The Grand Council of the Crees

Sovereign Injustice Introduction

Sovereign Injustice Introduction

Posted: 0000-00-00

For thousands of years, the James Bay Crees have used and occupied the James Bay and Hudson Bay area in and beyond northern Québec. We have always lived in harmony with our physical environment. Presently, the James Bay Cree people (Eeyouch) is comprised of the Nemaska, Mistissini, Oujé-Bougoumou, Waswanipi, Waskaganish, Whapmagoostui, Chisabi, Wemindji and Eastmain communities of James Bay, Canada.

The Cree Nation is an organized society and includes approximately 12,000 aboriginal people of Cree ancestry. The Grand Council of the Crees is a corporation of the Cree Nation and enjoys consultative status (roster) with the United Nations Economic and Social Council.

The present analysis is an elaborate update to an earlier Submission made in February 1992 by the Grand Council of the Crees to the United Nations Commission on Human Rights in Geneva. On behalf of the James Bay Cree Nation in Québec, the Grand Council tabled an extensive brief entitled, Status and Rights of the James Bay Crees in the Context of Québec's Secession From Canada. This first Submission served to inform the international community of political developments in Québec. In particular, we highlighted the threat of Québec secession and the unjust refusal of the Québec government to recognize the right of the Crees and other Aboriginal peoples in Québec to determine their own future.

At that time, the Québec government had enacted a law (Bill 150){1} to hold a consultative referendum, possibly in regard to establishing a sovereign Québec state. However, no referendum on Québec independence was held in 1992. Instead, a constitutional agreement known as the Charlottetown Accord was negotiated by federal and provincial governments and national Aboriginal organizations. Consequently, a referendum was held in Québec and elsewhere in Canada on the contents of the draft legal text accompanying the Accord. Both a majority of Quebecers and of Canadians in general refused to support the constitutional compromises reached in the Accord.

In 1994, following the election of the separatist Parti Québécois (PQ) government in Québec, concrete measures to create an independent Québec were taken by the new provincial government. For the first time in Québec and Canadian history, a draft Bill{2} was made public calling for a unilateral declaration of independence (UDI). The sole pre-requisite to this far-reaching action would be an affirmative majority vote by Quebecers in a provincial referendum. Should that occur, the National Assembly would be required to proceed with a UDI, within a maximum period of one year.

When support for this draft Bill waned among the Québec population, an Act respecting the future of Québec (Bill 1){3} was introduced in the National Assembly. This Bill requires that "a formal offer of economic and political partnership" be made with Canada{4}, before any UDI could be proclaimed by Québec's legislative assembly. Presently, the threat of Québec secession is a most serious one, since the Québec referendum on separation has been formally announced by Premier Parizeau to be held on October 30, 1995.

The PQ government's Bill 1, if adopted, has already been declared by Québec's Superior Court to be unconstitutional.{5} However, the separatist government in Québec takes the position that constitutional or legal questions are largely irrelevant. Rather, the PQ government claims that a simple majority vote in a province-wide referendum would confer on Quebecers a legitimate and democratic "right" to secede from Canada. The territorial integrity of Canada or the integrity of Aboriginal territories is of little consequence. Further, despite legal opinion to the contrary, the government continues to claim that Québec can separate from Canada with its present borders intact.

In the opinion of this present Study, the PQ government's current political and legislative strategy towards secession of Québec from Canada has no legal validity. It also lacks legitimacy from either a Canadian or international perspective. Moreover, should Québec secession proceed, it would seriously impinge upon other peoples' fundamental status, rights and interests - including those of the James Bay Crees.

Throughout Canada's history, Quebecers have established an impressive reputation as producing some of the best constitutional jurists in the country. This strong tradition and participation in constitutional affairs have served to safeguard and advance the interests of Québec. It would be unfortunate if these skills in the constitutional arena are now cast aside, along with the rule of law, in favour of unilateralism.

To date, basic matters regarding Aboriginal peoples' right to self-determination are being denied or ignored by the PQ government and its separatist ally at the federal level, the Bloc Québécois (BQ){6}. In regard to Aboriginal peoples, questions pertaining to their legal status and rights are intrinsically related to questions of legitimacy and democracy. Despite the claims of the PQ government or BQ leaders, issues concerning legitimacy and democracy cannot be severed from those relating to Aboriginal peoples' status and legal rights.

The PQ government and the Bloc Québécois are not facing and resolving critical questions in any appropriate manner. These include:

Aboriginal peoples as "peoples" with the right to self-determination. Who are "people" with the right to self-determination? Are the James Bay Crees a distinct "people"? Can the PQ government force Aboriginal peoples to be a part of the "Quebec people" for purposes of self-determination and secession? On what basis does the PQ government justify its denial of Aboriginal self-determination in the current secession debate?

Undermining the functioning of Canada. If the PQ government is acting in a manner to undermine the functioning of the Canadian federation, how can the government turn around and declare that Canada is not working? Such action hardly legitimizes secession. Moreover, as the National Assembly's own studies confirm, Quebecers presently enjoy self-determination within Canada.

Effective control and use of force. The PQ government is claiming that an independent Québec state can achieve international recognition by achieving effective control over the whole of the present territory of the province. However, what will the Québec government do if Aboriginal peoples and others continue to respect and apply the laws of Canada, including maintenance of their territories within Canada and implementation of Canadian programs and services? Will the Québec government resort to the use of force against Aboriginal peoples?

Territorial integrity. On what basis can the PQ claim that Canada is divisible, but not the territory of a secessionist Québec? How is it that the integrity of the traditional or historical territories of Aboriginal peoples is so easily dismissed by separatists?

Vulnerability of Québec's borders. Have the potential risks to Québec's current provincial borders been adequately evaluated? Can the PQ government legitimately impose Québec's "territorial integrity" on Aboriginal peoples?

Denial of Aboriginal referendums. On what basis can the PQ government and its separatist supporters believe that they can deny Aboriginal peoples the right to hold their own referendums to decide their own future?{7} Should Aboriginal referendums establish that the Aboriginal peoples concerned wish to remain in Canada, do not these results significantly limit the potential impact of any Yes vote in the Québec referendum?

Inadequacies of simple majority vote. In the Canada/Québec/Aboriginal context where other rights and interests are involved, is a simple majority vote by Quebecers truly legitimate and democratic? Also, how can it be said that an affirmative Québec referendum vote on independence is legitimate or adequate, in the absence of a proposed Constitution and other fundamental arrangements for Quebecers to consider?

Unilateral alteration of Aboriginal treaties. Existing land claims treaties provide for a permanent federalist arrangement and include federal and Quebec governments (as well as Aboriginal peoples) as parties. How can the PQ government claim it would be legal or legitimate for a secessionist Québec to unilaterally alter existing treaties with Aboriginal peoples in Québec? On what basis could Québec claim it can simply take over existing federal treaty obligations and unilaterally determine that the Canadian government would no longer be a party to the treaties concerned?

Failure to consider impacts on Aboriginal peoples. What are the potential impacts of Québec secession on Aboriginal peoples in Québec? If Aboriginal peoples choose not to subject themselves to such impacts, how can a secessionist Québec government forcibly include them and their territories in a separate new state?

It is astounding that the above questions remain inadequately addressed or completely unanswered, as we approach the eve of the Québec referendum debate. This is especially surprising since the Québec National Assembly's Committee on Sovereignty emphasized that "prior agreement" with Aboriginal peoples in Québec is essential if additional problems are to be avoided:

"...the testimony of aboriginal representatives leads the Committee to the conclusion that, unless there is prior agreement with the aboriginal peoples, Québec's accession to sovereignty will generate more problems in relations with the aboriginal nations and the rest of Québec society."{8}

The increase in problems referred to by the Committee on Sovereignty are symptomatic of a continuation of colonial attitudes by governments that have been repeatedly imposed on Aboriginal peoples for centuries. If the same unilateral approaches are perpetuated, the relationship with non-Aboriginal governments will deteriorate, the healing process among Aboriginal peoples will be severely impeded, and injustice will continue to result. This must not be the legacy of Québec's attempts to secede from Canada. As E.-I. Daes recently stated on the occasion of International Day of the World's Indigenous People:

"For healing to begin, there must be some clear recognition of the legitimacy of the victim's claims to justice. We must acknowledge the wrong that has been done. We must place responsibility where it truly belongs, on the oppressor and not the victim...Facts and feelings must be faced, squarely, before we can move beyond them. Denying pain and anger does not make these emotions go away; they grow deeper, and more bitter."{9} [Emphasis added.]

In the following pages, this Study deals with the above questions and others that are central to the issue of Québec secession and its threats to the rule of law, genuine democracy, and respect for fundamental human rights. Hopefully, the Study will contribute to a peaceful debate on key substantive issues, prior to any actions being taken by Québec separatists against Aboriginal peoples, contrary to international, Canadian and Aboriginal{10} law.

In the context of any secessionist attempts by Québec, the right of the James Bay Crees and other Aboriginal peoples in the province to make free choices in determining their own future must be assured. The message we bring relating to Aboriginal self-determination and its current denial is intended for all Canadians, including Quebecers, many of whom we are grateful to for their ongoing support. Ultimately, it is the people of any society that demand accountability and compel its government to act fairly and respectfully towards the rights of others.

This Study is equally intended to inform the international community - the United Nations, member states, political observers, human rights organizations, and academics - of the status and rights of the James Bay Crees and other Aboriginal peoples in Québec who face a secessionist threat. We believe the current issues have important international dimensions. These entail a significant measure of responsibility and appropriate international response.

Further, the international community may wish to devote careful, sober thought to the potentially far-reaching implications of a unilateral secession by Québec, based on a simple majority vote{11}. It would be clearly counterproductive to ongoing international efforts towards peace, stability and respect for human rights, if a UDI in Québec were to establish some form of adverse precedent{12} - a precedent to ignore the human right of self-determination of indigenous peoples, as well as break up an existing democratic state.

Footnotes

{1} An Act respecting the process for determining the political and constitutional future of Québec, S.Q. 1991, c. 34, assented to on June 20, 1991 by the National Assembly, First Session, 34th Legislature.

{2} An Act respecting the sovereignty of Québec (Draft Bill), Québec National Assembly, First Sess., 35th Legisl., 1994, made public by Premier Jacques Parizeau on December 6, 1994. This "avant-projet de loi" was never tabled as a bill in the National Assembly.

{3} An Act respecting the future of Québec (Bill 1), Québec National Assembly, First Sess., 35th Legisl., tabled by Premier Jacques Parizeau on September 7, 1995.

{4} Id., s. 1.

{5} Bertrand v. A.G. Québec, Québec Superior Court, Québec city, No. 200-05-002117-955, decision rendered on September 8, 1995 by Mr. Justice Robert Lesage. At p. 44 of the decision, Lesage J. declares that the draft Act (Bill 1) of the PQ government constitutes a serious threat to the rights and freedoms of the plaintiff Bertrand guaranteed in the Canadian Charter of Rights and Freedoms, since the draft Act purports to confer on the Québec National Assembly the power to proclaim Québec a sovereign country without following the amendment procedure in the Constitution Act, 1982. For a brief discussion of the circumstances surrounding this case and the judge's decision, see notes 248, et seq. and accompany text infra.

{6} This Study refers for the most part to the PQ and BQ. However, it is worth noting that a fledgling new party, the Action démocratique du Québec, with a single elected member in Québec, has also joined the separatists in working towards an independent Québec state.

{7} The Parti Québécois government takes the position that Aboriginal peoples can hold referendums if they wish, but the government will not respect the results of their referendums.

{8} Committee to Examine Matters Relating to the Accession of Québec to Sovereignty, Draft Report (Québec: Bibliothéque nationale du Québec, 1992), at 33. It would appear that this Draft Report was never finalized, since it was difficult for Liberal and Parti Québécois members on the Committee on Sovereignty to reach consensus on the precise contents of the Report. For an official French version of the Draft Report, see Commission d'étude des questions aff?rentes - l'accession du Québec - la souveraineté, Projet de rapport (Québec: Bibliothéque nationale du Québec, 1992).

{9} E.-I. Daes, International Day of the World's Indigenous People, Speaking Notes of Erica-Irene Daes, Chairperson, Working Group, Palais des Nations, Geneva, August 9, 1995, at 2.

{10} This Study necessarily focusses primarily on international and Canadian law and practice. However, it should be emphasized that any diminution or denial of Cree status and rights would be viewed by the James Bay Crees as wholly contrary to their own laws, customs and practices. In regard to the expansive multi-discriplinary approach taken in Aboriginal law, see testimony in Royal Commission Into Aboriginal Deaths in Custody, National Report (Australia: 1991), vol. 5, at 361: "What [Aboriginal] people mean when they talk about their Law, is a cosmology, a worldview which is a religious, philosophic, poetic and normative explanation of how the natural, human and supernatural domains work." See also draft U.N. Declaration on the Rights of Indigenous Peoples, sixth preambular para.: "...[indigenous peoples'] rights to their lands, territories and resources, which derive from political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies".

{11} See discussion under sub-heading 9.3 infra.

{12}See discussion under sub-heading 11.1 infra.