The Grand Council of the Crees

Section 2, Sovereign Injustice - Grand Council of the Crees

2. Self-Determination and the Right to Secede

Posted: 0000-00-00

2.1 Right to Self-Determination of Aboriginal Peoples

2.2 Recogintion of Self-Determination Not a Precedent
for a Right to Secede

2.3 Self-Determination - The Right to Choose

2. Self-Determination and the Right to Secede

"Les membres de la Ligue ayant d?j? analys? la question de l'?galit? des peuples et du droit ? l'autod?termination au regard de la situation politique qu?becoise, abord?rent le dossier des droits des peuples autochtones sur les m?mes bases, c'est-?-dire essentiellement celles des pactes internationaux."{130} La Ligue des droits et libert?s, 1993

In terms of international law, it is clear that self-determination has undergone significant evolution since the principle was expressly referred to in the United Nations Charter.{131} Article 1 provides in part as follows:

"The Purposes of the United Nations are: ...2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other measures to strengthen world peace". [Emphasis added.]

However, it is said that, at the time of its adoption, it was intended that the U.N. Charter recognize a right to self-determination in limited circumstances. More specifically, self-determination, including a right to secede,{132} was to be expressly recognized for those colonized peoples in the Non-Self-Governing Territories {133} and Trust Territories referred to in the Charter.{134}

In 1960, the Declaration on Independence to Colonial Peoples {135} addressed specifically the issue of colonization and self-determination with the unanimous adoption of Resolution 1514 (XV).

Para. 2 of the Declaration provides:

"All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." [Emphasis added.]

However, it is generally viewed that the Declaration is not intended to extend to peoples in independent states. The Declaration only refers specifically to taking immediate steps "in Trust and Non-Self-Governing Territories or any other territories which have not yet attained independence".{136}

In 1966, the International Covenant on Economic, Social and Cultural Rights {137} and the International Covenant on Civil and Political Rights {138} both provided in identical terms for the right to self-determination as a human right. {139} Article 1 of both Covenants provide:

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

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit and international law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having a responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations."
[Emphasis added.]

Although the International Covenants did not include any restrictions, some authors indicate that it does not include a right of secession and is only for the liberation of colonial peoples. {140} Others indicate that the right to self-determination extends beyond colonial peoples and is universal. {141}

By 1970, it was increasingly evident in the Declaration on Friendly Relations {142} that the right to self-determination, in both its internal and external aspects,{143} was not intended to be limited to colonial peoples. Rather, in view of its overall scope, the Declaration is believed to recognize self-determination as a universal right. {144}

Under the heading entitled "principle of equal rights and self-determination of peoples", the 1970 Declaration provides:

"By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter." [Emphasis added.]

At the same time, the above paragraph is qualified by the following:

"Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory {145} without distinction as to race, creed or colour. [new para.] Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country." [Emphasis added.]

According to the terms of the 1970 Declaration, it is said that independent states can only invoke national unity and territorial integrity to prevail over external self-determination, if these states are acting in accordance with the principle of equal rights and self-determination of peoples. Moreover, such states must be "possessed of a government representing the whole people belonging to a territory" without discrimination. {146} In this regard, C. Tomuschat provides that secession from a state with an unrepresentative government should still be a last resort:

"It is a matter of common knowledge that, in its elaboration on self-determination, the Friendly Relations Declaration of the General Assembly would appear to go further when stating that the principle of national unity and territorial integrity may have to yield if the State concerned is not possessed of a government 'representing the whole people belonging to the territory without distinction as to race, creed or colour'. This formulation seems to be somewhat too loose if it is intended to sanction a right of secession. In fact,...secession can be only a step of last resort and should not be granted lightly as a remedy." {147} [Emphasis added.]

In 1975, the right to self-determination was expressed in broad terms in the Final Act of the Conference on Security and Co-operation in Europe (Helsinki Final Act).{148} More recently, in 1990, the Charter of Paris{149} reaffirmed the commitment of states to the Principles in the Helsinki Final Act, including the right to self-determination.{150}

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.{151} As T. Franck points out:

"...there is considerable evidence that, in the new era of postmodern tribalism, whatever the meaning of the admittedly continuing right of self-determination, it has not been endowed by states in texts or practice with anything remotely like an internationally-validated right, accruing to every secession-minded people anywhere, to secede territorially, at will, from established states that are members in good standing in the international community."{152}

H. Hannum states:

"...self-determination has never been considered an absolute right to be exercised irrespective of competing claims or rights, except in the limited context of 'classic' colonialism."{153}

Aside from the question of independence, Hannum underlines that "all" peoples have the right to self-determination.{154}

D. Murswiek explains:

"A State-based international legal order cannot contain a rule that leads to the destruction of most of the States. That is why States would never have accepted self-determination as a legal principle that validates an unlimited right to secession.

On the other hand,...the non-fulfilment of legitimate self-determination claims often is a source of conflicts. There are situations in which durable maintenance of peace can only be reached by territorial alterations, e.g. by secession of part of a territory." {155} [Emphasis added.]

However, there is no right of peoples to insurrection under international law. As J. Salmon provides:

"It is also undisputed that, in view of the absence of a commonly accepted principle of international law with regard to legitimacy of regimes, there is no right, deriving from the principle of self-determination, for peoples to overthrow their own government.

There is no right of insurrection based on international law in spite of some well known declarations of independence, such as the 4 July 1776 Declaration of Independence of the thirteen United States of America..."{156} [Emphasis added.]

Who can exercise the right to self-determination and what the right entails is not always clear. However, it is said that "minorities" in a post-colonial context have no legal right to secede. As T. Franck provides, the territorial integrity and stability of existing states remain important considerations in this context:

"That self-determination in its new post-colonial context does not give minorities a legal right to secede is clear from Article 27 of the [International Covenant on Civil and Political Rights], which carefully delineates a far more limited right...Evidently, they are not given the right to secede. It would have been surprising had it been otherwise. The Political Covenant is an instrument written by and for the governments of states, none of which are keen to propound a definition of post-colonial self-determination in which all concern for territorial integrity and state stability is thrown to the winds."{157} [Emphasis added.]

D. Murswiek adds:

"Mere minorities are not subjects of the right to self-determination...But it is important to recognize that the terms minority' and people' do not totally exclude one another; rather they partly overlap: one group that is a minority in relation to the whole population of a State can, on the one hand, be a national minority in the meaning of the law relating to minorities. But on the other hand, it can be a people in the meaning of the right of self-determination at the same time." {158} [Emphasis added.]

Deprival of the right of self-determination within an existing state and the existence of serious human rights violations {159} can give rise to a right to secession. In this regard, J. Klabbers and R. Lefeber comment:

"There is considerable doctrinal support for a legal entitlement to external self-determination, if a people has been deprived of its right of internal self-determination, in particular if this is accompanied by serious human rights violations. For a right to external self-determination to arise, the violation of the right of internal self-determination must be serious and persistent, and it must not have been possible to enforce the right by judicial means." {160} [Emphasis added.]

L. Bucheit states:

"The evils of colonial status consist in the domination of a people by foreign governors...and the inability of the colonial subjects to control their own political destiny, often coupled with a degree of economic exploitation and denial of human rights. Should these same circumstances occur in the setting of an independent State exercising repressive control over a national or racial minority within its borders, the same remedy, independence, ought presumably to be accepted." {161}
[Emphasis added.]

Similarly, P. Juviler comments:

"...a new consensus is forming among experts that would include a recognition of an ethnic group's collective right to self-determination over the objections of its national government in the case of serious and unremedied violations of the rights of members of the ethnic group and the ethnic group taken as a whole. Self-determination could take the form of various degrees of autonomy and in extreme cases, secession." {162} [Emphasis added.]

D. Murswiek adds:

"There must, at least, be a right of secession if it does not seem possible to save the existence of a people, which is the holder of the right of self-determination in a certain territory, except by secession from the existing State. Intolerable discrimination of a people because of its specific characteristics can endanger the existence of this people in the sense already described and therefore legitimize secession. However, there may be other measures, which cannot be characterized as discrimination', but which may also threaten a people's existence and therefore give rise to a right of secession." {163} [Emphasis added.]

Moreover, H.G. Espiell indicates that a right to external self-determination will arise in the context of colonial or alien domination:

"if the national unity claimed and the territorial integrity invoked are merely legal fictions which cloak real colonial or alien domination." {164}

Based on the above, it is clear that the right to self-determination is a universally accepted human right {165} and not a mere principle in international law. Moreover, save for exceptional circumstances, the right to self-determination under international law does not include the right to secede. 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.

2.1 Right to Self-Determination of Aboriginal Peoples [Top]

"The natives of Qu?bec don't have a right of self-determination. It doesn't belong to them." {166}

Bloc Qu?b?cois Leader Lucien Bouchard, 1994

"Et ? mon avis, le fait que [les autochtones] constituent des peuples qui se sont autoqualifi?s comme peuples...leur donnerait un droit ? l'autod?termination au m?me titre que le Qu?bec...{167}

D. Turp (Universit? de Montr?al), Legal advisor to Bloc Qu?b?cois

Separatist leaders in both the Parti Qu?b?cois and the Bloc Qu?b?cois believe that they can continue to deny that Aboriginal peoples in Qu?bec have the right to self-determination. According to separatist strategy and process, the will of the Qu?bec people can be determined by a single majority vote in Qu?bec. In the event of an affirmative vote by the "Qu?bec people", the whole territory in the province can take steps to secede unilaterally from Canada regardless of the will of Aboriginal peoples in Qu?bec.

Human rights organizations do not share the separatist view that the right to self-determination of Aboriginal peoples can simply be denied. {168} For example, the Ligue des droits et libert?s in Qu?bec has formally posed the following question to Premier Parizeau's advisor on Aboriginal affairs and member of the National Assembly, D. Cliche, and others:

"Dans la perspective o? le droit ? l'autod?termination des peuples vivant au Qu?bec, soit les onze peuples autochtones et le peuple qu?b?cois, est reconnu; et dans celle o? l'exercice d?mocratique de ce droit pourrait se traduire par leur accession ? la souverainet? politique, comment croyez-vous possible d'harmoniser les droits des uns et des autres?"{169}

D. Cliche avoided a direct response to the question, by simply declaring that Quebecers were not relying on the right of self-determination to secede from Canada. {170} However, it is becoming increasingly difficult for the Parti Qu?b?cois and Bloc Qu?b?cois to finesse such basic questions and thereby deny Aboriginal peoples their fundamental human rights.

In the Western Sahara case, the International Court of Justice has emphasized that realization of the right of self-determination "requires a free and genuine expression of the will of the peoples concerned". {171} Consequently, if indigenous peoples in Qu?bec have a right to self-determination (as this Study makes clear), then the free and genuine expression of each of the Aboriginal peoples must be respected by Quebecers in the current context. Moreover, the PQ government cannot purport to determine the destiny of the whole of the territory presently within the province of Qu?bec. As Judge Dillard stated in his separate opinion in Western Sahara:

"It is for the people to determine the destiny of the territory and not the territory the destiny of the people." {172}

The right to self-determination of Aboriginal peoples is increasingly being recognized by a wide range of commentators, internationally as well as in Qu?bec and other parts of Canada.

In the 5-expert study commissioned by the National Assembly of Qu?bec, {173} it is provided that Aboriginal peoples have the right to self-determination (even if such right might not include a right to independence for Aboriginal peoples {174} or Qu?bec {175}):

"Comme tout peuple, les peuples autochtones ont le droit de disposer d'eux-m?mes..., ce que proclame avec force le projet de D?claration universelle sur les droits des peuples autochtones: Les peuples autochtones ont le droit de disposer d'eux-m?mes conform?ment au droit international'." {176}

In the draft United Nations Declaration on the Rights of Indigenous Peoples, the right to self-determination is provided in the same terms as the International Covenants on human rights:

"Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." {177}

The U.N. Meeting of Experts in Nuuk, Greenland on September 24-28, 1991, concludes:

"The Meeting of Experts shares the view that indigenous peoples constitute distinct peoples and societies, with the right to self-determination, including the right to autonomy, self-government, and self-identification." {178} [Emphasis added.]

H. Hannum states:

"Self-determination is also relevant to the matrix of human rights which has developed over the past four decades, including specific rights applicable to...indigenous peoples." {179}

J. Woodward highlights Canada's international obligations to recognize the right of self-determination of Aboriginal peoples:

"It is notable that the International Covenant addresses the rights of peoples', just as s. 35(1) of the Constitution Act, 1982 guarantees rights for Canada's aboriginal peoples'. Canada should consider the possibility that, by signing the International Covenant, it has made a commitment to recognize the right of self-determination of the aboriginal peoples of Canada." {180} [Emphasis added.]

In Canada, the 1991 Report of the Aboriginal Justice Inquiry of Manitoba concludes:

"It is our assessment that Aboriginal rights to self-determination must be acknowledged openly and freely by all levels of government..." {181}
[Emphasis added.]

P. Macklem (University of Toronto) emphasizes:

"...aboriginal nations have an inherent' right to self-determination and self-government, and that this inherent right must find both practical and constitutional recognition by the Canadian state." {182}

The Commission des droits de la personne du Qu?bec has recommended to the Royal Commission on Aboriginal Peoples:

"La reconnaissance du droit ? l'autod?termination et ? l'autonomie politique des nations autochtones doit ?tre explicite dans les lois fondamentales du Canada et des provinces". {183}

In 1990, the Comit? d'appui aux premi?res nations of the Ligue des droits et libert?s recommended to a committee of the Qu?bec National Assembly to recognize Aboriginal peoples' right to self-determination:

"Nous devons reconna?tre le droit ? l'autod?termination des Premi?res Nations dans toutes ses implications, c'est-a-dire leur droit ? exercer des pouvoirs l?gislatifs, judiciaires et ex?cutifs sur les territoires de leur juridiction." {184}

In addition, the Groupe de r?flexion sur les institutions et la citoyennit? indicates:

"...l'?galit? de droit des peuples autochtones et du peuple qu?b?cois doit ?tre ?tablie. Leur droit respectif ? disposer d'eux-m?mes, ? choisir librement leur statut politique et ? assurer aussi librement leur d?veloppement ?conomique, social et culturel doit ?galement ?tre affirm? avec conviction et sans reserve." {185} [Emphasis added.]

G. Laforest, a political scientist who supports Qu?bec independence, also provides:

"Le gouvernement du Qu?bec n'a pas le monopole du vocabulaire de la souverainet? populaire et de l'auto-d?termination. Les autochtones peuvent aussi l'employer. Les deux discours ne sont pas n?cessairement incompatibles." {186} [Emphasis added.]

D. Sal?e notes:

"Toute la question autochtone est de plus en plus indissociable des aspirations autod?terministes des Premi?res Nations." {187}

A. Dubuc, editor of La Presse, states:

"Les souverainistes, s'ils veulent faire avancer leur cause, n'ont d'autre choix que de reconna?tre le droit des autochtones ? l'autod?termination." {188}

P. de Bellefeuille, former Parti Qu?b?cois Member of the National Assembly, states that Aboriginal peoples are peoples entitled to self-determination:

"The ultimate affront would be for us Canadians to deny that the Indians are a people. They are a people, according to any standard. They are therefore entitled to self-determination." {189} [Emphasis added.]

P. Joffe and M.E. Turpel underline that Aboriginal peoples are not seeking to secede {190} but, in the context of Qu?bec secession, require recognition of their right to self-determination without discrimination:

"The critical issue in the current political context facing Aboriginal peoples in Canada does not appear to be that their right to secede be presently recognized. Rather, it is the need for assurance that, in the event Qu?bec takes steps to accede to sovereignty, the principle of self-determination (including secession) will be equally applied to Aboriginal peoples in Qu?bec without discrimination.

...The necessity for consistent application of the right of self-determination under international law is increasingly being made by both indigenous peoples and jurists." } [Emphasis in original.] {191}

In regard to the spectre of discrimination, M.C. L?m provides:

"Indeed, if now Quebec, whose ethnic depth' as Quebecois (as opposed to French) is chronologically shallower than that of any other cultural group presently claiming self-determination, also receives a hushed response from both Canada and the interstate system to its secession threat, what then remains of the prohibition against secession other than the selective and arbitrary exercise of raw power? Indigenous representatives from Canada attending last summer's Working Group session in Geneva passionately argued that a self-respecting international law cannot apply as lofty a principle as self-determination in a racially discriminatory manner: yes' for whites in Quebec, no' for indigenous peoples throughout Canada." {192} [Emphasis added.]

R. Barsh states:

"Indigenous peoples who occupy distinct territories should not by virtue of their indigenousness enjoy lesser rights than Kazakhs, Armenians, Croats, or Bosnians." {193} [Emphasis added.]

In addition, C. Iorns states:

"The argument relating to consistent application of the law is even more relevant in the case of Canada and the proposed secession of Quebec. If Quebec is allowed to secede from Canada without objection from the international community then an argument can be made that consistent application demands that at least the indigenous peoples within Canada similarly be entitled to secede. This argument is stronger than in the European examples, particularly because of the lack of history of oppression of Quebec by Canada (it thereby does not fit the existing criteria for colonial or racist domination) or of imposed union with the other Canadian states, and because of the satisfaction of these criteria by the indigenous peoples." {194} [Emphasis added.]

Consistent with the above, it is clear that there can be no double standard in recognizing the right of Aboriginal peoples to self-determination. In the context of Qu?bec secession, it is especially crucial that Aboriginal peoples in Qu?bec are not denied such fundamental rights.

At the same time, there has been some suggestion from PQ separatists {195} that recognition of the right to self-determination of the Crees, in the context of Qu?bec secession, might create a precedent for Aboriginal peoples elsewhere to claim a right to secession. This unprincipled position of the PQ government remains unsubstantiated and self-serving. Nevertheless, in order to dispel doubt, this PQ argument is considered under the following sub-heading.

2.2 Recognition of Self-Determination Not a Precedent
for a Right to Secede [Top]

It is important to reiterate that explicit recognition by states or the international community of the right of indigenous peoples to self-determination does not per se entail a right to secede from existing states. As B. Bagwell points out:

"The right to self-determination and the authority to secede exist as two distinct and separate concepts. In a federal system of government like Yugoslavia, the unilateral secession of a state or states can change the course of a nation's history, and possibly end the very existence of the nation." {196} [Emphasis added.]

However, as described earlier in this Study, self-determination is a right belonging to all peoples. It would be a discriminatory double-standard to suggest that indigenous peoples, unlike other peoples, do not have this fundamental human right.

In regard to the right to self-determination in the International Covenant on Civil and Political Rights, D. McGoldrick indicates that the intention of the majority of states involved in the drafting felt that this right applied to all peoples, including those in independent states:

"[The right to self-determination] should apply to the people of any territory whether independent, trust, or non-self-governing".{197}

Further, as L. Bucheit underlines, "secessionist self-determination" is an issue separate from a general right of self-determination:

"[O]ne must be careful not to confuse the debate over the status of a general right of self-determination with the arguably quite distinguishable question of the place of secessionist self-determination".{198}

In relation to indigenous peoples, it would be absurd and unjustifiable for states to refuse to recognize the fundamental right to self-determination simply out of a fear that it might somehow give rise to a right to secession. As E.-I. Daes concludes:

"Most indigenous peoples...acknowledge the benefits of a partnership with existing States, in view of their small size, limited resources and vulnerability. It is not realistic to fear indigenous peoples' exercise of the right to self-determination. It is far more realistic to fear that the denial of indigenous peoples' rights to self-determination will leave the most marginalized and excluded of all the world's peoples without a legal, peaceful weapon to press for genuine democracy in the States in which they live." {199}

Also, H. Hannum emphasizes that the norm of self-determination can serve to "shield" states from secession, except in the case of undemocratic and discriminatory regimes:

"...the norm of self-determination in the post-colonial era is both a shield that protects a state (in most cases) from secession and a spear that pierces the governmental veil of sovereignty behind which undemocratic or discriminatory regimes attempt to hide." {200} [Emphasis added.]

It must also be emphasized that the right to self-determination is a human right {201} of peoples and is considered to be an essential pre-requisite to the effective exercise of other human rights. As H.G. Espiell describes:

"...human rights can only exist truly and fully when self-determination also exists. Such is the fundamental importance of self-determination as a human right and as a prerequisite for the enjoyment of all the other rights and freedoms."
{202} [Emphasis added.]

Moreover, in the view of many commentators, the right to self-determination has become a peremptory norm {203} and a part of customary international law. {204} Consequently, the right 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.

Regardless of whether states recognize indigenous peoples' right to self-determination, a right to secession will arise if a particular people is treated in a colonized manner. Although the traditional context of colonialism was said to refer to solely those overseas territories that were geographically separate from metropolitan states, it can be strongly argued that this arbitrary framework cannot be justified and a broader definition of colonialism should be the result.{205} In this regard, T. Franck indicates:

"...the law will neither prohibit nor authorize secession, except in the context of any lingering decolonization.

...The first [scenario] arises when a minority within a sovereign state ? especially if it occupies a discrete territory within that state ? persistently and egregiously is denied political and social equality and the opportunity to retain its cultural identity. In such circumstances, it is conceivable that international law will define such repression, prohibited by the [International Covenant on Civil and Political Rights], as coming within a somewhat stretched definition of colonialism. Such repression, even by an independent state not normally thought to be imperial' would then give rise to a right of decolonization'. {206} [Emphasis added.]

As M.E. Turpel points out, indigenous peoples are still being colonized from a political perspective:

"Institutionally, the international trusteeship and decolonization process did not address indigenous claims. Indigenous peoples, especially in the Americas, have yet to witness political decolonization..." {207}

By increasingly recognizing the internal self-determination of Aboriginal peoples in the Canadian context, Canada would be acting towards eliminating the possibility of claims that an external right of self-determination is warranted based on international criteria. If, on the other hand, Aboriginal or other peoples are denied their internal right of self-determination, it can give rise to a right to secession. In this regard, D. Murswiek cautions:

"Only if a State deprives a people of its right to internal self-determination...must territorial integrity stand behind the right of self-determination.

Many States, particularly in the West, fear that the granting of autonomy to ethnic minorities is the first step towards secession and towards the dismemberment of the State. I am convinced that the contrary is true. Autonomy is the best prevention against secession demands, if only granted in time. Who comes too late...is punished by history." {208} [Emphasis added.]

Similarly, O. Kimminich provides:

"As soon as that State consistently violates these [collective and individual] rights, a situation arises in which the suppressed people or ethnic group may invoke its right of self-determination in order to bring about constitutional changes within the State or to find an international solution by seceding." {209} [Emphasis added.]

Why then are PQ government representatives cautioning others not to recognize the right to self-determination of Aboriginal peoples in Qu?bec? For example, D. Cliche, special advisor to Premier Parizeau on native affairs, claims:

"If the Crees in Quebec go their own way, the next will be the natives in British Columbia, and then the Ojibway in Northern Ontario, and eventually every native nation on three continents, [Cliche] says." {210}

It is interesting that Qu?bec separatists who seek to deny Aboriginal peoples the right to self-determination have never raised legitimate arguments that could justify such a denial of this fundamental human right. Instead, like D. Cliche, they warn that such recognition could have dire consequences for the integrity of existing states. This is a most curious line of argument, since it is Qu?bec separatists and not Aboriginal peoples who are seeking to secede from Canada and possibly causing its break-up. As Grand Chief Matthew Coon Come reiterates on behalf of his people:

"It should be clear to everyone by now that we are not separatists. You have never heard about a Cree independence movement because there is no Cree independence movement. We most certainly have grievances against the Government of Canada. Our relationship is in need of profound reform. But we are not separatists."
{211} [Emphasis added.]

The 5-expert study {212} commissioned by the Qu?bec National Assembly expressly concluded that a right to self-determination by either Quebecers or Aboriginal peoples cannot be relied upon in order to accede to independence. {213} Apparently, the conclusions of this study has resulted in the PQ government developing other rationales for its current attempts to unilaterally secede from Canada. If so, why then does the government continue to suggest to others that recognition of the right of Aboriginal peoples to self-determination will cause the break-up of existing states? {214}

To date, the reluctance of the government of Canada to expressly recognize the right of Aboriginal peoples to self-determination has been and continues to be used by Qu?bec separatists to unjustly facilitate Qu?bec independence and irrevocably break up the country. Failure to recognize the right of Aboriginal peoples to self-determination would continue to serve to strengthen the hand of separatists, who use such non-recognition to assert falsely that Quebecers alone have the right to self-determination.

In addition, non-recognition would severely undermine the ability of Aboriginal peoples to choose Canada, should they be taken out of Canada against their wishes. While the right of self-determination does not in itself give Aboriginal peoples a right to secede from Canada, such right does reinforce significantly their right to choose {215} Canada when faced with an attempt by others to illegally secede from the existing federation.

As S.J. Anaya, R. Falk, & D. Pharand conclude:

"The Aboriginal peoples of Quebec are peoples that enjoy the right of self-determination, although the full significance of this right has yet to be firmly fixed in international law.
....
The prospect of Quebec's accession to sovereignty and any negotiations associated with this process definitely present an occasion that gives rise to jusifiable demands for timely and full participation by Aboriginal peoples." {216} [Emphasis added.]

An integral part of Aboriginal peoples' right to self-determination in the context of any proposed secession by Qu?bec from Canada is the right of each people concerned to hold their own referendum and choose whether or not to remain with Canada. It would be a great injustice to Aboriginal peoples, should the Canadian government or the international community fail to unequivocally respect and support Aboriginal peoples' rights under the present circumstances. {217}

Such non-recognition would only serve the objectives of separatists. To date, the separatist government in Qu?bec has shown little regard for Aboriginal peoples' rights or the maintenance of the territorial integrity of Canada. This could have far-reaching, adverse international implications in the future. {218}

2.3 Self-Determination ? The Right to Choose [Top]

As already indicated, the James Bay Crees and other Aboriginal peoples in Canada are not seeking to secede from Canada. However, they are seeking clear and unequivocal confirmation of their right to self-determination. Faced with the threat of a unilateral declaration of independence by Qu?bec, Aboriginal peoples seek to exercise their right to choose to remain in Canada. Consequently, it is worth elaborating on this particular dimension of self-determination ? namely, the right to choose.

P. Allott describes "self-determination" in terms of choices for the future:

"Self-determination is a name for a social phenomena which, like all social phenomena, contains the past still active within it, and which, like all social phenomena, also contains within it possible futures which are ours to choose."
{219}

In the 5-expert study commissioned by the National Assembly, there is support for the right of self-determination of Aboriginal peoples in Qu?bec, especially in regard to the right to make free choices in both the internal and external contexts.{220} In this regard, the experts cite with approval the following paragraph from the United Nations study by J. Cobo concerning discrimination against indigenous peoples:

"Self-determination, in its many forms, must be recognized as the basic pre-condition for the enjoyment by indigenous peoples of their fundamental rights and the determination of their own future. It must also be recognized that the right to self-determination exists at various levels and includes economic, social, cultural and political factors. In essence, it constitutes the exercise of free choice by indigenous peoples who must, to a large extent, create the specific content of this principle, in both its internal and external expressions, which do not necessarily include the right to secede from the state in which they live and to set themselves up as sovereign entities." {221} [Emphasis added.]

The five experts highlight that the right to exercise a choice is at the heart of the right to self-determination, but this does not mean that it always includes a right to independence:

"S'il n'est pas douteux que la facult? d'exercer un choix est au coeur du principe du droit des peuples ? disposer d'eux-m?mes, il n'en r?sulte nullement que l'accession ? la souverainet? constitue, dans tous les cas, l'un des ?l?ments de ce choix."
{222} [Emphasis added.]

As R. Higgins emphasizes, peoples in independent states also have the "right to choose" based on their right to self-determination:

"It has been clear from the outset that self-determination was not tied only to independence. The peoples of an independent territory have always had the right to choose the form of their political and economic future."{223} [Emphasis added.]

S. Williams specifically emphasizes the right of Aboriginal peoples in Qu?bec to decide their future:

" Self-determination' means choosing how to be governed. The Inuit and First Nations peoples living in what is now Qu?bec could decide to remain in Canada, or, alternatively, could seek separate statehood. Thus, the portions of present-day Qu?bec inhabited traditionally by these peoples and only transferred to Qu?bec in 1898 and 1912, would not become part of the new Qu?bec." {224} [Emphasis added.]

S. Paquerot of the Ligue des droits et libert?s, provides:

"Le droit ? l'autod?termination, pour les peuples autochtones comme pour le Qu?bec d'ailleurs, n'implique pas n?cessairement la s?cession compl?te mais reconna?t ? ces peuples la libert? de d?cider eux-m?mes de la mani?re de se gouverner."
{225} [Emphasis added.]

R. Falk (Princeton University) indicates:

"Any change in circumstances that would have an impact on existing collective arrangements and rights would be an occasion for mandatory consultation and negotiation. This seems directly relevant to any impending moves toward an accession to sovereignty by Quebec." {226} [Emphasis added.]

The right to "free choice", as an integral part of the right to self-determination, is also affirmed by P. Juviler as follows:

"The collective right to self-determination as spelled out in the International Human Rights Covenants..., means the right to the free choice of political status and economic, social, and cultural development." {227} [Emphasis added.]

In addition, E.-I. Daes highlights:

"The right to self-determination is best viewed as entitling a people to choose its political allegiance, to influence the political order under which it lives, and to preserve its cultural, ethnic, historical, or territorial identity."{228} [Emphasis added.]

Daes specifically makes clear that the right to self-determination includes the right to negotiate freely their political status in the states in which they live:

"With regard to indigenous peoples, then, I believe that the right of self-determination should ordinarily be interpreted as the right of these peoples to negotiate freely their political status and representation in the States in which they live." {229}
[Emphasis added.]

Similarly, M. van Walt van Praag provides:

"The right to self-determination is thus more of a procedural than a substantive right: it guarantees a people the opportunity to make a choice and implement it. It does not prescribe what that choice should be." {230} [Emphasis added.]

Also, in 1994, the European Parliament {231} adopted a resolution concerning indigenous peoples that highlights their "right to choose" in determining their own destiny, namely:

"the right to determine their own destiny by choosing their institutions, their political status, and the status of their territory". {232} [Emphasis added.]

In regard to Aboriginal peoples and Qu?bec secession, P. Hutchins comments:

"With respect to the Aboriginal peoples, they have the right to choose to maintain their relationship with Canada. This would be an issue conditioning the political and territorial reach of a sovereign Quebec. Furthermore, Quebec could not assume any responsibility or special relationship without Aboriginal consent."
{233} [Emphasis added.]

In terms of the current context of Qu?bec secession, R. Falk underlines how Aboriginal peoples in Qu?bec are invoking the right to self-determination as a means of making free choices and safeguarding their future:

"The central claim of Aboriginal peoples is not secession, however, but their right to avoid any change of circumstances that is perceived to be harmful to their existing arrangements and future prospects; if any change is contemplated, the further related right claimed is the right to full consultation and participation, on the basis of parity with representatives of Quebec, not just as a formality or an afterthought designed merely to work out an arrangement that approaches Quebec's separation as a fait accompli." {234} [Emphasis added.]

Unless Aboriginal peoples are forcibly deprived of their right to remain in Canada or a secessionist Qu?bec triggers the disintegration of the federation, {235} the option of secession for Aboriginal peoples is of no interest or relevance in the current debate. However, this does not mean that Aboriginal peoples can be dispossessed of the right to self-determination. In particular, in the event of a secessionist attempt by Qu?bec, Aboriginal peoples in the province must have the unfettered right to choose. In such a context, Aboriginal peoples must determine freely their own future.

In view of the fundamental status and rights of the James Bay Cree people to determine their own future, and the threats by the PQ government to ignore the will of the Crees, it is useful to examine further the basis of the PQ government's secession attempts and whether they are justifiable. These aspects are explored under the heading below.

Footnotes

{130} La Ligue des droits et libert?s, La Ligue des droits et libert?s et le dossier autochtone: une histoire de pers?v?rance (M?moire pr?sent? devant la Commission royale sur les peuples autochtone), November 17, 1993, at 8. Unofficial English translation: "The members of the Ligue having already analysed the question of equality of peoples and of the right to self-determination in regard to the Qu?bec political situation, take up the Aboriginal issue on the same bases, in other words essentially that of the international covenants."

{131} Charter of the United Nations, Can. T.S. 1945 No. 76; [1976] Yrbk. U.N. 1043; 59 Stat. 1031, T.S. 993. Signed at San Francisco on June 26, 1945; entered into force on October 24, 1945. Signed by Canada on June 26, 1945 and ratified on November 9, 1945. As of August 1, 1992, there were 179 states represented in the U.N. General Assembly. For an article-by-article commentary on the Charter, see J.-P. Cot & A. Pellet, (eds.), La Charte des Nations Unies (Paris: ?ditions Economica, 1985).

{132} "Secession" is defined as separation of a part of a territory of a pre-existing state, or dissolution of an existing state when the pre-existing state breaks up into several new states: see Nguyen Quoc Dinh, P. Daillier, & A. Pellet, Droit international public, 5th ed. (Paris: L.G.D.J., 1994), at 500.

{133} See H. Hannum, Rethinking Self-Determination, (1993) 34 Virginia J. Int'l L. 1 at 40, n. 164, where it is said that 105 territories have been designated by the U.N. General Assembly as non-self-governing and that 18 remained in that category as of late 1993. The eighteen remaining territories are: American Samoa, Anguilla, Bermuda, British Virgin Islands, Cayman Islands, East Timor, Falkland Islands, Gibraltar, Guam, Montserrat, New Caledonia, Palau, Pitcairn, St. Helena, Tokelau, Turks and Caicos Islands, U.S. Virgin Islands, and Western Sahara.

{134} Arts. 73 & 76. See D. Turp, Le droit de s?cession en droit international public, [1982] C.Y.I.L. 24 at 53.

{135} Declaration on the Granting of Independence to Colonial Countries and Peoples, U.N.G.A. Resolution 1514 (XV), 15 U.N. GAOR, Supp. (No. 16) 66, U.N. Doc. A/4684, adopted on December 14, 1960.

{136} Para. 5.

{137} International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200, 21 U.N. GAOR, Supp. (No. 16), 49, U.N. Doc. A/6319 (1966); Can. T.S. 1976 No. 46. Adopted by the General Assembly on December 16, 1966 and entered into force on January 3, 1976. In force for Canada on May 19, 1976.

{138} International Covenant on Civil and Political Rights (1966), G.A. Res. 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) at 49, U.N. Doc. A/6316, Can. T.S. 1976 No. 47 (1966). Adopted by the U.N. General Assembly on December 16, 1966 and entered into force March 23, 1976. In force in Canada on August 19, 1976.

{139} In regard to self-determination being a human right, see P. Thornberry, "The Democratic or Internal Aspect of Self-Determination With Some Remarks on Federalism" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 111.

{140} See authors cited in L. Bucheit, Secession [:] The Legitimacy of Self-Determination, note 29, 1662, supra, at 83-84.

{141} See, for example, H. Hannum, Rethinking Self-Determination, note 133, 1662, supra, at 19; A. Rosas, "Internal Self- Determination" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 242; P. Thornberry, Self- Determination, Minorities, Human Rights: A Review of International Instruments, (1989) 38 Int'l & Comp. L. Q. 867 at 878; D. Turp, Le droit de s?cession en droit international public, [1982] C.Y.I.L. 24 at 46.

{142} Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, UNGA Res. 2625 (XXV), 25 U.N. GAOR, Supp. (No. 28) 121, U.N. Doc. A/8028 (1971). Reprinted in (1970) 9 I.L.M. 1292.

{143} The Declaration makes clear that exercise of the right to self-determination does not have to result in independence: "The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self- determination by that people." [Emphasis added.]

{144} R. Rosenstock, The Declaration of Principles of International Law Concerning Friendly Relations: A Survey, (1971) 65 Am. J. Int'l L. 713 at 731; J. Brossard, L'accession ? la souverainet? et le cas du Qu?bec, note 65, 1662, supra, at 101.

{145} This requirement of "representing the whole people belonging to the territory" was reiterated at the World Conference on Human Rights in 1992 in Vienna. See Vienna Declaration and Programme of Action: Note by the Secretariat, World Conference on Human Rights, U.N. Doc. A/CONF.157/23, (1993), para. 2, at 4.

{146} O. Kimminich, "A Federal' Right of Self-Determination?" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 91. See also H. Hannum, Rethinking Self-Determination, note 133, 1662, supra, at 17; R. Iglar, The Constitutional Crisis in Yugoslavia and the International Law of Self-Determination: Slovenia's and Croatia's Right to Secede, note 97, 1662, supra, at 228, where the author refers to the 1970 Declaration on Friendly Relations and states: "...a group may exercise self-determination by secession if the state from which it is seceding maintains a nonrepresentative government."

{147} C. Tomuschat, "Self-Determination in a Post-Colonial World" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23,1662, supra, at 9-10. See also L. Bucheit, Secession [:] The Legitimacy of Self-Determination, note 29, 1662, supra, at 93-94, 221-222.

{148} Final Act of the Conference on Security and Co-operation in Europe (Helsinki Final Act), signed by 35 states (including Canada and the United States) on August 1, 1975. Reprinted in (1975) 14 I.L.M. 1295. This Act, despite its political importance, is considered to be legally non-binding: see H. Hannum, Rethinking Self-Determination, note 133, 1662, supra, at 28.

Principle VIII provides:

"The participating States will respect the equal rights of peoples and their right to self-determination, acting at all times in conformity with the purposes and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of states.

By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development.

The participating States reaffirm the universal significance of respect for and and effective exercise of equal rights and self- determination of peoples for the development of friendly relations among themselves as among all States; they also recall the importance of the elimination of any form of violation of this principle." [Emphasis added.]

{149} Charter of Paris for a New Europe, A New Era of Democracy, Peace and Unity, November 21, 1990, reprinted in (1991) 30 I.L.M. 190. The Charter is a document of the Conference on Security and Co-operation in Europe (CSCE) and is considered to be legally non- binding. The CSCE is now called the Organization on Security and Co-operation in Europe (OSCE).

{150} See, generally, E. Decaux, S?curit? et coop?ration en Europe: les textes officiels du processus de Helsinki (1973-1992) (Paris: La documentation fran?aise, 1994).

{151} See, for example, J. Klabbers & R. Lefeber, "Lost Between Self-Determination and Uti Possedetis" in C. Br?lmann, R. Lefeber, M. Zieck, (eds.), Peoples and Minorities in International Law, note 46, supra, at 46; D. Murswiek, "The Issue of a Right of Secession ? Reconsidered" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 25; H. Hannum, Rethinking Self-Determination, note 133, 1662, supra, at 42; R. Kiwanuka, The Meaning of People' in the African Charter on Human and Peoples' Rights, (1982) 82 Am. J. Int'l L. 80 at 90; V. Stanov i , "Legal Safeguards for Human and Political Rights" in S.F. Wells, (ed.), The Helsinki Process and the Future of Europe (1990) 156 at 167; R. Iglar, The Constitutional Crisis in Yugoslavia and the International Law of Self-Determination: Slovenia's and Croatia's Right to Secede, note 97, 1662, supra, at 226; J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 45.

{152} T. Franck, "Postmodern Tribalism and the Right to Secession" in C. Br?lmann, R. Lefeber, M. Zieck, (eds.), Peoples and Minorities in International Law, note 46, supra, at 16.

{153} H. Hannum, Rethinking Self-Determination, note 133, 1662, supra, at 32.

{154} Id. at 33: "This does not mean that other aspects of the right of self-determination are also so limited. The covenants' description of the right of self-determination as a right of all peoples' and the CSCE reference to all' peoples always' having the right to self-determination cannot be ignored."

{155} D. Murswiek, "The Issue of a Right of Secession ? Reconsidered" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 36.

{156} J. Salmon, "Internal Aspects of the Right to Self-Determination: Towards a Democratic Legitimacy Principle?" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 263.

{157} T. Franck, "Postmodern Tribalism and the Right to Secession" in C. Br?lmann, R. Lefeber, M. Zieck, (eds.), Peoples and Minorities in International Law, note 46, supra, at 11.

{158} D. Murswiek, "The Issue of a Right of Secession ? Reconsidered" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 37.

{159} See, for example, E. Laing, The Norm of Self-Determination, 1941-1991, (1991-92) 22 Calif. Western Int'l L. J. 209 at 246-248, 307. See also U. Umozurike, Self-Determination in International Law (Hamden, Connecticut: Archon Books, 1972) at 274 (secession in cases of "deprivation of human rights, discrimination and underdevelopment").

{160} J. Klabbers & R. Lefeber, "Lost Between Self-Determination and Uti Possedetis" in C. Br?lmann, R. Lefeber, M. Zieck, (eds.), Peoples and Minorities in International Law, note 46, supra, at 48.

{161} L. Bucheit, Secession [:] The Legitimacy of Self-Determination, note 29, 1662, supra, at 18.

{162} P. Juviler, Contested Ground: Rights to Self-Determination and the Experience of the Former Soviet Union, (1993) 3 Transnat'l L. & Contemp. Probs. 71 at 73.

{163} D. Murswiek, "The Issue of a Right of Secession ? Reconsidered" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 27.

{164} H.G. Espiell, Special Rapporteur, The Right to Self-Determination: Implementation of United Nations Resolutions, Study for the Sub-Commission on Prevention of Discrimination and Protection of Minorities, (New York: United Nations, 1980), U.N. Doc. E/CN.4/Sub.2/405/Rev.1 at 14.

{165} The human right characterization of "self-determination" is elaborated further under sub-heading 2.2 infra.

{166} T. Ha, "Quebec's borders are safe within Canada: Chr?tien", The Gazette, Montreal, May 25, 1994, A1 at A2.

{167} Testimony of D. Turp in Assembl?e nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, 9 Oct. 1991, No. 5, at CEAS-137. Unofficial English translation: "And in my opinion, the fact that [aboriginal peoples] constitute peoples who are self-identified as peoples...this would confer on them a right to self-determination at the same level as Quebec." [Emphasis added.]

{168} It is also worth noting that sovereignist jurist J. Brossard appears to have altered his views on the right of Aborigial peoples to self-determination. In J. Brossard, L'accession ? la souverainet? et le cas du Qu?bec, note 65, 1662, supra, at 187, the author had suggested that Indians and Inuit in Canada did not constitute a "people" in the sense of the United Nations Charter. However, in J. Brossard, Souverainet? [:] 5 r?ponses politiques aux inquiets (Ottawa: Lem?ac ?diteur, 1995), at 30, Brossard now concludes that Aboriginal peoples have the right to self-determination. Without explanation, he states that such right only goes so far as autonomy within existing states.

{169} Ligue des droits et libert?s, "Dossier sp?cial autochtone", Bulletin, octobre, 1994, vol. xiii, no. 3, 17 at 33. Unofficial English translation: "Within the perspective where the right to self-determination of peoples living in Qu?bec, namely the eleven Aboriginal peoples and the Qu?bec people, is recognized; and within that where the democratic exercise of this right could express itself by their accession to political sovereignty, how do you believe it possible to harmonize the rights of one with the others?"

{170} Id. See also J. Brossard, L'accession ? la souverainet? et le cas du Qu?bec, 2nd ed. (Montr?al: Les Presses de l'Universit? de Montr?al, 1995) (Supplement by D. Turp), at 804, where Turp observes that self-determination is not Qu?bec's primary foundation for the process of Qu?bec's accession to sovereignty.

{171} Advisory Opinion on Western Sahara, [1975] I.C.J. Rep. 6 at 32, para. 55; see also 37, para. 72 and 68, para. 162.

{172} Id. at 122.

{173} T. Franck, R. Higgins, A. Pellet, M. Shaw, & C. Tomuschat, "L'int?grit? territoriale du Qu?bec dans l'hypoth?se de l'accession ? la souverainet?" in Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, Les Attributs d'un Qu?bec souverain, note 1662, 15, supra, vol. 1, at 442.

{174} Id. at 443

{175} Id. at 425.

{176} Id. at 442. Unofficial English translation: "As all people, Aboriginal peoples have the right to self-determination..., which is strongly proclaimed in the draft Universal Declaration of the Rights of Indigenous Peoples: Indigenous peoples have the right to self- determination in accordance with international law'." This draft U.N. instrument is now referred to as the United Nations Declaration on the Rights of Indigenous Peoples.

{177} United Nations Declaration on the Rights of Indigenous Peoples, in E.-I. Daes, Chairperson/Rapporteur, DISCRIMINATION AGAINST INDIGENOUS PEOPLES [:] Report of the Working Group on Indigenous Populations on its eleventh session, E/CN.4/Sub.2/1993/29, 23 August 1993, 50 (Annex I), article 3.

While some might argue that this U.N. Declaration is only a "draft", it is said that use is already being made of such proceedings from the U.N. Working Group "as a source of legitimacy for particular positions in intrastate politics". See B. Kingsbury, Whose International Law? Sovereignty and Non-State Groups, [1994] Am. Soc. Int'l L. Proc. 1 at 6. At 7, the author indicates that use of such emerging international standards is also being made by courts in such Commonwealth countries as Canada, New Zealand, and Australia: "In each case international developments ? including the output of the UN Working Group on Indigenous Populations, organizations of indigenous peoples, and the ILO ? played some part both in reassuring courts that they were marching in the spirit of the times and in reminding them that they were speaking also to international audiences."

{178} United Nations Meeting of Experts, The Nuuk Conclusions and Recommendations on Indigenous Autonomy and Self-Government, Nuuk, Greenland, September 24-28, 1991, preamble, "Conclusions and Recommendations".

{179} H. Hannum, Rethinking Self-Determination, note 133, 1662, supra, at 34.

{180} J. Woodward, Native Law (Toronto: Carswell, 1989), at 83.

{181} Report of the Aboriginal Justice Inquiry of Manitoba, The Justice System and Aboriginal People (Winnipeg, Manitoba: Queen's Printer, 1991), vol. 1, at 143-144.

{182} P. Macklem, "Ethnonationalism, Aboriginal Identities, and the Law" in M. Levin, (ed.), Ethnicity and Aboriginality: Case Studies in Ethnonationalism (Toronto: University of Toronto Press, 1993) 9 at 31-32.

{183} Commission des droits de la personne du Qu?bec, M?moire de la Commission des droits de la personne pr?sent? ? la Commission royale sur les peuples autochtones (Montr?al: November 1993) at 43. Unofficial English translation: "the recognition of the right to self-determination and to political autonomy of the Aboriginal nations must be explicit in the fundamental laws of Canada and the provinces."

{184} Comit? d'appui aux premi?res nations, Le Qu?bec peut-il se d?finir sans les premi?res nations?, (M?moire present? ? la Commission sur l'avenir politique et constitutionnel du Qu?bec), November 2, 1990, at 11. Unofficial English translation: "We must recognize the right of Aboriginal peoples to self-determination, with all its implications, that is to say, their right to exercise legislative, judicial and executive powers on the territories of their jurisidiction."

{185} Groupe de r?flexion sur les institutions et la citoyennet? (GRIC), "Qu?b?cois-Autochtones: il faut relever le d?fi de la reconnaissance mutuelle", La Presse, April 2, 1994, at B3. Unofficial English translation: "...the equality of the right of Aboriginal peoples and the Qu?bec people must be established. Their respective right to self-determination, to freely choose their political status and to assure as freely their economic, social and cultural development must be equally affirmed with conviction and without reservation."
[Emphasis added.]

{186} G. Laforest, "Un autre r?ve am?ricain", Le Devoir, February 10, 1995, at A8. Unofficial English translation: "The government of Qu?bec has no monopoly on the vocabulary of popular sovereignty and of self-determination. Aboriginal peoples can also use it. The two discourses are not necessarily incompatible."

{187} D. Sal?e, "Autod?termination autochtone, souverainet? du Qu?bec et f?d?ralisme canadien" in F. Rocher, (ed.), Bilan qu?b?cois du f?d?ralisme canadien (Montreal: VLB ?diteur, 1992) 372 at 381. Unofficial English translation: "The whole Aboriginal question is more and more indissociable from the self-determinist aspirations of the First Nations."

{188} A. Dubuc, "Le triangle infernal", La Presse (editorial), October 12, 1994, at B2. Unofficial English translation: "The sovereignists, if they wish they wish to advance their cause, do not have any choice but to recognize the right of Aboriginal peoples to self- determination."

{189} P. de Bellefeuille, "If Quebec rates sovereignty, why not Indians?" in The Gazette, Montreal, September 7, 1978, at 9.

{190} P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, A study prepared for the Royal Commission on Aboriginal Peoples, June 1995, vol. 1, at 188. See also E.-I. Daes, Explanatory note concerning the draft declaration on the rights of indigenous peoples, U.N. Doc. E/CN.4/Sub.2/1993/26/Add.1, at 6, para. 28: "...indigenous peoples themselves have overwhelmingly expressed their preference for constitutional reform within existing States as opposed to secession."

{191} Id. at 189.

{192} M.C. L?m, Making Room for Peoples at the United Nations: Thoughts Provoked by Indigenous Claims to Self-Determination, note 17, 1662, supra, at 618-619.

{193} R. Barsh, Indigenous Peoples in the 1990s: From Object to Subject of International Law?, (1994) 7 Harvard Human Rts. J. 33 at 37.

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

{195} See, for example, the comments of D. Cliche, special advisor to Premier Parizeau on native affairs, that are reported in J. Gray, "Crees will have no friends, PQ negotiator warns", Globe and Mail, October 19, 1994, at A1: "If the Crees in Quebec go their own way, the next will be the natives in British Columbia, and then the Ojibway in Northern Ontario, and eventually every native nation on three continents, [Cliche] says." Of course, the James Bay Crees in Qu?bec have repeatedly made it clear that they do not seek "to go their own way", but insist on exercising their right to self-determination and thereby remain in Canada.

{196} B. Bagwell, Yugoslavian Constitutional Questions: Self-Determination and Secession of Member Republics, (1991) 21 Ga. J. Int'l & Comp. L. 489 at 514.

{197} D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (Oxford: Clarendon Press, 1991) at 15.

{198} L. Bucheit, Secession [:] The Legitimacy of Self-Determination, note 29, 1662, supra, at 127.

{199} E.-I. Daes, Explanatory note concerning the draft declaration on the rights of indigenous peoples, U.N. Doc. E/CN.4/Sub.2/1993/26/Add.1, at 6, para. 28.

{200} H. Hannum, Rethinking Self-Determination, note 133, 1662, supra, at 68.

{201} See, for example, H. Hannum, Rethinking Self-Determination, note 133, 1662, supra, at 17 & 20, n. 74; W. Allison, Self- Determination and Recent Developments in the Baltic States, (1991) 19 Den. J. Int'l L. & Pol'y 625 at 625.

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

{203} Peremptory norms are described as "rules of customary law which cannot be set aside by treaty or acquiescence but only by the formation of a subsequent customary rule of contrary effect": see I. Brownlie, Principles of Public International Law, 4th ed. (Oxford: Clarendon Press, 1990) at 513.

{204} See, for example, A. Cassese, Self-Determination of Peoples: A Legal Appraisal (Cambridge: Cambridge University Press, 1995), at 140: "...the conclusion is justified that self-determination constitutes a peremptory norm of international law"; S.J. Anaya, Indigenous Rights Norms in Contemporary International Law, (1991) 8 Arizona J. of Int'l & Comp. Law 1 at 29-30: "Beyond its textual affirmation, self-determination is widely held to be a norm of general or customary international law, and arguably jus cogens (a peremptory norm)"; I. Brownlie, Principles of Public International Law, note 203, 1662, supra, at 513; P. Thornberry, International Law and the Law of Minorities (Oxford: Clarendon Press, 1991) at 14; H.G. Espiell, "Self-Determination and Jus Cogens" in A. Cassese, (ed.), UN Law/Fundamental Rights [:] Two Topics in International Law (Alphen aan den Rijn, The Netherlands: Sijthoff & Noordhoff, 1979) 167 at 167; A. Rosas, "Internal Self-Determination" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 247-248; B. Bagwell, Yugoslavian Constitutional Questions: Self- Determination and Secession of Member Republics, note 196, 1662, supra, at 514, n. 136. See also E. Laing, The Norm of Self- Determination, 1941-1991, (1991-92) 22 Calif. Western Int'l L. J. 209, at 307-308, where the author states: "...although our analysis does not furnish a definitive answer to the question whether or not self-determination is jus cogens, there are extremely strong indications of this possibility".

In regard to the International Court of Justice, see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970). Advisory Opinion, [1971] I.C.J. 16 at 89-90 (separate opinion of Vice-President Ammoun): "The [representative of Pakistan] rightly viewed the act of using force with the object of frustrating the right of self-determination as an act of aggression, which is all the more grave in that the right of self- determination is a norm of the nature of jus cogens, derogation from which is not permissable under any circumstances." [Official translation.] For a right to secession to become a principle of customary international law, see the criteria concerning state practice that must be satisfied: L. Eastwood Jr., Secession: State Practice and International Law After the Dissolution of the Soviet Union and Yugoslavia, note 15, 1662, supra, at 301.

{205} In regard to the colonial treatment of indigenous peoples, see also text accompanying note 1312 infra.

{206} T. Franck, "Postmodern Tribalism and the Right to Secession" in C. Br?lmann, R. Lefeber, M. Zieck, (eds.), Peoples and Minorities in International Law, note 46, supra, at 14.

{207} M.E. Turpel, Indigenous Peoples' Rights of Political Participation and Self-Determination: Recent International Legal Developments and the Continuing Struggle for Recognition, 25 Cornell Int'l L. J. 579 at 579.

See also M. Sincennes, "Le PQ doit reconna?tre aux Indiens et aux Inuit le droit ? l'autod?termination", Le Devoir, August 6, 1979: "Les Indiens et les Inuit du nord du Qu?bec sont ? l'heure actuelle colonis?s par les gouvernements f?d?ral et provincial." Unofficial English translation: "The Indians and Inuit of northern Qu?bec are presently being colonized by the federal and provincial government."

{208} D. Murswiek, "The Issue of a Right of Secession ? Reconsidered" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 39.

{209} O. Kimminich, "A Federal' Right of Self-Determination?" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23,1662, supra, at 92.

{210} J. Gray, "Crees will have no friends, PQ negotiator warns", Globe and Mail, October 19, 1994, at A1. See also L. Beaudoin & J. Vall?e, "La reconnaissance internationale d'un Qu?bec souverain" in A.-G. Gagnon et F. Rocher, (ed.), R?pliques aux d?tracteurs de la souverainet? du Qu?bec (Montr?al: VLB ?diteur, 1992) 181 at 190, 196; Canadian Broadcasting Corporation, "The Sovereignty Showdown" (2-hour special) on Prime Time News (Toronto: CBC, February 16, 1995) (transcript), at 32, where PQ Minister Bernard Landry declares: "...if Canada internationally says that...the Crees can separate from Quebec...[indigenous peoples] will separate from Canada and in Mexico, they will have the same precedent." However, under the present threat of Qu?bec secession, Aboriginal peoples are not seeking to secede, but are asserting a right to self-determination that includes the right to remain in Canada.

{211} Grand Council of the Crees (of Quebec), Remarks of Grand Chief Matthew Coon Come to the Canadian Club, Toronto, Ontario, March 13, 1995 (on file with the Grand Council), at 4. The same position is expressed in M. Coon Come, "Consenting Partners: The James Bay Crees, Quebec Secession and Canada" in If You Love This Country [:] 15 Voices for a Unified Country/Pour l'amour de ce pays [:] Quinze voix pour un Canada uni (Toronto: Penguin Books, 1995) 93 at 99.

{212} T. Franck, R. Higgins, A. Pellet, M. Shaw, & C. Tomuschat, "L'int?grit? territoriale du Qu?bec dans l'hypoth?se de l'accession ? la souverainet?" in Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, Les Attributs d'un Qu?bec souverain, note 1662, 15, supra, vol. 1, 377.

{213} Id. at 422.

{214} In the Indian Self-Determination and Education Assistance Act, Pub. L. 93-638, Jan. 4, 1975, 88 Stat. 2203, the United States Congress has explicitly included "self-determination" of Aboriginal peoples as an integral part of its legislative policies. Yet, such recognition has not given rise to a single claim to a right to secede by any Aboriginal peoples in the United States.

{215} The "right to choose" aspect of self-determination is further discussed under the following sub-heading.

{216} S.J. Anaya, R. Falk, & D. Pharand, "Conclusions on Canada's Fiduciary Obligations To Aboriginal Peoples in Quebec under International Law", in Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec (Ottawa: Minister of Supply and Services Canada, 1995), vol. 1, International Dimensions, 95, at 96.

{217} The right of Aboriginal peoples to hold their own referendums in the context of Qu?bec secession is discussed under sub-heading 9.2 infra.

{218} In regard to the responsibilities of the international community concerning the current context of Qu?bec, see discussion under heading 11 supra.

{219} P. Allott, "Self-Determination ? Absolute Right or Social Poetry?" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 210.

{220} T. Franck, R. Higgins, A. Pellet, M. Shaw, & C. Tomuschat, "L'int?grit? territoriale du Qu?bec dans l'hypoth?se de l'accession ? la souverainet?" in Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, Les Attributs d'un Qu?bec souverain, note 1662, 15, supra, vol. 1, at 442.

{221} U.N. Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Study of the Problem of Discrimination Against Indigenous Populations, U.N. Doc. E/CN.4/Sub.2/1986/7, Add. 4 (J. Cobo, Special Rapporteur), at paras. 579 & 580.

{222} T. Franck, R. Higgins, A. Pellet, M. Shaw, & C. Tomuschat, "L'int?grit? territoriale du Qu?bec dans l'hypoth?se de l'accession ? la souverainet?" in Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, Les Attributs d'un Qu?bec souverain, note 1662, 15, supra, vol. 1, at 383. Unofficial English translation: "If it is not doubted that the capacity to exercise a choice is at the heart of the principle of the right to self-determination, it does not result anywhere that accession to sovereignty constitutes, in all cases, one of the elements of this choice." [Emphasis added.]

{223} R. Higgins, Problems and Process [:] International Law and How We Use It (Oxford: Clarendon Press, 1994), at 118. At 119, the author adds: "Self-determination has never simply meant independence. It has meant the free choice of peoples." [Emphasis added.]

{224} S. Williams, International Legal Effects of Secession by Quebec (North York, Ontario: York University Centre for Public Law and Public Policy, 1992), at 7.

{225} S. Paquerot, "Les droits fondamentaux sont universels et indivisibles: ils doivent tous ?tre respect?s", La Presse, May 6, 1994, at B3: "The right of self-determination, for Aboriginal peoples as for Qu?bec elsewhere, does not necessarily imply complete secession but recognizes to these peoples the freedom to decide themselves the manner of governing themselves." [Emphasis added.]

{226} R. Falk, "The Relevance of the Right of Self-Determination of Peoples under International Law to Canada's Fiduciary Obligations to the Aboriginal Peoples of Quebec in the Context of Quebec's Possible Accession to Sovereignty", in Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 216, supra, vol. 1, at 62.

{227} P. Juviler, Contested Ground: Rights to Self-Determination and the Experience of the Former Soviet Union, note 162, 1662, supra, at 72. See also D. Cass, Rethinking Self-Determination: A Critical Analysis of Current International Law Theories, (1992) 18 Syracuse Int'l L. & Com. 21, at 24, where it is said that self-determination includes the basic idea that a "group must be able to exercise its own choice with regard to its political future". [Emphasis in original.]

{228} E.-I. Daes, Some Considerations on the Right of Indigenous Peoples to Self-Determination, note 22, 1662, supra, at 4-5.

{229} E.-I. Daes, Some Considerations on the Right of Indigenous Peoples to Self-Determination, note 22, 1662, supra, at 9.

{230} M. van Walt van Praag, "The Position of UNPO in the International Legal Order" in C. Br?lmann, R. Lefeber, M. Zieck, (eds.), Peoples and Minorities in International Law, note 46, supra, at 319.

{231} The European Parliament is described in M. Shaw, International Law, 3rd ed. (Cambridge: Grotius Publications, 1994), at 765. The European Parliament is one of the institutions of the European Community, the other institutions being the Council of Ministers, the Commission and the Court of Justice. Shaw states: "The European Parliament was created under the Treaty of Rome in 1957 and consists of at present 518 members, directly elected since 1979...Britain, Italy, France and West Germany have 81 seats each, Belgium and Greece 24 each, the Netherlands 25, Ireland 15, Denmark 16, Luxembourg 6 seats, Spain 60 and Portugal 24. [new para.] The powers of the Parliament are rather limited in practice. It may scrutinise the activities of the Council of Ministers and the Commission, but has no right of veto."

{232} Resolution on Action Required Internationally to Provide Effective Protection for Indigenous Peoples, Eur. Parl. Doc. (PV 58) 2, (1994), at 3, para. 2.

{233} P. Hutchins, "And do the Indians Pass With It ? Quebec Sovereignty, Aboriginal Peoples and the Treaty Order", paper presented at the Canadian Bar Association Seminar on The Act Respecting the Sovereignty of Quebec: Legal Perspectives, Montreal, May 6, 1995, at 18. See also G. Nettheim, " Peoples' and Populations' ? Indigenous Peoples and the Rights of Peoples" in J. Crawford, (ed.), The Rights of Peoples (Oxford: Clarendon Press, 1988) 107 at 120: "...the right of self-determination is promised to all peoples'. Why should one particular set of peoples ? a particular sub-category of indigenous peoples ? be denied any of the options that international law permits merely because one of those options may not be available?"

{234} R. Falk, "The Relevance of the Right of Self-Determination of Peoples under International Law to Canada's Fiduciary Obligations to the Aboriginal Peoples of Quebec in the Context of Quebec's Possible Accession to Sovereignty", in Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 216, supra, vol. 1, at 71.

{235} Should a secessionist Qu?bec lead to the disintegration of the Canadian federation, then Aboriginal peoples would of course claim the full right to external self-determination, including secession. In such a context, no province seeking to establish itself as an independent state could compel Aboriginal peoples and their territories to be a part of this new state.