1. The present Study is an elaborate update to an earlier Submission tabled in February 1992 by the Grand Council of the Crees with the United Nations Commission on Human Rights in Geneva. This first Submission served to inform the international community of Cree status and rights, in the context of QuÃ©bec secession.
2. Both studies by the Grand Council of the Crees are recommended to all peoples, communities and governments. Our present appeal is to all those who are interested in ensuring justice, respect and democracy in the debate and ongoing developments concerning QuÃ©bec secession.
3. In 1994, for the first time in QuÃ©bec and Canadian history, a draft Bill was made public by a government calling for a unilateral declaration of independence (UDI). According to the draft Bill, a UDI by QuÃ©bec's legislature would become mandatory should the measure be affirmed by a simple majority vote in a provincial referendum. This new threat precipitated the preparation of the present Study.
4.Presently, the original draft Bill has been replaced by an Act respecting the future of QuÃ©bec (Bill 1). This Bill still purports to authorize QuÃ©bec's legislature to unilaterally proclaim QuÃ©bec an independent state. However, the current Bill requires "a formal offer of economic and political partnership with Canada", before any UDI could be
5.A primary purpose of this Study is to contribute to a peaceful debate on key substantive issues, prior to any actions being taken by QuÃ©bec separatists against the will of Aboriginal peoples in QuÃ©bec. In the view of this Study, unilateral secessionist actions would be contrary to international, Canadian and Aboriginal law and practice.
6. The current issues on QuÃ©bec secession have important international and national dimensions. These entail a significant measure of responsibility and appropriate response from all parties concerned.
7. The Crees respect the right of all peoples in Canada, including Quebecers, to self-determination. We also respect the right of these peoples to seek a more satisfactory relationship with the rest of Canada. However, the exercise of these rights must not in any way prejudice or be at the expense of the status and fundamental rights of Aboriginal peoples (particularly our own Cree right to self-determination).
8. To date, there has been no reciprocity by the PQ government in regard to respecting the fundamental status and rights of the James Bay Crees and other Aboriginal peoples in QuÃ©bec. Most importantly, the right to self-determination of Aboriginal peoples is being denied or ignored by the government in the secession debate. A similar position is being adopted by the separatist party at the federal level, the Bloc QuÃ©bÃ©cois (BQ).
9. The James Bay Crees are not seeking to secede from Canada or QuÃ©bec. However, the James Bay Crees and other Aboriginal peoples in QuÃ©bec are asserting their right to self-determination in the context of QuÃ©bec secession. This includes the right to choose to remain in Canada, if they so desire.
Who are "peoples"?
10. There is no generally accepted definition of "peoples" for purposes of self-determination under international law. However, the United Nations generally has taken a very broad view of the term.
11. Under Canada's Constitution, Aboriginal peoples are recognized as "peoples" without qualification. Moreover, the QuÃ©bec National Assembly expressly recognizes Aboriginal peoples in QuÃ©bec as distinct "nations". The PQ government's refusal to acknowledge that Aboriginal peoples are "peoples" with a right to self-determination is without justification.
12. It is said that the motive of some governments in limiting the notion of "peoples" is simply to deny certain peoples their fundamental rights. However, to deny people a certain status in order to deny them their human rights is a prohibited form of discrimination. In particular, this prohibition would apply if an indigenous people were to be denied its status as a "people" in order to be denied the human right to self-determination.
13. In the context of QuÃ©bec secession, Quebecers and Aboriginal peoples constitute "peoples" under international law with potentially conflicting claims. However, the status of "peoples" with the right to self-determination does not per se give rise to a right to secede from Canada.
Coercion of Aboriginal peoples within a single definition
of "QuÃ©bec people"
14. Regardless of the degree of transformation taking place in QuÃ©bec towards a more pluralist society, such changes do not mean that Aboriginal peoples must be part of a single QuÃ©bec people for purposes of self-determination or secession. Similarly, the fact that Canada constitutes a pluralist, multicultural society does not per se deny Quebecers from having a distinct status and identity.
15. For purposes of self-determination and secession, it would appear that a "people" can be made up of different peoples or different ethnic, linguistic, or religious groups - if there is a common will to live together as a people. However, "common will" connotes an essential voluntariness among the different individuals and peoples involved.
16. In other words, there is nothing to suggest that, for purposes of self-determination or secession, different peoples can be compelled against their will to define themselves as a single "people". This is especially true for the James Bay Crees and other Aboriginal peoples in QuÃ©bec who each assert their own distinct identity as a "people".
17. Consequently, the PQ government cannot compel Aboriginal peoples to be a part of the "QuÃ©bec people" for purposes of self-determination or secession. The PQ position has no basis in law and serves to substantially detract from any arguments of legitimacy or democracy that the separatist government might raise in favour of Quebecers.
Self-determination and the right to secede
18. Presently, it is clear that the right to self-determination is a universally accepted human right and not a mere principle in international law.
19. Save for exceptional circumstances, it is generally accepted by most international opinion that the right to self-determination does not include a right to secede from existing independent states. Deprival of self-determination within existing states, severe oppression, and ongoing discriminatory treatment and other persistent and serious human rights violations can give rise to a right to secede. However, secession is generally viewed as a recourse of last resort.
20. Currently, there is extensive and constantly growing expert opinion internationally - as well as in QuÃ©bec and other parts of Canada - that indigenous peoples have the right to self-determination. Yet, separatist leaders in both the Parti QuÃ©bÃ©cois and the Bloc QuÃ©bÃ©cois believe that they can continue to deny that Aboriginal peoples in QuÃ©bec have the right to self-determination. This position runs directly counter to the position of human rights organizations in QuÃ©bec and elsewhere.
21. The right to self-determination per se cannot be denied to Aboriginal peoples in independent states. The issue of secession is a separate question that must be addressed on its own merits and according to the circumstances in each case. For example, it is acts of colonialism and not self-determination that could give rise to a right to secession in an independent state.
Is QuÃ©bec secession justifiable?
22. There exists a virtual consensus among constitutional lawyers that a unilateral secession, i.e. a unilateral declaration of independence (UDI), by QuÃ©bec would be illegal under the Canadian Constitution. This is the general opinion among jurists, including those who are supportive of QuÃ©bec independence. It is also the conclusion of a recent decision of the QuÃ©bec Superior Court in regard to the PQ government's process toward unilateral secession.
23. In addition, there is no clear evidence that a "constitutional convention" has been established that would enable QuÃ©bec to unilaterally secede from Canada. If there is any kind of precedent to be drawn from the 1980 referendum in QuÃ©bec on sovereignty-association, it is that negotiations with the interested parties in Canada would be required.
24. Moreover, the 1995 referendum in QuÃ©bec is consultative in nature and does not legally bind the QuÃ©bec government to proclaim a UDI. Consequently , it cannot be argued that the holding of this referendum would be binding on others. Nor would it create a constitutional convention for QuÃ©bec to unilaterally secede in the future. In particular, the James Bay Crees do not accept that any such rule could apply to them or their traditional territory.
25. While some sovereignist lawyers in QuÃ©bec might be of the view that Canadian constitutional law is irrelevant in the context of secession, there are no circumstances currently in QuÃ©bec that would justify such a conclusion. Since there are no pervasive human rights violations against Quebecers or other extreme circumstances, it can generally be concluded that internal constitutional law would prevail over international law. Moreover, international law does not recognize that Quebecers or QuÃ©bec has any legal right to secede.
26. In regard to Quebecers (especially francophones), their participation and exercise of effective influence within the Canadian federation goes well beyond the province of QuÃ©bec. This is evident in the Canadian Parliament, all levels of the federal civil service, the Supreme Court of Canada, and ambassadorships to the United Nations.
27. Also, approximately two-thirds of what now forms a geographic part of the province of QuÃ©bec was annexed by Canada to the province in 1898 and 1912. These extensions have enabled QuÃ©bec to significantly advance its economic development within Canada. For the most part, QuÃ©bec has benefitted at the expense of those Aboriginal peoples who assert ownership, possession and jurisdiction in regard to these territories.
28. There are increasing indications that the PQ government is actively seeking to undermine the functioning of the federal system in Canada. In particular, it appears that provoking confrontation with the federal government is part of an intentional strategy of the PQ government. Such manoeuvers detract from, rather than serve to legitimize, a secessionist attempt.
29. In addition, the situation of QuÃ©bec is totally different from that of recent new states - such as those in the former Soviet Union and former Yugoslavia. Therefore, it is erroneous to suggest that these events in Europe can provide a precedent for secession by QuÃ©bec.
Need for freedom of expression and informed discussion prior to referendum vote
30. There has been a lack of free, open and informative debate on the issues surrounding QuÃ©bec secession. This situation has manifested itself, to date, in a number of different ways.
31. First, members of the business community have been warned of reprisals for publicly voicing their concerns regarding possible financial impacts of QuÃ©bec independence. Second, Quebecers have been incited by the PQ government to censure the James Bay Crees for having labelled government denial of Aboriginal peoples' right to self-determination as racial discrimination. Third, arguments put forward against QuÃ©bec secession are too often dismissed by the PQ government as fear-mongering or alarmist, without giving consideration to their substance.
32. In addition, it is important that the PQ government make clear the reasons and bases for advocating that QuÃ©bec should separate from Canada. To date, the reasons put forward have been unclear, contradictory and a compendium of unsubstantiated allegations or conclusions.
33. It makes little sense that Quebecers would choose to leave the Canadian federation without knowing what precisely should replace the existing arrangements. At present, there exist neither clarity nor certainty as to the full implications of any proposed options.
"Effective control" of territory in QuÃ©bec
34. In view of the illegality of unilateral secession under Canada's Constitution and the absence of any legal right of QuÃ©bec to secede under international law, the PQ government and other QuÃ©bec separatists appear to be invoking a strategy based on achieving "effectiveness" or "effective control".
35. A unilateral declaration of independence (UDI) and attempt to establish "effective control" over all of territory within the province is tantamount to a revolution. This situation is especially destabilizing since the consequences of a UDI cannot be ascertained, nor its success assured, in advance.
36. Should a sovereign QuÃ©bec prove successful in exercising "effective control" over its whole territory for a sufficiently long period, QuÃ©bec could conceivably gain eventual recognition as an independent state by the international community. However, this international law doctrine has important limitations.
37. In particular, a strategy of "effective control" by QuÃ©bec might not lead to recognition by the international community if the Aboriginal peoples in QuÃ©bec were denied their own rights to self-determination in the process. It would appear that considerations of "effectiveness" can be overridden, if the rights of self-determination of other peoples are being violated.
38. In addition, it would hardly be possible for QuÃ©bec to successfully apply the rule of "effective control" if the question of the 1898 and 1912 territories (i.e. two-thirds of the current land area in the province) were not satisfactorily resolved.
39. Aboriginal peoples have access to the principle of effective control on the same terms as QuÃ©bec. In regard to this principle, Aboriginal peoples in QuÃ©bec are not in any way required to establish a new state. Rather, they can fully maintain their relationship and association with the existing Canadian state and, through peaceful measures, deny "effective control" to any secessionist forces.
40. It is this uncertain and unstable period, during which the battle for effective control is likely to occur, that is being seriously underestimated or deliberately played down by the current provincial government in QuÃ©bec. However, it is precisely this precarious strategy that needs comprehensive discussion, prior to the referendum on secession in QuÃ©bec.
Use of force in the event of a UDI by QuÃ©bec
41. The threat or use of force is not a new issue for the Parti QuÃ©bÃ©cois government vis-a-vis Aboriginal peoples. In 1977, the PQ government sent up riot police to a remote Inuit community, in regard to an Inuit protest over QuÃ©bec's language legislation. Therefore, such threat or use of force could easily recur in the context of a UDI by QuÃ©bec. In the latter case, the stakes would be much greater.
42. Since many Aboriginal peoples in QuÃ©bec (among others) seek to remain a part of Canada, the battle for effective control of their territories with a secessionist QuÃ©bec could inadvertently or advertently lead to violence. In the National Assembly's Committee on Sovereignty, experts have already discussed the possibilities of using military or specialized units against Aboriginal peoples to enforce a sovereign QuÃ©bec's "territorial integrity".
43. The James Bay Crees abhor any use of force or any resort to violence. In particular, in the context of QuÃ©bec secession, disputes should be resolved peacefully based on full recognition of and respect for the equal rights of peoples. Unfortunately, there appear to be significant indications that the use of force and acts of violence are likely to be a by-product of a unilateral declaration of independence by QuÃ©bec.
44. Should a secessionist QuÃ©bec government wish to secure effective control, the sole avenue open to it in order to overcome resistance and opposition might well be the use of force. In the view of this Study, such use of force to deny Aboriginal peoples their right to determine their own future would be illegal under international law and detract from PQ government claims of legitimacy.
45. In light of the constitutional and fiduciary obligations of the federal Crown towards Aboriginal peoples in QuÃ©bec and the illegality of a UDI (as well as its lack of legitimacy), it would be expected that the Canadian government take appropriate action in response to any unanticipated use of force by QuÃ©bec.
46. Barring exceptional circumstances, the same pressures to resort to force need not arise in regard to the Canadian government. First, the burden is on a secessionist government to demonstrate that it has established effective control. Second, there are a wide range of non-violent measures that the Canadian government can implement in a supportive or initiating role that would counter an illegal secession. These peaceful measures could thwart the attempts of the PQ government to establish exclusive control over the whole of its claimed territory.
Renunciation of constitutional guarantees respecting
QuÃ©bec's existing borders
47. Until a secessionist QuÃ©bec actually achieves "accession to sovereignty" through effective control and international recognition, Canadian constitutional law would continue to apply and there would be no legal vaccuum. However, this does not mean that constitutional or legal certainty would prevail.
48. For example, the PQ government's draft Act (Bill 1) on the future of QuÃ©bec makes clear that a secessionist QuÃ©bec would apply its own legal system from the moment that independence from Canada is declared. Consequently, there would inevitably be innumerable "clashes" among individuals, peoples, commercial entities and governments in terms of which laws apply and which courts have jurisdiction (i.e. Canada or a seceding QuÃ©bec).
49. Moreover, during the indeterminate period when a secessionist QuÃ©bec would be seeking to establish effective control, QuÃ©bec would have no guaranteed legal protection of its borders under the Canadian Constitution or under international law. While Canadian law would continue to apply (despite QuÃ©bec's objections), the act of a UDI would significantly alter the constitutional guarantees currently available to the legislature and government in QuÃ©bec.
50. In particular, a period of vulnerability would be triggered. This vulnerability would apply to QuÃ©bec's borders from the moment that QuÃ©bec wholly repudiated application of the Canadian Constitution to QuÃ©bec territory by means of a UDI. By unilaterally declaring that all Canadian laws no longer apply, a secessionist QuÃ©bec would in effect be renouncing to the protection of its provincial boundaries in the Constitution Act, 1871.
51. In the event of a UDI, alterations to QuÃ©bec's current boundaries may not only prove necessary but inevitable. This is because there is a wide range of interests that would require federal intervention, protection and administration.
52. By engaging in a UDI, a secessionist QuÃ©bec would be jeopardizing the position of QuÃ©becers, in relation to the protection of the province's current borders under Canada's Constitution. The more extreme the steps taken by a secessionist QuÃ©bec following a UDI, the more likely that it might become necessary to amend QuÃ©bec's existing borders. Immediately following a UDI, QuÃ©bec could not insist selectively on its consent to any alteration of its borders.
53. The PQ government often relies in a selective manner on the five-expert study commissioned by the National Assembly. Although the five experts refer to the constitutional protections currently available to QuÃ©bec under Canada's Constitution, the study never considers explicitly the situation where QuÃ©bec effectively renounces to the safeguards in Canada's Constitution by proceeding with a UDI.
54. In addition, as the five experts themselves concede, they did not have the mandate nor the competence to analyse in detail the exact meaning of constitutional provisions pertaining to Aboriginal peoples. Consequently, conclusions reached by the study in terms of the rights and obligations in favour of Aboriginal peoples under Canada's Constitution should be regarded as inconclusive.
55. Moreover, to the extent that constitutional issues enter into the analysis of the international law position of a secessionist QuÃ©bec or Aboriginal peoples, the conclusions of the five-expert study are again inconclusive. This would appear to be the case, since there are competing rights of Aboriginal peoples that affect the analysis of QuÃ©bec's position.
The 1898 and 1912 territories in northern QuÃ©bec
56. QuÃ©bec has not established a historical claim to the northern portions of what is now approximately the top two-thirds of the province of QuÃ©bec. Rather, it is the indigenous peoples who have pre-existing and historical rights. In some instances, such as in the case of the James Bay Crees, these rights are based on thousands of years of original use and occupation.
57. The northern boundary extensions carried out in regard to the province of QuÃ©bec (as well as in Manitoba and Ontario) were clearly not to compensate provinces for any existing territorial claims. The extensions appeared to be carried out in a spirit of enabling provinces to better develop as provinces and thereby further strengthen the Canadian federation.
58. In regard to the 1898 and 1912 territories, both Canada and QuÃ©bec ignored basic national and international principles in the process of extending the northern boundaries of the province of QuÃ©bec. These violations have led to the wrongful appropriation by QuÃ©bec of indigenous peoples' traditional territories and resources that have still not been satisfactorily redressed.
59. The 1898 and 1912 territories constitute primarily the traditional territories of the Crees and other indigenous peoples in northern QuÃ©bec. Yet this territory was added to the province of QuÃ©bec without indigenous peoples' knowledge and consent. The Crees and other Aboriginal peoples were only officially informed by the QuÃ©bec government of these transfers over 50 years after the 1912 boundary extension.
60. Based on the sessional papers of the early 1900s, it would appear that the accepted and principal standard of the Canadian Parliament during that period was to transfer territory to a province only if it were consistent with the wishes of the inhabitants of such territory. At that time, Canadian Prime Minister Wilfred Laurier declared that this was the policy when the boundary extensions were carried out in regard to Manitoba, Ontario and QuÃ©bec in 1912. However, this norm was totally violated by Canada and QuÃ©bec in the case of the northern boundary extensions to the province of QuÃ©bec.
61. The actions of Canada and QuÃ©bec in 1898 and 1912 also violated international norms. At the international level, it is said that the ultimate sovereignty over territory resides with the indigenous peoples of such area and any land transfers must conform to their wishes. This standard is consistent with the rulings of the International Court of Justice, the language of the U.N. Charter and the practices of the General Assembly.
62. Based on their pre-existing rights and as the majority populations in their traditional territories in northern QuÃ©bec, the Crees and Inuit have a right to insist that any territorial transfers be subject to their free and informed consent. This position is fully consistent with their own rights of self-determination and must be fully respected.
Inapplicability of principle of uti possidetis to Canada/QuÃ©bec/Aboriginal context
63. There is no rule under Canadian or international law that would require that the present boundaries of the province of QuÃ©bec automatically be those of a sovereign QuÃ©bec state. Under Canada's Constitution, QuÃ©bec's provincial boundaries are only guaranteed as long as QuÃ©bec remains a part of the Canadian federation. If QuÃ©bec renounces its adherence to the Canadian Constitution by unilaterally seceding from Canada, it cannot rely on the same Constitution to protect its current boundaries.
64. In regard to international law, the PQ government and certain QuÃ©bec jurists appear to be relying primarily on the international principle of uti possidetis to preserve QuÃ©bec's present boundaries in the event of a unilateral secession. However, until a seceding QuÃ©bec were to establish effective control over its claimed territory and were recognized as an independent state, international law principles or rules would not generally apply. Moreover, the principle of uti possidetis is not mandatory or absolute, and states are free to adopt other principles as a basis of settlement.
65. Also, uti possidetis is not a peremptory norm. Nor does it necessarily promote stability. It is merely a "principle" of law, subject to considerations of justice and equity. In the period following a UDI, it would be the principle of "effective control" and not uti possidetis that would determine the borders of new states. In addition, competing rights of self-determination can mean that colonial and other administrative boundaries are transcended.
66. The application of the principle of uti possidetis to modern non-colonial situations is not clearly accepted by legal commentators, in the absence of express agreement by the specific parties concerned. In particular, the application of the principle of uti possidetis to the situation in the former Yugoslavia has been severely and repeatedly criticized.
67. Unilateral application of the uti possidetis rule in northern QuÃ©bec would be unjust and inappropriate, since there are most significant assertions of indigenous peoples to self-determination. Particularly in northern QuÃ©bec, these claims are stronger and more compelling than those of francophones and other Quebecers. Further, the indigenous peoples' traditional territories in northern QuÃ©bec transcend the administrative boundaries of the province of QuÃ©bec and substantially extend into the offshore and other land areas in Canada.
QuÃ©bec "territorial integrity" as a unilaterally imposed condition
68. The PQ government takes the position that it can impair the territorial integrity and cause the break-up of Canada in its present form, in the event of an affirmative simple majority vote in the QuÃ©bec referendum. At the same time, the government claims that the territorial integrity of QuÃ©bec is unassailable, regardless of the claims of self-determination of Aboriginal peoples (or an overwhelming supramajority in any Aboriginal referendum vote).
69. In the context of QuÃ©bec secession, the principle of "territorial integrity" of QuÃ©bec is especially inappropriate, inapplicable and unacceptable from the perspective of the James Bay Crees and other Aboriginal peoples.
70. Reasons include: i) the prevailing pre-existing territorial rights of Aboriginal peoples; ii) injustice of validating past colonial actions against the peoples concerned; iii) importance of maintaining the integrity of Aboriginal territories; iv) need to respect the principle of equal rights and self-determination of peoples; and v) lack of any guaranteed principle of territorial integrity, in favour of a seceding QuÃ©bec, under international law.
71. Generally, Aboriginal peoples must secure unequivocal recognition of their own right to self-determination and ensure the integrity of their traditional territories that remain highly vulnerable in QuÃ©bec and other parts of Canada. In light of the profound relationship that Aboriginal peoples have with their lands, resources and environment, it is imperative that the integrity of Aboriginal territories be safeguarded.
Relevance of the James Bay and Northern Quebec Agreement
72. The QuÃ©bec government is a signatory to the James Bay and Northern Quebec Agreement (JBNQA) of 1975. This land claims treaty was approved by Parliament and the QuÃ©bec National Assembly. JBNQA provides for federal and QuÃ©bec obligations to continue in perpetuity in favour of the indigenous peoples concerned. The treaty is directly linked to the northern territories of the province, since it is said to have been undertaken to comply with the obligations of QuÃ©bec under the 1912 Quebec Boundaries Extensions Act.
73. Under Canadian law, there are no justifications that would enable QuÃ©bec to unilaterally abrogate or alter the terms of JBNQA. Such action would be a violation of the treaty rights of the indigenous peoples under the Constitution Act, 1982. It would be a repudiation of the QuÃ©bec government's own signature. The honour of the National Assembly would also be open to question.
74. QuÃ©bec cannot unilaterally undertake to fulfill all federal obligations should it take steps to become a sovereign state. The Cree and Inuit native parties signed JBNQA in the context of federalism and they derive particular safeguards from having obligations met by two levels of government. Any alterations of the Agreement can only be made with the consent of the aboriginal parties affected. If both QuÃ©bec and the James Bay Crees are claiming a right to self-determination, neither party can arbitrarily assume the obligations of other parties to JBNQA.
75. JBNQA was clearly negotiated within a federalist framework. Therefore, it would be totally dishonest for QuÃ©bec or Canada to attempt to enforce certain provisions of the treaty in a secessionist context. Unilateral secession would be a fundamental change of circumstances imposed on the James Bay Crees and would enable the Crees to totally repudiate the James Bay and Northern Quebec Agreement.
76. In particular, QuÃ©bec cannot claim on the basis of JBNQA that it has the right to unilaterally include the 1898 and 1912 territories in an independent QuÃ©bec. Such action would fundamentally breach the constitutional treaty arrangements that it agreed to in the context of acquiring the provincial boundary extensions for domestic purposes related to the Canadian federation. In other words, QuÃ©bec cannot selectively invoke certain aspects in the Agreement to its advantage if it unilaterally abrogates or alters other fundamental terms of the same Agreement.
77. In particular, the PQ government erroneously claims that so-called "surrender and extinguishment" clauses in relation to JBNQA can be invoked to deny Crees and Inuit in QuÃ©bec their basic right to determination. These government claims are not only invalid but also illegitimate in their intent. Moreover, it is the firm view of the Crees that the Agreement was negotiated in 1974-75 under circumstances that were clearly inequitable, coercive and, in a number of key respects, unconscionable.
78. Under international law, a newly sovereign QuÃ©bec state could determine whether it wished to adhere to the same treaties that Canada had entered into while QuÃ©bec was a part of the Canadian federation. However, international rules of state succession (to the extent they exist) would be subject to QuÃ©bec respecting the right of the James Bay Crees to self-determination. QuÃ©bec would not be acting in conformance with international law if it forcibly included Cree traditional territory (Eeyou Astchee) in a new QuÃ©bec state.
79. The JBNQA is a somewhat different situation from that where a succeeding state decides whether to adhere to the treaties of the parent state. In this case, QuÃ©bec is already an independent party and a signatory to the treaty, having negotiated and agreed to it in QuÃ©bec's own capacity. Should a seceding QuÃ©bec choose to renounce the Agreement, with its permanent federalist arrangement involving Aboriginal peoples as parties to the same Agreement, the PQ government would be repudiating its own signature.
80. Similarly, should QuÃ©bec seek to unilaterally alter the terms and conditions of the JBNQA treaty, the government would be violating the legal principle of pacta sunt servanda. In addition, the government would be radically altering a fundamental object and purpose of the treaty, namely to carefully determine the distribution of Canadian and QuÃ©bec government powers and responsibilities in northern QuÃ©bec, so that a particular balance could be achieved in the various areas of the Agreement.
QuÃ©bec's unilateral secession process - is it legitimate or democratic?
81. In the absence of any lawful authority, the PQ government is declaring that it can unilaterally secede from Canada based on arguments of "legitimacy" and "democracy". However, to date, neither legitimacy nor democracy has been adequately demonstrated by the separatist government in QuÃ©bec.
82. In particular, the PQ government takes the position that a simple majority vote in a QuÃ©bec referendum would constitute a democratic expression of the will of the population in QuÃ©bec. Consequently, it is argued that such an affirmative vote alone would provide "legitimacy" for a unilateral declaration of independence by the QuÃ©bec government.
83. Legitimacy is not simply determined by a majority vote by Quebecers in a single referendum. In order to ensure legitimacy, numerous factors would have to be equitably considered and implemented. This is especially important when the rights of other peoples, such as Aboriginal peoples in QuÃ©bec, are directly and most fundamentally affected.
84. Even in cases where secession is based on the right to self-determination (which is not the case in QuÃ©bec), the rights of others must be taken into account. Moreover, there exist competing legitimacies that must be fully considered. Aside from Aboriginal peoples in QuÃ©bec, the rest of Canada has an immense interest in the current debate in light of the foreseeable and profound impacts on the country's future.
85. Issues of democracy, human rights and the rule of law are closely interrelated. They are also of international concern. The PQ government cannot ignore the human rights to self-determination of others, as well as the rule of law, yet claim its referendum process is legitimate and democratic. While circumstances sometimes exist where the rule of law lacks legitimacy or democracy, this is not the situation affecting Quebecers.
86. For the PQ government to suggest that all people in QuÃ©bec, including Aboriginal peoples, must vote (if at all) in a single referendum is coercive and devoid of legitimacy. Similarly, to forcibly include Aboriginal peoples in a secessionist QuÃ©bec is fundamentally wrong, undemocratic and illegitimate. Such an approach of inequality and forced dominance can best be described as yet another version of colonialism for the 1990s. It is the antithesis of a democratic process.
87. In addition, it is undemocratic to ask QuÃ©bec voters to approve the PQ government's bill on QuÃ©bec independence, without knowing the precise contents of a new QuÃ©bec constitution or the results of negotiations with the rest of Canada. In this regard, it is highly inappropriate for voters to provide the government with a "blank cheque" through a referendum.
88. Aside from the brief description of a future offer of economic and political union with Canada in the Agreement of June 12, 1995 (among separatist leaders), few details are known of the PQ government's possible offer to Canada. Moreover, it appears that Quebecers are being asked to pronounce on QuÃ©bec's future in a referendum even before the PQ government has fully worked out its own position.
89. In addition, the absence of any detailed information makes it extremely difficult for the James Bay Crees and other Aboriginal peoples to assess the impacts on them of any future offer of a Canada-QuÃ©bec union by the PQ government. However, what appears to be clear is that there is no role contemplated by the PQ government in any of the new proposed Canada-QuÃ©bec institutions for the Aboriginal peoples concerned.
Limitations of QuÃ©bec's upcoming referendum
90. According to Canadian law, referendums are not legally binding, but are consultative in nature. Referendum processes can only have a binding effect on governments and the adoption of constitutional laws, if these processes would be so recognized in Canada's Constitution.
91. Unlike QuÃ©bec referendum procedures in the past which were solely of an advisory nature, the original draft Bill on sovereignty of the PQ government would have attempted to have a permanently binding effect on all parties concerned. It would have required the National Assembly of QuÃ©bec to unilaterally declare the independence of QuÃ©bec within a maximum of one year in the event of an affirmative vote in its upcoming referendum.
92. However, apparently as a result of the decision in the Bertrand case, the PQ government tabled a new Bill that does not expressly require the National Assembly to adopt legislation proclaiming a UDI, in the event of a simple majority vote in the 1995 QuÃ©bec referendum. In fact, the draft Act respecting the future of QuÃ©bec makes no mention of any referendum. Therefore, from a strictly legal viewpoint, it appears that the 1995 referendum to be held by the PQ government is consultative and not legally binding.
93. In the event of a YES vote in the QuÃ©bec referendum, the PQ government is intending to proceed with the adoption of the draft Act respecting the future of QuÃ©bec. This Act, which purports to authorize the National Assembly to unilaterally establish an independent state, includes a number of provisions whose unconstitutionality and illegality are apparent.
94. Unconstitutional provisions in the current draft Act include: i) unilateral declaration of independence; ii) adoption of a constitution for a new state; iii) unilateral determination of QuÃ©bec's borders, including offshore areas; iv) unilateral assumption of Canadian government obligations in treaties; and v) unilateral ousting of the jurisdiction of the Supreme Court of Canada.
95. Even if there were to be an affirmative vote in a referendum on secession, a referendum does not determine the terms or conditions for separation. One of the inherent limitations of a YES vote in a QuÃ©bec referendum would be that it could not settle any of the conditions for separation nor fairly address the self-determination of Aboriginal peoples.
Undemocratic nature of a simple majority vote in QuÃ©bec
96. True democracy is not always achieved by a simple majority vote. If a simple majority vote were always definitive, a pan-Canadian referendum could determine the future of Quebecers.
97. The decision to secede from an independent state is markedly different from an election or a vote to become a member of a supranational body, such as the European Community. Unilateral secession not only entails more far-reaching consequences, but also includes a notion of finality that would be most difficult to reverse.
98. In other secession situations internationally, referendum results have demonstrated exceedingly high majorities. For example, the registered affirmative votes in two of the republics of former Yugoslavia exceeded eighty or ninety percent. Similarly, high support was registered in the Ukraine vote on independence in 1991, the Baltic states in 1991, and in the case of Norway in 1905. Based on such examples, it cannot be concluded that there is any legitimacy to the claim that a simple majority would be a sufficient indication of popular political will by Quebecers to secede in QuÃ©bec.
99. Even jurists who are supportive of QuÃ©bec sovereignty have called for "incontestable majorities", "massive support", "absolute majorities" (of all registered voters), or "double majorities" that would require support from numerous distinct regions in the province. Also, most people in QuÃ©bec express the view that a simple majority vote is insufficient to begin the separation process. Yet the PQ government shows no inclination to shape its "legitimacy" and "democracy" arguments to reflect the views of the QuÃ©bec population.
Referendums by Aboriginal peoples and their significance
100. If there are to be meaningful consultations by all peoples in QuÃ©bec in regard to QuÃ©bec secession, the PQ government must fully recognize the right of Aboriginal peoples in QuÃ©bec to self-determination. This would include the right of Aboriginal peoples to express their will regarding their own future by holding their own referendums.
101. Any referendums held by Aboriginal peoples, in the context of QuÃ©bec secession, necessarily qualify the results of the 1995 QuÃ©bec referendum. While the results of the QuÃ©bec referendum might indicate the extent of popular will among Quebecers, it would be a travesty to suggest that these same results could bind Aboriginal peoples in QuÃ©bec in any way. In this regard, Quebecers take a much more principled and democratic position than does the PQ government.
102. Should the results of Aboriginal referendums indicate a free and clear choice to remain in Canada, an affirmative vote in the QuÃ©bec referendum cannot be used to forcibly include such Aboriginal peoples (and their territories and resources) in an independent QuÃ©bec.
Fiduciary responsibilities of Canada and QuÃ©bec
103. Aside from the exercise of self-determination by Aboriginal peoples in the context of QuÃ©bec secession, it is important to consider what fiduciary obligations exist on the part of the Canadian and QuÃ©bec governments.
104. In regard to fiduciary responsibility towards Aboriginal peoples, the primary duty lies with the federal (not provincial) government. This duty stems from the historical relationship Aboriginal peoples have had and continue to have with the Crown. Federal fiduciary obligations to Aboriginal peoples are considerably strengthened, since they are generally of a constitutional nature.
105. Based on s. 35 of the Constitution Act, 1982, neither the federal executive nor Parliament could act against the rights and interests of Aboriginal peoples in QuÃ©bec in the context of QuÃ©bec secession without justification. Such justification would be most difficult to establish since the current actions of the PQ government lack both legality and legitimacy, especially in regard to the Aboriginal peoples concerned.
106. At the same time, it should be noted that federal fiduciary duty is not limited to that found in the Constitution Act, 1982. Other constitutional instruments in Canada, such as the Royal Proclamation of 1763 and the Imperial Rupert's Land and North-Western Territory Order, considerably reinforce the constitutional imperative that Canada act in a manner consistent with its fiduciary responsibilities. Moreover, both the federal Parliament and government confirmed its "special responsibility" to the Crees and Inuit when the James Bay and Northern Quebec Native Claims Settlement Act was approved in 1976.
107. In a situation such as QuÃ©bec secession, it would be wholly inadequate and an abdication of constitutional responsibility for the federal Crown to take measures solely at the time that QuÃ©bec chooses to declare its independence. In particular, in the current context, the federal government must recognize and respect the right of Aboriginal peoples in QuÃ©bec to exercise their right to self-determination. This includes the right of Aboriginal peoples to hold their own referendums and choose to remain in Canada (should they so desire).
108. Should Aboriginal peoples in QuÃ©bec decide to continue their nation-to-nation relationship with the federal Crown, the Canadian government, as fiduciary, cannot unilaterally transfer its obligations to a third party such as QuÃ©bec. This principle is especially important, should any negotiations take place between Canadian and QuÃ©bec representatives in the event of a Yes vote in QuÃ©bec's referendum. Moreover, Aboriginal peoples must represent themselves and participate directly in any such negotiations.
109. Further, provincial governments can have fiduciary responsibilities towards Aboriginal peoples. Should QuÃ©bec take steps to secede from Canada, the PQ government would be placing itself in a position that entails fiduciary responsibilities to the Aboriginal peoples in QuÃ©bec.
110. In contrast to the federal government, provincial fiduciary obligations do not arise from the historical relationship between Aboriginal peoples and the Crown. Where provincial fiduciary duties do arise as a result of provincial government actions, such duties would likely be of a somewhat different nature than those of the federal Crown.
111. The obligation of the government of QuÃ©bec and Canada to respect the right to self-determination of Aboriginal peoples is not dependent on the existence of a fiduciary relationship or obligation. Human rights, including self-determination, serve to inform the content of fiduciary obligations owed to Aboriginal peoples in Canada. However, whether or not a fiduciary duty exists, human rights must be respected independently in accordance with Canadian and international law.
112. The PQ government has a fiduciary duty to proceed with the aspirations of Quebecers in a manner that does not infringe or deny the fundamental rights of the James Bay Crees and other Aboriginal peoples in QuÃ©bec. In particular, this relates to their right to self-determination, including the right to choose to remain in Canada.
113. The PQ government claims that it seeks an equal and beneficial "partnership" with Aboriginal peoples. A reasonable test of that commitment is whether the government chooses to act at the present time in a way that does not ignore or go against the will of the Aboriginal peoples concerned. In the case of the James Bay Crees, we will determine our own future and that of Cree traditional territory Eeyou Astchee.
Responsibilities of the international community in the current Aboriginal/QuÃ©bec context
114. The PQ government presumes that, if it recognizes minimal self-government rights of Aboriginal peoples within a secessionist QuÃ©bec, shows a general willingness to adhere to major international human rights instruments, and respects the rights of minorities in QuÃ©bec, the international community will overlook fundamental violations and problems and recognize QuÃ©bec as an independent state. Such a perspective is unacceptable.
115. In regard to indigenous peoples, unresolved violations and problems arising from a UDI in QuÃ©bec would include: i) denial of their human right to self-determination, including the democratic right to hold their own referendums to choose to remain in Canada; ii) forcible inclusion of indigenous peoples and their territories within an independent QuÃ©bec (in the event of an affirmative referendum vote by Quebecers); iii) deprivation, or fundamental alteration of, Aboriginal peoples' nationality as it currently exists; iv) unilateral alteration of existing treaty rights and obligations under the James Bay and Northern Quebec Agreement, which guarantees a permanent federalist arrangement; and v) overall illegality and illegitimacy of the PQ government's secession process.
116. To allow such basic contraventions could create most unfavourable precedents internationally, particularly in regard to indigenous peoples worldwide. Moreover, these actions by the separatist government in QuÃ©bec would serve to make a mockery of the international standard-setting processes pertaining to indigenous peoples taking place in Geneva.
117. Also, under the present circumstances, a UDI in QuÃ©bec could prove to be a most destabilizing precedent for the international community. Following the QuÃ©bec example, the territorial integrity of other democratic states could be irreversibly affected. All it might purportedly take is any disaffected minority, exercising internal self-determination in such states, to attain a simple majority vote in their own region in favour of secession.
118. Generally, there is a real need for the international community to deal with secessionist claims and not simply react on an ad hoc basis. As demonstrated by the many tragedies in the former Yugoslavia and the former Soviet Union, secession-related matters are capable of generating such a climate of violence that international peace and security are put in jeopardy.
119. Although the situation in QuÃ©bec is totally different from former states, such as Yugoslavia and the USSR, the use of force and violence could still emerge as a most ominous by-product of secessionist attempts in QuÃ©bec.
120. Aboriginal peoples are among the most vulnerable peoples in the world. To ignore the democratic will of Aboriginal peoples to remain in Canada and for such peoples to be forcibly included in a secessionist QuÃ©bec would constitute an unacceptable act of colonialism.
121. The United Nations is in recent years increasingly addressing a wide range of economic, cultural, social, economic, and political issues pertaining to indigenous peoples worldwide. The human rights issues being dealt with by the U.N. expressly includes the right to self-determination of indigenous peoples. Consequently, in regard to the QuÃ©bec secession context, the international community has a clear interest in ensuring compliance with existing and emerging standards.
122. Barring extraordinary events of coercion, military intervention by the United Nations should prove neither appropriate nor necessary in the context of QuÃ©bec secession. Rather, consistent with a peaceful approach, serious violations of Aboriginal peoples' right to self-determination or other human rights could be dealt with effectively through a wide range of non-military measures. International action, if taken, should be balanced and commensurate with the degree of persistent violations manifested by a secessionist QuÃ©bec.
Potential impacts of QuÃ©bec secession on Aboriginal peoples
123. Aboriginal peoples in QuÃ©bec potentially face a number of far-reaching impacts, in the event of a unilateral secession by Quebec. Not all adverse effects are foreseeable or are necessarily susceptible to legal resolution. Other impacts could lead to long-standing conflicts and complex litigation.
124. Prior to initiating its referendum process to unilaterally secede from QuÃ©bec, the PQ government has a responsibility to fully and sensitively assess the full range of potential impacts of secession on Aboriginal peoples. These assessments should be undertaken in conjunction with the Aboriginal peoples concerned. Moreover, it must be made clear that these prior evaluations do not constitute in any way agreement or acquiescence by Aboriginal peoples to QuÃ©bec secession.
125. Quebecers, as a whole, have a right to be informed of the result of these assessments in a timely manner prior to the QuÃ©bec referendum. In particular, Quebecers have a right to know what are the potential impacts of secession on the existing borders of the province.