

23. It has been suggested that, following an affirmative vote in a secession referendum, one should automatically characterize the issue as a "unique" subject falling under the residual amendment procedure in s. 38. According to this view, even if certain subject matters affected by secession currently require unanimous consent under s. 41, these or any other consequences would generally be considered "indirect" and all constitutional provisions affected would simply be treated as "inoperative" in relation to Québec:
B. Pelletier, Le face à face entre le projet sécessioniste québécois et la Constitution du Canada, (1997) 57 R. du B. 341, Tab 182, at 370 et seq.

J. Woehrling, Les aspects juridiques d'une éventuelle sécession du Québec, (1995) 74 Can. Bar Rev. 293, Tab 112, at 311-312

24. However, this "indirect" characterization of all other constitutional issues is untenable. First, the Constitution of Canada does not provide for any such prioritization in favor of a province. One cannot simply conclude that, in the case of Québec secession, all other constitutional requirements should be automatically treated as indirect or secondary in nature. In particular, the constitutional rights and procedures relating to Aboriginal peoples must be complied with.

25. Second, it would be inappropriate and unfair to characterize any possible access to secession solely in terms of a "province". In the case of Québec secession, the Québec government is apparently relying at least in part on the right of Quebecers to self-determination. The right to self-determination is consistently defined in international human rights instruments in terms of "peoples" (see Factum of the amicus curiae, para. 93), and not administrative entities such as provinces (see original Factum of the Intervener, paras. 78 et seq.). Therefore, in view of the right to self-determination of Aboriginal peoples in Québec, it cannot be said that the claims of Quebecers are synonymous with the current boundaries of the province.

1.1.1 "Secession" different from "admission" of a province

26. Section 42(1)(f) of the Constitution Act, 1982 provides that a new province could be created with the consent of Parliament and the legislatures of at least seven provinces representing 50% or more of the population of all of the provinces. However, this does not mean that the same rule should apply for provinces choosing to secede from the Canadian federation.

27. Section 42(1)(f) was added to the Constitution through agreement of federal and provincial governments and legislatures prior to the patriation of Canada's Constitution in 1982. There exists no such specific agreement concerning secession. Moreover, the James Bay Crees and other Aboriginal peoples have fundamental rights, in relation to determining their own future and that of their traditional territories, that cannot be cast aside.

28. While admission of a new province (if it were being agreed to) would likely have net positive effects for Canada, the effects would be very different in the case of secession by a province. In the case of an important province such as Québec, there is a further risk that this initial secession could trigger other secessions within Canada:
G. Craven, Of Federalism, Secession, Canada and Quebec, (1991) 14 Dalhousie L.J. 231, Tab 156, at 250

29. In terms of existing state practice among federal states, secessions are most often treated very differently from admissions of new territories:
L. Wildhaber, Territorial Modifications and Breakups in Federal States, [1995] Can. Yrbk. Int'l L. 41, Tab 109, at 53-55

30. 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 very different from earlier historical times.
J.-Y. Morin & J. Woehrling, Les Constitutions du Canada et du Québec du régime français à nos jours (Montréal: Thémis, 1992), Tab 179, at 408

31. The northern two-thirds of the province of Québec were added through the 1898 and 1912 boundaries extension acts, without the knowledge or consent of the Crees, Inuit and other Aboriginal peoples in these territories (see original Factum of the Intervener, para. 6). This colonial approach must not be repeated. The motivating reasons for these provincial boundary extensions were clearly not to compensate the province for any claims it might have to such territories. Rather the extensions appeared to be carried out solely to enable the province to develop as a province and thereby further unify the Canadian federation:
"...conversion of administrative lines to international lines disregards the inter-connection between the internal borders and the forging or maintenance of national unity. Politicians do not draw internal lines with the possibility of secession in mind. (If they foresaw the emergence of separate states, they might well draw the lines differently.)" (S. Ratner, Drawing a Better Line: Uti Possidetis and the Borders of New States, (1996) 90 American J. Int'l L. 590, Tab 92, at 606)

"In the case of Québec, secessionists seemingly seek to have their cake and eat it, too - to secede and take with them land given to Québec as part of its integration into Canada." (S. Ratner, supra, at 607)

Grand Council of the Crees, Sovereign Injustice [:] Forcible Inclusion of the James Bay Crees and Cree Territory into a Sovereign Québec (Nemaska, Québec, 1995), Tab 73, at 207-212

"Both [Inuit and Cree] regions in northern Québec have a distinct history and a geographical separateness...The Cree and Inuit areas have a measure of autonomy already. There are important separate institutions in Cree and Inuit hands which were established by tripartite legal arrangements and are protected under the existing constitution of Canada. The Cree and Inuit have not been effectively integrated in cultural terms into the polity of Québec. It follows that, in the event of a Québec secession, the Cree and Inuit should have the choice of remaining in Québec or in Canada." (D. Sanders, If Québec Secedes From Canada Can the Cree Secede From Québec?, (1995) 29 U.B.C. L.Rev. 143, Tab 189, at 158) [Emphasis added.]

1.1.2 Significance of the "democratic" and "federal" principles

32. In determining which amendment procedures apply to unilateral secession, certain unwritten constitutional principles are also applicable. These principles emanate at least in part from the preamble of the Constitution Act, 1867 and include the rule of law, the democratic principle and the federal principle:
Constitution Act, 1867, preamble, Tab 135

Re: Remuneration of Judges of the Provincial Court of P.E.I. et al. v. Manitoba (Minister of Justice), supra, Tab 144, at 74, para. 91; at 82, para. 104, per Lamer C.J.

Howse and A. Malkin, Canadians are a Sovereign People: How the Supreme Court Should Approach the Reference on Québec Secession, (1997) 76 Can. Bar Rev. 186, Tab 170, at 195

33. In regard to the "federal principle" under Canada's Constitution, it is described as "the method of dividing powers so that the general and regional governments are each, within a sphere, co-ordinate and independent":
K.C. Wheare, Federal Government (4th ed., 1963), Tab 195, at 10

34. In adopting a flexible and balanced approach to Québec secession and determining what amendment procedures should be applied, the Court should also apply the "democratic" and "federal" principles so that a number of factors could be fairly considered. However, any such approach must still take place within a legal framework:
H. W. MacLaughlan, Accounting for Democracy and the Rule of Law in the Québec Secession Reference, (1997) 76 Can. Bar Rev. 155, Tab 175, at 184

R. Howse and A. Malkin, Canadians are a Sovereign People: How the Supreme Court Should Approach the Reference on Québec Secession, (1997) 76 Can. Bar Rev. 186, Tab 170, at 210

A. Buchanan, "Self-Determination, Secession, and the Rule of Law" in R. McKim & J. McMahan (eds.), The Morality of Nationalism (New York: Oxford University Press, 1997), 301, Tab 152, at 318

Grand Council of the Crees, Sovereign Injustice [:] Forcible Inclusion of the James Bay Crees and Cree Territory into a Sovereign Québec (Nemaska, Québec, 1995), supra, Tab 166, at 138-141

35. While the results of any Québec referendum might indicate the degree of popular will among Quebecers, such a consultation could not bind the Aboriginal peoples in Québec on the question of secession:
"Pre-referendum votes by Inuit, Cree and Montagnais - with overwhelming federalist results - directly challenge the legitimacy of Québec'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." (A.C. Cairns, Why Is It So Difficult to Talk to Each Other?, (1997) 42 McGill L.J. 63, Tab 153, at 86) [Emphasis added.]

"Legitimacy quickly departs from a democracy if the majority rides roughshod over the rights and dignity of minorities and, in the case of Canada, its special responsibilities to its First Nations." (E. Mendes & C. Ettinghausen, "Democracy, Legitimacy, and Secession: The Québec Question and the Canadian Dilemma", Canada Watch 5 (October 1997, no. 6) 100, Tab 177, at 101-102)

A. Tremblay, La Réforme de la Constitution au Canada (Montréal: Les Éditions Thémis, 1995), Tab 194, at 187

36. Even if a case could be made for the secession of Québec based on democratic principles, this could not be used to deny the same principles to Aboriginal peoples in the province that the Québec government claims on behalf of Quebecers:
"It is when Québécois leaders would deny the same collective rights they have fought for and won to indigenous peoples within Québec'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 Québec, (1997) 21 Fletcher Forum of World Affairs 197, Tab 167, at 217)

T. Franck, Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995), Tab 163, at 38

37. Despite the label of "democratic legitimacy" that the amicus curiae bestows on a secessionist Québec (para. 90), an affirmative majority vote in a provincial referendum in favor of secession does not automatically confer either legitimacy or democracy on the result:
"No doctrine could be more subversive of freedom than the notion that a government that is supported by a popular majority is free to disregard the law." (P. Hogg, "Principles Governing the Secession of Quebec", (paper presented at the Conference on "Law, Democracy and Self-Determination", Canadian Bar Association and University of Ottawa, Ottawa, May 22-23, 1997), Tab 169, at 5)

M. Lebel, "La démocratie à la sauce péquiste manque de liant", Le Devoir, October 23, 1997, Tab 196, at A9

P. Russell & B. Ryder, Ratifying a Postreferendum Agreement on Québec Sovereignty (Toronto: C.D. Howe Institute, 1997), Tab 188, at 19

Grand Council of the Crees, Sovereign Injustice [:] Forcible Inclusion of the James Bay Crees and Cree Territory into a Sovereign Québec (Nemaska, Québec, 1995), supra, Tab 166, at 323-340

38. The Intervener concurs with the assertion that the amendment procedure in s. 43 of the Constitution Act, 1982 cannot be used in any way to eviscerate the federal principle and substantially affects all of the partners of the Canadian federation.
B. Pelletier, La Modification Constitutionnelle au Canada (Toronto: Carswell, 1996), Tab 181, at 232, 271-272, 314

J.-Y. Morin & J. Woehrling, Les Constitutions du Canada et du Québec du régime français à nos jours (Montréal: Thémis, 1992), Tab 179, at 517, 538

H. Brun & G. Tremblay, Droit Constitutionnel, 3e éd. (Cowansville, Québec: Les Éditions Yvon Blais, 1997), Tab 150, at 263

39. Aboriginal peoples are constituent elements of the "federal principle" which the Constitution of Canada enshrines. This conclusion is reinforced by the recognition and affirmation of Aboriginal and treaty rights of Aboriginal peoples under s. 35(1) of the Constitution Act, 1982, the resulting limitation on federal and provincial legislative and executive powers, the resulting recognition of Aboriginal peoples as a fundamental characteristic of Canada, and the creation of an amendment procedure under s. 35(1):
A.G. Canada v. Coon Come, [1991] R.J.Q. 922 (C.A.), Tab 28 at 939 (per Lebel J. on behalf of the court)

"The enactment of section 35 of the Constitution Act, 1982 has had far-reaching significance. It serves to confirm the status of Aboriginal peoples as equal partners in the complex federal arrangements that make up Canada. It provides the basis for recognizing Aboriginal governments as one of three distinct orders of government in Canada: Aboriginal, provincial and federal." (Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (Ottawa: Canada Communication Group, 1996), vol. 5, Tab 187, at 162)

"From the legal perspective, Aboriginal nations are constitutional entities rather than ethnic or racial groups." (B. Slattery, First Nations and the Constitution: A Question of Trust, (1992) 71 Can. Bar Rev. 261, Tab 100, at 273)

B. Slattery, The Organic Constitution: Aboriginal Peoples and the Evolution of Canada, (1995) 34 Osgoode Hall L.J. 101, Tab 192, at 111

40. Consequently, any act of unilateral secession by Québec authorities, as justified by the amicus curiae, would be a clear contravention of the federal principle. In particular, the balance of powers among federal, provincial and Aboriginal governments and peoples would be significantly upended without authority or consent, and without reference to the appropriate amendment procedures including that of s. 35(1).

1.2 Purposive Analysis of S. 35(1) of the Constitution Act, 1982

41. Although the Factum of the amicus curiae ignores the constitutional significance of s. 35(1) in the response to Question 1, it is critical to identify the ways in which this provision pertaining to Aboriginal peoples is directly relevant to the present issue of unilateral secession.

42. In interpreting the meaning and scope of s. 35(1), the Supreme Court of Canada has consistently advocated and used a "purposive analysis" in order "to explain the rationale and foundation of the recognition and affirmation of the special rights of Aboriginal peoples":
R. v. Van der Peet, [1996] 2 S.C.R. 507, Tab 142, at para. 27

"The nature of s. 35(1) itself suggests that it be construed in a purposive way. When the purposes of the affirmation of aboriginal rights are considered, it is clear that a generous, liberal interpretation of the words in the constitutional provision is demanded." (Sparrow v. The Queen, [1990] 1 S.C.R. 1075, Tab 145, at 1106)

43. A purposive analysis reveals that there are a number of purposes or effects of s. 35(1) that are directly relevant to Question 1 of this Reference. These purposes and effects would serve to substantially limit any capacity claimed by the amicus curiae (paras. 135ff) for Québec authorities to effect a unilateral secession.

44. These purposes or effects include: i) to guarantee constitutional protection for existing Aboriginal and treaty rights; ii) to impose on the Crown a fiduciary obligation of a constitutional nature in respect to Aboriginal peoples; iii) to confirm that Aboriginal peoples are constituent elements of the Constitution of Canada and the federal principle that the Constitution enshrines; iv) to provide the constitutional framework for reconciliation of pre-existing, distinct Aboriginal societies occupying the land with the Crown; and v) to provide an ongoing amendment procedure that confers constitutional protection on treaty rights, whenever acquired or modified:
Sparrow v. The Queen, supra, Tab 145, at 1109

R. v. Van der Peet, supra, Tab 142, at para. 42 (reconciliation of pre-existing, distinct Aboriginal societies occupying the land with the Crown)

Delgamuukw v. British Columbia, File No. 23799, Supreme Court of Canada, decision rendered December 11, 1997, Tab 139, at para. 141, per Lamer C.J.

45. In regard to the James Bay and Northern Québec Agreement (JBNQA), it is clear that the unilateral secession of Québec from Canada, as justified by the amicus curiae (paras. 135ff), would violate the constitutionally-protected treaty rights of the Crees and Inuit under s. 35(1). A detailed response on this point is made in the original Factum of the Intervener Grand Council of the Crees, paras. 51 et seq.:
"The...reason why Aboriginal consent is required is that the Government of Canada is a signatory, along with the Government of Quebec, to the James Bay and Northern Quebec Agreement.... That Agreement is a land claims agreement within the meaning of s. 35...and is therefore constitutionally protected. It was negotiated in a federal context, and it provides for continuing Government obligations....Since Canada's obligations could no longer be fulfilled in an independent Quebec, and would have to be assumed by the new state of Quebec, a secession would constitute a breach of the Agreement. The Agreement can be amended, of course, but only with the consent of the Aboriginal nations who are party to it." (P. Hogg, "Principles Governing the Secession of Quebec", supra, Tab 169, at pp. 25-26) [Emphasis added.]

46. Unilateral secession would also constitute a "fundamental breach" of the Agreement and reopen the question of the territorial rights of the Aboriginal peoples concerned:
"Unilateral secession of Québec would mean that one level of government...would no longer be able to carry out its obligations under the [JBNQA] 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 Québec - which inclusion is, arguably conditional on the terms of the Agreement." (R. Howse and A. Malkin, Canadians are a Sovereign People: How the Supreme Court Should Approach the Reference on Québec Secession, (1997) 76 Can. Bar Rev. 186, Tab 170, at 210, n.87)

"Ce transfert de propriété du territoire visé par la Loi de 1912 était conditionnel au règlement des droits détenus par les Autochtones sur ce territoire" (Attorney General of Québec, Argumentation écrite, Cree School Board et al. v. A.G. Québec, Montreal, No. 500-05-020496-962 (Sup. Ct.), Tab 137, at 34, para. 29)

1.3 Constitutional Amendment Procedure for Treaty Rights of Aboriginal Peoples

47. A significant shortcoming of the Factum of the amicus curiae is its failure to consider whether s. 35(1) of the Constitution Act, 1982 acts as a constitutional amendment procedure in relation to the existing treaty rights of Aboriginal peoples in Québec. Since an examination of relevant amendment procedures is critical to any complete response by this Court to Question 1, the specific procedure in s. 35(1) is further identified and analyzed below.

48. The Aboriginal rights of Aboriginal peoples have been "constitutionalized" as a result of s. 35(1) under Part II of the Constitution Act, 1982:
Delgamuukw v. British Columbia, File No. 23799, Supreme Court of Canada, decision rendered December 11, 1997, Tab 139, at paras. 134-135, per Lamer C.J.

R. v. Van der Peet, [1996] 2 S.C.R. 507, Tab 142, at para. 29

49. Similarly, the existing treaty rights of Aboriginal peoples are also "constitutionalized" by s. 35(1). However, this constitutionalization process entails additional dimensions and consequences in relation to treaty rights, because of their different nature from Aboriginal rights, that are important in light of the arguments of the amicus curiae in response to Question 1. In particular, the amicus curiae erroneously claims that Québec authorities could proceed, under the Constitution of Canada, towards the secession of Québec from Canada by virtue of the principle of effectivity (para. 139).

50. In regard to treaty rights, the constitutionalization procedure in s. 35(1) is an ongoing and dynamic one. It confers constitutional protection not only on the treaty rights of Aboriginal peoples that existed at the time of the adoption of the Constitution Act, 1982, but also on those treaty rights acquired or modified at any time in the future. This view is confirmed in s. 35(3): "For greater certainty, in subsection (1) treaty rights includes rights that now exist by way of land claims agreements or may be so acquired."
P. Hogg, Constitutional Law of Canada, Loose-leaf Edition, supra, Tab 168, at 27-26

51. Clearly, it is s. 35(1) that confers constitutional status on the treaty rights of Aboriginal peoples and not the amendment procedures under Part V. At the same time, the constitutional powers of federal and provincial governments and legislatures are amended to the extent that such powers are limited by the existence and exercise of treaty rights arising from particular treaties. The same constitutional procedure and consequences occur when existing treaty rights of Aboriginal peoples are expressly modified by the parties concerned.
"[L]a création de gouvernements autochtones et l'élargissements de territoires soumis à la compétence autochtone impliqueront des réductions des pouvoirs souverains du Parlement fédéral et des provinces, et cela que l'on procède par amendement constitutionnel ou par traités." (A. Tremblay, La Réforme de la Constitution au Canada (Montréal: Les Éditions Thémis, 1995), Tab 194, at 10)

52. It is an essential element of treaty and contract law that the consent of the parties to the treaty is required to effect any modifications. This is true both under Canadian and international law. Consequently, when treaty rights are affirmed under s. 35(1), an inherent part of the constitutional amendment procedure for modifying those rights is the right of the Aboriginal people concerned to withhold or give their consent to proposed amendments:
Lord McNair, The Law of Treaties (Oxford: Clarendon Press, 1961) (re-issued in 1986), Tab 176, at 493

53. These requirements are reinforced by the terms and conditions of the James Bay and Northern Québec Agreement. The right of the Aboriginal party concerned to withhold or give its consent to any proposed modification of the provisions of this treaty is one of the explicit rights affirmed in JBNQA (see original Factum of the Intervener, para. 52).

54. In practice, the constitutionally-protected treaty rights of the James Bay Crees and Inuit have indeed been formally amended. This has been repeatedly and consistently accomplished through "complementary agreements" to the JBNQA, with the consent of the Aboriginal and other interested parties and with the direct effect that the modified or new treaty rights of the Aboriginal peoples acquire constitutional protection under s. 35(1):
"WHEREAS: ...Section 6 of the Agreement may be amended with the consent of the interested native party and Québec". (Complementary Agreement no. 6, between Makivik Corporation and the Québec Government, Tab 154, preamble, in James Bay and Northern Quebec Agreement and Complementary Agreements, 1997 Edition (Québec: Les Publications du Québec, 1996) 549)

"WHEREAS the parties hereto wish to amend the James Bay and Northern Québec Agreement in the manner hereinafter set forth". (Complementary Agreement no. 8, between the Cree Regional Authority and the Québec Government, Tab 155, preamble, in James Bay and Northern Quebec Agreement and Complementary Agreements, 1997 Edition (Québec: Les Publications du Québec, 1996) 641)

55. There have been 12 complementary agreements under the JBNQA regime. These latter agreements have served to create constitutionally-protected treaty rights or modify existing treaty rights of the Crees and Inuit. It has never been the practice of the Québec or federal government to apply any of the amendment procedures under Part V of the Constitution Act, 1982 in order to amend existing treaty rights under JBNQA:
James Bay and Northern Québec Agreements and Complementary Agreements, 1997 Edition (Québec: Les Publications du Québec, 1996), Tab 172

56. Since there exists a specific constitutional amendment procedure under s. 35(1) for modifying existing treaty rights in any particular treaty, it cannot be said that the general amendment procedure in s. 38 of the Constitution Act, 1982 is the procedure that is applicable. Section 38 is a "residual" amendment procedure. It is only applicable when no specific amendment procedures are determined to have any application:
P. Hogg, Constitutional Law of Canada, Loose-leaf Edition (Toronto: Carswell, 1997), vol. 1, Tab 168, at 4-14 -4-15

H. Brun & G. Tremblay, Droit Constitutionnel, 3rd ed. (Cowansville, Québec: Les Éditions Yvon Blais, 1997), Tab 150, at 258

J.-Y. Morin & J. Woehrling, Les Constitutions du Canada et du Québec du régime français à nos jours (Montréal: Thémis, 1992), Tab 179, at 521

B. Pelletier, La Modification Constitutionnelle au Canada (Toronto: Carswell, 1996), Tab 181, at 286

P. Russell & B. Ryder, Ratifying a Postreferendum Agreement on Québec Sovereignty (Toronto: C.D. Howe Institute, 1997), Tab 188, at 15

P. Monahan, Constitutional Law (Concord, Ontario: Irwin Law, 1997), Tab 178, at 171

57. Moreover, the "7/50" requirement in s. 38 could hardly be applied with any logic to modify a specific treaty such as JBNQA, where the parties are limited to two governments (federal and Québec) in addition to the Crees and Inuit. Furthermore, in regard to almost all of the treaties signed historically between Aboriginal peoples and the Crown, provincial governments were not even parties or otherwise involved.

58. In the context of Québec secession, the procedure in s. 43 of the Constitution Act, 1982 would also be inappropriate for and inapplicable to the amendment of treaty rights of the Crees and Inuit under JBNQA. First, s. 43 would be inapplicable to effect the unilateral secession of Québec from Canada, since such a procedure would violate the federal principle of which Aboriginal peoples are a part. Second, s. 43 makes no mention whatsoever of applying to such treaty rights. As a result, it could not displace another amendment procedure, such as s. 35(1), that specifically provides constitutional protection to treaty rights, whether existing, modified or newly-acquired at any time.

59. Therefore, s. 35(1) provides the appropriate amendment procedure to modify constitutionally-protected treaty rights in existing treaties as would occur in the context of Québec secession. An inherent and essential aspect of this procedure in s. 35(1) is the right of Aboriginal peoples to grant or withhold their consent to formal amendments to their particular treaties, such as JBNQA.

60. The constitutionally-protected treaty rights of Crees and Inuit under JBNQA, as well as the constitutional amendment procedure in s. 35(1), reinforce the conclusion that Québec secession cannot be effected unilaterally, so as to forcibly include the Aboriginal peoples concerned and their traditional territories into any new Québec state. If such secession were to take place, it could only be effected with consent of the Crees and Inuit. Section 35(1) provides for reconciliation of constitutional rights and powers within Canada. It does not permit the expulsion or forcible removal of Aboriginal peoples and their territories from Canada:
"As was said in Sparrow, at p. 1105, s. 35(1) provides a solid constitutional base upon which subsequent negotiations can take place ...Ultimately, it is through negotiated settlements, with good faith and give and take on all sides...that we will achieve what I stated in Van der Peet, supra, at para. 31, to be a basic purpose of s. 35(1) – the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown . Let us face it, we are all here to stay." [Emphasis added.] (Delgamuukw v. British Columbia, File No. 23799, Supreme Court of Canada, decision rendered December 11, 1997, Tab 139, at para. 186, per Lamer C.J.)

61. These constitutional imperatives in s. 35(1) limit the principle of parliamentary supremacy or the prerogative powers of the Crown. First, the fundamental rights of Aboriginal peoples and the amendment procedures in the Constitution of Canada prevail over notions of parliamentary supremacy. Second, any prerogative power of the Crown would be subject to judicial review and would have to comply with existing constitutional norms:
P. Hogg, Constitutional Law of Canada, Loose-leaf Edition (Toronto: Carswell, 1997), vol. 1, Tab 168, at 1-15 - 1-16

B. Slattery, First Nations and the Constitution: A Question of Trust, (1992) 71 Can. Bar Rev. 261, Tab 100, at 278

62. In particular, the federal government could not use its prerogative power concerning the conduct of foreign affairs to unilaterally recognize Québec as an independent state, as it might do for entities outside Canada who seek international recognition. A key distinction here is that Québec is an integral part of Canada and not some alien entity outside the jurisdiction of the Canadian Constitution. Consequently, in terms of Canadian domestic law, any change in Québec's constitutional status must comply with Canada's Constitution - including the relevant provisions and norms pertaining to the Aboriginal peoples concerned:
N. Finkelstein, G. Vegh & C. Joly, Does Québec Have a Right to Secede at International Law?, (1995) 74 Can. Bar Rev. 225, Tab 69, at 228, n. 8

1.3.1 Fiduciary obligations complement amendment procedures

63. Contrary to the assertions of the amicus curiae excluding the operation of the various amending procedures and norms of the Canadian Constitution applicable to the unilateral secession of Québec (paras. 135ff), existing fiduciary obligations under the Constitution of Canada impose additional constraints on the powers and rights of the governments and legislatures of Québec and Canada in that context. These fiduciary obligations would have to be interpreted in a manner consistent with the constitutional requirement of obtaining Cree and Inuit consent to any modifications to their treaty rights.

64. Since s. 35(1) of the Constitution Act, 1982 is the relevant amendment procedure for amending such treaty rights in the context of Québec secession, the existing fiduciary obligations of the Québec and Canadian governments and legislatures only reinforce further the requirement of obtaining Aboriginal consent:
"...the Government of Canada must not cooperate with a secession by Quebec without first obtaining the consent of the James Bay Crees and the Inuit of Nunavik...[A] secession would involve a severance of the fiduciary duty that is owed by the Crown in right of Canada to the Aboriginal people. That fiduciary duty is constitutionally protected by s. 35(1) of the Constitution Act, 1982. In my opinion, that duty cannot be severed, or transferred to a new state, without the consent of the Aboriginal people to whom the duty is owed." (P. Hogg, "Principles Governing the Secession of Quebec", supra, Tab 169, at 25)

65. The unilateral secession of Québec, if carried out against the express will of the Cree and Inuit peoples in the manner described in the Factum of the amicus curiae (para. 139), would have dire consequences: violation of the human rights of the Cree and Inuit peoples, particularly their right to self-determination; denial of their collective will to remain in Canada (as expressed in their own referendums); unilateral alteration of Aboriginal, treaty and other constitutionally-protected rights of the Crees and Inuit, so as to no longer apply within Canada; unilateral termination of the fiduciary relationship with the Crown in right of Canada; and forcible separation of Crees and Inuit from Canada and their inclusion in a new Québec "state".

66. Such unilateralism would not only violate fiduciary obligations and other Canadian constitutional norms, but also constitute reprehensible acts of neo-colonialism. There is no authority under Canadian constitutional or international law for the Québec or federal government to commit unilateral actions with such far-reaching, adverse and permanent impacts on the Aboriginal peoples concerned:
S.J. Anaya, "Canada's Fiduciary Obligation Toward Indigenous Peoples in Quebec under International Law in General", in S.J. Anaya et al., 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, 9, Tab 148, at 40

1.4 Combining Amendment Procedures for Québec Secession

67. Generally, in situations (such as the Meech Lake Constitutional Accord) where a package of amendments entails a number of different amendment procedures, it is unavoidable that one must superimpose on the whole package those conditions that are the most stringent from each of the respective procedures. Otherwise packages of amendments could be designed so as to qualify purportedly under the residual amendment procedure, and thereby avoid obtaining the approvals that might otherwise be constitutionally required.
J.-Y. Morin & J. Woehrling, Les Constitutions du Canada et du Québec du régime français à nos jours (Montréal: Thémis, 1992), Tab 179, at 532

B. Pelletier, La Modification Constitutionnelle au Canada (Toronto: Carswell, 1996), Tab 181, at 92-93

H. Brun & G. Tremblay, Droit Constitutionnel, 3e éd. (Cowansville, Québec: Les Éditions Yvon Blais, 1997), Tab 150, at 266

68. At the same time, the Court might consider a flexible and balanced approach towards addressing the question of Québec secession. Consistent with the rule of law, principles of democracy and legitimacy could be fairly considered by fully incorporating the unwritten fundamental norms underlying the Constitution of Canada. These norms would have necessarily to be applied equally and without discrimination to all peoples, including the Aboriginal peoples in Québec.
E. Mendes & C. Ettinghausen, "Democracy, Legitimacy, and Secession: The Québec Question and the Canadian Dilemma", supra, Tab 177, at 108

69. Regardless of which amendment procedure under Part V of the Constitution Act, 1982 (e.g. s. 38 or s. 41) is generally applied to the Québec secession issue, the consent of the Aboriginal peoples affected would also be required in accordance with the amendment procedure under s. 35(1).

 

QUESTION II

I. International Law

1.1 "Peoples" and "Self-Determination" in the Québec Context

70. In the Factum of the amicus curiae, there is little or no support for the position that the right to self-determination could be relied upon in order for Québec authorities to claim a right to secede. In particular, the Factum (para. 95) makes clear that it takes no position to support or condemn the view that the right to self-determination under international law is synonymous with a right to secede. In the Intervener's view, it is not synonymous.

71. As pointed out in the original Factum of the Intervener (paras. 78ff), there are more than one distinct "people" in the province of Québec. In response to the amicus curiae, the Intervener would add that, in addition to the Constitution of Canada and the Québec National Assembly, many Quebec leaders themselves recognize that there are various distinct Aboriginal peoples in Québec:
M. Bryant, Aboriginal Self-Determination: The Status of Canadian Aboriginal Peoples at International Law, (1992) 56 Sask. L.R. 267, Tab 151, at 285

"Le Forum paritaire reconnaît le droit à l'autodétermination des peuples vivant au Québec, soit les onze peuples autochtones et le peuple québécois. Il reconnaît aussi que l'exercice démocratique de ce droit pourrait traduire par leur accession à la souveraineté politique." (Forum paritaire québécois-autochtone, "Manifeste concernant l'avenir des relations entre les Autochtones et les Québécois, 1993", reproduced in P. Trudel (ed.), Autochtones et Québécois: la rencontre des nationalismes (Montreal: Recherches amérindiennes au Québec, 1995), Annex I, 177, Tab 162, at 180)

F. Dumont, Récit d'une émigration [:] Mémoires (Montréal: Éditions du Boréal, 1997), Tab 159, at 240-241

72. In relation to Question 2, the Factum of the amicus curiae also erroneously omits from its analysis any consideration of the right to self-determination of the James Bay Crees and other Aboriginal peoples in Québec. Yet, as confirmed by various jurists in and outside of Québec, the position of Aboriginal peoples based on their right to self-determination is stronger than that of other peoples in Quebec:
"...sys peuples-là [nations autochtones et Québécois] vont devoir parler ensemble parce qu'ils ont tous les deux, ou tous, un droit à l'autodétermination. Je pense qu'il ne faut pas éviter cette question-là. Il faut franchement en parler parce qu'au plan de la légitimité, les peuples autochtones, les nations autochtones sur son territoire, ils ont une bonne longeur d'avance sur les francophones du Québec, les anglophones du Québec, tous les Européens et autres nationalités sur ce territoire." (Assemblée nationale, Journal des débats, Commission d'étude des questions afférentes à l'accession du Québec à la souveraineté, 9 Oct. 1991, No. 5, Tab 113, at CEAS-137 (testimony of D. Turp)) [Emphasis added.]

H. Brun & G. Tremblay, Droit constitutionnel, 2e éd. (Cowansville, Québec: Les Éditions Y.Blais, 1990), Tab 56, at 236

C. Iorns, Indigenous Peoples and Self-Determination: Challenging State Sovereignty, (1992) 24 Case W. Reserve J. of Int'l L. 199, Tab 171, at 267, n.325

73. Furthermore, the government of Canada has formally declared in United Nations fora in Geneva that Canada is "legally and morally committed to the observance and protection of this right [of self-determination]" under international law in relation to indigenous and non-indigenous peoples. Under international law, the principle of good faith confers a binding character to such unilateral declarations by the government of Canada:
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, Tab 123, (statement on art. 3, right to self-determination, on October 31, 1996)

"An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding." (Nuclear Tests (Australia v. France), [1974] I.C.J. Rep. 253, Tab 146, at 268, para. 46 and 267, para. 43

T. Franck, Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995), Tab 163, at 52

74. In relation to northern Québec, the James Bay Crees, Inuit and other Aboriginal peoples have a strong, pre-existing and continuing relationship with their traditional territory that is critical to their identity and distinctness. This serves to strengthen further their right to self-determination in respect to such territories, as compared to any non-Aboriginal inhabitants.

1.2 Unilateral Secession in Québec Attainable Solely Through Revolution

75. The Factum of the amicus curiae fails to establish any enforceable "right" under international law that Québec authorities could claim to effect the unilateral secession of Québec. The Factum (para. 79, 83, 90) only serves to confirm that such unilateral secession is attainable through a successful revolution:
A. Tremblay, La Réforme de la Constitution au Canada (Montréal: Les Éditions Thémis, 1995), Tab 194, at 188

76. Although not prohibited, there is no "right" under international law for Québec to effect a unilateral secession. Nor would a referendum held in Québec on secession create such a right:
T. Franck, "Opinion directed at question 2 of the Reference" in Amicus curiae, Supplément au dossier [:] Rapports d'experts de l'amicus curiae, Tab 164, at 7, para. 2.7

"[Even the holding of a UN-supervised] plebiscite will prove only that the international community will help legitimate an exercise of self-determination if requested by the party or parties concerned, including in most instances the parent state. It does not demonstrate that any secession-seeking minority or region has an enforceable right to have such an act of self-determination imposed on an unwilling parent state by the international system." (T. Franck, Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995), Tab 70, at 158) [Emphasis added.]

77. Equally important, international law leaves such conflicts to be regulated by Canadian domestic law unless and until the secession is proved successful (which may not necessarily occur). Consequently, Aboriginal peoples, the government of Canada and others are free to oppose unilateral secession through all lawful means:
"The UN Charter neither confirms nor denies a right to rebellion. It is neutral. International law does not forbid rebellion, it leaves it within the purview of domestic law." (M. Shaw, International Law, 4th ed. (Cambridge: Cambridge University Press, 1997), Tab 190, at 796) [Emphasis added.]

"...international law leaves the parties [Canada and Québec] unregulated in their disagreement: albeit with certain limits prescribed by the international legal system's interest in maintaining the equivalent of peace, order and good government. Within such legal limits on the means available to the parties, Québec is free to secede and Canada is free to try to prevent its secession." (T. Franck, "Opinion directed at question 2 of the Reference", supra, Tab 164, at 13, para. 2.16)

J.L. Brierly, The Law of Nations, 6th ed. (Oxford: Clarendon Press, 1963) at 138 in Receuil de jurisprudence et de doctrine de l'amicus curiae, Tab 149

78. As described in the original Factum of the Intervener (paras. 104 et seq.), unilateral secession of Québec is extremely provocative and likely to lead to chaos, the use of force, violence and a breakdown of the rule of law. In view of the fundamental rights of the James Bay Crees and other Aboriginal peoples and their express opposition to unilateral secession affecting them, the Québec government strategy of effective control is not a legitimate pathway to independence:
"While the Parti Québécois continues to assert that an independent Québec would maintain its current boundaries, in fact, the legal situation following a unilateral declaration of independence would be far from certain....The risks involved in the struggle for effective control, with its potential for the use of force, are being seriously underestimated."(S. Lalonde, Addendum: Québec and the Principle of Effectiveness, (1997) 76 Can. Bar Rev. 258, Tab 173, at 261)

"Québec with its dominant French-speaking population has minority English and indigenous native populations, many of whom live in parts of Québec that adjoin the rest of Canada....The Québec minority populations and many in the rest of Canada have warned that unilateral secession by Québec could lead to violence....To minimize 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 Québec is arguably the most inappropriate approach to adopt." (P. Radan, The Borders of a Future Independent Québec: Does the Principle of Uti Possidetis Juris Apply?, (1997) Australian Int'l L. J. (forthcoming), Tab 186, at last page) [Emphasis added.]

79. The alternatives are not simply revolution or the status quo. The rejection of UDI does not mean that one should ignore the legitimate aspirations of peoples, if clearly and uncontestably expressed. However, sovereignty, if so desired, must be attained through legitimate means that respect the existing constitutional order in a fair and balanced manner, which does not trample the rights of others.

80. Under international law, forcible inclusion of Aboriginal peoples in a seceding Québec is contrary to their right to self-determination and the principle of Aboriginal consent. Such unilateral action by Québec could result in the refusal of recognition of Québec as a new state by the international community, even if Québec were to attain effective control in its claimed territory:
"...in the event that secession threatens to remove particular Aboriginal peoples, in whole or in part, from their current affiliation within a state, then their right of self-determination, to the extent that it is exercised, requires the consent to any changes, or absent such consent, a successfully negotiated adaptation to a new political framework, which in this instance would arise in the event of the secession by Québec." (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 S.J. Anaya, et al., 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, Tab 161, at 61- 62)

"Le principe du droit des peuples à disposer d'eux-mêmes aussi bien que le principle de l'interdiction du recours à la force peuvent avoir des effets en aval du fait primaire, qui conditionnent l'avénement et l'existence légale de l'État; et cela si le processus de naissance de l'État comporte une violation continue de l'un de sys principes, telle la création d'un État dont le système de gouvernement est fondé sur la discrimination systématique contre la majorité ou une composante de la population, c'est-à-dire le déni de son droit à l'autodétermination." (G. Abi-Saab, "L'effectivité requise d'une entité qui déclare son indépendance pour être considérée comme un État en droit internationale", supra, Tab 147, at 4) [Emphasis in original.]

81. Moreover, the Factum of the amicus curiae overstates the legitimacy and viability of the strategy of effective control in the Québec/Aboriginal/Canada context, in light of the modern doctrine of non-recognition under international law.
J. Dugard, Recognition and the United Nations (Cambridge: Grotius Publications, 1987), Tab 158, at 135

Nguyen Quoc Dinh, P. Daillier, & A. Pellet, Droit international public, 5th ed. (Paris: L.G.D.J., 1994), Tab 180, at 537

J. Duursma, Fragmentation and the International Relations of Micro-States [:] Self-Determination and Statehood (Cambridge: Cambridge University Press, 1996), Tab 160, at 127-132

QUESTION III

1.1 Three Reference Questions are Interrelated

82. The three Reference Questions should be read as part of a composite whole and not in isolation. In relation to Question 2 (which is drafted in a somewhat confusing manner), the Supreme Court of Canada cannot act as or substitute itself for a court of international jurisdiction and there is nothing in Order in Council P.C. 1996-1497 (Tab 120) that requires the Court to do so. As suggested by Question 3, international law is to be considered by the Court in order to determine its influence or effect "in Canada". This latter phrase necessarily refers to the context of Canadian domestic law, which clearly allows for a diverse range of international law considerations:
Y. Le Bouthillier, "Opinion concernant la compétence de la Cour suprême de répondre à la question 2 du Renvoi", in Amicus curiae, Supplément au dossier [:] Rapports d'experts de l'amicus curiae, Tab 174, at 7-9, paras. 20-24

M. Shaw, "Re: Order in Council P.C. 1996-1497 of 30 September 1996", supra, Tab 191, at 13, para. 33; 22, para. 53

83. In this context, it is misleading to characterize Canadian and international law as two distinct and parallel systems of law (see Factum of the amicus curiae, paras. 3, 50, 65ff), since the two are overlapping and interacting. In particular, the right to self-determination is considered to be a rule of customary international law. Consequently, such right is adopted automatically into Canadian law unless it conflicts with the latter:
G. Slyz, "International Law in National Courts" in T. Franck & G. Fox (eds.), International Law Decisions in National Courts (Irvington-on-Hudson, N.Y.: Transnational Publishers, 1996) 71, Tab 193, at 95

East Timor (Portugal v. Australia), [1995] I.C.J. Rep. 90 at 102, para. 29, Tab 49

"There is little doubt that the phrase all peoples have the right of self-determination is an accepted rule of customary international law....The right of self-determination of all peoples became binding between all States Parties to the ICCPR and the ICESCR. These Covenants are now ratified by a large majority of the world's States." (J. Duursma, Fragmentation and the International Relations of Micro-States [:] Self-Determination and Statehood, supra, Tab 160, at 77-78)

"In devising remedies, courts should be sensitive to the purposes of aboriginal rights, including the role of treaty-making and self-determination, while recognizing that they have a duty to enforce aboriginal rights." (K. Roach, , Constitutional Remedies in Canada (Aurora, Ontario: Canada Law Book, 1996), Tab 185, at 15-1 and 15-3)

All of which is respectfully submitted.

DATED at Montreal, this 19th day of January 1998.

___________________________________
Claude-Armand Sheppard

Of Counsel for the Intervener Grand
Council of the Crees PART II

TABLE OF AUTHORITIES

Legislation and Other Instruments

Canadian

Constitution Act, 1871, (U.K.), 34-35 Vict., c. 28, ss. 3 & 4
Constitution Act, 1867, (U.K.), 30-31 Vict., c. 3, preamble, ss. 35, 40, 41,
47, 68, 72, 78, 83, 84, 101, 130, 131, 134, 135, & 136

Constitution Act, 1982, ss. 35, 38- 48, 52, being Schedule B to the
Canada Act, 1982, (U.K.), 1982, c. 11

Supreme Court Act, R.S.C. 1985, c. S-26, s. 53

Case Law

Canadian and other domestic cases

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

A.G. Québec, Argumentation écrite, Cree School Board et al.
v. A.G. Québec, Montreal, No. 500-05-020496-962 (Sup. Ct.)

Bertrand v. Bégin et al., [1996] R.J.Q. 2393 (C.S.) per Pidgeon J

Delgamuukw v. British Columbia, File No. 23799, Supreme Court
of Canada, decision rendered December 11, 1997

Mahe v. Alberta, [1990] 1 S.C.R. 342

Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441

R. v. Van der Peet, [1996] 2 S.C.R. 507
Re: Canada Assistance Plan, [1991] 2 S.C.R. 525

Re: Remuneration of Judges of the Provincial Court of P.E.I. et al.
v. Manitoba (Minister of Justice), September 18, 1997, File
Nos. 24508/24778/24831/24846

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

International Cases

East Timor (Portugal v. Australia), [1995] I.C.J. Rep. 90
Nuclear Tests (Australia v. France), [1974] I.C.J. Rep. 253

Books, Articles, etc.

G. Abi-Saab, "L'effectivité requise d'une entité qui déclare son
indépendance pour être considérée comme un État en droit
internationale", in Amicus curiae, Supplément au dossier [:]
Rapports d'experts de l'amicus curiae

S.J. Anaya, "Canada's Fiduciary Obligation Toward Indigenous Peoples
in Quebec under International Law in General", in S.J. Anaya, et al., 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, 9

J.L. Brierly, The Law of Nations, 6th ed. (Oxford: Clarendon Press, 1963)
at 138 in Receuil de jurisprudence et de doctrine de l'amicus curiae.

H. Brun & G. Tremblay, Droit constitutionnel, 3e éd. (Cowansville,
Québec: Les Éditions Yvon Blais, 1997)

H. Brun & G. Tremblay, Droit constitutionnel, 2e éd. (Cowansville,
Québec: Les Éditions Yvon Blais, 1990)

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

A. Buchanan, "Self-Determination, Secession, and the Rule of Law" in
R. McKim & J. McMahan (eds.), The Morality of Nationalism
(New York: Oxford University Press, 1997), 301

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

Complementary Agreement no. 6, between Makivik Corporation and
the Québec Government, in James Bay and Northern Quebec
Agreement and Complementary Agreements, 1997 Edition
(Québec: Les Publications du Québec, 1996) 549

Complementary Agreement no. 8, between the Cree Regional Authority
and the Québec Government, in James Bay and Northern Quebec
Agreement and Complementary Agreements, 1997 Edition
(Québec: Les Publications du Québec, 1996) 641

G. Craven, Of Federalism, Secession, Canada and Quebec, (1991)
14 Dalhousie L.J. 231

A.V. Dicey, Introduction to the Study of the Law of the Constitution,
10th ed. (London: MacMillan, 1959)

J. Dugard, Recognition and the United Nations (Cambridge: Grotius
Publications, 1987)

F. Dumont, Récit d'une émigration [:] Mémoires (Montréal:
Éditions du Boréal, 1997)

J. Duursma, Fragmentation and the International Relations of
Micro-States [:] Self-Determination and Statehood
(Cambridge: Cambridge University Press, 1996)

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 S.J. Anaya, et al., 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

N. Finkelstein, G. Vegh & C. Joly, Does Québec Have a Right to Secede
at International Law?, (1995) 74 Can. Bar Rev. 225

Forum paritaire québécois-autochtone, "Manifeste concernant l'avenir
des relations entre les Autochtones et les Québécois, 1993",
reproduced in P. Trudel (ed.), Autochtones et Québécois:
la rencontre des nationalismes (Montreal: Recherches
amérindiennes au Québec, 1995), Annex I, 177

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

T. Franck, "Opinion directed at question 2 of the Reference" in Amicus curiae,
Supplément au dossier [:] Rapports d'experts de l'amicus curiae

F. Gélinas, Les conventions, le droit et la Constitution du Canada dans
le renvoi sur la sécession du Québec: le fantôme du rapatriement,
(1997) 57 R. du B. 291

Grand Council of the Crees, Sovereign Injustice [:] Forcible Inclusion
of the James Bay Crees and Cree Territory into a Sovereign Québec
(Nemaska, Québec, 1995)..

R. Guglielmo, "Three Nations Warring in the Bosom of a Single State" [:]
An Exploration of Identity and Self- Determination in Québec,
(1997) 21 Fletcher Forum of World Affairs 197

P. Hogg, Constitutional Law of Canada, Loose-leaf Edition (Toronto:
Carswell, 1997), 2 vols

P. Hogg, "Principles Governing the Secession of Quebec", (paper
presented at the Conference on "Law, Democracy and Self-
Determination", Canadian Bar Association and University
of Ottawa, Ottawa, May 22-23, 1997)

R. Howse and A. Malkin, Canadians are a Sovereign People: How the
Supreme Court Should Approach the Reference on Québec
Secession, (1997) 76 Can. Bar Rev. 186

C. Iorns, Indigenous Peoples and Self-Determination: Challenging State
Sovereignty, (1992) 24 Case W. Reserve J. of Int'l L. 199

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

S. Lalonde, Addendum: Québec and the Principle of Effectiveness,
(1997) 76 Can. Bar Rev. 258

Y. Le Bouthillier, "Opinion concernant la compétence de la Cour
suprême de répondre à la question 2 du Renvoi", in Amicus
curiae, Supplément au dossier [:] Rapports d'experts de
l'amicus curiae

H. W. MacLaughlan, Accounting for Democracy and the Rule of Law
in the Québec Secession Reference, (1997) 76 Can. Bar Rev. 155

Lord McNair, The Law of Treaties (Oxford: Clarendon Press,
1961) (re-issued in 1986)

E. Mendes & C. Ettinghausen, "Democracy, Legitimacy, and Secession:
The Québec Question and the Canadian Dilemma", Canada Watch
5 (October 1997, no. 6) 100

P. Monahan, Constitutional Law (Concord, Ontario: Irwin Law, 1997)

J.-Y. Morin & J. Woehrling, Les Constitutions du Canada et du Québec
du régime français à nos jours (Montréal: Thémis, 1992)

Nguyen Quoc Dinh, P. Daillier, & A. Pellet, Droit international public,
5th ed. (Paris: L.G.D.J., 1994)

B. Pelletier, La Modification Constitutionnelle au Canada (Toronto:
Carswell, 1996)

B. Pelletier, Le face à face entre le projet sécessioniste québécois
et la Constitution du Canada, (1997) 57 R. du B. 341

P. Radan, The Borders of a Future Independent Québec: Does
the Principle of Uti Possidetis Juris Apply?, (1997)
Australian Int'l L. J. (forthcoming)

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

M. Reisman, Protecting Indigenous Rights in International
Adjudication, (1995) 89 Am. J. Int'l L. 350

K. Roach, , Constitutional Remedies in Canada (Aurora,
Ontario: Canada Law Book, 1996)

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

P. Russell & B. Ryder, Ratifying a Postreferendum Agreement
on Québec Sovereignty (Toronto: C.D. Howe Institute, 1997)

D. Sanders, If Québec Secedes From Canada Can the Cree Secede
From Québec?, (1995) 29 U.B.C. L.Rev. 143

M. Shaw, International Law, 4th ed. (Cambridge: Cambridge
University Press, 1997)

M. Shaw, "Re: Order in Council P.C. 1996-1497 of 30 September
1996" in Amicus curiae, Supplément au dossier [:] Rapports
d'experts de l'amicus curiae

B. Slattery, First Nations and the Constitution: A Question of
Trust, (1992) 71 Can. Bar Rev. 261

B. Slattery, The Organic Constitution: Aboriginal Peoples and
the Evolution of Canada, (1995) 34 Osgoode Hall L.J. 101

G. Slyz, "International Law in National Courts" in T. Franck &
G. Fox (eds.), International Law Decisions in National
Courts (Irvington-on-Hudson, N.Y.: Transnational
Publishers, 1996) 71

A. Tremblay, La Réforme de la Constitution au Canada (Montréal:
Les Éditions Thémis, 1995)

K.C. Wheare, Federal Government (4th ed., 1963)

L. Wildhaber, Territorial Modifications and Breakups in
Federal States, [1995] Can. Yrbk. Int'l L. 41

J. Woehrling, Les aspects juridiques d'une éventuelle sécession du
Québec (1995) 74 Can. Bar Rev. 293

Government Debates, Proceedings, Documents, etc.

Assemblée nationale, Journal des débats, Commission d'étude des questions
afférentes à l'accession du Québec à la souveraineté, 9 Oct. 1991,
No. 5, at CEAS-137 (testimony of D. Turp)

Order in Council, P.C. 1996-1497, September 30, 1996 (referring questions
on Québec secession to Supreme Court of Canada)

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)

News Articles

M. Lebel, "La démocratie à la sauce péquiste manque de liant", Le Devoir,
October 23, 1997, at A9

E. Thompson, "Jan. 1, 2001 - that's our sovereignty date: Bouchard",
The Gazette, Montreal, June 14, 1997, at A1