The Grand Council of the Crees

Section 3, Sovereign Injustice - Grand Council of the Crees

3. Qu?bec's Secession Attempt ? On What Basis is it Justifiable?

Posted: 0000-00-00

3.1 Canadian Constitution - No Right to Unilaterally Secede

3.1.1 Has a constitutional convention been established in regard to the unilateral secession of Qu?bec?

3.2 Internal Self-Determination of Quebecers

3.3 PQ Strategy to Undermine the Functioning of the Canadian Federation

3.4 International Law - No Right of Qu?bec to Secede

3.4.1 Key distinctions between Qu?bec and former Yugoslavia
3.4.2 Key distinctions between Qu?bec and Baltic states

3.5 Need for Informed Discussion Prior to Referendum Vote

3.5.1 Attempts to suppress free and open debate
3.5.2 Need to clarify basis for PQ government's unilateral declaration of independence

3. Qu?bec's Secession Attempt - On What Basis is it Justifiable?

"The National Assembly is authorized, within the scope of this Act, to proclaim the sovereignty of Qu?bec. [new para.] The proclamation must be preceded by a formal offer of economic and political partnership with Canada."

An Act respecting the future of Qu?bec (Bill 1) {236}

"Les droits [des peuples autochtones] garantis par le Canada sont des droits inh?rents...Selon la Constitution et le droit international, le consentement des Autochtones est n?cessaire ? tout modification du statut politique et constitutionnel du Qu?bec, dans la mesure o? leurs droits sont affect?s." {237}

?. Schwimmer, 1995

It is critical to determine on what legal or political grounds the PQ government is proposing that Quebecers vote to approve a possible unilateral declaration of independence (UDI), as set out in Bill 1. Equally important, are any such bases justifiable?

First, in order for people in Qu?bec to vote in an informed manner in the upcoming referendum, they have a right to know on what grounds such an extraordinary step is being justified. Second, Aboriginal peoples in Qu?bec have a right to know what justification, if any, there could possibly be for forcibly including them and their territories in an independent Qu?bec. Third, Canadians as a whole, as well as the federal and provincial governments, have a right to know the grounds for such radical action being proposed by the PQ government.

In addition, the international community needs to be apprised of ongoing developments in Qu?bec, since any precedent arising out of a UDI in Qu?bec could have far-reaching implications in international law for indigenous peoples generally as well as existing states. Moreover, there is a real risk that events could reach a point where international peace and security concerns become a factor in the secession debate. {238}

Is the PQ government claiming a right to unilaterally secede from Canada based on the Canadian Constitution? Or is it illegal to secede in such a manner from Canada? If UDI is illegal under Canada's Constitution, then is it being alleged by Qu?bec that there exists a legal right to secede under international law (e.g. based on the right to self-determination)? If Quebecers do not have an international legal right to secede from Canada, is the UDI being proposed by the PQ government to be secured on the basis of achieving "effective control" over the whole of the present territory in Qu?bec? If so, is the PQ government making it clear to the people in Quebec that the government is basically suggesting the initiation of a "revolution", {239} in order to upend the existing constitutional order in the province of Qu?bec and establish a new secessionist regime?

These questions are critical to all parties concerned and will be addressed under the sub-headings below.

3.1 Canadian Constitution ? No Right to Unilaterally Secede [Top]

"...le projet de loi no. 1, intitul? LOI SUR L'AVENIR DU QU?BEC, pr?sent? par le premier ministre Jacques Parizeau ? l'Assembl?e nationale le 7 septembre 1995, visant ? accorder ? l'Assembl?e nationale du Qu?bec, le pouvoir de proclamer que le Qu?bec devient un pays souverain sans avoir ? suivre la proc?dure de modification pr?vue ? la partie V de la Loi de la Constitution de 1982, constitue une menace grave aux droits et libert?s du demandeur garantis par la Charte canadienne des droits et libert?s..." {240}

Mr. Justice Robert Lesage, Qu?bec Superior Court, 1995

There exists a virtual {241} consensus among constitutional lawyers that a unilateral secession, i.e. a unilateral declaration of independence (UDI), by Qu?bec would be illegal under the Canadian Constitution. {242} This is not surprising and a similar conclusion has been reached in regard to the Constitution of the United States. {243}

For example, J. Woehrling, a constitutional jurist in Qu?bec who is supportive of Qu?bec independence, is of the view that a unilateral secession by Qu?bec is illegal under Canada's Constitution:

"...le Canada pourrait malgr? tout refuser de reconna?tre la s?cession unilat?rale du Qu?bec, qui resterait ?videmment ill?gale au regard du droit constitutionnel canadien." {244}

P. Hogg also views unilateral secession as illegal:

"A unilateral secession would, of course, be illegal because it would be unauthorized by the existing rules of constitutional law." {245}

P. Monahan emphasizes the illegality of unilateral secession as follows:

"Secession can be legally accomplished under the existing Constitution only if it is approved by all the other partners in the federation." {246}

J. Brossard also notes the illegality of UDI under Canada's Constitution:

"...cette d?claration serait ill?gale au regard du droit interne et les autorit?s f?d?rales pourraient faire appel ? d'autres instruments l?gaux en vue de contrecarrer la r?alisation par le Qu?bec de son accession ? la souverainet?." {247}

G. Bertrand, a co-founder of the Parti Queb?cois, has also highlighted the illegality and unconstitutionality of the PQ government's proposed UDI:

"...le regime de droit est primordial dans une soci?t? d?mocratique comme la n?tre;

...le retrait d'une province de la f?d?ration canadienne serait consid?r? comme l'amendement des amendements' ? la constitution actuelle n?cessitant, dans les circonstances, l'accord unanime des autres provinces, du Parlement f?d?ral et
du S?nat". {248}

Bertrand's view has recently been upheld by Qu?bec's Superior Court, when Lesage J. determined in a declaratory judgment that the PQ government's process towards a UDI was "manifestly illegal" {249} and a "serious threat" {250} to public order. Although the judge did not choose to issue any injunction against the Qu?bec government, {251} he did make clear that "irreparable prejudice" {252} could result from the government's actions.

H. Brun {253} (Universit? Laval) readily concedes that a unilateral declaration of independence, as proposed by the PQ government, is certainly illegal under Canadian constitutional law and the Supreme Court of Canada would have no choice but to reach the same conclusion:

"Nous savons tous que si nous braquons les yeux sur le droit constitutionnel interne canadien, c'est s?r qu['une proclamation de la souverainet?] est ill?gale parce que ce geste se situe en marge. Le droit constitutionnel canadien ne pr?voit pas la s?cession d'une province. La Cour supr?me du Canada n'aurait pas le choix." {254}
[Emphasis added.]

However, Brun quickly adds that, in his view, the question of constitutional illegality is "irrelevant", since the international legal order prevails over domestic Canadian law:

"La question de la l?galit? ou de l'ill?galit?, il faut regarder cela du point de vue d'un autre ordre, d'un ordre juridique sup?rieur qui est l'ordre juridique international et non pas le droit f?d?ral canadien.

L'argumentation d'ill?galit?...[i]l me semble que c'est carr?ment non pertinent." {255} [Emphasis added.]

With respect, it is most difficult to accept H. Brun's casual dismissal of the relevancy of "illegality" under Canadian constitutional law. First, it cannot be categorically said that international law prevails over Canadian constitutional law in the context of Qu?bec secession, since there are differing theories {256} to consider. {257} In any event, if there are no pervasive human rights violations against Quebecers or other extreme circumstances, it can generally be concluded that internal constitutional law prevails over international law. In this regard, L. Bucheit provides:

"...States are under no obligation imposed by international law to recognize [secessionist groups'] demands beyond providing protection for human rights, a representative government that does not discriminate on the basis of race, creed, or color, and the other requirements set forth in the [1970 Declaration on Friendly Relations]. If these conditions are satisfied, the instrument apparently consigns discussions regarding the political status of such groups within their States to the level of internal constitutional law." {258} [Emphasis added.]

Insofar as attempts at unilateral secession are viewed as rebellions, it would appear that domestic law is considered determinative. As M. Shaw explains:

"The UN Charter neither confirms nor denies a right to rebellion. It is neutral. International law does not forbid rebellion, it leaves it within the purview of domestic law." {259} [Emphasis added.]

In regard to the legality of Lithuania's attempt to secede from the former Soviet Union, W. Webb concludes that the question is to be determined not by international law but domestic law:

"Whether Lithuania is acting legally is not a question of international law, but rather one for domestic law. In this case, it seems that Lithuania is acting illegally in that there is no Soviet right, in the Western sense of the word, to secession."
{260} [Emphasis added.]

J.-P. Derriennic (Universit? Laval) states that, in responding to the demands of Qu?bec separatists, the Canadian government cannot simply do whatever it chooses and would have little choice but to act within its constitutional powers:

"Ce n'est heureusement pas le cas, ni au Canada, ni dans aucun pays civilis? depuis la fin des monarchies absolues. Face ? une demande de s?paration, le gouvernement f?d?ral devrait probablement r?pondre qu'il ne peut agir que dans le cadre des pouvoirs que lui donne la constitution du Canada. Celle-ci ne pr?voit pas la s?paration d'une province...Donc, pour agir d'une mani?re incontestable en droit, il faudrait commencer par modifier la constitution..." {261}

These and other comments above demonstrate that, despite the contrary statements of those who favour Qu?bec secession, questions of alleged legitimacy cannot be easily separated from the legal and constitutional questions involved. As E.J. Arnett emphasizes, legal rights should be asserted in the present context and not trivialized:

"Of course, the question of Quebec secession will ultimately depend on the political will of the secessionists to secede and of federalists, including Quebecers, to keep Canada together. But if the federalists have the political will they have the legal means to prevail. It is therefore essential that, in the interests of all Canadians, Ottawa assert its legal rights, not trivialize them." {262} [Emphasis added.]

Second, it is worth noting that Brun is not invoking international law to argue that it recognizes a legal right of Quebec to secede. Rather, the law professor only invokes international law to claim that Qu?bec can accede to independence if it can establish effective control over its territory and gain international recognition as a new state:

"Au lendemain d'un r?f?rendum, advenant la victoire du OUI, c'est essentiellement l'effectivit? des choses qui va jouer, du point de vue du droit international. Des ?l?ments vont aussi jouer tr?s fort, comme la reconnaissance internationale, ce qu'en diront les grandes puissances, l'ONU. Ce que pourrait dire la Cour supr?me du Canada est tr?s peu pertinent". {263} [Emphasis added.]

However, on the day after the referendum in the event of a YES vote, it is a most implausible scenario that Qu?bec will have established effective control of the whole of its claimed territory or attained international recognition from the United Nations or third party states. As indicated in this Study, {264} effective control can take years to achieve (if successful at all) and, without effective control, international recognition of a unilateral secession by Qu?bec is most unlikely. In the interim, it can be expected that, despite Qu?bec opposition, the Supreme Court of Canada would have an ongoing judicial role.

Therefore, it can be concluded that the unilateral declaration of independence proposed by the PQ government (following an affirmative vote in a Qu?bec referendum) would be illegal under Canadian constitutional law. In addition, it cannot be inferred that such illegality would be irrelevant during the period following a UDI or that a ruling on the unconstitutionality of UDI by the Supreme Court of Canada could be simply dismissed as inconsequential.

It is the conclusion of this Study that Canadian constitutional law continues to be fully applicable and relevant to any attempted secession, unless and until such time as an effective control of Qu?bec territory has been clearly established by the seceding entity. Evidence of effective control would be gauged in part by the degree of recognition accorded to Qu?bec, if any, by third party states. This view appears to be supported by the following analysis concerning federal states by M. Shaw (one of the five experts in the study commissioned by the Qu?bec National Assembly):

"...the position would seem to be that (apart from recognized colonial situations) there is no right of self-determination applicable to independent states that would justify the resort to secession. There is, of course, no international legal duty to refrain from secession attempts: the situation remains subject to the domestic law. However, should such a secession prove successful in fact, then the concepts of recognition and the appropriate criteria of statehood would prove relevant and determinative as to the new situation." {265} [Emphasis added.]

As S. Scott points out, a province only has the powers conferred to it under Canada's Constitution:

"C'est la Constitution, ? elle seule, qui cr?e les provinces, et qui leur attribue leurs pouvoirs. Une province n'a aucune existence, aucun droit, ni aucun pouvoir, au-d?l?, ni en dehors, de la Constitution. La population d'une province a le droit, mais seulement le droit, de la gouverner ? l'int?rieur de la Constitution, dans le respect de la Constitution, et dans l'exercice des pouvoirs attribu?s par la Constitution. Ni plus ni moins."
{266} [Emphasis in original.]

As indicated above, no province has a right to secede under Canada's Constitution. In order to be constitutionally valid, any secession would have to be effected through the appropriate amending formula under the Constitution Act, 1982. This view is reinforced by the fact that secession of a province would affect a large number of constitutional provisions that concern equally other provinces in Canada. {267}

3.1.1 Has a constitutional convention been established in regard to the unilateral secession of Qu?bec? [Top]

It has been suggested by some jurists in Qu?bec that a constitutional convention recognizing Quebec's right to self-determination may have been established since at least 1980. {268} Arguments put forward in favour of the existence of such a convention include the following:

i) Federal and provincial government authorities never challenged or disavowed the holding of the May 1980 referendum on sovereignty-association in Qu?bec; {269}

ii) the same authorities never challenged or disavowed the legislation establishing the B?langer- Campeau Commission in Qu?bec; {270}

iii) the same authorities never challenged or disavowed Bill 150 that provided for the holding of a referendum on Qu?bec sovereignty in 1992; {271}

iv) the Tory party, at its annual meeting in Toronto in August 1991, adopted a resolution confirming that the men and women of Qu?bec have the right to self-determination; {272}

v) statements have been made at different times by politicians that suggest that Qu?bec can determine its own future. {273}

A. Cassese acknowledges that some political statements have been made in Canada that demonstrate a degree of "tacit acceptance" of the possibility of Qu?bec seceding, but he does not believe that a constitutional convention has evolved in this regard:

"While it seems highly questionable that such a constitutional convention has evolved, it should be admitted that at the political level a kind of tacit acceptance of the possibility for Quebec to secede seems to have emerged in large sections of the Canadian population. This political feeling, however, does not appear to be reflected in any legal change at the constitutional level." {274}[Emphasis added.]

The James Bay Crees do not accept that any constitutional convention has been established that could in effect serve to deny or otherwise prejudice the right of Aboriginal peoples to self-determination. It would be most unjust to suggest that it is in any way legitimate for Qu?bec to determine unilaterally the future of Aboriginal peoples or their traditional territories. Moreover, as suggested below, the existence of such a constitutional convention would require evidence that the Aboriginal peoples in Qu?bec believe that they are bound by such a rule.

P. Hogg describes a "constitutional convention" as:

"...rules of the Constitution that are not enforced {275} by the law courts...they are best regarded as non-legal rules, but because they do in fact regulate the working of the Constitution, they are an important concern...[Constitutional] conventions [could] limit an apparently broad legal power, or even prescribe that a legal power shall not be used at all." {276} [Emphasis added.]

In the Patriation Reference, the Supreme Court of Canada set forth the criteria for establishing a convention:

"The requirements for establishing a convention bear some resemblance with those which apply to customary law. Precedents and usage are necessary but do not suffice. They must be normative. We adopt the following passage of Sir W. Ivor Jennings in The Law and the Constitution, 5th ed. (1959), p. 136:

We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by the rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish a rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded themselves as bound by it.'" {277} [Emphasis added.]

In regard to Qu?bec determining unilaterally whether it will secede from Canada, there are strong arguments against the notion that a constitutional convention has been established. These include:

i) The 1980 referendum in Qu?bec merely sought a mandate to negotiate sovereignty-association with the rest of Canada. This did not establish any precedent for a right to secede unilaterally from Canada. If anything, the nature of the question in the 1980 referendum "suggests precisely the opposite: Quebec secession must be the subject of negotiation with the rest of Canada and can only occur on terms that are mutually acceptable." {278} [Emphasis in original.]

ii) In 1980, legislation in Qu?bec provided solely for a consultative referendum. If the Qu?bec government made it clear that it was not legally bound by the results of a referendum it organized in the province of Qu?bec, how could it be concluded that other levels of government in and outside Qu?bec are bound by constitutional convention? {279} In fact, the same conclusion must be reached in regard to the 1995 referendum in Qu?bec. The draft Act respecting the future of Qu?bec makes no mention of any referendum in purporting to empower the National Assembly to declare a UDI. Nor does the legislation have the effect of binding the government or legislature to proclaim a UDI in the event of an affirmative vote in the 1995 referendum (which can be described as solely consultative).

iii) It is not clear that provincial governments outside Qu?bec believe they are bound by Qu?bec's referendum legislation. Any actions of the federal government alone (or the federal Tory party) cannot bind either provincial authorities or Aboriginal peoples, in regard to the issue of Qu?bec self-determination. As H. Brun and G. Tremblay highlight, the most important criterion enunciated by the Supreme court of Canada is that the actors believe that they are bound by the "rule". {280} Moreover, the authors add that such belief must actually be expressed in some manner and not remain purely tacit.

iv) Aboriginal peoples have never agreed to such a notion. As First Nations, we take the position that any changes to our political or constitutional status, or to our traditional territories, require our free and informed consent.

v) The holding of a referendum on sovereignty cannot be said to imply {281} a recognition by other governments that Qu?bec has a right to secession. Any government has a right to hold a non- binding referendum as a consultative {282} mechanism and this is what was done in Qu?bec in 1980 (on sovereignty-association) and in 1992 (on the Charlottetown Accord).

vi) If the holding of a referendum on sovereignty-association (without objection from federal and provincial authorities) can imply that a people has a right to secede, then the Inuit of northern Qu?bec would also benefit from such recognition simply because they too held their own referendum in May 1980.

vii) It would be most difficult to accept that there is any constitutional convention for Qu?bec to secede unilaterally from Canada, since the action would involve critical aspects that would entail negotiation. No one argues, not even separatists, that the division of the federal debt or partition of assets can be done unilaterally by Qu?bec. Consequently, what precisely would be the limits of a so-called constitutional convention for Qu?bec to secede unilaterally? In particular, it cannot be said that there is agreement that a secessionist Qu?bec could take out of Canada all territories currently within the province. In other words, how could it be argued that all the actors involved have agreed on the same rule with the same limits?

viii) In addition, it is our assertion that a constitutional convention has been established that Aboriginal peoples participate in and consent to any constitutional changes to their rights. {283} It is then contradictory to argue that there is also a constitutional convention that would enable Qu?bec to secede unilaterally from Canada. This must be the case, since Qu?bec secession would automatically alter the constitutional rights of Aboriginal peoples, as well as the constitutional obligations {284} existing in their favour. {285}

ix) It cannot be said that the federal government has agreed to be bound by Qu?bec unilaterally seceding from Canada, when Prime Minister Chr?tien has commented on the illegality of the PQ's process and Indian Affairs Minister Ron Irwin has publicly confirmed that Aboriginal peoples in Qu?bec can choose to remain in Canada if the province separates. {286} Moreover, Prime Minister Chr?tien openly supported the position of Irwin in this regard. {287} Further, the Prime Minister has refused to commit himself to recognizing a YES vote in the upcoming referendum. {288}

In summary, there is no clear evidence that a constitutional convention has been established in favour of Qu?bec exercising self-determination in a manner that would entail unilateral secession from Canada. If there is any kind of precedent to be drawn from the 1980 referendum in Qu?bec on sovereignty- association, J.-P. Derriennic emphasizes that it is likely the opposite of what Qu?bec separatists are suggesting:

"...si c'est le pr?c?dent de 1980 qui fonde la l?gitimit? de la d?marche de 1995, celle-ci devrait respecter les m?mes principes: la s?paration par consentement mutuel ?tait la fa?on d'agir la plus correcte envers nos concitoyens canadiens; le double r?f?rendum ?tait la meilleure fa?on de prot?ger les droits et les int?r?ts des Qu?b?cois eux-m?mes." {289} [Emphasis added.]

In addition, it is inconceivable that a constitutional convention could exist in Qu?bec's favour that could in effect unilaterally sever the historical nation-to-nation relationship Aboriginal peoples have with the Crown in right of Canada. In any event, we would expect the Qu?bec government and National Assembly to fully and unequivocally respect our own right to self-determination. Further, the consent of the James Bay Crees would be imperative to any proposed changes to the James Bay and Northern Quebec Agreement affecting Cree interests, as well as to any proposed alterations to the constitutional and political status of the 1898 and 1912 territories.

3.2 Internal Self-Determination of Quebecers [Top]

"...le peuple qu?b?cois exerce effectivement son droit ? disposer de lui-m?me dans le cadre de l'ensemble canadien et n'est pas juridiquement fond? ? l'invoquer pour justifier son ?ventuelle accession ? l'ind?pendance." {290}

T. Franck, R. Higgins, A. Pellet, M. Shaw, & C. Tomuschat, 1992

"...ce projet n'a pas beaucoup de sens. Pourquoi faire l'ind?pendance du Qu?bec si c'est pour devenir le Canada num?ro 2?

...O? est l'int?r?t de r?aliser ce genre d'ind?pendance? Pour parler le fran?ais? Mais on parle d?j? le fran?ais!" {291}

Pierre Valli?res, former leader of the Front de lib?ration du Qu?bec, 1995

Since the PQ government cannot rely on any right to secede unilaterally under Canada's Constitution, can Quebecers claim that Quebecers are being deprived of self-determination within Canada? As G. Marchildon and E. Maxwell indicate, denial of political freedom or human rights could possibly give rise to a secessionist claim:

"While the absence of denial of political freedom or of human rights may not automatically vitiate any claim for secessionist self-determination, it has...been argued that this factor constitutes the sine qua non of a legitimate secessionist claim."{292}

However, the authors make clear that, Quebecers can hardly argue that they are being denied the exercise of internal self-determination within the Canadian federation:

"The argument hardly applies to Quebec, however. Quebec has full control over its civil law system, education, and social services. It has consistently received federal spending that has been at least proportionate to its population and fiscal contribution. Federal laws and policy have been developed, albeit only within the last twenty years, to promote the use and availability of services in the French language and the employment of French- speaking Canadians in government. Most importantly, French-Canadians have also played a full role in the democratic process throughout the history of Canada despite early efforts of the English-Canadian majority to the contrary." {293} [Emphasis added.]

M. Adam also confirms that Quebecers enjoy self-determination within Canada:

"...le Qu?bec est une soci?t? libre de ses choix dans un pays o? il poss?de et exerce le droit d'autod?termination. C'est pourquoi les souverainistes ne peuvent parler d'oppression pour justifier leur projet s?cessionniste." {294}

In addition, E.J. Arnett indicates:

"The Qu?b?cois have no legal right of secession under international law because they are not in a state of colonial oppression and are not suffering grave injustices. On the contrary, they have a high degree of self- determination' within Canada."
{295} [Emphasis added.]

J.-P. Derriennic does not give credence to the argument that an independent Qu?bec state is required to ensure the security of Quebecers:

"Pour faire entrer les Qu?b?cois dans la cat?gorie des peuples qui ont besoin d'un ?tat ind?pendant pour assurer leur s?curit?, il faudrait, comme dans le cas de l'?galit?, jouer sur les mots. Dans des expressions comme s?curit? culturelle' ou s?curit? linguistique', le mot s?curit?' a un sens tr?s ?loign? de celui qu'il a quand on l'utilise pour parler des dangers qui ont menac? r?cemment les Lithuaniens ou les Slov?nes." {296} [Emphasis added.]

In regard to the protection of the French language, L. Gagnon comments:

"...it's difficult to imagine what more could be done on the language front, since Quebec's language law is a wall-to-wall security blanket. It's as much a guarantee as one can have in a democratic society." {297}

F. Cloutier indicates that Quebecers cannot claim the type of treatment or conditions that would justify independence:

"...si les Qu?b?cois ?taient pers?cut?s comme tant de populations sur la plan?te, s'ils risquaient la prison pour d?lit d'opinion, si leurs libert?s fondamentales ?taient compromises, si leur d?veloppement ?conomique et social s'av?raient impossible, s'ils ?taient domin?s au d?triment de leur culture et de leur langue, alors il faudrait faire l'ind?pendance quelqu'en soit le prix et par tous les moyens. Ce serait une question de survie, d'honneur et de dignit?. Qui peut s?rieusement pr?tendre que c'est le cas?" {298} [Emphasis added.]

S. Valaskakis & A. Fournier conclude that the Canadian federation may in fact be the most decentralized country in the world:

"Une comparaison objective des ?tats f?d?raux modernes nous permet de conclure que la F?d?ration canadienne est probablement la plus d?centralis?e du monde." {299}

S. Dion indicates that, from a political or constitutional viewpoint, Canada's Constitution already provides for extensive decentralization in favour of Qu?bec and other provinces:

"Il est temps d'expliquer aux Qu?b?cois certaines r?alit?s. Non, cette Constitution n'est pas un carcan centralisateur. En fait, la f?d?ration canadienne est la plus d?centralis?e qui soit, devant la Suisse." {300}

Moreover, Dion adds that, in the coming years, it is likely that even more decentralization will take place within the Canadian federation. {301}

D. Cameron (University of Toronto) also states:

"Enjoying the benefits of what is arguably the most decentralized federal system on the globe, their [francophones'] government is free to fashion very much the kind of society that the majority wants ? in health care, in education, in social policy, in the structure of the economy and, to a substantial degree, in immigration...The people of Quebec have been free enough to utterly transform their society in little more than three decades, all within the framework of Confederation." {302} [Emphasis added.]

Similarly, Canadian Senator J. H?bert provides:

"...Qu?bec and its differences have been accepted since 1867 within a federation that is the most decentralized in the world ? precisely to accommodate Quebec's differences, its distinctive language and education system, its Civil Code, etc.

This very complacent federation has given itself a prime minister from Quebec for 35 of the last 46 years." {303} [Emphasis added.]

During his recent address before Canada's Parliament, United States President Bill Clinton described Canada's efforts at accommodation in exemplary terms:

"I ask you ? all of you...to remember what our great president of the postwar era, Harry Truman, said when he came here in 1947: Canada's eminent position today is a tribute to the patience, tolerance and strength of character of her people. Canada's notable achievement of national unity and progress through accommodation, moderation and forebearance can be studied with profit by sister nations'...Those words ring every bit as true today as they did then." {304} [Emphasis added.]

In terms of self-government, Qu?bec has its own National Assembly and other provincial institutions that exercise a wide range of powers guaranteed by Canada's Constitution. {305} It is said that, within Canada, the Qu?bec government has experienced during the past three decades a large movement of administrative modernization. {306} Also, the former President of the Conseil de la langue fran?aise, Pierre-?tienne Laporte, has concluded that Qu?bec's Charter of the French Language (Bill 101) has fully attained its objectives in terms of safeguarding the French language in Qu?bec. {307} Rather, his concern was that the strategy in Bill 101 may now be in the process of creating a wrongful discrimination against anglophones in Qu?bec and, therefore, there is room to question the "equity" of this law. {308}

In regard to the survival of the French Language, M. Adam indicates that its well-being excludes it from being a justification for Qu?bec separation:

"...la survivance du Qu?bec fran?ais ?tant un fait accompli et apparemment irr?versible..., les souverainistes doivent aujourd'hui justifier leur projet autrement."{309}

In regard to francophone Quebecers, their participation and exercise of effective influence within the Canadian federation is far from limited to the province of Qu?bec. Presently, both the Prime Minister of Canada and the Leader of the Opposition {310} in the House of Commons are francophones from Qu?bec. Also, the speaker of the Senate {311}and the speaker of the House of Commons {312} are francophones. Two of the last three Canadian Ambassadors to the United Nations have been francophones from Qu?bec. Since 1959, four of the last seven Governors General appointed in Canada have been francophones. {313}

Moreover, three of the nine judges on the Supreme Court of Canada are guaranteed by law to come from Qu?bec and be versed in the Qu?bec Civil Law system. {314} Over 28% of the federal civil service is made up of francophones {315} and the chief federal civil servant, the Privy Council Clerk, is also a francophone. {316} In regard to the Qu?bec government, its own record of including minorities and Aboriginal peoples in the civil service pales in comparison. {317}

In addition, approximately two-thirds of what now forms a geographic part of the province of Qu?bec was annexed by Canada to the province in 1898 and 1912. Such boundary extensions were made without the knowledge or consent of, and in the absence of any consultation with, the Aboriginal peoples who have occupied and continue to occupy such vast regions as their traditional territories. {318} These extensions have enabled Qu?bec to further its economic development. For the most part, Qu?bec has benefitted at the expense of those Aboriginal peoples who claim ownership, possession and jurisdiction of these territories.

J. Larose comments that the "Quiet Revolution" in Qu?bec has led to a "rampant sovereignty" which seeks independence without compromise. {319} However, Larose counters that it is evident that Qu?bec nationalism is not incompatible with Canadian federalism, but that the version of sovereignty presented by some nationalists would be a threat to the identity of Quebecers:

"Je serais satisfait si l'on comprenait...que non seulement le nationalisme qu?becois n'est pas incompatible avec le f?d?ralisme canadien, ce qui est evident, mais encore que la souverainet?, par l'entr?e dans l'histoire qu'elle implique, serait une menace pour l'identit? des Qu?b?cois, telle du moins que les nationalistes nous la pr?sentent." {320}

In addition, W. Thorsell suggests:

"Like the Fathers of Confederation, we must realize that Quebec nationalism is a constituent part of Canadian nationalism as long as Quebec is comfortable and self-confident within the Canadian state." {321}

Whatever perspective individuals may take, it is worth noting that the Canadian federation has enabled the identity of Quebecers to continue to evolve freely according to their own will and in a context of internal self-determination. Therefore, it is surprising to learn how Lucien Bouchard publicly characterizes the choice of voting for federalism in the upcoming referendum in Qu?bec:

"So that's the first choice we have...Change ourselves, give up our identity. The other choice, obviously, is to get out of the straitjacket and be ourselves." {322}

Also, the PQ government, the Parti Qu?b?cois and the Bloc Qu?b?cois have repeatedly stated that the absence of approval of the Qu?bec National Assembly to the patriation of the Canadian Constitution in 1982, the failure to pass the 1987 Meech Lake Accord, {323} and the failure to pass the 1992 Charlottetown Accord {324} provides justification for the current attempt by Qu?bec to accede to independence. However, J. Woehrling concludes that the adoption of the Constitution Act, 1982 without the approval of Qu?bec authorities, the rejection of the Meech Lake Accord, and failure of the Charlottetown Accord cannot be seen as a denial of internal self-determination to Quebecers:

"Il nous semble cependant que la r?ponse doit ?tre plus nuanc?e, dans la mesure o?, malgr? l'?chec de l'Accord du lac Meech, le Qu?bec n'a pas mis fin aux n?gociations constitutionnelles avec le reste du Canada. Au contraire, le Premier ministre qu?b?cois, M. Robert Bourassa, a sign? l'Accord de Charlottetown du 28 ao?t 1992 et, si celui-ci est devenu caduque, c'est parce que le peuple qu?b?cois, ainsi que la population de cinq autres provinces l'ont majoritairement rejet? lors du referendum du 26 octobre suivant. Il n'est donc pas possible d'affirmer que l'?chec de l'Accord de Charlottetown ?quivaut ? une n?gation du droit des Qu?b?cois ? l'autod?termination interne." {325} [Emphasis added.]

Moreover, it is difficult to understand how the Parti Qu?b?cois or the Bloc Qu?becois can possibly invoke the failure of the people of Canada (including Qu?bec) to approve the Charlottetown Accord as a justification for a UDI by Qu?bec. Both of these political parties actively urged Quebecers to categorically reject this constitutional agreement in the 1992 referendum. {326}

In addition, it would be erroneous to view the patriation of the Canadian Constitution and the adoption of the Constitution Act, 1982 as actions that were firmly opposed by Quebecers. {327} As S. Dion notes, according to a poll in May 1982, Quebecers were 49% in favour of the 1982 Act and only 16% against. {328} These views were held by people in Qu?bec, despite the fact that the Qu?bec National Assembly did not join all of the other legislatures in Canada in approving the patriation initiative.

In 1982, the federal patriation package included such major elements as a Canadian Charter of Rights and Freedoms; {329} recognition and affirmation of existing aboriginal and treaty rights of the Aboriginal peoples of Canada; {330} a constitutional commitment to promoting equal opportunities and to making equalization payments to the provinces; {331} constitutional amending formulas for federal and provincial legislatures; {332} and additional powers for provincial legislatures to enact laws respecting non-renewable natural resources, forestry resources and electrical energy. {333} For the most part, {334} these elements were not the subject of widespread opposition in Qu?bec.

Further, L. Gagnon notes the irony of sovereignists denouncing the Canadian Charter of Rights and Freedoms in the Constitution Act, 1982 yet proposing a similar action for the constitution of a sovereign Qu?bec:

"?trangement, les souverainistes conspuent la charte de Trudeau', alors que le Qu?bec s'en ?tait donn? une quelques ann?es auparavant! Plus encore, le projet de loi pr?voit que la constitution d'un Qu?bec souverain contiendrait une charte des droits et libert?s dont on pr?sume qu'elle aurait, comme celle du Canada, pr?s?ance sur le legislateur." {335} [Emphasis added.]

Qu?bec separatists are currently highlighting the gravity of having approved the Constitution Act, 1982 without obtaining the consent of the Qu?bec legislature. However, the same standard of consent has not been applied by the Qu?bec government and National Assembly in regard to the fundamental status and rights of Aboriginal peoples in Qu?bec. In 1985, when the PQ government tabled the National Assembly resolution on aboriginal rights, {336} it was done against the express wishes of the Aboriginal nations in Qu?bec. {337} Moreover, former Premier Ren? L?vesque had made an official commitment to the Aboriginal nations in Qu?bec not to table any such resolution without their consent. {338}

Despite their own claims of unilateralism in regard to the adoption of the Constitution Act, 1982, PQ government spokespersons ignore the fact that the 1985 resolution on aboriginal rights was imposed on Aboriginal peoples in Qu?bec without their consent. Moreover, the same government representatives openly distort the resolution's contents. For example, D. Cliche presently describes the resolution as an instrument of self-determination:

"A resolution passed on March 20, 1985 made Qu?bec's National Assembly the first legislature in Canada to recognize the right to self-determination of its aboriginal nations and the first to undertake to define the application of this autonomy through negotiations." {339}

Not only was the term "self-determination" not used anywhere in the National Assembly resolution on aboriginal rights, but also the idea of negotiations was introduced at that time for the specific purpose of limiting Aboriginal peoples' rights. All fundamental rights, such as "autonomy", listed in the resolution were deemed by the PQ government to require a negotiated agreement in order for them to be recognized. In other words, in the view of the PQ government, Aboriginal peoples in Qu?bec had no inherent aboriginal rights.

As is described throughout this Study, the PQ government again is ignoring the principle of Aboriginal consent in seeking to forcibly include Aboriginal peoples in any future independent Qu?bec. Such positions by the separatist government clearly weaken its own case for respect for the principle of consent.

Based on all of the above, it is clear that Quebecers continue to enjoy internal self-determination and considerable opportunities for further development within the Canadian federation. At the same time, there is always room for improving the workings of the Canadian Constitution. However, from an international law standpoint, it cannot be concluded that the treatment of Quebecers within Canada gives rise in any way to a legal right of secession. Further, if any right to secede were to exist in favour of Quebecers, it would not include any right to unilaterally include the James Bay Crees and Cree traditional territory within a separate Qu?bec.

3.3 PQ Strategy to Undermine the Functioning of the Canadian Federation[Top] "...after all we are not there to help the system operate as smoothly as possible. We are there to get out of the system and at the same time, maintain all the links that are required...for the working of both governments." {340}

Premier Jacques Parizeau, 1994

There are increasing indications that the PQ government is actively seeking to undermine the federal system in Canada. In particular, it appears that provoking confrontation with the federal government is part of an intentional strategy of the PQ government. In this regard, A. Dubuc comments:

"On savait que le gouvernement du PQ chercherait l'affrontement avec Ottawa pour faire avancer son option. Jusqu'ici, cette logique d'affrontement n'a pas donn? lieu ? des grandes batailles, mais plut?t ? une esp?ce de gu?rilla o? Qu?bec multiplie les fronts pour soutenir l'int?r?t de l'opinion publique." {341}

Also, D. Lessard reports that the PQ government will not participate in any federal-provincial conferences that would appear to affect exclusive provincial jurisdiction:

"Tout en se d?fendant de vouloir paralyser' le syst?me f?d?ral', le gouvernement Parizeau sera politiquement absent des conf?rences f?d?rales- provinciales qui toucheront les comp?tences exclusives des provinces." {342}

Although environmental issues are not exclusively provincial jurisdiction, this boycott has already been implemented in regard to a November 1994 meeting of federal and provincial ministers on environmental matters. {343} A similar boycott has been exercised by the PQ government in regard to an April 1995 federal-provincial meeting of ministers on culture. {344} In addition, Qu?bec's Health Minister announced in the summer of 1995 that he would not participate in upcoming federal-provincial meetings of health ministers. {345} If all provincial and federal ministers do not regularly meet, it is difficult to perceive how Canadian federalism can be made to work effectively. {346} Collaboration is especially important in view of the constitutional division of powers.

On the single occasion (since the election) when Premier Parizeau attended a provincial premiers' meeting in August 1995, he went there solely for the one agenda item pertaining to interprovincial trade. When he could not secure any clear evidence of openness among the other provinces to a future economic union with an independent Qu?bec, the Premier chose to cause confusion as to the other Premiers' representations. A. Dubuc comments on Parizeau's confrontative approach as follows:

"Dans son premier contact avec ses futurs partenaires',...il a choisi l'affrontement, de fa?on d?lib?r?e. Avec une attitude arrogante que jamais Ren? L?vesque n'aurait eu, il a r?ussi ? enrager et ? braquer les premiers ministres des autres provinces." {347}

In the Globe and Mail, it is also reported that Premier Parizeau will not actively cooperate in terms of Canadian federalism and instead will act as if Qu?bec were an independent nation:

"Mr. Parizeau...served notice that he intends to govern Quebec as though it were already a sovereign nation, refusing to participate in certain federal reforms, defining instead a separate course of action for Quebec." {348}

Even in regard to international meetings, the PQ government has demonstrated that it cannot be counted on to cooperate with the federal government. Recently, at the international conference of the Francophonie {349} (francophone nations), Qu?bec Minister of International Affairs Bernard Landry made clear that Ottawa and Qu?bec would no longer speak at such conferences with the same voice. {350} This position of non-cooperation appears to violate existing federal-provincial agreements that Qu?bec has signed. {351}

L. Gagnon describes the strategy of Premier Parizeau to gain support for his separatist cause as one based on provoking the federal government and creating a wave of resentment in Qu?bec against the rest of Canada:

"[Mr. Parizeau] hopes that after being systematically provoked on both the Quebec and federal scenes, with the Bloc Qu?b?cois daily echoing the Quebec government's demands in Parliament, the rest of Canada will lose patience, and calls will be heard across the country to boot Quebec out of Canada. This in turn would produce a wave of resentment in Quebec and add potent fuel to the separatist cause." {352}

Gagnon indicates that the national issue of Qu?bec must be settled, since this situation cannot continue indefinitely:

"Le Qu?bec ne pourra ind?finiment boycotter, comme il le fait actuellement dans tous les domaines, du commerce international ? la sant? en passant par l'environnement, toutes les op?rations de concertation pan-canadiennes, et s'abstraire syst?matiquement d'une f?d?ration dont il fait encore partie." {353}

G. Bertrand, co-founder of the Parti Qu?b?cois, comments on the current attempts of the Parti Qu?b?cois and Bloc Qu?b?cois to destabilize Canada as follows:

"Chaque jour, les deux partis s?paratistes tentent de d?stabiliser le pays pour arriver ? convaincre les Qu?b?cois de la n?cessit? de faire la souverainet?. Nous avons cherch? ?galement, par nos discours, ? humilier le Canada et ses dirigeants, particuli?rement les francophones du Qu?bec, et ? identifier les Canadiens et les Qu?b?cois f?d?ralistes comme les grands responsables de tous nos malheurs." {354} [Emphasis added.]

It is absurd for an entity seeking to justify its secession from a federal state to engage in strategies and actions that clearly undermine the workability of the federation. Such manoeuvers detract from, rather than serve to legitimize, a secessionist attempt.

It is one thing if a federal state treats a people in a discriminatory manner to such a degree that secession is warranted. It is quite another when the same people are not mistreated, yet its government seeks to undermine the operations of the existing state. It would be a most extraordinary precedent for the international community, if such actions by the PQ government were met with even tacit approval and were allowed to undermine the stability and territorial integrity of an existing state. As R. Iglar provides:

"Secession disturbs the world order. It disrupts the stability of the parent state by depriving it of its power base: people, territory, and resources." {355}

As indicated in this Study, secession is a serious action that is sometimes warranted under exceptional circumstances. However, in the case of Qu?bec, the extreme circumstances that might justify separation have not been shown to exist. If Quebecers are enjoying self-determination within Canada, are not subject to discriminatory treatment or to alien occupation, and are not colonized, then it is difficult to fathom on what basis secession can be justified. In this context, it is unacceptable that the PQ government would claim that Quebecers cannot develop within the current federation, yet at the same time, take provocative measures to subvert the workability of the federal state.

3.4 International Law ? No Right of Qu?bec to Secede [Top]

"...le droit international est d'une grande pertinence parce que s'est d'abord lui qui le reconna?t le droit ? l'autod?termination...Il ne semble pas, pourtant, qu'on puisse invoquer a priori ce principe au b?n?fice des peuples qui ne sont pas colonis?s au sens traditionnel. De ce point de vue les autochtones du Canada pourraient avoir de meilleures justifications ? faire valoir que le peuple du Qu?bec." {356}

H. Brun & G. Tremblay, 1990

"A systematic review of the applicable international principles...demonstrates that Qu?bec does not have the right to secede from Canada upon the vote of a majority of electors in a referendum." {357}

N. Finkelstein, G. Vegh & C. Joly, 1995

Although there are some divergent opinions, most jurists appear to take the view that the right to self- determination under international law does not include a legal right to secede, except under exceptional circumstances. In this regard, J. Woehrling indicates:

"...la tr?s grande majorit? des auteurs consid?r[ent] que l'application utile du droit des peuples ? disposer d'eux-m?mes est limit?e aux peuples coloniaux et ? quelques tr?s rares hypoth?ses d'occupation ?trang?re ou de r?gimes racistes. Dans l'opinion dominante, il n'est donc pas possible de faire d?couler le droit de s?cession (ou de s?paration) en contexte non colonial du droit des peuples ? l'autod?termination." {358}

The author then concludes that Qu?bec does not meet any of the criteria in the 1970 United Nations Declaration on Friendly Relations and cannot claim any international legal right to secede:

"Il n'est gu?re possible...d'affirmer de fa?on s?re que le Qu?bec peut validement exercer, ? l'heure actuelle, un droit de s?cession au regard de droit international." {359}

In regard to Qu?bec, R. Higgins makes clear that it has no legal right to secede:

"Quebec has no legal right to secede on the alleged ground that it is composed of a linguistic minority within a state in which the majority are of a different linguistic grouping. Francophone Quebecois are, of course, entitled to use their own language...The perceived need of secession is understandable when minorities are denied their rights as minorities or where they cannot participate, as part of the entire peoples of a country, in the political and economic life of the country."
{360} [Emphasis added.]

Also L. Eastwood concludes that, in the absence of oppression, Quebecers have no valid secessionist claims:

"...Quebec and the Confederate States of America during the American Civil War would not have valid secessionist claims because neither of the seceding groups was oppressed by the government of its parent state." {361}

A. Cassese puts forward a similar view and underlines the double standard of a number of Qu?bec separatists on the issue of self-determination:

"Although the inhabitants of Quebec ? as much as all other inhabitants of Canada ? may be deemed to have a continuing right to internal self- determination under the UN Covenants, they do not have a legal right, under international law, to secede from Canada...

The contrary view put forward by a number of authors, mostly of Qu?b?cois origin, is not substantiated by any valid legal arguments. It should be added that, strikingly, these commentators, while they advocate self-determination for Quebec, refuse any similar right for the indigenous populations of the region...for whom they are prepared to recognize only `aboriginal self- government'." {362}

Further, in the 5-expert study commissioned by the Qu?bec National Assembly, it is clearly stated that the people of Qu?bec have no right to invoke a right of self-determination to justify accession to independence:

"D?s lors, le peuple qu?b?cois exerce effectivement son droit ? disposer de lui-m?me dans le cadre de l'ensemble canadien et n'est pas juridiquement fond? ? l'invoquer pour justifier son ?ventuelle accession ? l'ind?pendance." {363} [Emphasis added.]

Since Qu?bec cannot claim any "serious and persistent denial of internal self-determination", it cannot assert any legal right to secede and unilaterally undermine the territorial integrity of Canada. As J. Klabbers and R. Lefeber note, the principle of territorial integrity of existing states is only upended under exceptional circumstances:

"Following a natural law interpretation of self-determination, however, it can be maintained that a serious and persistent denial of internal self- determination sets aside the principle of territorial integrity and imposes corresponding obligations on the international community to realize the ensuing right of external self-determination." {364} [Emphasis added.]

Despite the view of most international jurists that the right of self-determination does not confer Quebecers with any legal right to secede, Lucien Bouchard, leader of the Bloc Qu?b?cois, suggests that the people of Qu?bec have a "trump card" in that the right of self-determination has been invoked in a number of situations internationally in the past few years to establish independent states:

"L'atout international vient de l'exercice r?p?t? du droit des peuples ? l'autod?termination au cours des trois derni?res ann?es. Un r?f?rendum d?mocratique {365} favorable ? la souverainet? du Qu?bec aura un large ?cho international et ne pourra pas ?tre ignor? par le Canada anglais."
{366} [Emphasis added.]

In the view of L. Bissonnette, editor of Le Devoir, there appears to be a double standard being set by the rest of Canada (ROC) in not questioning the right to secede of other entities such as Ukraine or Slovakia, yet refusing the same right to Qu?bec:

"...l'opinion, au Canada anglais, est en ?tat de raidissement, le vicieux d?bat sur la l?gitimit? de l'option souverainiste a fait son oeuvre. Ainsi une nette majorit? (57%) de citoyens de ce pays pourtant d?mocratique refusent de reconna?tre au Qu?bec un droit de s?cession qu'ils n'auraient jamais song? ? contester ? l'Ukraine ou ? la Slovaquie, {367} et qu'ils soutiennent sans doute aujourd'hui pour la Tch?tch?nie. Et il invite m?me le gouvernement du Canada ? r?sister ? une proclamation de souverainet? qui reposerait sur un vote majoritaire au Qu?bec." {368}

However, the situation of Qu?bec is totally different from that of recent new states ? such as those in the former Soviet Union and former Yugoslavia. Therefore, it is erroneous to suggest that these events in Europe provide a precedent for secession by Qu?bec. {369} Moreover, it is far from clear that the creation of these states was based on a right of external self-determination of seceding peoples or entities. {370} Rather, it would appear that international recognition was the result of exceptional circumstances and agreement by, or disintegration of, the predecessor state. As H. Hannum makes clear:

"The dissolution of the Soviet Union and Czechoslovakia resulted from agreement and thus created no precedent for cases of contested secession."
{371} [Emphasis added.]

In order to avoid misunderstanding or confusion, {372} important distinctions between the situation in Qu?bec with that in former Yugoslavia and the former Soviet Union are briefly elaborated below.

3.4.1 Key distinctions between Qu?bec and former Yugoslavia [Top]

In regard to the crisis in the former Yugoslavia, there are a number of principles or criteria that have been adopted by the European Community, the Conference on Security and Cooperation in Europe, or the Badinter Arbitration {373} Commission. {374} However, it would be imprudent to presume that the situation in former Yugoslavia is in any way a prescription or precedent for secession in the context of Qu?bec. Nor should it be assumed that the principles or criteria applied to the Yugoslavian republics reflect in all cases existing international law.

In fact, there are critical differences between the situation in the former Yugoslavia and that in Qu?bec. These differences include:

i) Existing federation of Yugoslavia disintegrating. The principle of uti possidetis was applied to conserve the existing boundaries of the various republics in Yugoslavia since the federation of Yugoslavia was said to be totally disintegrating {375} and there was a most destructive situation of civil war. {376} This is not the current situation in Canada or in the province of Qu?bec. Not only is there no devastating civil war in Canada, but also no firm presumption at this time that the Canadian federation would completely disintegrate should Qu?bec secede.

The fact that the Yugoslavian federation was completely crumbling was a principal reason for the reasoning that "at least" the internal boundaries of the republics should be preserved. This was the approach taken by the Badinter Arbitration Commission, {377} as well as the European Community.

In regard to the latter, T. Franck describes:

"As early as August 27, 1991, the European Community, addressing the fighting in Croatia, took the position that if the territorial integrity of Yugoslavia were to disintegrate, then at least the former internal borders of the constituent republics must be sacrosanct." {378} [Emphasis added.]

ii) Principle of uti possidetis applied to former states but not provinces in Yugoslavia. The former federation of Yugoslavia was comprised of six republics {379} and two provinces. {380} In the case of the autonomous province of Kosovo, it is worth noting that there was an Albanian majority of 91% residing there {381} and pre-existing stuctures of self-government. {382} Nevertheless, the principle of uti possidetis was not applied to such a distinct province. {383} It was only applied to the six republics that had previously existed before the federation of Yugoslavia was formed in 1918. {384} In contrast, Qu?bec has only the status of a province and was never an independent republic prior to its voluntary joining in the Canadian Union in 1867. {386}

iii) Substantial and clear support for independence in various plebiscites. In two of the most productive {387} republics, Croatia and Slovenia, 94% and and 88.5% of the people respectively voted in favour of independence. {388} In regard to the referendum on March 1, 1992 in Bosnia- Hercegovina, it is said that "[a]lthough many Serbs boycotted the poll, almost 63 percent of the electorate opted for independence" {389} (i.e. 99% of the votes cast favoured separation) {390}. Further, in the September 9, 1991 referendum in Macedonia, a majority of 74% voted infavour of independence. {391} These percentages are in stark contrast to the Qu?bec situation, where the PQ government claims that a 50% plus one majority is a sufficient basis for secession. {392}

iv) Opposing political philosophies contributed to Yugoslavian crisis. It is highly significant that Serbia is communist, while Croatia, Slovenia and two other republics are in recent times non-communist. {393} The autocratic communist regime in Serbia is said to explain the "regime's ability to suppress opposition from the other republics and preserve the Serbian-dominated system." {394} Such a major difference in political systems simply do not exist in the context of Qu?bec secession.

v) Self-determination and democracy denied in former Yugoslavia. It is not clear that Slovenes and Croats have any general right to secede {395} under international law. {396} At the same time, it can be argued that self-determination and democracy were gravely denied when "the communist government of Serbia blocked the regular constitutional rotation of the Presidency and prevented the Croatian representative from becoming the first non-communist president of Yugoslavia." {397} In addition, the forcible integration in 1990 of the autonomous provinces, Kosovo and Vojvodina, {398} into Serbia was viewed as a most serious violation of the Yugoslav Constitution precipitating the disintegration of the federation. {399} According to B. Bagwell, both these constitutional breaches by Serbia, created a right to secede. {400} In contrast, in the case of Qu?bec, these types of fundamental transgressions of the Constitution cannot be and are not claimed by the PQ government.

vi) Serbian atrocities led to swift international recognition of former Republics. Serbian atrocities, including the practice of ethnic cleansing, have not only led to the non-recognition of Serbia-Montenegro by the world community. {401} As L. Eastwood Jr. states:

"The actions of Serbia may also explain the relatively swift recognition of Bosnia-Hercegovina, Croatia, and Slovenia by key members of the international community shortly after their secessions." {402}

In contrast, such abusive circumstances to justify secession and international recognition simply does not exist for Qu?bec.

In addition to the above differences between the situation in the former Yugoslavia and that in Qu?bec, there is another critical distinction. Any accession to independence by Qu?bec would have to fully take into account the right to self-determination of Aboriginal peoples in Qu?bec. This added dimension was not a factor in Yugoslavia or in the Baltic states (discussed below). {403} However, as this Study makes clear, the status and rights of Aboriginal peoples in Qu?bec, including the right to choose to remain in Canada, are a central issue in the Qu?bec secession debate.

3.4.2 Key distinctions between Qu?bec and Baltic state[Top] As in the case of the former Yugoslavia, there is no solid basis for a secessionist Qu?bec relying on the recent independence of the Baltic states as some form of relevant precedent. Critical differences between the situation in the Baltic states and that in Qu?bec include:

i) Baltic states illegally annexed in 1940. As W. Webb describes, "[i]n 1940, the Union of Soviet Socialist Republics...invaded the Baltic states of Lithuania, Latvia and Estonia. Soon after, the Soviets coerced the states into voting for annexation, and all three were officially annexed by the Soviet Union." {404} The subsequent history of the Baltic states within the Soviet Union is too lengthy to do it justice here. {405} However, the illegal and forced annexations {406} of the Baltic states to the Soviet Union and the resulting Soviet breach of non-aggression treaties {407} signed with the Baltic states in 1926 and 1932 clearly distinguish the case of the Baltic states for secession from that of Qu?bec. {408}

ii) Principle of territorial integrity of parent state not violated. Unlike the case of Qu?bec secession, it can be argued that the principle of territorial integrity was not contravened by the Baltic states in exercising a right of external self-determination. First, the Soviet Union could not invoke the principle of territorial integrity, since it was not respecting the right of internal self-determination of the Baltic peoples concerned and their right to representative government. {409} As B. Meissner concludes:

"[T]he Baltic states could be considered territory that is occupied by the Soviet Union. Legally and politically the existing governments in the three Baltic states lack necessary legitimacy." {410}

Second, since the original annexations in 1940 were illegal, it could hardly be argued in legal terms that the principle of territorial integrity in regard to the Soviet Union was violated. {411} As S. Himmer indicates:

"From a purely legal standpoint, because the Baltic States were unlawfully annexed, they were never a legitimate part of the Soviet Union; therefore, recognition of their right to an independent existence does not denigrate respect for territorial integrity." {412} [Emphasis added.]

Third, since the Baltic states had been independent, it was the territorial integrity of the Baltic states (not that of the Soviet Union) that was violated by the 1940 annexations. {413}

iii) Baltic states previously independent. {414} It is said that Estonia had formed an indepedent state by the 12th century; {415} Latvian tribal kingdoms were signing international treaties as early as the 13th C.; {416} and the Lithuanian state was established in 1236. {417} Further, through the signing of bilateral treaties in 1920, the Soviet Union expressly recognized the respective independence of the three Baltic states. {418}

It is the particular history and prior independent status of the Baltic states that has caused the international community to recognize their right to external self-determination. As P. Juviler, concludes: "The Baltic republics mark a special case. Their independence is not new but regained." {419} In this regard, S. Himmer also indicates:

"...most countries distinguished the Baltics from other Soviet Republics. After the European Community recognized the Baltic States, British Foreign Secretary, Douglas Hurd, stated that, [e]veryone was operating on the basis that the three Baltic States are different from the other republics of the Soviet Union, because of their history, and because of their position in international law.'" {420} {421}

As already indicated in the comparison with the republics in the former Yugoslavia, Qu?bec was not formerly an independent state and has a very different historical background that does not make any compelling case for a unilateral declaration of independence.

iv) Substantial and clear support for independence in Baltic state referendums. On March 3, 1991, referendums were held in Latvia and Estonia and the vote in favour of independence was 77% and 78% respectively. {422} Also, in February 1991, 90% of the voters in Lithuania supported independence. {423} As in the case of former Yugoslavia, these percentages are in stark contrast to the Qu?bec situation, where the PQ government claims that a 50% plus one majority is a sufficient basis for secession.

v) Independence of Baltic states agreed to by parties concerned and Soviet Union disintegrating. {424} Although the Baltic states were illegally annexed to the Soviet Union, it would be erroneous to assume that the Baltic states simply became independent through unilateral secession. As H. Hannum indicates:

"While it is clear that the Soviet Union's disintegration at the end of 1991 was a result of centrifugal forces that Moscow could not withstand rather than a truly voluntary separation, the central (Soviet) government did not oppose (by force or otherwise) the dissolution of the former Soviet Union into its constituent parts. All of the former republics agreed to the dissolution..." {425} [Emphasis added.]

It was even agreed that the Russian Federation would take over the Soviet Union's seat at the United Nations. {426} As S. Himmer describes, the consent of the former Soviet Union was a factor for some third party states and the United Nations to grant recognition to the new states:

"The international community...which has become increasingly tied to the notion of the territorial integrity of member states, appeared to require the consent of the Soviet Union before granting recognition. The United Nations (UN) seems to have followed this path." {427}

Consequently, the independence of the Baltic states does not provide Qu?bec separatists with any relevant precedent for unilateral secession. Although separatists believe that the territorial integrity of Canada is of minor significance, the case of the Baltic states would demonstrate otherwise.

vi) Self-determination and democracy denied in the former Soviet Union. In contrast to the situation in Qu?bec, W. Allison describes the experience of the Baltic states in the Soviet Union in terms of "colonialism":

"The Baltic states have been victims of Soviet colonialism for fifty years." {428}

Not only were the Baltic states illegally annexed to the Soviet Union in 1940 and bilateral treaties violated, but there has been brutal repression at the hands of the Soviets. For example, following World War II, 600,000 Balts were deported to Siberia and elsewhere. {429} Moreover, in the period just prior to the illegal annexations, the Soviets forcibly installed pro-Soviet governments in each Baltic state. {430}

As illustrated above, the situation in the Baltic states (as also in former Yugoslavia) is totally different from that in Qu?bec, whether examined from a historical, political, or legal viewpoint. {431} The actions suffered by Balts as a result of Soviet repression, illegal annexation of their territories, and forced installation of puppet governments have absolutely nothing in common with the situation in Qu?bec. Consequently, it cannot be argued that the regaining of independence by Baltic states or the Republics in the former Yugoslavia can serve as some kind of international precedent for Qu?bec secession.

A similar conclusion is reached by L. Eastwood Jr.:

"...there is no basis for concluding that recent state practice alone evinces the existence of a secession right under international law. In addition, there is broad disagreement among scholars as to the form that any secession right ought to take." {432}

3.5 Need for Informed Discussion Prior to Referendum Vote [Top]

It is critical that accurate information and informed discussion be ensured prior to the upcoming referendum on Qu?bec independence. For example, in 1979, just prior to Quebec's referendum on sovereignty-association, the Parti Qu?b?cois government's official publication provided the following erroneous and misleading account of the origin and value of the natural resources within the province:

"Quebec's resources are permanent; we do not owe them to a political system, or to specific circumstances. They are a gift of nature, which has favoured us more than others in this respect by allowing us to play a more important economic role, thanks to our resources..." {433} [Emphasis added.]

In fact, the resources in the top two-thirds of Quebec were not in any way "a gift of nature". They were the result of the Canadian political system that gave the province of Quebec expanded law-making powers without the knowledge or consent, and at the expense, of the First Nations in northern Quebec.

Recently, the Commission nationale sur l'avenir du Qu?bec, set up by the PQ government in connection with Qu?bec's upcoming referendum on independence in 1995, has made other inaccurate statements in its final Report. These inaccuracies can only have been made, in order to unjustly incite Quebecers to opt for an independent Qu?bec state:

"...il existe deux peuples au Canada et que la n?gotiation ? 13 {434} ou ? 17 {435}, depuis Charlottetown, ?tait devenue une m?thode syst?matique d'isoler et de marginaliser la voix du Qu?bec." {436} [Emphasis added.]

First, Aboriginal peoples are also "peoples" under Canadian constitutional and international law. {437} For the PQ's Commission to attempt to deny Aboriginal peoples their status as "peoples" is an outrage and is devoid of substantiation in the Commission's Report. Second, the inclusion of Aboriginal peoples (as well as provincial governments other than Qu?bec) in constitutional negotiations is a question of political and legal necessity. Moreover, it is consistent with principles of democracy, equality, and self-determination that Aboriginal peoples be accorded the right to represent themselves in constitutional negotiations and not be subjugated in a colonial manner. Further, there is no evidence of any kind that this democratic action of inclusion was designed or served to isolate or marginalize Qu?bec. {438}

In the current context, it is important that the PQ government make clear the reasons and bases for advocating that Qu?bec should separate from Canada. To date, the reasons put forward have been unclear, contradictory and a compendium of unsubstantiated allegations or conclusions.

For example, Premier Parizeau claims that Canada is becoming "psychologically unbearable" {439} and has inaccurately suggested parallels between Qu?bec's proposed declaration of sovereignty and the declaration of U.S. independence in 1776. {440} The Premier has also stated that Quebecers should vote Yes to sovereignty in order to avoid high taxes provoked by the federal government. {441} On the other hand, PQ Minister of Intergovernmental Affairs, Louise Beaudoin, indicates that the reason for independence is because Quebecers wish to be a "majority" within their own country. {442} PQ Minister of Education Jean Garon states that it is because Quebecers need to ensure their "cultural security". {443} Former communications advisor to Premier Jacques Parizeau, Pierre Bourgault, strongly advocates secession on the basis of the right of Quebecers to self-determination. However, Aboriginal affairs advisor to Premier Parizeau, David Cliche, takes the opposite view and makes clear that Qu?bec secession is not based on any right to self-determination. {444}

Also, PQ Minister of International Affairs, Bernard Landry, declares that it is "normal" for any people to seek independence (except apparently Aboriginal peoples). For Qu?bec lobbying purposes in the United States, Landry is reportedly stating that the reason for Qu?bec independence is because the vision of Quebecers that there are "two founding nations" is no longer accepted in the rest of the country. {445} On the other hand, Bloc Qu?b?cois leader, Lucien Bouchard, has claimed that Qu?becers could be better administered in a sovereign Qu?bec. {446} Moreover, Bouchard has stated without substantiation that "there is an international public right...there is an inherent right of any province to leave Canada." {447}

In contrast, members from l'Acad?mie des lettres du Qu?bec have reminded the PQ government that any sovereignty project derives its legitimacy from the cultural and linguistic difference of Quebecers and that economic arguments do not prevail over cultural ones. {448} The Conseil de la souverainet? du Qu?bec takes a more extreme position. In its ad campaign in the 1995 referendum, it declares that, after a NO vote, for Quebecers to be "distinct" would mean speaking English with an accent:

"SURTOUT, LE NON, C'EST UN INVITATION ? FAIRE DES QU?B?COIS UN PEUPLE FOLKLORIQUE.
...
Bref, apr?s un NON, ?tre distint' voudra dire: parler anglais avec un accent!" {449} [Emphasis and capitals in original.]

Regardless of all of these divergent views, a new toll-free telephone line set up by the Parizeau government to answer queries on Qu?bec's future provides yet another rationale. It is reported that the primary reason for justifying external sovereignty, as stated by the toll-free service, is that Quebecers have not been recognized as a people by the rest of the country. Therefore, Qu?bec is "condemned to the status of a province". {450} Premier Parizeau is currently using this highly dubious {451} argument for consumption in the United States and other countries:

"Quebecers, who have a strong sense of their identity, live in a country that refuses to acknowledge their existence." {452}

In this regard, the Premier fails to mention that protections for the French language (a key factor for identity) have been included in the Constitution of Canada since its inception in 1867. Nor does the Premier add that, in the Charlottetown process in 1992, the federal government, all provincial and territorial governments, and the four national Aboriginal organizations explicitly agreed to recognize Qu?bec as a "distinct society" in Canada's Constitution. However, the overall Charlottetown proposal was not approved by the population in Qu?bec as well as in other parts of Canada. Further, the Premier omits to acknowledge that Quebecers themselves are still debating whether it is French Canadians in Qu?bec or some broader group who constitute a "people" for purposes of self-determination. {453}

Moreover, it is interesting to note that, in the same Foreign Policy article where his complaint of non- recognition is made, Mr. Parizeau fails to refer to Aboriginal peoples as "peoples" (despite the use of this term in Canada's Constitution). {454}

As suggested by the above discussion and as J.-P. Derriennic confirms, the reasons for seeking separation divide even the separatists themselves:

"...les raisons de faire l'ind?pendance sont si peu ?videntes qu'elles divisent les ind?pendantistes eux-m?mes." {455}

Derriennic adds that such reasons include washing away the inequities and humiliations suffered by their ancestors; creating a fiscal paradise in a sovereign Qu?bec; adopting restrictive language laws which could not be interfered with by the Supreme Court of Canada (others take the opposite view that restrictive language laws would not be required in an independent Qu?bec); or else, tactically, voting for separation so that there would be the negotiating power to obtain some other arrangement with Canada. {456}

In regard to the secession claims of Quebecers, L. Eastwood Jr. states:

"Cultural differences are already a source of domestic group conflicts. Permitting groups such as the Qu?b?cois in Canada to invoke the right of secession based upon cultural or group identity alone would threaten to open the floodgates of secession, and could exacerbate group conflicts." {457} [Emphasis added.]

A. Dubuc comments on the double standards in the "indefensible" logic of the Qu?bec sovereignists vis- a-vis Aboriginal peoples as follows:

"La rigidit? des souverainistes est ind?fendable sur le strict plan logique. Ils refusent aux Indiens le droit ? la s?paration qu'ils r?clament, affirment l'int?grit? du territoire qu?b?cois en niant celle du Canada, affirment que leur r?f?rendum sera d?cisionnel mais pas celui des autochtones. Il y a l? un deux poids deux mesures qui tient de l'incoh?rence et qui pourrait mener le gouvernement p?quiste ? de cuisantes d?faites, notamment face aux Cris, dont le dossier est tr?s solide."
{458} [Emphasis added.]

In view of the far-reaching ramifications Qu?bec secession would have for all Quebecers, as well as for Aboriginal and other peoples in Canada, the PQ government has a responsibility to explain publicly the justifications for separation. It makes little sense that Quebecers would choose to leave the Canadian federation without knowing what precisely should replace the existing arrangements. Sovereignist options mentioned range from complete independence to various forms of economic and political association {459} with Canada. At present, there exist neither clarity nor certainty as to their full implications. {460} In addition, a coherent explanation is owed as to why the government says Quebecers have certain rights in determining their future, but Aboriginal peoples do not.

To date, free and open debate on these and other related questions have not been encouraged by the government either within or outside Qu?bec. Consequently, this lack of appropriate debate is examined further under the following sub-heading.

3.5.1 Attempts to suppress free and open debate [Top]

The lack of democratic and informative debate on the issues surrounding Qu?bec secession has manifested itself, to date, in at least three different ways. First, the business community has been warned not to publicly voice their concerns regarding possible financial impacts of Qu?bec independence. Second, Quebecers have been incited by the PQ government to censure the James Bay Crees for having labelled government denial of Aboriginal peoples' right to self-determination as racial discrimination. Third, arguments put forward against Qu?bec secession are too often dismissed by the PQ government as fear-mongering or alarmist, without giving consideration to their substance. These aspects are described briefly below.

Business community

In regard to the business community, PQ leaders have attempted in the present context to muzzle bankers and brokers from raising their concerns, by threatening them with retaliation. N. Webster describes the threats of retaliation to the business community:

"...the Royal Bank, which produced a devastating analysis during the Charlottetown referendum of the costs of independence ? dramatic drops in income, employment and standards of living, fiscal crises, emigrations ? was threatened with retaliation by Parizeau for its temerity. {461} So, directly and brazenly, were the Bank of Montreal and the financial house Wood Gundy last year, when they dared note the linkage between interest rates and the threat to separate." {462} [Emphasis added.]

As A. Dubuc, editor of La Presse, has commented, such intolerance {463} is most disturbing above all in terms of democracy:

"...M. Parizeau s'est lanc? dans des croisades qui feraient fr?mir les financiers les mieux dispos?s ? sa cause.

D'abord, ces menaces de repr?sailles contre tous les analystes qui s'?cartent du cr?do p?quiste. M. Parizeau a brandi la menace du boycott contre la Banque de Montr?al, qui a dit craindre une hausse des taux d'int?r?t. Daniel Paill?, candidat p?quiste et ex-vice-pr?sident de la Caisse de d?p?t, avait, quant ? lui, averti Wood Gundy et d'autres courtiers qu'ils pourraient perdre leurs contrats s'ils s'?cartent du droit chemin.

Cette intol?rance dogmatique est tr?s inqui?tante. D'abord, pour la d?mocratie qui peut difficilement s'?panouir si on mus?le tout forme de d?saccord, surtout au moment o? s'amorce un d?bat sur notre avenir. Avec cette approche o? les fonds publis imposeront une id?ologie muscl?e, quelle sorte de r?f?rendum aurons-nous?" {464} [Emphasis added.]

These threats to the business community by Mr. Parizeau and his PQ colleagues is severely criticized by L. Gagnon:

"Dans la logique d?mocratique normale, il y a s?paration entre l'activit? partisane et l'activit? ?tatique, comme il y a s?paration de l'?glise et de l'?tat. C'est une fronti?re que respectent instinctivement les gouvernements d?mocratiques. En cas d'accroc, ils sont furieusement d?nonc?s par les m?dias, l'opposition, et tout ce que la soci?t? compte de bien-pensants.

Mais c'est une fronti?re qu'a l'?vidence M. Parizeau ne veut pas reconna?tre, lui pour qui tout doit converger vers l'id?al, la cause, l'objectif ultime." {465}
[Emphasis added.]

Also S. Scott reports on the business community's free speech concerns, but indicates that Mr. Parizeau's threats have had their desired impact:

"Michael Mackenzie, Canada's top banking regulator, called Parizeau's warnings 'a direct threat to free speech' that makes him feel very uneasy.
...
Yet Parizeau's first commandment is being observed: Several investment dealers told the The Gazette they'll be very careful about what they say in public about the PQ, although they will inform clients privately." {466} [Emphasis added.]

Grand Chief Matthew Coon Come

In regard to the James Bay Crees, Premier Parizeau has taken issue with the fact that, in a speech in Washington, Grand Chief Matthew Coon Come had accused the PQ government leader of "a double standard, a discrimination we can only assume is based on race," in denying Aboriginal peoples their right to self-determination. {467} At the same scientific symposium in Washington, D.C., the Grand Chief had also charged that the Premier was practising ethnic nationalism {468} in the context of Qu?bec secession. Instead of responding to the substance of the Cree accusations against his government's approach, Parizeau declared that all of Qu?bec has been harmed by Coon Come's comments:

"Je d?plore vivement que M. Coon Come ait jug? ainsi utile de m'injurier moi, sans doute, mais aussi, puisque j'essaie d'?tre le premier ministre de tous les Qu?b?cois, d'injurier le Qu?bec lui-m?me." {469}

When the federal separatist party, Bloc Qu?b?cois, called on the Prime Minister of Canada, Jean Chr?tien, to censure Grand Chief Coon Come for "denigrat[ing] unfairly and incorrectly 6 million Quebecers", {470} the Prime Minister reminded the Bloc Qu?b?cois of the existence of freedom of speech in Canada:

"...dans un pays o? la libert? de parole existe, chacun a le droit d'exprimer son point de vue. Si le Bloc qu?b?cois n'est pas d'accord, il peut r?pondre [? Coon Come]." {471}

Recriminations against Grand Chief Coon Come were taken a step further when the Qu?bec Deputy- premier and Minister for International Affairs, Bernard Landry, wrote to the Canada's Minister of Foreign Affairs, Andr? Ouellet, calling for condemnation of Coon Come in view of the "concerted attacks" against Qu?bec. {472} In addition, Landry is reported to have suggested to journalists that Coon Come's statements might contravene Canada's Criminal Code. {473}

Messrs. Parizeau and Landry have been roundly criticized for their excessive actions against free speech and their claims that "insults" against the Premier are, by extension, an injury against all Qu?bec. In this regard, an editorial in The Gazette concludes:

"There does seem to be a disproportion between the separatists' view of their own freedom of speech and their view of what others should be free to say.

But, of course, that was precisely Mr. Coon Come's point ? that many supporters of Quebec independence, including apparently Mr. Parizeau and Mr. Landry, claim for themselves freedoms that they refuse to accord others." {474}

It is absurd for the PQ government to claim that a criticism of its policies as being "racist double standards" is an attack on all Quebecers. Otherwise, it would be impossible for citizens to criticize government policy (even on human rights issues) without castigating the general population who had no part in devising the government's approach. The importance of this distinction is highlighted by the Editor of the Toronto Star, John Honderich, to the Editor of La Presse, in the following terms:

"On a donc souvent attaqu? le Qu?bec, au cours des derniers mois, je l'admets. Mais, on s'en prenait ? ses politiques et ? la s?paration, pas ? ses citoyens. Et cette diff?rence est capitale." {475}

M. Lebel, a professor of public law at the Universit? du Qu?bec ? Montr?al, has written that he does not perceive the Grand Chief's comments as a personal attack against Premier Parizeau or against Quebecers. Moreover, Lebel indicates that, while questioning the tone of Coon Come's public statements, there appears to be a double standard in relation to PQ policies on self-determination. In this regard, Lebel recommends discussion of substantive principles based on equality of peoples:

"Il est ? souhaiter que le chef cri abandonne cette langue de bois qui dessert son peuple. Ce qui n'emp?chera pas certaines questions de principe de demeurer et de devoir ?tre trait?es en tout ?quit? et ?galit? de droit, de peuple ? peuple." {476}

In regard to Aboriginal peoples in Qu?bec, it is important to note that Daniel Turp, legal advisor to the Bloc Qu?b?cois and head of its policy commission, has repeatedly gone on record as an international law professor that Aboriginal peoples have a right to self-determination in the context of Qu?bec secession. For example, Turp has emphasized that Aboriginal peoples have a more legitimate claim to self- determination in their territories than Quebecers:

"...ces peuples-l? [nations autochtones et Qu?b?cois] vont devoir parler ensemble parce qu'ils ont tous les deux, ou tous, un droit ? l'autod?termination. Je pense qu'il ne faut pas ?viter cette question-l?. Il faut franchement en parler parce qu'au plan de la l?gitimit?, les peuples autochtones, les nations autochtones sur son territoire, ils ont une bonne longeur d'avance sur les francophones du Qu?bec, les anglophones du Qu?bec, tous les Europ?ens et autres nationalit?s sur ce territoire."
{477} [Emphasis added.]

Yet, when Mr. Turp indicated that he personally does not share the views of the Bloc Qu?b?cois on Aboriginal peoples' right to self-determination, he appears to have been effectively muzzled from further comment. {478} Moreover, a Bloc Qu?b?cois press release then stated that "Mr. Turp made clear that he shares without ambiquity the position of the head of the Bloc Qu?b?cois, Mr. Lucien Bouchard, on governmental autonomy of Aboriginal peoples and on the right of Qu?bec to self-determination." {479} [Unofficial English translation.] This questionable response has elicited strong reaction from the media. {480}

Lack of discussion of substantive issues

In reference to the concerns expressed by other legal experts in Canada that do not favour Qu?bec secession, it would appear that the strategy of the PQ government is not to promote serious discussion of the issues raised. Rather, the PQ government prefers to dismiss any such questions as alarmist and unnecessarily raising unwarranted fears among Quebecers. In this regard, A. Dubuc describes the problem as follows:

"Dans le d?bat r?f?rendaire, il y a un tabou. Les Qu?b?cois, quelles que soient leur opinions politiques, se m?fient des th?ses voulant que la souverainet? puisse tourner mal ou co?ter cher. Ils associent ? la strat?gie de la peur tout ce qui touche aux questions d?plaisantes que sont la dette, le risque d'un braquage canadien, les co?ts de transition. Cela a men? ? une loi de silence o? l'on ?vite le plus possible d'aborder ces questions, par crainte d'?tre tax?s de marchands de peur." {481}[Emphasis added.]

Similarly, N. Webster notes that serious studies suggesting dire economic and other consequences for both Quebecers and other Canadians have been simply dismissed by Parizeau and others as alarmist. This has caused Webster to query whether any real discussion will enter the independence debate in Qu?bec:

"Can this continue to referendum time? Can the real world ? real costs, real consequences ? be kept away from the independence debate here in Quebec? Yes, it can. Maybe it will." {482}

A. Dubuc gives no more credibility to scenarios of the PQ that all will proceed well in the event of Qu?bec secession than to those in English Canada that predict the worst. However, he cautions against ignoring potential Canadian reactions against unilateral secession by Qu?bec:

"C'est le genre de probl?me que les dirigeants p?quistes, s'ils ?taient francs, devraient aborder de front. Nous savons tous que le principal obstacle ? la souverainet?, c'est la r?action canadienne. Il est donc normal de s'interesser aux points de vue canadiens parce qu'ils fournissent un ?clairage essentiel sur un processus qui ne pourra pas se faire sans eux. A-t-on d?j? vu des n?gotiateurs, peu importe le domaine, se lancer dans une bataille en faisant abstraction de l'autre? C'est exactement ce que fait l'?quipe de Jacques Parizeau.

Cette loi de silence nous m?ne ? un ?trange d?bat o? l'on demande aux Qu?b?cois de d?cider de leur avenir en se fermant les yeux et en se bouchant les oreilles."
{483} [Emphasis added.]

In February 1995, the PQ government initiated a number of regional commissions to consult the population over a six-week period on the future of Qu?bec. However, this process has to a large degree failed to create a free and open debate. As L. Gagnon explains, persons among the francophone majority in Qu?bec who did not share the views of sovereignists encountered a rough reception before the regional commissions:

"...il faut un solilde courage pour s'aventurer devant une commission r?gionale sur l'Avenir, si l'on est en dehors de la mouvance souverainiste sans par ailleurs avoir l'excuse d'?tre un Anglais ou un ethnique'. Je l'ai vu pendant deux semaines de tourn?e ? travers cinq r?gions diff?rentes: on est presque assur? de se faire huer par la foule et de se faire humilier intellectuellement par les commissaires."
{484} [Emphasis added.]

Further, there have been recriminations from certain commissioners from the Parti Action D?mocratique du Qu?bec that the PQ government was inappropriately exercising an indirect control over the regional commission reports, in order to mask or mitigate the views of those who testified with their worries or concerns. {485} P. Authier reports:

"[Action D?mocratique leader] Dumont said that the message from on high has been: don't be negative about sovereignty or the draft bill; don't talk about the fears Quebecers expressed; and don't report the level of interest in Action D?mocratique's option." {486}

In addition, it has recently been disclosed that a "Quebec research institute forced the provincial government to change a contract for studies on the impact of sovereignty because it feared interference by the Parti Qu?b?cois". {487} In regard to the director-general of the l'Institute national de la recherche scientifique, P. Authier reports:

"[The director] said the changes he ordered now mean a conclusion is a conclusion' and Quebec won't be able to refuse a study because it disagrees with its findings." {488}

Further, it would appear that opinions are encouraged from outside Qu?bec by the Parti Qu?b?cois and Bloc Qu?b?cois only if the views being expressed may be favourable or supportive to Qu?bec independence. Academic studies on issues pertaining to Qu?bec independence, published by the C.D. Howe Institute in Toronto, which have been unfavourable to Qu?bec secession have resulted in PQ government leaders criticizing the Institute rather than sticking to the merits of the subject matters discussed. {489} Also as W. Johnson observes, only certain countries are encouraged by the PQ government to speak out:

"Parizeau was...inconsistent, begging the French authorities to commit themselves in advance to Quebec's secession, but warning the Americans to steer clear." {490}

When the F?d?ration des communaut?s francophones et acadiennes (FCFA) du Canada urged Quebecers to vote NO in the upcoming referendum, Bloc Qu?b?cois Member of Parliament Suzanne Tremblay responded "Ne vous m?lez pas de nos affaires". {491} This intolerance {492} has in turn elicited the following comment from P. Gravel:

"Nier ce droit [de libre expression] aux uns ou aux autres en leur disant de ne pas se m?ler de nos affaires', comme vient de le faire madame Tremblay, tient de l'intol?rance ou de la peur...

On peut d'ailleurs se demander si sa r?action aurait ?t? la m?me dans le cas d'un appui ? la cause qu'elle defend. On ne l'a, en tout cas, pas entendu dire de se m?ler de leurs affaires ? un trentaine d'intellectuels fran?ais qui, en janvier dernier, lors du voyage de Jacques Parizeau a Paris, ont publiquement endoss? le projet de souverainet?." {493} [Emphasis added.]

Generally, in regard to the use of regional commissions to consult the Qu?bec population on a government decision that is virtually already taken, L. Dion questions its democratic nature:

"...loin d'?tre un paragon de d?mocratie, le proc?d? rel?ve d'une d?mocratie
entrav?e." {494}

Based on all of the above, it cannot be concluded that free and informed debate on Qu?bec secession is being encouraged in Qu?bec. While the James Bay Crees may at times choose to differ with views put forward by the business community or others in Canada, the Crees defend the right of these and other persons to speak freely and openly about their concerns. This is especially important in relation to the economic, social, political and other potential consequences of Qu?bec secession that may affect those within and outside Qu?bec. {495}

In addition, it is disturbing that the PQ government would use its position to incite the population of Qu?bec to take hostile positions towards the Crees. The Crees and other Aboriginal peoples in Qu?bec have every right to express their views on the denial of their human right to self-determination, without government harassment of any kind. In addition, there should not be a need to muzzle jurists in Qu?bec who take the view that the right of Aboriginal peoples to self-determination must be fully respected.

Finally, the lack of serious consideration given to opinions opposing Qu?bec secession or raising potential problems is most serious. Meaningful debate on the substantive issues would not only be of benefit to all parties concerned, but it is also essential to ensure a free and informed vote in any referendum. However, as A. Dubuc observes, the Parizeau government prefers to impose silence on those who raise specific concerns:

"Parce que leur position est fragile et parce que tout d?bat public sur ces questions ?conomiques emp?cherait les leaders p?quistes d'offrir aux citoyens inquiets les assurances qu'ils souhaitent, le gouvernement Parizeau a choisi le silence et tente de l'imposer aux autres." {496} [Emphasis added.]

While the PQ government has sought in different ways to discourage or muzzle others from raising their concerns about Qu?bec secession, the government has shown a serious lack of judgment in trying to feed its secession propaganda into schools. Richard Le Hir, head of the government's restructuring secretariat, sent in August various pro-sovereignty "newsletters" to 3,200 school principals in Qu?bec, urging them to "circulate" them.

This action has been severely criticized since the pamphlets summarize, in a one-sided and misleading fashion, the conclusions of certain studies on Qu?bec sovereignty commissioned for the government by Le Hir. {497} Although Premier Parizeau claims that the mailings were intended only for school administrators, the cover letter accompanying the pamphlets requested principals to distribute the documentation. {498} As J. Robinson, editorial page editor of The Gazette, provides:

"There are some things that should be simply off limits to the propagandists. Children and schools should be at the top of that list. It doesn't take a whole lot of decency and moral fibre to understand that schools should not be used as political battlefields, whether it be by federalists or separatists." {499}

However, it would appear that PQ government and Minister Le Hir are facing bigger problems, since the research contracts his department has issued are being formally investigated by Qu?bec's Auditor General for impropriety. {500} In addition, the PQ government and Le Hir are being accused of suppressing three research studies commissioned on the economic aspects of Qu?bec sovereignty, because the conclusions of these studies are contrary to the government's positions. {501} This latter controversy has evoked the following criticism from the editor of The Gazette:

"...the Parizeau government has tried to hide information from Quebecers about the costs of sovereignty. By burying reports showing that separation might not be as smooth as it claims, the Parizeau government has demonstrated not only intellectual dishonesty, but an appalling willingness to mislead Quebecers."
{502} [Emphasis added.]

3.5.2 Need to clarify basis for PQ government's unilateral
declaration of independence[Top] As recently as 1992, Parti Qu?b?cois spokespersons were claiming that the right of Quebecers to self- determination was the legal and legitimate basis for unilaterally establishing an independent Qu?bec state. In this regard, D. Cliche (now a PQ MNA and special advisor to Premier Jacques Parizeau on Aboriginal affairs) asserted in May 1992 that the external sovereignty of Qu?bec could be based on the right of self-determination of "Qu?beckers":

"Quebecers' right to self-determination, now more than ever, is a substantial underlying factor in Quebec's progress towards sovereignty. There can be no doubt as to the legitimacy and legality of this right.

When Quebecers exercise their right to self-determination in a referendum, it will apply to the existing territory of Quebec, which shall then form the territory of a sovereign Quebec state." {503} [Emphasis added.]

A month earlier, the same position was taken by Cliche but it was based on a right to self- determination of "Quebec". {504}

In September 1992, five eminent international experts commissioned by the National Assembly of Qu?bec concluded in their study that neither the principle of equal rights of peoples nor the right of self-determination could be invoked by Quebecers to claim a right of secession:

"Au plan juridique, l'accession ?ventuelle ? la souverainet? du Qu?bec ne peut ?tre fond?e sur le principe de l'?galit? de droits des peuples et leur droit ? disposer d'eux-m?mes qui n'entraine vocation ? l'ind?pendence que pour les peuples coloniaux ou pour ceux dont le territoire fait l'objet d'une occupation ?trang?re."
{505} [Emphasis added.]

Since the time that the five experts' conclusions became publicly known, it would appear that the PQ leaders and at least some of their party members or supporters are no longer basing Qu?bec's accession to independence on any legal right to secede. First, the PQ government's original draft Bill entitled, An Act respecting the sovereignty of Qu?bec, did not indicate that the proposed unilateral declaration of independence (following an affirmative vote in a referendum) would be based on any right to self- determination.

Second, although the Act respecting the future of Qu?bec refers to "self-determination" in a sub-heading to its first provision, {506} PQ government leaders are not asserting publicly that Qu?bec has a legal right to secede. As M. Venne describes:

"...le Qu?bec aurait du mal ? se qualifier en invoquant le droit ? l'autod?termination. Le droit des peuples ? disposer d'eux-m?mes n'entraine vocation ? l'ind?pendance que pour les peuples coloniaux ou ceux dont le territoire fait l'objet d'une occupation ?trang?re.

D'ailleurs, le Parti qu?becois ne fait plus r?f?rence dans sa propagande ? ce droit ? l'autod?termination. Il propose une d?marche qui tire sa legitimit? populaire du r?f?rendum." {507} [Emphasis added.]

Third, when asked by the Ligue des droits et libert?s how the right of self-determination of the eleven Aboriginal peoples and of the Qu?bec people can be harmonized in a democratic manner, D. Cliche categorically responded in an article that Qu?bec is not basing its accession to independence on a right of self-determination of Quebecers:

"Contrairement ? ce que plusieurs croient, le processus d'accession ? la souverainet? du Qu?bec ne fait donc pas appel au droit ? l'autod?termination du peuple qu?b?cois, mais plut?t ? celui des citoyens de la province du Qu?bec de demander ? la communaut? internationale de reconna?tre le Qu?bec comme pays souverain, ? la suite d'un r?f?rendum." {508} [Emphasis added.]

It is critical that Canadian citizens and members of the international community, as well as voters in the upcoming Qu?bec referendum, are properly informed of the different legal and political considerations pertaining to the secession of Qu?bec from Canada. As this Study confirms, Quebecers have no legal right to secede under international and Canadian constitutional law. Further, as T. Franck indicates: "The probable redefinition of self-determination does recognize an international legal right, but it is not to secession but to democracy." {509} Currently, Quebecers enjoy a high degree of self-determination, including democratic governance, within Canada. Therefore, it would be important for voters in Qu?bec to be aware that an affirmative vote in a referendum does not per se entitle Qu?bec as a province to secede, whether based on international or Canadian law or based on arguments of "legitimacy" or democracy.

The PQ government appears to be no longer relying on an international right of self-determination to claim a legal right to secession from Canada. Rather, it would appear that the sole basis for the government's actions to secede rests on achieving "effective control" of the whole of the present territory within the province of Qu?bec. As indicated in this Study, effective control is not based on any legal right but on an act of "revolution". {510} The notion of effective control is equally open under international law to other peoples or governments in the Qu?bec or Canadian context as it is to the government of Qu?bec. {511}

Since many Aboriginal peoples in Qu?bec, among others, oppose being a part of an independent Qu?bec state, the battle for effective control of their territories could inadvertently or advertently lead to violence. Should a secessionist Qu?bec government wish to secure effective control, the sole avenue open to it in order to overcome resistance and opposition might well be the use of force. {512} In the view of this Study, such use of force to deny Aboriginal peoples their right to determine their own future would be illegal.

It is essential that voters in Qu?bec are aware of the limitations, as well as the possible conflicts or violence, that a PQ government strategy of "effective control" can entail. In view of the serious and far-reaching consequences that potentially accompany any future actions to secure effective control, this aspect will be examined further under the heading below.

Footnotes

{236} See also s. 26: "The negotiations relating to the conclusions of the partnership treaty must not extend beyond October 30, 1996, unless the National Assembly decides otherwise. [new para.] The proclamation of sovereignty may be made as soon as the partnership treaty has been approved by the National Assembly or as soon as the latter, after requesting the opinion of the orientation and supervision committee, has concluded that the negotiations have proved fruitless." [Emphasis added.]

{237} ?. Schwimmer, avec la collaboration de M. Chartier, Le Syndrome des Plaines d'Abraham (Montr?al: Les ?ditions du Bor?al, 1995), at 182. Unofficial English translation: "The rights [of the Aboriginal peoples] guaranteed by Canada are inherent rights...According to the Constitution and international law, the consent of the Aboriginal peoples is necessary for any modification of the political and constitutional status of Qu?bec, to the extent that their rights are affected." [Emphasis added.]

{238} See for example discussion under heading 4, infra, in regard to "Effective Control and the Use of Force".

{239} See sub-heading 4.1 infra, where the notion of a secessionist group establishing "effective control" of a territory is characterized in terms of a "revolution".

{240} Bertrand v. A.G. Qu?bec, Qu?bec Superior Court, Qu?bec city, No. 200-05-002117-955, decision rendered on September 8, 1995 by Mr. Justice Robert Lesage, at 44. Unofficial English translation: "...Bill no. 1, entitled ACT RESPECTING THE FUTURE OF QU?BEC, introduced by Premier Jacques Parizeau in the National Assembly on September 7, 1995, seeking to confer on the National Assembly of Qu?bec the power to proclaim that Qu?bec become a sovereign country without having to follow the amending procedure in Part V of the Constitution Act, 1982, constitutes a serious threat to the rights and freedoms of the Plaintiff that are guaranteed by the Canadian Charter of Rights and Freedoms..."
[Emphasis added.]

{241} A dissenting view is found in D. Turp, "Quebec's Democratic Right to Self-Determination" in S. Hartt et al., (ed.), Tangled Web: Legal Aspects of Deconfederation (Toronto: Renouf Publishing Co. Ltd./C.D. Howe Institute, 1992) 99, at 104, where it is suggested that a non-legal constitutional convention exists in Canada in regard to a right to secede.

{242} See, for example, G.-A. Beaudoin, "? quelques mois du r?f?rendum: de la rigueur dans les termes", La Presse, March 24, 1995, at B3, where this Qu?bec jurist notes that among constitutional lawyers there is a consensus that a constitutional amendment would be required for Qu?bec to secede. Similarly, see M. Lebel, "La l?gitimit? du projet souverainiste ne peut se fonder sur le droit", La Presse, August 30, 1995, at A7.

{243} See Texas v. White, (1868) 74 U.S. (7 Wall.) 700 at 724-725, where the U.S. Supreme Court declares that "the Constitution, in all its provisions, looks to an indestructible union, composed of indestructible states". Of course, secession of a province or state is always possible if the requisite consents are obtained in accordance with the Constitution of the federation concerned

{244} J. Woehrling, "L'?volution et le r?am?nagement des rapports entre le Qu?bec et le Canada anglais" in J.-Y. J.-Y. Morin & J. Woehrling, Demain, le Qu?bec...[:] Choix politiques et constitutionnels d'un pays en devenir, note 19, 1662, supra, at 122. Unofficial English translation: "...Canada could despite everything refuse to recognize the unilateral secession of Qu?bec, which evidently would remain illegal under Canadian constitutional law." See also J. Woehrling, "Les aspects juridiques et politiques d'une ?ventuelle accession du Qu?bec ? la souverainet?" in Choix [:] s?rie Qu?bec-Canada, L'accession du Qu?bec ? la souverainet?: aspects juridiques" (Montreal: Institute for Research on Public Policy, June 1995), vol. 1, no. 12, 25 at 26-28, where the author elaborates on his view that a constitutional amendment approving Qu?bec secession would entail the general amending formula (s. 38 of the Constitution Act, 1982) and not unanimous consent.

{245} P. Hogg, Constitutional Law of Canada (Toronto: Carswell, 1992), vol. 1, at 5-32.

{246} P. Monahan, Cooler Heads Shall Prevail: Assessing the Costs and Consequences of Quebec Separation, note 114, 1662, supra, at 9. At 10, the author states: "It goes without saying that a UDI by Qu?bec would be wholly illegal and unconstitutional from the point of view of existing Canadian law...No province can secede absent consent of Parliament, all the other provinces, and aboriginal peoples in Qu?bec." For a discussion as to why Qu?bec secession would require unanimous consent under Canada's Constitution, see P. Monahan, "La s?cession du Qu?bec: consid?rations juridiques et politiques" in Choix [:] s?rie Qu?bec-Canada, L'accession du Qu?bec ? la souverainet?: aspects juridiques" (Montreal: Institute for Research on Public Policy, June 1995), vol. 1, no. 12, 4 at 7-9.

{247} J. Brossard, L'accession ? la souverainet? et le cas du Qu?bec, note 65, 1662, supra, at 308. Unofficial English translation: "...this declaration would be illegal in regard to the internal law and the federal authorities could invoke other legal measures with a view to thwart the realization by Quebec of its accession to sovereignty."

{248} G. Bertrand, "L'autre fa?on de proposer une entente Qu?bec-Canada", Le Soleil, January 16, 1995, at A-7. Unofficial English translation: "...the regime of law is paramount in a democratic society like ours; [new para.]...the withdrawal of a province from the Canadian federation would be considered as the amendment of amendments' to the present Constitution necessitating, under the circumstances, unanimous agreement of the other provinces, of the federal Parliament and the Senate."

As a result of the absence of any response from the PQ government to his concerns, Bertrand sought from Qu?bec's Superior Court a number of declaratory judgments, as well as interlocutory and permanent injunctions to stop the referendum process which he views as illegal, unconstitutional and immoral, as well as a "constitutional coup d'?tat": see Bertrand v. A.G. Qu?bec et al., Qu?bec Superior Court, Qu?bec city, No. 200-05-002117-955, decision rendered on September 8, 1995 by Mr. Justice Robert Lesage, at 27; A. Bellemare, "Guy Bertrand demande une injonction pour emp?cher la tenue du r?f?rendum", La Presse, August 12, 1995, at A20; P. Authier, "Former separatist goes to court in bid to block referendum", The Gazette, August 12, 1995, at A14. As Lesage J. underlines at p. 39, the plaintiff Bertrand was not seeking to block Quebecers from voting in a consultative referendum. However, he was seeking to prevent the holding of an illegal referendum where an affirmative result would be taken by the PQ government as a mandate to establish an independent Qu?bec state.

In the Bertrand case, the government assigned a substantial legal team to defend the government's actions in regard to the referendum and its threat of a possible unilateral declaration of independence, even though the Qu?bec government had publicly claimed it would ignore Bertrand's initial letter outlining his concerns: see K. Gagnon, "Le gouvernement du Qu?bec ignore la mise en demeure de l'avocat Guy Bertrand", La Presse, August 10, 1995, at B1. Subsequently, when the Qu?bec government saw that Mr. Justice Lesage was not about to dismiss Bertrand's case as unfounded on the merits, the government withdrew its lawyers from the case arguing that it did not wish to recognize that the courts had any jurisdiction in this matter.

{249} Bertrand v. A.G. Qu?bec, Qu?bec Superior Court, Qu?bec city, No. 200-05-002117-955, decision rendered on September 8, 1995 by Mr. Justice Robert Lesage, at 37. Original French text: "La d?marche manifestement ill?gale du gouvernement...". The PQ government has apparently decided not to appeal this ruling.

{250} Id. at 38.

{251} Id. at 42, where Lesage J. indicates that a declaratory judgment can have an effect also and can even be more effective than an injunction. On the same page, it is stated that such a declaration does not intrude on the functioning of executive or legislative power, but permits governments to imagine ways of satisfying the judicial declaration so as to contribute to maintaining a balance among Canada's democratic institutions. However, to date, the PQ government is choosing to proceed with its process linked to an illegal and unconstitutional UDI.

{252} Id. at 38.

{253} In this context, Me Brun was referred by Premier Parizeau to speak to the Qu?bec press in response to G. Bertrand's statements in January 1995.

{254} G. Normand, "Garon invite Guy Bertrand ? se rallier", La Presse, January 17, 1995, at B1. Unofficial English translation: "We all know that if we fix our eyes on internal Canadian constitutional law, it is certain that [a declaration of sovereignty] is illegal because the act is situated on the fringe. Canadian constitutional law does not contemplate the secession of a province. The Supreme Court of Canada would have no choice." [Emphasis added.]

{255} Id. Unofficial English translation: "The question of legality or illegality, one must look at this from the point of view of another order, of a superior legal order which is the international legal order and not federal Canadian law. [new para.] The argument of illegality...[i]t seems to me that it is totally irrelevant." [Emphasis added.]

{256} See I. Brownlie, Principles of Public International Law, note 203, 1662, supra, at 32-37, where different theories as to the relation of municipal and international law are described. For example, according to the "dualist" theory, "neither legal order has the power to create or alter rules of the other. When municipal law provides that international law applies in whole or in part within the jurisdiction, this is merely an exercise of the authority of municipal law, an adoption or transformation of the rules of international law. In cases of a conflict between international law and municipal law the dualist would assume that a municipal court would apply municipal law" (at 33). [Emphasis added.] In any event, in relation to Qu?bec secession, there would be no conflict between international law and Canadian law, since under international law Qu?bec has no legal right to secede.

Another theory described by Brownlie (at 35) "challenges the premise adopted by monists and dualists that international and municipal law have a common field of operation. The two systems do not come into conflict as systems since they work in different spheres...However, there may be a conflict of obligations, an inability of the state on the domestic plane to act in the manner required by international law: the consequence of this will not be the invalidity of the internal law but the responsibility of the state on the international plane." [Emphasis added.] Again, under this theory, international law would still not void Canadian constitutional law or render it irrelevant. However, in the present case of Qu?bec secession, there exists no conflict of obligations owed by Canada to Qu?becers under Canadian and international law.

{257} In Canada, Canadian law is not totally separate from international law and the latter may, in some cases, affect the interpretation of internal Canadian law. See A.F. Bayefsky, International Human Rights Law [:] Use in Canadian Charter of Rights and Freedoms Litigation (Toronto: Butterworths, 1992), at 20, where it is provided: "There is a presumption at common law that Parliament and the legislatures do not intend to act in breach of international law, either customary or conventional. Concomitantly, there is a principle of construction that Canadian law should be interpreted, as far as possible, consistently with international law."

See also Bertrand v. A.G. Qu?bec, Qu?bec Superior Court, Qu?bec city, No. 200-05-002117-955, decision rendered on September 8, 1995 by Mr. Justice Robert Lesage, at 6, where it said that if customary international law can be pleaded, it has no executory force, unless ncorporated in the internal law of a state.

{258} L. Bucheit, Secession [:] The Legitimacy of Self-Determination, note 29, 1662, supra, at 94.

{259} M. Shaw, International Law, 3rd ed. (Cambridge: Grotius Publications, 1994), at 700.

{260} W. Webb, The International Legal Aspects of the Lithuanian Secession, (1991) 17 J. of Legislation 309 at 328. To substantiate his position, the author states: "First, international law has as a fundamental tenet the respect for the sovereignty of the state. In this sense, the USSR is acting legally in its attempts to keep the Soviet Union together. Second, under international law, the Soviet Union is the arbiter of the legality of its actions, since there is no rule against rebellion in international law,' and thus the law governing the Soviet Union's attempts to quell the revolt are governed by domestic law."

{261} J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 68. Unofficial English translation: "This is happily not the case, neither in Canada, nor in any other civilized country since the end of the absolute monarchies. In the face of a request for separation, the federal government should probably respond that it can only act within the framework of the powers conferred to it by the Constitution of Canada. The latter does not contemplate the separation of a province...Therefore, to act in an incontestable manner in law, one must commence by modifying the Constitution..."

{262} E.J. Arnett, "The law is on Canada's side, not the separatists'", Globe and Mail, January 3, 1995, at A17.

{263} G. Normand, "Garon invite Guy Bertrand ? se rallier", La Presse, January 17, 1995, at B1. Unofficial English translation: "The day after the referendum, following a victory of the YES, it is essentially the effectivity of matters which will be at play, from the point of view of international law. The elements that are going to be relied on strongly, such as international recognition, that which will be said by the superpowers, the U.N. What could be said by the Supreme Court of Canada is of very little relevance." [Emphasis added.]

{264} See discussion of "effective control" under heading 4 infra.

{265} M. Shaw, International Law, 3rd ed. (Cambridge: Grotius Publications, 1994), at 152

{266} S. Scott, "Autod?termination, s?cession, division, l?galit?: observations" in Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, Les Attributs d'un Qu?bec souverain (Qu?bec: Biblioth?que nationale du Qu?bec, 1992), Expos?s et ?tudes, vol. 1, 463, at 471. Unofficial English translation: "It's the Constitution, it alone, which creates the provinces, and which attributes to them their powers. A province has not any existence, any right, nor any power, beyond nor outside of the Constitution. The population of a province has the right, but only the right, to govern it within the Constitution, in respect of the Constitution, and in the exercise of the powers attributed by the Constitution. No more no less." [Emphasis in original.]

{267} J. Woehrling, "L'?volution constitutionnelle du Canada et du Qu?bec de 1867 ? nos jours" in J.-Y. Morin & J. Woehrling, Les Constitutions du Canada et du Qu?bec [:] du r?gime fran?ais ? nos jours (Montr?al: ?ditions Th?mis, 1992) 123 at 538.

{268} J.-M. Arbour et al., "Le droit international admet la s?cession du Qu?bec", Le Devoir, August 18, 1995, at A9. Arbour takes this position along with five other professors in Qu?bec: A. Lajoie, P. Mackay, Guy Tremblay, J.-Y. Morin, & F. Cr?peau. The arguments made by Arbour et al. are expressly countered and rejected in J.-P. Derriennic, "Le droit international admet la s?cession, il ne la facilite pas" in Le Devoir, September 5, 1995, at A11.

For arguments in favour of the existence of a constitutional convention, see also D. Turp, "Le droit de s?cession: l'expression du principe d?mocratique" in A.-G. Gagnon et F. Rocher, (ed.), R?pliques aux d?tracteurs de la souverainet? du Qu?bec, note 210, supra, at 51; C. Beauchamp, De l'existence d'une convention constitutionnelle reconnaissant le droit du Qu?bec ? l'autod?termination, (1992) 6 Revue des ?tudiants de l'Universit? Laval 55; Assembl?e nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, 7 Nov. 1991, No. 8, at CEAS-209-212 (A. Patry); and 26 Nov. 1991, No. 10, at CEAS-270 (H. Brun).

{269} As will be discussed below, tacit conduct, such as failure to expressly challenge or disavow the holding of a referendum by Qu?bec, does not in itself satisfy the criteria required for establishing a constitutional convention.

{270} See An Act to establish the Commission on the Political and Constitutional Future of Qu?bec (Bill 90), S.Q. 1990, c. 34, assented to on September 4, 1990.

{271} See An Act respecting the process for determining the political and constitutional future of Qu?bec (Bill 150), S.Q. 1991, c. 34, assented to on June 20, 1991.

{272} Resolution 244 of the Progressive Conservative Party of Canada National Convention, August 9, 1991. See M.-C. Lortie, "Autod?termination: l'oeuvre de l'aile Bouchard", La Presse, August 10, 1991, at A12.

{273} See, for example, D. Turp, "Le droit de s?cession: l'expression du principe d?mocratique" in A.-G. Gagnon et F. Rocher, (ed.), R?pliques aux d?tracteurs de la souverainet? du Qu?bec, note 210, supra, at 62-63, nn. 9-10, where the author refers to former Prime Minister Trudeau as well as the statements of various politicians in Qu?bec. It is difficult to see how the assertion of a right to self-determination of Qu?bec by Qu?bec politicians themselves would establish any constitutional convention that would bind other actors in Canada.

{274} A. Cassese, Self-Determination of Peoples: A Legal Appraisal (Cambridge: Cambridge University Press, 1995), at 252-253.

{275} Cases where conventions have not been enforced by the courts include: Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, 909; Re Disallowance and Reservation of Provincial Legislation, [1938] S.C.R. 71; Currie v. MacDonald, (1949) 29 Nfld. & P.E.I.R. 294 (Nfld. C.A.); Madzimbamuto v. Lardner-Burke, [1969] 1 A.C. 645 (P.C. Rhodesia). See P. Hogg, Constitutional Law of Canada, note 245, 1662, supra, vol. 1, at 1-16, n. 80. See also Bertrand v. A.G. Qu?bec, Qu?bec Superior Court, Qu?bec city, No. 200-05-002117-955, decision rendered on September 8, 1995 by Mr. Justice Robert Lesage, at 31, where it said that constitutional conventions are not rules that are susceptible of sanction by the courts.

{276} P. Hogg, Constitutional Law of Canada, note 245, 1662, supra, vol. 1, at 1-15. See also H. Brun & G. Tremblay, Droit constitutionnel, 2e ?d. (Cowansville, Qu?bec: Les ?ditions Yvon Blais, 1990), at 45-46.

{277} Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 at 888 et seq.; see also Re Objection by Quebec to Resolution to Amend the Constitution, [1982] 2 S.C.R. 793 at 815 et seq.

{278} P. Monahan, Cooler Heads Shall Prevail: Assessing the Costs and Consequences of Quebec Separation, note 114, 1662, supra, at 9

{279} See comments of MNA Henri-Fran?ois Gautrin in Assembl?e Nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, 7 Nov. 1991, No. 8, at CEAS-209

{280} H. Brun & G. Tremblay, Droit constitutionnel, 2e ?d. (Cowansville, Qu?bec: Les ?ditions Yvon Blais, 1990), at 46.

{281} A. Patry has argued that the federal government has impliedly recognized Quebec's right to self-determination (including secession) because it took part in the May 1980 referendum. See Patry's comments in Assembl?e Nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, 7 Nov. 1991, No. 8, at CEAS-209.

{282} See comments of Stephen Scott in Assembl?e Nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, 26 Nov. 1991, No. 10, at CEAS-260 explaining why the referendum law was not disavowed.

{283} See also N. Finkelstein & G. Vegh, The Separation of Quebec and the Constitution of Canada (North York, Ontario: York University Centre for Public Law and Public Policy, 1992), at 25: "Although any conclusion in this regard is qualified by the inherent uncertainty of the doctrine, there are reasonable grounds to argue that, in light of the practice since patriation, a constitutional convention of Native consent has been established in relation to the amendment of the sections concerning Aboriginal peoples." See also s. 35.1 of the Constitution Act, 1982 (convening a constitutional conference and inviting Aboriginal peoples to participate, should amendments be proposed to constitutitional provisions referring to them); and the Draft Legal Text of the Charlottetown Accord which proposed adding s. 45.1 to the Constitution Act, 1982, so that the substantial consent of Aboriginal peoples would be required before an amendment be made to the Constitution that "directly refer to, or that amends a provision that directly refers to, one or more of the Aboriginal peoples of Canada, or their governments". See also P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, at 250-253.

In 1987, Aboriginal peoples did not participate in the drafting of the Meech Lake Accord, which proposed modifications to Canada's Constitution as set out in the draft Constitutional Amendment, 1987. However, in the view of the federal and provincial governments, the reason for the absence of Aboriginal participation in the negotiations was that the Accord had no impact on the rights and status of Aboriginal peoples. To reinforce their views on this matter, a non-derogation clause (s. 16) was added to the Meech Lake constitutional amendments. This new clause provided that the proposed interpretation clause referring to Qu?bec as a distinct society (s. 2) had no affect on the existing provisions in Canada's Constitution pertaining to Aboriginal peoples' rights. Consequently, it cannot be said that government practice in regard to Meech Lake derogated from the notion of a constitutional convention in favour of Aboriginal peoples as described above.

{284} Examples of important constitutional obligations in favour of Aboriginal peoples include the Royal Proclamation of 1763, the Rupert's Land and North-Western Territory Order, 1870, and the terms and conditions that accompany this Order.

{285} Even if all of the constitutional rights and obligations in favour of Aboriginal peoples were to be reproduced in the Constitution of an independent Qu?bec, the interpretation of those rights and obligations would significantly differ from that under Canada's Constitution. See discussion under heading 12 infra.

{286} M. Venne, "Ottawa d?fendra les autochtones dans un Qu?bec souverain", Le Devoir, May 18, 1995, at A1; R. S?guin, "Irwin reassures Quebec natives", Globe and Mail, May 18, 1995, at A1; E. Thompson & P. Authier, "Aboriginals entitled to split: minister", The Gazette, Montreal, May 18, 1994, at A1.

{287} J. Bryden, "It's all just words: Quebec won't go, Chr?tien affirms", The Gazette, May 20, 1994, at B1: "As long as the Canadian Constitution is there, [Irwin] must protect the Indians. That's his role".

{288} See J. Dion, "Chr?tien refuse de s'engager ? reconna?tre un OUI", Le Devoir, September 12, 1995, at A6. As leader of the government of Canada, the Prime Minister took this position even though federal Minister Lucienne Robillard has indicated that Ottawa will respect the vote in Qu?bec. See T. Wills, "Robillard says Ottawa would accept slim YES vote", The Gazette, Montreal, September 13, 1995, at A8.

{289} J.-P. Derriennic, "Le droit international admet la s?cession, il ne la facilite pas" in Le Devoir, September 5, 1995, at A11. Unofficial English translation: "...if it is the precedent of 1980 which is the basis of the legitimacy of the process in 1995, the latter should respect the same principles: separation by mutual consent was the most correct way to act towards our fellow Canadian citizens; the double referendum was the best way to protect the rights and interests of Quebecers themselves." [Emphasis added.]

{290} 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 425. Unofficial English translation: "...the Qu?bec people effectively exercise its right to self-determination within the framework of the Canadian whole and it is not legally founded to invoke [the right] in order to justify [Qu?bec's] eventual accession to independence."

{291} "Pierre Valli?res milite d?sormais pour l'ind?pendance de la Bosnie...", La Presse, September 3, 1995, at A1. Unofficial English translation: "...this project does not make much sense. Why seek the independence of Qu?bec if it is to become Canada number 2? [new para.]...Where is the project of society? Where is the interest in realizing this kind of independance? To speak French? But we already speak French!"

{292} G. Marchildon & E. Maxwell, Quebec's Right of Secession Under Canadian and International Law, note 110, 1662, supra, at 618.

{293} Ibid.

{294} M. Adam, "Parizeau amalgame abusivement sa cause ? celle des ind?pendantistes am?ricains", La Presse, March 25, 1995, at B2. Unofficial English translation: "...Qu?bec is a society free to make choices in a country where it possesses and exercises the right to self-determination. This is why sovereignists cannot speak of oppression to justify their secessionist project."

{295} E.J. Arnett, "The law is on Canada's side, not the separatists'", Globe and Mail, January 3, 1995, at A17.

{296} J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 51-52. Unofficial English translation: "To put Quebecers in the category of peoples that need an independent State to ensure their security, it would be necessary, as in the case of equality, to play with words. In expressions such as cultural security' or linguistic security', the word security' has a meaning that is very far from that which it has when one speaks of the dangers that had recently threatened the Lithuanians or Slovenes." [Emphasis added.]

{297} L. Gagnon, "Language is no longer the issue: control over immigration is", Globe and Mail, January 7, 1995, at D3. See also J.-C. Rondeau, "L'avenir du fran?ais au Qu?bec reli? ? sa capacit? de prendre le virage informatique", La Presse, April 27, 1995, at B3, where the author (former head of the Office de la langue fran?aise) highlights that studies have shown that the French language will always be threatened in North America regardless of what political status Qu?bec may have. Rather, the challenges faced by the French language are said to relate to technological developments, globalization of markets and demographic evolution in Qu?bec.

{298} F. Cloutier, "R?f?rendum sur la souverainet?: un pi?ge qui risque de se refermer sur le Qu?bec", La Presse, February 1, 1995, at B3. Unoffical English translation: "...if Quebecers were persecuted as much of the populations on the planet, if they would risk prison for wrongful opinion, if their fundamental freedoms were compromised, if their economic and social development turned out to be impossible, if they were dominated to the detriment of their culture and language, then it would be necessary to achieve independence whatever the price and by any means. This would be a question of survival, honour and dignity. Who can seriously claim that this is the case?" [Emphasis added.]

{299} K. Valaskakis & A. Fournier, Le pi?ge de l'ind?pendance [:] Le Qu?bec sera-t-il affaibli par la souverainet?? (Montr?al: L'?tincelle ?diteur, 1995) at 51. Unofficial English translation: "A comparison of modern federated states allows us to conclude that the Canadian federation is probably the most decentralized in the world."

{300} S. Dion, "La loi constitutionnelle de 1982 n'est pas le monstre' que certains disent", La Presse, February 7, 1995, at B3. Unofficial English translation: "It is time to explain to Quebecers certain realities. No, this Constitution is not a centralizing yoke. In fact, the Canadian federation is the most decentralized that there is, ahead of Switzerland."

For a criticism of Dion and his comments on decentralization, see M. Seymour, "La f?d?ration d?centralis?e", Le Devoir, March 27, 1995, at A7; R. Pelletier, "Un f?d?ralisme de tutelle", Le Devoir, March 27, 1995, at A7.

{301} Id. In regard to the decentralized nature of the Canadian federation, see also S. Dion, "L'autonomie du Qu?bec est consid?rable", La Presse, March 3, 1995, at A9.

{302} D. Cameron, "Solemn declarations [:] American colonists had far more to complain about than separatists do", The Gazette, Montreal, December 22, 1994, at B3.

{303} J. H?bert, "Wet blanket [:] Claude Castonguay has a lot of nerve to complain of humiliation', H?bert says", The Gazette, Montreal, July 30, 1994, at B5. See also D. Johnson, "The Case for a United Canada", Foreign Policy, Summer 1995, No. 99, 78 at 83: "Since the election of Trudeau [in 1968], Quebecers have occupied the office of prime minister of Canada for all but one of the last 27 years."

{304} T. Wills & P. Wells, " Vive le Canada': Clinton", The Gazette, Montreal, February 24, 1995, at A1-A2.

{305} See, for example, the provincial powers in ss. 92 (list of provincial legislative powers), s. 92A (non-renewable natural resources, forestry resources and electrical energy), s. 93 (education), and s. 95 (agriculture and immigration) of the Constitution Act, 1867.

{306} J. Bourgault, S. Dion & J. Gow, "L'?volution du r?le des organismes centraux des gouvernements du Qu?bec, 1960-1994" in A.-G. Gagnon, Qu?bec: ?tat et soci?t?, note 39, supra, at 237.

{307} P. O'Neill, "La discrimination ? rebours' menace les anglophones", Le Devoir, February 13, 1995, at A1.

{308} Id.

{309} M. Adam, "Quand Bouchard explique pourquoi et pour qui il faut un Qu?bec souverain", La Presse, October 12, 1994, at B2. Unofficial English translation: "...the survival of French Qu?bec being an accomplished fact and apparently irreversible..., the sovereignists must justify their project another way."

{310} Leader of the Opposition is Bloc Qu?b?cois leader, Lucien Bouchard

{311} The speaker of the Senate is Gildas Molgat.

{312} The speaker of the House of Commons is Gilbert Parent.

{313} "Les gouverneurs g?n?raux depuis la Conf?d?ration", La Presse, February 9, 1995, at A2. The four francophone Governor Generals include: Rom?o LeBlanc (1995 ? ); Jeanne Sauv? (1984 ? 1990); Jules L?ger (1974 ? 1979); and Georges Vanier (1959 ? 1967). The current Governor General LeBlanc is an Acadian from New Brunswick.

{314} Supreme Court Act, R.S.C. 1985, c. S-26, s. 6. See also N. Finkelstein, G. Vegh & C. Joly, Does Qu?bec Have a Right to Secede at International Law?, (1995) 74 Can. Bar Rev. 225 at 255; H.P. Glenn, "Culture and the Common Law" in H.P. Glenn & M. Ouellette, (eds.), Culture, Justice and Law\ La culture, la justice et le droit 1992, note 39, supra, at 72: "At the level of the Supreme Court the majority of the Court composed of common law judges has been in large part supportive of the resurgence of civil law authorities to govern Quebec private law cases and the use of civil law is now being extended to private law cases from the common law provinces."

{315} K. Valaskakis & A. Fournier, Le pi?ge de l'ind?pendance [:] Le Qu?bec sera-t-il affaibli par la souverainet??, note 299, 1662, supra, at 179. The authors indicate that this percentage exceeds the proportion of francophones in Canada. Moreover, in Ottawa, the percentage of francophones in the federal civil service is around 36%.

{316} Currently, the Privy Council Clerk is Jocelyne Bourgon.

{317} In contrast, the number of anglophones in the Qu?bec civil service suggests a serious problem of underrepresentation. See W. Johnson, A Canadian Myth: Quebec, Between Canada and the Illusion of Utopia (Montreal/Toronto: Robert Davies Publishing, 1994), at 389: "The repudiation of anglos is expressed by their virtual exclusion from Quebec's public service and from Crown Corporations. People whose first language is English account for 0.7 per cent of Quebec civil servants." [Emphasis added.] About 12.3% of the Qu?bec population use English as a first language in the home.

See also J. Robinson, "Quebec should seriously investigate reverse-discrimination problem", The Gazette, Montreal, March 16, 1995, at B2: "By far the worst [record] is [that] of the Quebec government. About 97 per cent of Quebec's 57,000 full-time civil servants are white francophones. Natives, anglophones and members of cultural communities make up 18 per cent of the population but make up only 3 per cent of the civil service." [Emphasis added.]

{318} The failure of Qu?bec and Canadian governments to inform Aboriginal peoples and obtain their consent to the 1898 and 1912 territorial transfers is described in Grand Council of the Crees (of Quebec), Submission: Status and Rights of the James Bay Crees in the Context of Quebec's Secession from Canada (Submission to the U.N. Commission on Human Rights, February 1992), at 88 et seq.

{319} J. Larose, La Souverainet? rampante (Montr?al: Bor?al, 1994), at 10.

{320} Id. at 14. Unofficial English translation: "I would be satisfied if it is understood...that not only is Qu?bec nationalism not incompatible with Canadian federalism, that which is evident, but also that sovereignty, by its entry in the history which it implicates, would be a threat to the identity of Quebecers, such at least as the nationalists present it to us."

{321} W. Thorsell, "Our Constitution is ? and was meant to be ? a work in progress", Globe and Mail, January 28, 1995, at D6. See also J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 122, where it is suggested that Qu?bec nationalism and Canadian nationalism can co-exist as long as neither imposes its view as the sole legitimate view in Canada. For a contrary view regarding Qu?bec nationalism, see generally W. Johnson, A Canadian Myth: Quebec, Between Canada and the Illusion of Utopia (Montreal/Toronto: Robert Davies Publishing, 1994).

In regard to allegiances and nationalism, see J. Webber, Reimagining Canada [:] Language, Culture, Community, and the Canadian Constitution (Kingston/Montreal: McGill - Queen's University Press, 1994), at 227: "Allegiance is not a one-dimensional, all absorbing trait...A Mohawk need not choose between being a Mohawk and being an Iroquois. A Quebecer need not choose between being a Quebecer and being a Canadian. Before we assume that our allegiances conflict ? or use a language of nationalism that forces conflict ? we should first consider the substance of the relationship to see whether reconciliation is possible."

{322} P. Authier, "Bouchard arrogant, Johnson says", The Gazette, Montreal, August 17, 1995, at A1.

{323} For diverse views on the Meech Lake Accord, see generally M. Behiels, (ed.), The Meech Lake Primer: Conflicting Views of the 1987 Constitutional Accord (Ottawa: University of Ottawa Press, 1989).

{324} See generally K. McRoberts & P. Monahan, (eds.), The Charlottetown Accord, the Referendum and the Future of Canada (Toronto: Univ. of Toronto Press, 1993).

{325} J. Woehrling, "L'?volution et le r?am?nagement des rapports entre le Qu?bec et le Canada anglais" in J.-Y. Morin & J. Woehrling, Demain, le Qu?bec...[:] Choix politiques et constitutionnels d'un pays en devenir, note 19, 1662, supra, at 128-129. Unofficial English translation: "It seems to us however that the response must be more nuanced, considering that, despite the failure of the Meech Lake Accord , Qu?bec did not put an end to constitutional negotiations with the rest of Canada. On the contrary, Qu?bec Premier, M. Robert Bourassa, signed the Charlottetown Accord of August 28, 1992 and, if the latter became null and void, it is because the Qu?bec people, as well as the population of five other provinces had majoritarily rejected during the referendum of October 26 following. It is thus not possible to affirm that the failure of the Charlottetown Accord is equivalent to a negation of the right of Quebecers to internal self-determination." [Emphasis added.]

{326} See also A. Mass?, "Huit raisons de se m?fier des intellos", La Presse, July 17, 1995, at B2, where it is said that, although the English and Amerindians are now being reproached for bringing down the Meech Lake and Charlottetown Accords, those who campaigned most vigorously against these agreements were separatists and other nationalists.

{327} See, for example, R. Melan?on, "Les nationalistes, ces nouveaux cur?s", Le Devoir, August 13, 1995, at A7, where it is said that the Constitution Act, 1982 responds to the legitimate aspirations of Qu?bec. The author adds that the federal politicians from Qu?bec, who contributed to the drafting of the Act, represented Qu?bec as much as provincial politicians who refused to associate themselves with the patriation package since it did not concede to them all the powers they sought.

See also J. Pellerin, "Clich?s et mythes de la souverainet?", La Presse, March 1, 1995, at B3, who states that the Constitution Act, 1982 was not opposed by "Qu?bec" but by the Parti Qu?b?cois who could not support the Act without renouncing to its "raison d'?tre", namely sovereignty. Pellerin also indicates that the goal of patriating the Canadian Constitution from Great Britain had been an objective of the Qu?bec government of Jean Lesage, an objective that had unanimous support in Qu?bec. At the same time, it should be mentioned that the Qu?bec Liberals joined with the Parti Qu?b?cois in adopting a resolution of the National Assembly condemning the fact that the Constitution had been altered in Canada without Qu?bec's consent.

{328} S. Dion, "Antinationalisme et obsession constitutionnelle dans le d?bat r?f?rendaire", text presented to Cit? Libre, Montreal, January 12, 1995, and Ottawa, January 18, 1995, at 6, n. 9. Dion adds that, in a poll taken in January 1985, 52% of Quebecers favoured the constitutional status quo.

{329} Constitution Act, 1982, Part I.

{330} Id., s. 35.

{331} Id., s. 36.

{332} Id., Part V.

{333} Constitution Act, 1867, s. 92A.

{334} See, for example, J. Woehrling, "L'?volution et le r?am?nagement des rapports entre le Qu?bec et le Canada anglais" in J.-Y. Morin & J. Woehrling, Demain, le Qu?bec...[:] Choix politiques et constitutionnels d'un pays en devenir, note 19, 1662, supra, at 54, where it is said that the Canadian Charter diminished the powers of the National Assembly in regard to protection of the French language. In retrospect, however, it does not appear that French language rights have been impaired by the provisions in the Canadian Charter.

On the other hand, in regard to non-renewable natural resources, forestry resources and electrical energy, the Constitution Act, 1982 increased the legislative jurisdiction of the provinces: see J. Woehrling, "L'?volution constitutionnelle du Canada et du Qu?bec de 1867 ? nos jours" in J.-Y. Morin & J. Woehrling, Les Constitutions du Canada et du Qu?bec [:] du r?gime fran?ais ? nos jours (Montr?al: ?ditions Th?mis, 1992) 123 at 477. In addition, the Constitution Act, 1982, gave the provinces a large measure of control over the establishment of new provinces (s. 42(1)(f)), to the detriment of the Aboriginal and other peoples in the Northwest Territories and the Yukon. Moreover, the protection of interprovincial boundaries was reinforced, by explicitly requiring any proposed modification to be consented to by the legislative assembly of each province affected.

{335} L. Gagnon, "Commissions: les th?mes", La Presse, February 25, 1995, at B3. Unofficial English translation: "Strangely, sovereignists denounce Trudeau's Charter', though Qu?bec had given itself one a few years before! Furthermore, the draft bill foresees that a constitution of a sovereign Qu?bec would contain a charter of rights and freedoms that would have, as the Canadian one, paramountcy over the legislator." [Emphasis added.]

{336} The resolution is officially entitled Motion for the recognition of aboriginal rights in Qu?bec and was adopted by the National Assembly in March 1985.

{337} See Assembl? nationale, Journal des d?bats, Mar. 19, 1985, vol. 28, No. 38, at 2504, where MNA J. Ciaccia communicates to the National Assembly the objections of the Crees, Inuit, Mikmaq and Naskapis. Also, at 2527-2528, MNA M. Polak indicates the objections of the Mohawks and the Crees. See also E. Gourdeau, "Le Qu?bec et la question autochtone" in A.-G. Gagnon, (ed.), Qu?bec: ?tat et soci?t?, note 39, supra, at 335-336, where the author (who was involved in the negotiations of the 1985 Resolution on behalf of the PQ government) plays down the opposition of Aboriginal peoples to the adoption of the Resolution by the National Assembly. In another article, Gourdeau indicates that, in part, the 1985 Resolution constitutes the basis of Qu?bec policy on Aboriginal matters: see E. Gourdeau, "La souverainet?: une chance unique pour les autochtones d'aqu?rir leur pleine autonomie" in A.-G. Gagnon et F. Rocher, (ed.), R?pliques aux d?tracteurs de la souverainet? du Qu?bec, note 210, supra, at 97.

{338} See generally the discussion of this issue in Grand Council of the Crees (of Quebec), Submission: Status and Rights of the James Bay Crees in the Context of Quebec's Secession from Canada (Submission to the U.N. Commission on Human Rights, February 1992), at 165-168.

{339} D. Cliche, Sovereign Qu?bec and its Aboriginal Peoples, text of the speech delivered to members of the Grand Council of the Crees (of Qu?bec), Montreal, September 21, 1995, at 1.

{340} "Separation vote in '95, Parizeau says", Globe and Mail, September 29, 1994.

{341} A. Dubuc, "Jeux de coulisses", La Presse, October 22, 1994, at B2. Unofficial English translation: "One knew that the PQ government would seek confrontation with Ottawa to advance its option. Until now, this logic of confrontation has not given rise to large battles, but above all to a kind of guerilla warfare where Qu?bec multiplies the fronts to maintain the interest of public opinion."

{342} D. Lessard, "Qu?bec fera le tri des conf?rences f?d?rales-provinciales", La Presse, October 5, 1994, at B1. Unofficial English translation: "All while denying a desire to paralyse the federal system', the Parizeau government will be politically absent from federal-provincial conferences that affect exclusive provincial jurisdiction."

{343} G. Hamilton, "PQ rapped for snubbing environment ministers' meeting", The Gazette, Montreal, November 9, 1994, at A5.

{344} P. April, "Le si?ge du Qu?bec restera vide", Le Devoir, April 12, 1995, at A4.

{345} See J.-R. Sansfa?on, "Sant?: Ottawa doit contribuer ou se retirer", Le Devoir (editorial), July 8-9, 1995, at A6. Sansfa?on suggests that it would not auger well, should the Qu?bec government continue to be absent at such important meetings where the welfare of all Quebecers may be affected.

{346} Representatives of Aboriginal peoples and their governments should also be an integral part of this federalist process.

{347} A. Dubuc, "La strat?gie de l'affrontement de Jacques Parizeau", La Presse, August 26, 1995, at B2. Unofficial English translation: "In his first contact with his future partners',...he chose confrontation, in a deliberate manner. With an arrogant attitude that Ren? L?vesque would not have had, he succeeded in enraging and getting the backs up of the first ministers of the other provinces."

{348} "Separation vote in '95, Parizeau says", Globe and Mail, September 29, 1994.

{349} In regard to this international meeting of over 30 French-speaking nations, see Convention on the Agency for Cultural and Technical Cooperation, signed on March 20, 1970; entered into force on August 31, 1970. Reprinted in Receuil des ententes internationales du Qu?bec, 1970 (2). Date of signature of Canada and Qu?bec, March 20, 1970. The Convention also includes the Charter of this Agency.

While Canada has the status of a full member of the Agency, Qu?bec and New Brunswick are involved as "participating governments" (in accordance with art. 3 of the Charter). The Convention is reproduced in J.-Y. Morin, F. Rigaldies, & D. Turp, (eds.), Droit international public [:] Notes et documents, 2nd ed. (Montr?al: ?ditions Th?mis, 1987), vol. 1 "Documents d'int?r?t international", at 475, Doc. No. 29. In regard to Qu?bec's participation, see J. Tardif, La Francophonie institutionnelle et le Qu?bec, (1984) 1 Revue qu?b?coise de droit international 12; J.-Y. Morin, Le Sommet de Qu?bec, (1987) 4 Revue qu?b?coise de droit international 121.

{350} M. Dolbec, "Bernard Landry fait une rentr?e francophone remarqu?e", La Presse, December 12, 1994, at A8.

{351} Existing federal-provincial agreements regulate Qu?bec's participation in the international conferences of the Francophonie and call for prior consultation with Canada on points of view to be expressed by the Qu?bec government, with a view to coordinating Canadian participation at such meetings: see Modalit?s selon lesquelles le gouvernement du Qu?bec est admis comme gouvernement participant aux institutions, aux activit?s et aux programmes de l'Agence de coop?ration, culturelle et technique, convenues le 1er octobre 1971, entre le gouvernement du Canada et le gouvernement du Qu?bec, s. 12; and Entente entre le gouvernement du Qu?bec et le gouvernement du Canada relative au Sommet francophone, signed November 7, 1985, paras. 3 & 5. These agreements are reproduced in J.-Y. Morin, F. Rigaldies, & D. Turp, (eds.), Droit international public [:] Notes et documents, 2nd ed. (Montr?al: ?ditions Th?mis, 1992), vol. 2 "Documents d'int?r?t canadien et qu?b?cois", at 514, Doc. No. 110A and at 518, Doc. No. 110B, respectively.

{352} L. Gagnon, "The new Premier's strategy for the referendum", Globe and Mail, October 1, 1994, at D3.

{353} L. Gagnon, "Bon coup pour Chr?tien", La Presse, November 10, 1994, at B3. Unofficial English translation: "Qu?bec will not be able to boycott, as it is doing in all areas, from commerce to health as well as the environment, all the operations of pan-Canadian cooperation, and abstain systematically from a federation of which it is still a part."

{354} G. Bertrand, "Depuis 30 ans, le Canada a souvent pli?, mais il ne s'est jamais rompu", La Presse, April 22, 1995, at B3. Unofficial English translation: "Each day, the two separatist parties attempt to destabilize the country in order to succeed to convince Quebecers of the necessity of achieving sovereignty. We have also sought, through our speeches, to humiliate Canada and its leaders, particularly Qu?bec francophones, and to identify Canadians and federalist Quebecers as those largely responsable for our misfortunes." [Emphasis added.]

{355} 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 227.

{356} H. Brun & G. Tremblay, Droit constitutionnel, 2e ?d. (Cowansville, Qu?bec: Les ?ditions Y.Blais, 1990), at 236. Unofficial English translation: "...international law is largely relevant since it is there that the right to self-determination is recognized...It does not seem, however, that one can invoke a priori this principle for the benefit of peoples who are not colonized in the traditional sense. From this viewpoint, the Aboriginal peoples of Canada could have better justifications to assert this right than the people of Qu?bec."
[Emphasis added.]

{357} N. Finkelstein, G. Vegh & C. Joly, Does Qu?bec Have a Right to Secede at International Law?, note 314, 1662, supra, at 230.

{358} J. Woehrling, "L'?volution et le r?am?nagement des rapports entre le Qu?bec et le Canada anglais" in J.-Y. Morin & J. Woehrling, Demain, le Qu?bec...[:] Choix politiques et constitutionnels d'un pays en devenir, note 19, 1662, supra, at 124. Unofficial English translation: "...the very large majority of authors consider[] that the useful application of the right of peoples to self-determination is limited to colonial peoples and to those very rare contexts of foreign occupation or of racist regimes. According to dominant opinion, it is therefore not possible to derive a right of secession (or of separation) from the non-colonial context of the right of peoples to self-determination."

{359} Id. at 129. Unofficial English translation: "It is hardly possible...to affirm in any certain manner that Qu?bec can validly exercise, presently, a right of secession under international law." A similar conclusion is reached in M. Lebel, "La l?gitimit? du projet souverainiste ne peut se fonder sur le droit", La Presse, August 30, 1995, at A7.

{360} R. Higgins, "Postmodern Tribalism and the Right to Secession [:] Comments" in C. Br?lmann, R. Lefeber, M. Zieck, (eds.), Peoples and Minorities in International Law, note 46, supra, at 33.

{361} L. Eastwood Jr., Secession: State Practice and International Law After the Dissolution of the Soviet Union and Yugoslavia, note 15, 1662, supra, at 347.

{362} A. Cassese, Self-Determination of Peoples [:] A Legal Reappraisal (Cambridge: Cambridge University Press, 1995) at 251-252.

{363} 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 425. Unofficial English translation: "Thus, the Qu?bec people exercise effectively its right to self-determination within the framework of the Canadian ensemble and there is no legal foundation to invoke this right to justify its eventual accession to independence."

{364} 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 53-54.

{365} With respect to Mr. Bouchard, Aboriginal peoples in Qu?bec have the right to hold their own referendums in the context of Qu?bec secession. A single referendum in Qu?bec that would drown out the votes of Aboriginal peoples and seek to deny them the right to self-determination (including the right to choose to remain in Canada) would not be "democratic".

{366} L. Bouchard, (ed.), Un nouveau parti pour l'?tape d?cisive (Qu?bec: Fides, 1993) at 99. Unofficial English translation: "An international trump card comes from the repeated exercise of the right of peoples to self-determination during the course of the last three years. A democratic referendum favourable to the sovereignty of Qu?bec will have a large international echo and could not be ignored by English Canada." [Emphasis added.]

{367} In contrast to the threat of a UDI in Qu?bec, the Czech and Slovak Federal Republic was divided into two separate states on the basis of a specific agreement between the two governments concerned: J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 56. At 57, Derriennic elaborates why the situation in Czechoslovakia was very different from that of Qu?bec. See also R. Young, The Secession of Quebec and the Future of Canada (Montreal/Kingston: McGill - Queen's University Press, 1995), at 167, where after analysing in detail the breakup of Czechoslovakia, the author concludes: "...we should not draw too many direct parallels between Czechoslovakia and Canada." Young also indicates that no referendum was held in Czechoslovakia prior to its split. In P. Wells, "The Czechoslovakian example", The Gazette, Montreal, June 17, 1995, at A10, it is reported that Bloc Qu?b?cois constitutional advisor, D. Turp, has also indicated recently that "the case of Quebec and Canada is unique" and "[i]t cannot be compared to all those other examples [regarding Czechoslovakia]". For a discussion of self-determination and related issues in former Czechoslovakia, see C. Saladin, Self-Determination, Minority Rights, and Constitutional Accommodation: The Example of the Czech and Slovak Federal Republic, (1991) 13 Mich. J. Int'l L. 172; J. Malendusky, Probl?mes juridiques li?s ? la partition de la Tch?coslovaquie, (1993) 39 Annuaire fran?ais de droit international 305.

{368} L. Bissonnette, "Une relation malsaine", Le Devoir, February 19, 1995, at A12. Unofficial English translation: "...the opinion, in English Canada, is in a state of stiffening, the vicious debate on the legitimacy of the sovereignty option has done its work. Thus a clear majority (57%) of citizens of this country nevertheless democratic refuse to recognize to Qu?bec a right of secession that they would never think of contesting in relation to the Ukraine or Slovakia, and which they support no doubt today for Chechnya. And they even invite the government of Canada to resist a proclamation of sovereignty which would be based on a majority vote in Qu?bec."

{369} See, for example, K. Valaskakis & A. Fournier, Le pi?ge de l'ind?pendance [:] Le Qu?bec sera-t-il affaibli par la souverainet??, note 299, 1662, supra, at 170, where the authors indicate that the situation in Qu?bec has nothing comparable to that in the former USSR or former Yugoslavia.

{370} P. Monahan, "La s?cession du Qu?bec: consid?rations juridiques et politiques" in Choix [:] s?rie Qu?bec-Canada, L'accession du Qu?bec ? la souverainet?: aspects juridiques" (Montreal: Institute for Research on Public Policy, June 1995), vol. 1, no. 12, 4 at 11; L. Eastwood Jr., Secession: State Practice and International Law After the Dissolution of the Soviet Union and Yugoslavia, note 15, 1662, supra, at 300.

{371} H. Hannum, Rethinking Self-Determination, note 133, 1662, supra, at 51. At 53, the author adds: "The cases of Yugoslavia and the Soviet Union were formally considered both by the new states themselves (perhaps excluding Serbia and Montenegro) and by the international community to be instances of dissolution rather than secesion."

{372} See, for example, D. Turp, "Le droit de s?cession: l'expression du principe d?mocratique" in A.-G. Gagnon et F. Rocher, (ed.), R?pliques aux d?tracteurs de la souverainet? du Qu?bec, note 210, supra, at 58, where the author states that the accession to independence by the Baltic states and other Soviet republics, as well as by republics in the former Yugoslavia, leads one to believe that there is no uniform or consistent practice in the sense of forbidding secession. See also J.-M. Arbour et al., "Le droit international admet la s?cession du Qu?bec", Le Devoir, August 18, 1995, at A9, where it is said that the situation of Qu?bec is in no way exceptional and fits within the norm of newly created states. However, as will be described below, the situation in the republics in former Yugoslavia or the Baltic states is wholly distinguishable from that in Qu?bec.

{373} The Badinter Arbitration Commission had an advisory role and, despite its name, had no arbitration functions: see 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 64.

{374} See, for example, Declaration on the "Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union", adopted by the Council of the European Community on Dec. 16, 1991, reprinted in (1992) 31 I.L.M. 1486. See also J. Charpentier, Les d?clarations des douze sur la reconnaissance des nouveaux ?tats, (1992) 92 R.G.D.I.P. 343.

{375} Even this conclusion is criticized as ill-advised and premature in H. Hannum, Self-Determination, Yugoslavia, and Europe: Old Wine in New Bottles?, (1993) 3 Transnat'l L. & Contemp. Probs. 57 at 64.

{376} See, for example, Conference on Yugoslavia Arbitration Commission: Opinions on Questions Arising from the Dissolution of Yugoslavia, Opinion No. 1, (1992) 31 I.L.M. 1494 at 1497: "armed conflict between the different elements of the Federation...has caused the death of thousands of people and wrought considerable destruction within a few months."

{377} Conference on Yugoslavia Arbitration Commission: Opinions on Questions Arising from the Dissolution of Yugoslavia, Opinion No. 3, (1992) 31 I.L.M. 1499, where upholding the inviolability of the borders of the constituent republics was in part based on the fact that "the Socialist Federal Republic of Yugoslavia is in the process of breaking up". Similarly, see Opinion No. 1, (1992) 31 I.L.M. 1494 at 1497: "the Socialist Federal Republic of Yugoslavia is in the process of dissolution". See also P. Monahan, "La s?cession du Qu?bec: consid?rations juridiques et politiques" in Choix [:] s?rie Qu?bec-Canada, L'accession du Qu?bec ? la souverainet?: aspects juridiques" (Montreal: Institute for Research on Public Policy, June 1995), vol. 1, no. 12, 4 at 15.

{378} 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 26. See also J. Frowein, "Self-Determination as a Limit to Obligations Under International Law" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 215: "The disintegration of a federal State, as in Yugoslavia, may also bring about justification for recognition at an early stage." Also, see M. Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, (1992) 86 Am. J. Int'l L. 569 at 591: "Uti possidetis...was adopted as a means to prevent a total unraveling of the existing structures of government and territorial definition."

{379} The six republics were Serbia, Croatia, Slovenia, Bosnia-Hercegovina, Montenegro, and Macedonia.

{380} The two autonomous provinces were Vojvodina and Kosovo.

{381} M. Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, note 378, 1662, supra, at 569.

{382} Id. at 606.

{383} This distinction is also raised in H. Hannum, Rethinking Self-Determination, note 133, 1662, supra, at 38.

{384} 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 234: "The common history of the South Slav peoples officially began on December 1, 1918, when King Alexander Karadjordjevic proclaimed the formation of the Kingdom of the Serbs, Croats, and Slovenes. Serbs, Croats, and Slovenes agreed...to form Yugoslavia from the independent states of Serbia and Montenegro, and territories from the defeated Austro-Hungarian and Ottoman Empires." At 233-234, the author states that the Croats had an independent empire in the 10th and 11th centuries; the Slovenes had an empire in the 7th C.; Bosnians had an empire in the 14th C.; and Macedonians in the 10th C.

{385} See, for example, G. Marchildon & E. Maxwell, Quebec's Right of Secession Under Canadian and International Law, note 110,1662, supra, at 611: "While New France's [Qu?bec's] incorporation into the British Empire was manifestly against the will of its people, their descendants joined the Canadian federation in 1867 in more voluntary circumstances...[G]iven the historical context, Quebec's entry was relatively consensual..."

{386} The original Qu?bec was a colony of France and, from 1840 to Confederation in 1867, Qu?bec (renamed as Canada East) was joined to Upper Canada (Canada West) to form the single colony of Canada: see G. Marchildon & E. Maxwell, Quebec's Right of Secession Under Canadian and International Law, note 110, 1662, supra, at 595, n. 49.

In contrast to Qu?bec, it is important to note that the Supreme Court of Canada has recognized that "the Indian nations were regarded in their relations with the European nations which occupied North America as independent nations." See R. v. Sioui, [1990], 1 S.C.R. 1025 (S.C.C.), at 1052-1053. For a discussion of the sovereignty of Aboriginal peoples in Canada, see P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, at 165 et seq.

{387} B. Bagwell, Yugoslavian Constitutional Questions: Self-Determination and Secession of Member Republics, note 196, 1662, supra, at 489, n. 3: "Nearly two-thirds of all Yugoslavian industry and most of its exports to the West are produced in Slovenia and Croatia where the Yugoslav standard of living is the highest."

{388} Croatia's plebiscite was held on May 19, 1991, while Slovenia's was conducted on December 23, 1990. See 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 218, n. 40.

{389} M. Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, note 378, 1662, supra, at 593.

{390} See J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 94-95, where the author indicates that 99% of votes cast were in favour of independence, but that only 62% of the people voted since most Serbs refused to vote.

{391} M. Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, note 378, 1662, supra, at 594, n. 150.

{392} For a discussion of the inadequacies of a simple majority vote in the Qu?bec referendum, see discussion under sub-heading 9.3 infra.

{393} B. Bagwell, Yugoslavian Constitutional Questions: Self-Determination and Secession of Member Republics, note 196, 1662, supra, at 490, n. 6: "After 45 years of communist rule in Yugoslavia, the various republics of Yugoslavia held free elections. The elections in Croatia, Slovenia, Macedonia, and Bosnia-Hercegovina resulted in the election of pro-Western market oriented parties."

{394} 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 217.

{395} Article 1 of the Yugoslav Constitution states: "The Federative People's Republic of Yugoslavia is a federal people's State, republican in form, a community of peoples equal in rights who, on the basis of the right to self-determination, including the right of separation, have expressed their will to live together in a federative State." [Emphasis added.] Cited in B. Bagwell, Yugoslavian Constitutional Questions: Self-Determination and Secession of Member Republics, note 196, 1662, supra, at 498, n. 52. However, at 508 et seq., the author indicates that such a right is unclear when the Yugoslav Constitution is read as a whole.

{396} See conclusion in 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 239.

{397} B. Bagwell, Yugoslavian Constitutional Questions: Self-Determination and Secession of Member Republics, note 196, 1662, supra, at 490, n. 6.

{398} See P. Szasz, The Fragmentation of Yugoslavia, [1994] Am. Soc. Int'l L. Proc. 33 at 38, where it is stated that, between 1974 and 1989, Kosovo and Vojvodina had the status of autonomous provinces of Serbia.

{399} B. Bagwell, Yugoslavian Constitutional Questions: Self-Determination and Secession of Member Republics, note 196, 1662, supra, at 495, n. 43.

{400} Id. at 521-522 (disintegration of the autonomous provinces of Kosovo and Vojvodina) and 522, n. 188 (refusal to accept the Croatian choice as President of the Federation).

{401} L. Eastwood Jr., Secession: State Practice and International Law After the Dissolution of the Soviet Union and Yugoslavia, note 15, 1662, supra, at 327.

{402} Id.

{403} The six republics in former Yugoslavia, as well as the Baltic states, were confronted with problems concerning minorities within their territories. However, Aboriginal peoples in Qu?bec are not simply "minorities" and are not treated as such under international or Canadian constitutional law. See Grand Council of the Crees (of Quebec), Submission: Status and Rights of the James Bay Crees in the Context of Quebec's Secession from Canada (Submission to the U.N. Commission on Human Rights, February 1992), at 62 et seq.

{404} W. Webb, The International Legal Aspects of the Lithuanian Secession, note 260, 1662, supra, at 309; see also I. Grazin, The International Recognition of National Rights: The Baltic States' Case, (1991) 66 Notre Dame L. Rev. 1385 at 1402 et seq.

{405} A useful description of historical events and accompanying references is found in S. Himmer, The Achievement of Independence in the Baltic States and Its Justifications, note 1662, 405, supra.

{406} V. Rudrakumaran, The Legitimacy of Lithuania's Claim for Secession, (1992) 10 Boston U. Int'l L. J. 33.

{407} Treaty of Non-Aggression, September 26, 1926, Lithuania-U.S.S.R., 60 L.N.T.S. 145; Treaty of Non-Aggression, May 4, 1932, Estonia-U.S.S.R., 131 L.N.T.S. 297; Treaty of Non-Aggression, February 5, 1932, Latvia-U.S.S.R., 148 L.N.T.S. 113.

{408} Qu?bec's history is completely different from that of the Baltic states. In the conquest of 1760, the French surrendered to the British and the colony of Qu?bec came under British rule. However, at the time of the inception of Canada in 1867, delegates from Qu?bec took an active role in the founding conferences that preceded the adoption of the Constitution Act, 1867. Moreover, it would be fair to say that Quebecers freely joined the Union of Canada in 1867, along with their counterparts in Ontario, New Brunswick and Nova Scotia.

{409} See W. Allison, Self-Determination and Recent Developments in the Baltic States, note 201, 1662, supra, at 628: "...the government of the Soviet Union does not adequately represent the people of many of its republics, especially the Baltic states."

{410} B. Meissner, The Right of Self-Determination After Helsinki and its Significance for the Baltic Nations, (1981) 13 Case W. Res. J. Int'l L. 375 at 381. Although positive changes were being made in the Soviet Union, it is said that "the present changes in the Soviet Union cannot alter the fact that the Baltic people have historically been, and continue to be, subjugated, dominated and exploited." See W. Allison, Self-Determination and Recent Developments in the Baltic States, note 201, 1662, supra, at 629.

{411} See also W. Hough III, The Annexation of the Baltic States and Its Effects on the Development of Law Prohibiting Forcible Seizure of Territory, (1985) 6 N.Y.L. Sch. J. Int'l & Comp. L. 301.

{412} S. Himmer, The Achievement of Independence in the Baltic States and Its Justifications, note 1662, 405, supra, at 254. However, at 281, the author indicates: "The international community, prior to actual Baltic independence, was not sympathetic to this assertion for fear of impairing Soviet territorial integrity, and thus opening up a Pandora's box."

{413} Id. at 266.

{414} That the situation in the Baltic states was different than that in Qu?bec, because the Baltic states were previously independent, is acknowledged in 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, note 210, supra, at 201.

Similarly, in regard to the separation of Norway from Sweden in 1905, see J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 53-54. The author indicates that Norway and Sweden were already in fact two states almost entirely independent from each other, with two different constitutions, two Parliaments and governments, two citizenships, two currencies and two armies.

{415} S. Himmer, The Achievement of Independence in the Baltic States and Its Justifications, note 1662, 405, supra, at 256.

{416} Id.

{417} Id. at 260.

{418} Id. at 257, 259, 261

{419} P. Juviler, Contested Ground: Rights to Self-Determination and the Experience of the Former Soviet Union, note 162, 1662, supra, at 87. See also R. Donner, The Regulation of Nationality in International Law, 2nd ed. (Irvington-on-Hudson, N.Y.: Transnational Publishers, 1994), at 292: "...[the Baltic states] are not clearly new, successor States, but may also be considered as reemerging, or revived, States, having been forcibly annexed to the Soviet Union in 1940". [Emphasis added.]

{420} D. Gardner & A. Hill, "EC Recognizes Independence of the Baltic States", Financial Times, August 28, 1991, ?1, at 1.

{421} S. Himmer, The Achievement of Independence in the Baltic States and Its Justifications, note 1662, 405, supra, at 288.

{422} W. Allison, Self-Determination and Recent Developments in the Baltic States, note 201, 1662, supra, at 636. At 626-627, the author indicates that mass importation by Soviet authorities of labour from other parts of the Soviet Union significantly diluted the number of Estonians and Latvians in their respective republics. This forced alteration in population may have served to diminish the level of support for independence in these two Baltic republics.

See also P. Juviler, Contested Ground: Rights to Self-Determination and the Experience of the Former Soviet Union, note 162,1662, supra, at 84-85, where it is said that Latvia is 52% Latvian; Estonia is 62% Estonian; and Lithuania is about 80% Lithuanian; and R. Donner, The Regulation of Nationality in International Law, note 419, 1662, supra, at 295: "[I]t was in Latvia that the most problematic demographic changes took place...[T]he proportion of the Latvian community to the total population of the Republic fell from a little over 75% in 1935 to a little under 52% in 1989."

{423} Id. at 636.

{424} See L. Eastwood Jr., Secession: State Practice and International Law After the Dissolution of the Soviet Union and Yugoslavia, note 15, 1662, supra, at 319, where the author indicates that on March 17, 1991, the Baltic republics, along with Armenia, Georgia and Moldavia, boycotted a national referendum on preserving the Soviet Union. On the same page, the author states that "Russian President Boris Yeltsin, who had previously recognized Lithuania, recognized Estonia and Latvia as independent states...on August 24, 1991."

See also J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 52, where the author states that Qu?bec is not in the situation of the Soviet republics in 1991, when the Soviet state was disappearing.

{425} H. Hannum, Self-Determination, Yugoslavia, and Europe: Old Wine in New Bottles?, (1993) 3 Transnat'l L. & Contemp. Probs. 57 at 59. See also H. Hannum, Rethinking Self-Determination, note 133, 1662, supra, at 50, n. 203: "No state recognized the independence of Latvia, Lithuania, or Estonia until after the August 1991 coup attempt in the Soviet Union and after their independence had been recognized by the Russian Republic [on Sept. 6, 1991]." See also L. Eastwood Jr., Secession: State Practice and International Law After the Dissolution of the Soviet Union and Yugoslavia, note 15, 1662, supra, at 316-321; P. Monahan, "La s?cession du Qu?bec: consid?rations juridiques et politiques" in Choix [:] s?rie Qu?bec-Canada, L'accession du Qu?bec ? la souverainet?: aspects juridiques" (Montreal: Institute for Research on Public Policy, June 1995), vol. 1, no. 12, 4 at 12.

{426} Id.

{427} S. Himmer, The Achievement of Independence in the Baltic States and Its Justifications, note 1662, 405, supra, at 253. At n. 1, the author indicates that the "UN did not act until the U.S.S.R. recognized Baltic independence." See also L. Eastwood Jr., Secession: State Practice and International Law After the Dissolution of the Soviet Union and Yugoslavia, note 15, 1662, supra, at 321: "Although the international community was sympathetic...there was no outright support for secession in the form of recognition of the sovereignty of the Baltic states until Russian President Boris Yeltsin endorsed Latvian and Estonian independence in August 1991."

{428} W. Allison, Self-Determination and Recent Developments in the Baltic States, note 201, 1662, supra, at 627.

{429} Id. at 626.

{430} S. Himmer, The Achievement of Independence in the Baltic States and Its Justifications, note 1662, 405, supra, at 264-265.

{431} For a similar conclusion, see N. Finkelstein, G. Vegh & C. Joly, Does Qu?bec Have a Right to Secede at International Law?, note 314, 1662, supra, at 254-255.

{432} L. Eastwood Jr., Secession: State Practice and International Law After the Dissolution of the Soviet Union and Yugoslavia, note 15, 1662, supra, at 300.

{433} Gouvernement du Qu?bec, Qu?bec-Canada: A New Deal (Qu?bec: Editeur Officiel du Qu?bec, 1979), at 89.

{434} The Commission is referring here to the inclusion of the federal government, 10 provinces, and two territorial governments as parties to constitutional negotiations in Canada.

{435} The Commission is referring here to the inclusion of the federal government, 10 provinces, and two territorial governments, as well as the four national Aboriginal organizations, as parties to constitutional negotiations in Canada. These 17 parties were included in the Charlottetown negotiations in 1992.

{436} Commission nationale sur l'avenir du Qu?bec, Rapport (Qu?bec: Biblioth?que nationale du Qu?bec, 1995), at 56. Unofficial English translation: "...there exists two peoples in Canada and that the negotiation of 13 or of 17, since Charlottetown, had become a systematic method of isolating and marginalizing the voice of Qu?bec."

{437} See discussion under heading 1 supra.

{438} It is worth noting that the President of the Commission, Monique V?zina, and the Vice-President, Marcel Masse, were Ministers in the

Mulroney government that established the Charlottetown process for constitutional negotiations. There is no indication on the public record that either of these former Ministers ever objected to the principle of directly including Aboriginal peoples or the provinces or territories in constitutional negotiations along with Qu?bec.

{439} P. Wells & P. Authier, "Sovereignty law illegal, Rock says", The Gazette, Montreal, December 16, 1994, at A1.

{440} For severe criticisms of Premier Parizeau's inappropriate analogy, see M. Adam, "Parizeau amalgame abusivement sa cause ? celle des ind?pendantistes am?ricains", La Presse, March 25, 1995, at B2; and D. Cameron, "Solemn declarations [:] American colonists had far more to complain about than separatists do", The Gazette, Montreal, December 22, 1994, at B3.

{441} A. Dubuc, "Voter oui' pour payer moins d'imp?t?", La Presse, March 16, 1995, at B2. Dubuc refers to such claims by the Premier as demogoguery and states that there are not any serious economists (even sovereignists) who would affirm that Quebecers could avoid paying high taxes in an independent Qu?bec. See also G. Laforest, "L'?thique de la s?cession", Le Devoir, March 10, 1995, at A10, where the author emphasizes that sovereignists cannot guarantee to their fellow citizens that secession would improve the conditions of daily life and there is no certainty in this regard.

{442} Canadian Broadcasting Corporation, "The Sovereignty Showdown" (2-hour special) on Prime Time News (Toronto: CBC, February 16, 1995) (transcript) at 19. Currently, francophone Quebecers are a majority constituting over 80% of the population in Qu?bec. Although francophones are a minority in Canada, the Canadian federation is one of the most decentralized in the world.

{443} "Les Inuit disent non", La Presse, March 3, 1995, at B1. In contrast, see L. Gagnon, "Language is no longer the issue: control over immigration is", Globe and Mail, January 7, 1995, at D3: "Language was a non-issue during the last election and it has not been raised once since the election of the PQ and the beginning of the pre-referendum debate. PQ propaganda focuses almost exclusively on the powers the Quebec government needs to achieve a more prosperous, more efficiently managed society."

Moreover, even Qu?b?cois artists who are mostly in favour of Qu?bec independence caution that sovereignty in itself does not guarantee the survival of Qu?bec culture: see K. Yakabuski, "La souverainet? ne garantit pas la survie de la culture", Le Devoir, March 25-26, 1995, at A1. Further, a significant number of artists in Qu?bec are of the view that having both federal and provincial sources of funding has been of great advantage to them: see R. Macdonell, "One Hand Clapping", The Gazette, Montreal, April 22, 1995, at B2. By way of example, Macdonell provides figures for 1992-1993 to show that federal funding in Qu?bec has far surpassed that of the provincial government in the areas of the literary arts, film and video, and broadcasting.

{444} Ligue des droits et libert?s, "Dossier sp?cial autochtone", Bulletin, octobre, 1994, vol. xiii, no. 3, 17 at 33.

{445} M. Venne, "Qu?bec embauche des lobbyistes pour expliquer la souverainet? aux Am?ricains", Le Devoir, March 23, 1995, A1 at A8. Aboriginal peoples have always contested the historical accuracy of the notion that only the French and the English were founding peoples of Canada and not Aboriginal peoples. Apparently, some francophone Quebecers also take issue with the "two founding nations" theory: see J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 125.

{446} "The sovereignty pitch [:] Quebecers would be better off if they were in charge, Bouchard says", The Gazette, Montreal, October 12, 1994, at B3 (Interview with Gazette editorial board).

{447} S. Delacourt, "Not just separatists see value of whip", Globe and Mail, October 18, 1994, at A4.

{448} Acad?mie des lettres du Qu?bec, "La souverainet? est d'abord culturelle", Le Devoir, March 16, 1995, at A7.

{449} Conseil de la souverainet? du Qu?bec, "Qu'arrivera-t-il ? la langue fran?aise apr?s le r?f?rendum?", La Presse, September 26, 1995, at B16. Unofficial English translation: "ABOVE ALL, THE NO IS AN INVITATION TO MAKE THE QU?B?COIS A FOLKLORIQUE PEOPLE...[new para.] In short, after a NO, to be distinct' would mean to speak English with an accent!". [Bold and capitals in original.]

{450} M. Venne, "La ligne 1-800 sur l'avenir du Qu?bec coutera 200 000 $", Le Devoir, June 3-4, 1995, A1 at A12. Original French text: "condamn? au statut de province".

{451} See, for example, S. Dion, "Les avantages du Qu?bec f?d?r?" in Choix [:] s?rie Qu?bec-Canada, L'?volution du f?d?ralisme canadien (Montreal: Institute for Research on Public Policy, May 1995), vol. 1, no. 7, 4 at 22, where Dion states that constitutional recognition of Qu?bec as a province rather than as a Qu?bec people or nation does not prevent its citizens from identifying as Quebecers and living in French.

{452} J. Parizeau, "The Case for a Sovereign Quebec", Foreign Policy, Summer 1995, No. 99, 69 at 70.

{453} This latter point is discussed under sub-heading 1.2 supra.

{454} J. Parizeau, "The Case for a Sovereign Quebec", Foreign Policy, Summer 1995, No. 99, 69 at 75. Perhaps, the Premier is concerned that use of the term "peoples" would make it more difficult for his government to continue to deny Aboriginal peoples in Qu?bec their right to self-determination. Instead, Parizeau describes Aboriginal peoples alternatively as "nations", "groups", "populations" or "communities".

Although the term "nations" could potentially have significant meaning, its use by the government of Qu?bec has simply been for public relations purposes. See, for example, 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: "Parizeau uses the word "nation" as a public relations tool, but then he says and does things that are a denial of the rights that flow from our status as a First Nation, the denial of the status of our referendum being a prime example."

{455} J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 59. Unofficial English translation: "...the reasons to have independence are so hardly evident that they divide the ind?pendantistes themselves."

{456} Id. at 59-60.

{457} L. Eastwood Jr., Secession: State Practice and International Law After the Dissolution of the Soviet Union and Yugoslavia, note 15, 1662, supra, at 342.

{458} A. Dubuc, "Le triangle infernal", La Presse (editorial), October 12, 1994, at B2. Unofficial English translation: "The rigidity of the sovereignists is indefensible on a strict level of logic. They refuse Indians the right to separation which they claim, affirm the integrity of Qu?bec territory while denying that of Canada, affirm that their referendum will be decisive but not that of the Aboriginal peoples. There is here a double standard which contains an incoherence and which could lead the government to stinging defeats, especially in regard to the Crees, whose case is very solid." [Emphasis added.]

{459} For example, Bloc Qu?b?cois Lucien Bouchard has proposed some form of economic and political association between Canada and an independent Qu?bec: see L. Bouchard, "L'ind?pendance demeure un pr?alable essentiel ? tout nouveau partenariat", La Presse, April 11, 1995, at B3; J. Dion, "Bouchard pr?ne un nouveau partenariat' avec le Canada", Le Devoir, April 9, 1995, at A1. For criticisms of Bouchard's purported "virage" (change in direction) see A. Dubuc, "Le mirage", La Presse (editorial), April 11, 1995, at B2; H. Young, "Lucien Bouchard r?ve en couleur', selon deux experts", La Presse, April 18, 1995, at B6; M. Adam, "Le virage': un constat d'?chec et une d?valorisation du projet souverainiste", La Presse, April 15, 1995, at B2; "The virage' offers Quebecers a mirage", The Gazette (editorial), April 22, 1995, at B2.

{460} For example, even the suggestion of some form of association by a sovereign Qu?bec with Canada based on the model of the European Union is being seriously challenged. See Y. Fortier, "Le Qu?bec est d?j? plus souverain que les pays de l'Union europ?enne", La Presse, March 4, 1995, at B3; J. Woehrling, "L'?volution et le r?am?nagement des rapports entre le Qu?bec et le Canada anglais" in J.-Y. Morin & J. Woehrling, Demain, le Qu?bec...[:] Choix politiques et constitutionnels d'un pays en devenir, note 19, 1662, supra, at 141, n. 126, where the author states that political and institutional difficulties in applying the European Union model to the Canada-Qu?bec situation could result in even less economic integration than exists presently and damage the economies of both countries.

{461} In regard to the threatened boycott of the Royal Bank of Canada by the PQ, see also "The PQ's chill on free expression", The Gazette (editorial), Montreal, January 28, 1993, at B3.

{462} N. Webster, "What we have is a failure to communicate", The Gazette, Montreal, January 14, 1995, at B5. See also N. Webster, "Speaking Out", The Gazette, Montreal, January 7, 1995, at B5: "Banks and financial houses have been blackmailed outrageously into keeping their mouths shut about the costs of separation. Before the PQ's election, on Parizeau's explicit orders, they were told to shut up or risk being punished by the new government party of Qu?bec." [Emphasis added.]

{463} In regard to the freedom of speech of the financial community in the context of Qu?bec secession, see also A. Dubuc, "Banquiers et d?mocratie", La Presse (editorial), June 28, 1994, at B2.

{464} A. Dubuc, "Jacques Parizeau est-il en train de perdre les p?dales?", La Presse (editorial), June 7, 1994, at B2. Unofficial English translation: "...Mr. Parizeau has launched into crusades which are to make financiers quiver and make them better disposed to his cause. [new para.] First, these threats of reprisals against any analysts who exclude themselves from the PQ credo. Mr. Parizeau has brandished the threat of boycott against the Bank of Montreal, who has expressed concern over a rise in interest rates. Daniel Paill?, PQ candidate and ex-vice-president of the Caisse de d?p?t, has, according to him, warned Wood Gundy and other brokers that they could lose their contracts if they depart from the straight road. [new para.] This dogmatic intolerance is very disturbing. First, for democracy which can hardly develop if one muzzles all form of disagreement, above all when we are beginning a debate on our future. With this approach, where public funds will impose a strong-armed ideology, what sort of referendum will we have?" [Emphasis added.]

{465} L. Gagnon, "Le combat des justes", La Presse, June 11, 1994, at B3. Unofficial English translation: "According to normal democratic logic, there is a separation between partisan activity and state activity, as there is separation of the Church and State. This is a boundary that democratic governments instinctively respect. In case of breach, they are furiously denounced by the media, and all who society considers right-thinking people. [new para.] But this is a {473} boundary that Mr. Parizeau evidently does not wish to recognize, for him all must converge towards the ideal, the cause, the ultimate objective." [Emphasis added.]

{466} Sarah Scott, "When money and politics mix [:] Parizeau plays hardball", The Gazette, June 11, 1994, at B1.

{467} Grand Chief Matthew Coon Come, The status and rights of the James Bay Crees in the context of Quebec secession from Canada, Speaking Notes, Centre for Strategic and International Studies, Washington, September 19, 1994, (on file with the Grand Council of the Crees), at 8.

{468} See also J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 18, where the author makes a distinction between "civic nationalism" and "ethnic nationalism". The former is said to include in the national solidarity all the citizens of the state; while the latter defines the nation from its origin, language, religion or other criteria allowing a dissociation of nationality from citizenship.

{469} M. Venne, "Coon Come a injuri? tout le Qu?bec, d?plore Parizeau", Le Devoir, November 20, 1994, at A8. Unofficial English translation: "I deeply deplore that Mr. Coon Come has judged useful in this manner to injure me, without doubt, but also, because I am trying to be the Prime Minister of all Quebecers, to injure Qu?bec itself."

{470} T. Wills, "Bloc demands PM censure Cree chief", The Gazette, November 22, 1994, at A5.

{471} J. Dion, "Chr?tien refuse de d?savouer Coon-Come", Le Devoir, November 22, 1994, at A4. Unofficial English translation: "...in a country where freedom of speech exists, each person has the right to express his/her point of view. If the Bloc Qu?b?cois is not in agreement, it can respond [to Coon Come]."

{472} For an English translation of Minister Landry's letter of November 24, 1994 to Foreign Affairs Minister Ouellet, see "On the record: Coon Come's speech and Landry's letter", The Gazette, November 26, 1994, at B5.

{473} P. Authier, "Envoy should have denounced Coon Come: Landry", The Gazette, Montreal, November 25, 1994, at A5: "Asked by a reporter if he believes there should be legal charges laid against Coon Come, Landry replied: It's not my department. I'm not an expert at it, but I say I have been a law student, that there are limitations to freedom of speech in the Criminal Code." The same article states that, subsequently, Mr. Landry denied that the PQ government was considering criminal charges against the Grand Chief.

This is not the sole incident where the Crees have been accused of criminal behaviour against Qu?bec. When the Crees appeared before the European Parliament in Brussels to voice their fundamental concerns about the separatist process in Qu?bec, it was labelled as "an act of treason" by Premier Parizeau's special advisor on Aboriginal affairs, D. Cliche: see K. Blacksmith, "Un acte de trahison?", Le Devoir, April 15, 1995, at A11.

{474} "Free speech equals infamy?", The Gazette (editorial), November 26, 1994, at B4. The editorial also states: "The Bloc and the PQ have not, of course, urged Canada to disavow the statements made at the same Washington conference by Quebec's minister of tourism...She spoke in favour of the dismemberment of Canada. In some countries this would be considered treason...In Canada separatists enjoy the full protection of the democratic system, including the right to win office, hold a referendum on independence, and propagate their views in Washington."

{475} J. Honderich, "Un jeu dangereux de Jacques Parizeau", La Presse, November 26, 1994, at B3. Unofficial English translation: "One has therefore often attacked Qu?bec, in the course of the last few months, I admit it. But, we are addressing its policies and separation, not its citizens. And this difference is fundamental."

{476} M. Lebel, "Une langue de bois qui dessert son peuple", Le Devoir, December 8, 1994, at A11. Unofficial English translation: "It is desirable that the Cree chief abandon this rhetoric which deserts his people. This which will not prevent certains questions of principle of remaining and having to be treated in all fairness and equality of law, on a people-to-people basis."

{477} Testimony of D. Turp (Universit? de Montr?al) 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: "...these peoples [aboriginal nations and Qu?b?cois] are going to have to talk together because they both, or all, have a right to self- determination. I think one must not avoid this issue. One must frankly speak because in terms of legitimacy, the aboriginal peoples, the aboriginal nations on their territory, are quite ahead of the francophones of Quebec, the anglophones of Quebec, all the Europeans and other nationalities on this territory." [Emphasis added.]

{478} See T. Ha, "Bloc advisor muzzled after native comments", The Gazette, Montreal, May 27, 1994, at B1.

{479} Bloc qu?b?cois, Communiqu?, Montr?al, May 26, 1994.

{480} See, for example, L. Gagnon, "D?bats oiseaux", La Presse, May 28, 1994, at B3, where Mr. Turp is referred to as "un vulgaire mercenaire de la pens?e". Unofficial English translation: "a vulgar mercenary of thought". At the same time, it should be recognized that Turp has in the past made some important contributions to the debate in Qu?bec on the right of Aboriginal peoples to self-determination.

{481} A. Dubuc, "Les tabous r?f?rendaires", La Presse, January 14, 1995, at B2. Unofficial English translation: "In the referendum debate, there is a tabou. Quebecers, whatever their political opinions, do not trust theses claiming that sovereignty could turn bad or cost dearly. They associate a strategy of fear with all that relates to unpleasant questions, such as the debt, the risk of Canadians getting their backs up, the costs of transition. This has led to a law of silence where one avoids as much as possible to address these questions, for fear of being labeled as merchants of fear." [Emphasis added.]

{482} N. Webster, "What we have is a failure to communicate", The Gazette, Montreal, January 14, 1995, at B5.

{483} A. Dubuc, "Les tabous r?f?rendaires", La Presse, January 14, 1995, at B2. Unofficial English translation: "This is the type of problem that the PQ leaders, if they are honest, should tackle face to face. We all know that the principal obstacle to sovereignty is the Canadian reaction. It is thus normal to be interested in Canadian points of view because they provide essential light on the process that cannot be carried out without them. Have we already seen negotiators, regardless of the subject, casting themselves in battle by making an abstraction of the other side? This is exactly what is being done by the team of Jacques Parizeau. [new para.] This law of silence is leading us to a bizarre debate where one asks of Quebecers to decide their future while closing their eyes and blocking their ears." [Emphasis added.]

{484} L. Gagnon, "Les exclus", La Presse, February 22, 1995, A1 at A2. Unofficial English translation: "...it is necessary to have solid courage to venture before a regional commission on the future, if one is outside the sovereignist domaine without otherwise having the excuse of being English or an ethnic'. I have seen during two weeks of a tour to five different regions: one is almost assured of being booed by the crowd and of being humiliated intellectually by the commissioners." [Emphasis added.]

{485} M. Venne, "L'ADQ refuse de signer les rapports de certains commissions r?gionales", Le Devoir, March 15, 1995, at A1.

{486} P. Authier, "PQ bullying us, Dumont says", The Gazette, Montreal, March 16, 1995, at A1.

{487} P. Authier, "Research contracts changed to curb PQ interference", The Gazette, Montreal, March 7, 1995, at A6.

{488} Id.

{489} P. Cantin, "C.D. Howe r?plique ? Parizeau", La Presse, March 17, 1995, at B1, where PQ Minister Bernard Landry is quoted as referring to studies from the C.D. Institute as biased analyses from a vague institute with a mediocre international reputation. The C.D. Howe Institute responds in the same article by indicating that the Institute does not dictate the conclusions of independent authors. Moreover, the Institute regrets that attacks from the Parti Qu?b?cois are not on substance, but above all on the Institute itself.

{490} W. Johnson, "Bloc wrong to tell non-Quebec French to butt out", The Gazette, Montreal, March 17, 1995, at B3.

{491} Unofficial English translation: "Don't you mix in our affairs". See G. Gauthier, "C'est NON, pr?nent les francophones hors Qu?bec", La Presse, March 15, 1995, at A1.

{492} "Intolerance" is also the characterization given to Bloc MP Tremblay's comments in W. Johnson, "Bloc wrong to tell non-Quebec French to butt out", The Gazette, Montreal, March 17, 1995, at B3. Johnson adds: "How...can the Bloc tell fellow Canadians, and fellow francophones, that they must not express so much as a preference, a hope, a statement of where their own interest lies?"

{493} P. Gravel, "Silence?", La Presse, March 17, 1995, at B2. Unofficial English translation: "To deny the right [of expression] to one or other in saying to them do not mix in our affairs', as Madame Tremblay has just done, contains an element of intolerance or fear...[new para.] One might ask moreover if the reaction would have been the same in the case of support for the cause which she defends. We did not, in any case, hear of mixing in their affairs being said to thirty-odd French intellectuals who, last January, during a trip by Jacques Parizeau to Paris, had publicly endorsed the sovereignty project." [Emphasis added.]

{494} L. Dion, Le Duel constitutionnel Qu?bec-Canada (Montr?al: Les ?ditions du Bor?al, 1995), at 338. Unofficial English translation: "...far from being a paragon of democracy, the process belies a constraint on democracy."

{495} No analysts or observers are seemingly permitted to forecast dire consequences in the current independence debate, without condemnation by Parti Qu?b?cois or Bloc Qu?b?cois leaders. Apparently, predictions of "catastrophe" are only allowed by separatist leaders and their supporters, who are increasingly using this term to describe the consequences of a majority No vote in the upcoming referendum. See, for example, P. Cantin, "Il ne faut pas songer ? la souverainet? qu'en termes d'argent, soutiennent le PQ et l'Union des artistes", La Presse, March 27, 1995, at A5, where PQ Vice-President Monique Simard prophecies a "catastrophe" in the event of a No vote.

{496} A. Dubuc, "La loi du silence", La Presse (editorial), March 23, 1995, at B2. Unofficial English translation: "Because their position is fragile and because any public debate on these economic questions would prevent PQ leaders from offering to citizens the assurances that they desire, the Parizeau government has chosen silence and attempts to impose it on others." [Emphasis added.] Dubuc highlights how PQ Minister Bernard Landry has denounced the scorn of the author-economist Marcel C?t? in regard to the costs of separation; and how the Bloc Qu?b?cois has called for the resignation of the Vice-Governor of Canada for evoking the difficulty for a sovereign Qu?bec to use Canadian currency.

{497} A. Gruda, "Le Hir ? l'?cole", La Presse (editorial), August 10, 1995, at B2; J. Robinson, "PQ propaganda gives whole new meaning to the term junk mail'", The Gazette, Montreal, August 10, 1995, at B2.

{498} K. Gagnon, "Le Hir nie toute id?e de propagande scolaire", La Presse, August 10, 1995, at B1; K. Yakabuski, "Une lettre de Le Hir aux directeurs d'?cole fait sourciller Parizeau", Le Devoir, August 10, 1995, at A4; P. Authier & L. Moore, "Parizeau defends mailings to schools", The Gazette, Montreal, August 10, 1995, at A1. The cover letter to principals did not specify to whom exactly the newsletters should be distributed.

{499} J. Robinson, "PQ propaganda gives whole new meaning to the term junk mail'", The Gazette, Montreal, August 10, 1995, at B2.

{500} D. Lessard, "Les contrats de Le Hir: le r?seau s'agrandir", La Presse, September 20, 1995, at B1.

{501} M. Venne, "Qu?bec a refus? trois ?tudes de l'INRS", Le Devoir, September 20, 1995, at A1; P. Cantin, "Qu?bec avait des r?serves", La Presse, September 20, 1995, at A1; D. Macpherson, "Credibility in tatters", The Gazette, Montreal, September 21, 1995, at B3.

{502} "Parizeau weaves a tangled web", The Gazette (editorial), Montreal, September 21, 1995, at B2.

{503} D. Cliche, "The Sovereignty and Territorial Integrity of Quebec", The Network, No. 5 (May 1992) (Newsletter of the Network on the Constitution), 10.

{504} D. Cliche, "La souverainet? du Qu?bec et les nations autochtones", L'Action nationale, vol. LXXXII, April 1992, no. 4, 465 at 471. 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, note 210, supra, at 186, where, in referring to a resolution passed by the Progressive Conservative party in August 1991, the authors erroneously refer to the right to self-determination of "Qu?bec". Actually, the resolution in question referred specifically to Quebecers and not to "Qu?bec".

{505} 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 443. Unofficial English translation: "Legally, the eventual accession to sovereignty of Qu?bec cannot be founded on the principle of equal rights of peoples and their right to self-determination which can only lead to the independence of colonial peoples or those whose territory is the object of alien occupation." [Emphasis added.]

{506} In addition to the sub-heading for s. 1, the preamble provides in part: "...We, the people of Qu?bec, declare that we are free to choose our future."

{507} M. Venne, " Le Qu?bec est un pays souverain' Facile ? dire. Facile ? faire?", Le Devoir, February 7, 1995, A1 at A8. Unofficial English translation: "...Qu?bec would have difficulty qualifying [for a right of secession] by invoking the right to self-determination. The right of peoples to self-determination only entails independence for colonial peoples or those whose territory is the object of alien occupation. [new para.] Moreover, the Parti Qu?b?cois no longer makes reference in its propaganda to this right of self- determination. It proposes a process that its popular legitimacy from the referendum." [Emphasis added.]

{508} Ligue des droits et libert?s, "Dossier sp?cial autochtone", Bulletin, octobre, 1994, vol. xiii, no. 3, 17 at 33. Unofficial English translation: "Contrary to what many believe, the process of accession to sovereignty by Qu?bec is not made therefore on an appeal to the right of self-determination of the Qu?bec people, but above all on that of the citizens of the province of Qu?bec to request the international community to recognize Qu?bec as a sovereign country, following a referendum." [Emphasis added.]

{509} 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 20.

{510} See discussion under sub-heading 4.1 infra.

{511} Id.

{512} See discussion under sub-heading 4.2 infra.