The Grand Council of the Crees

Section 4, Sovereign Injustice - Grand Council of the Crees

4. Effective Control and the Use of Force

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4.1 Effective Control - Secession By Revolution

4.2 Potential Use of Force by Governments

4.2.1 Use of Force by PQ government
4.2.2 Use of Force by Canadian government

4.1 Effective Control ? Secession By Revolution

"Une province ne peut se s?parer sans l'accord du reste du Canada ? moins d'?tre pr?te ? imposer, si n?cessaire par la force, son autorit? ill?gale. Le droit international ne fait que reconna?tre ce coup de force s'il r?ussit." {513}

M. Masse, 1995

In view of the illegality of unilateral secession under Canada's Constitution {514} and the determination in recent years that Qu?bec has no legal right to secede under international law, {515} numerous Qu?bec jurists who favour sovereignty appear to be invoking an international law rule based on achieving "effectiveness" or "effective control".{516}

J. Crawford describes that one of the central criteria {517} for an entity to accede to statehood is to demonstrate the existence of a government with effective control:

"...to be a state, an entity must possess a government or a system of government in general control of its territory, to the exclusion of other entities not claiming through or under it." {518} [Emphasis added.]

Crawford adds that "[where] the statehood of the entity is opposed under title of international law... the requirement of effectiveness is likely to be more strictly applied".{519}

The doctrine of effective control is international law's attempt {520} to deal with illegal {521} and revolutionary acts towards the creation of new states. What remains unclear is how many Canadians, including Quebecers, are aware that what the PQ government is proposing through a unilateral declaration of independence (UDI) and "effective control" is a revolution. Such a UDI would seek to replace, without lawful authority, the existing constitutional order for all of Qu?bec. In the words of Qu?bec city lawyer G. Bertrand, the PQ government's process is like a "parliamentary coup d'?tat". {522} This situation is especially destabilizing since the consequences of a UDI cannot be ascertained, nor its success assured, in advance.

G. Marchildon and E. Maxwell describe the "absence of legality" and the "revolution[ary]" {523} nature of secessionist strategies to establish effective control and how a new state might still gain recognition:

"Despite an absence of legality under constitutional or international law, a revolution,' if demonstrably successful, may nonetheless become the foundation of a new, and entirely legitimate, legal order within a territory. The issue for the courts purporting to exercise jurisdiction is simply whether or not the breakaway government has established effective control of the territory which it claims to govern." {524}
[Emphasis added.]

P. Monahan also speaks of unilateral secession as illegally seeking to carry out "revolutionary" change:

"...a unilateral declaration of independence...envisages a revolutionary change ? one that would be accomplished wholly outside the existing rules of the constitutional order, involving a break in legal continuity and the establishment of a new constitutional order based on a new legal foundation." {525} [Emphasis added.]

P. Hogg provides:

"A unilateral secession would, of course, be illegal because it would be unauthorized by the existing rules of constitutional law. But such a break in the legal continuity {526} may equally be regarded as a revolution, and it is a demonstrable fact that a successful revolution eventually becomes the foundation of a new and entirely legitimate legal order." {527} [Emphasis added.]

N. Finkelstein, G. Vegh & C. Joly explain:

"The difference between de jure and de facto control is that the former is brought about lawfully and the latter is brought about by revolution." {528}

In examining the international law notion of effective control, it is important to emphasize that Aboriginal peoples in Qu?bec have access to this principle on the "same terms" as Qu?bec. This is the conclusion explicitly reached by the five international experts who were commissioned by the National Assembly to examine the Qu?bec secession issue in relation to Aboriginal peoples. {529} Other commentators have reached a similar conclusion. {530} Qu?bec has no particular "right" to establish effective control over Aboriginal territories against the wishes of the peoples concerned.

Successful secession, even if not based on a right of secession under international law, can lead in some cases to international recognition. {531} As T. Franck explains:

"The requirement that a state, to be eligible for recognition, be in effective control of a defined territory and population is a requisite of customary international law." {532}
[Emphasis added.]

However, it would appear that a strategy of "effective control" by Qu?bec might not lead to recognition by the international community if the Aboriginal peoples in Qu?bec were denied their own rights to self-determination in the process. In this regard, P. Hutchins indicates:

"In Quebec's case, sovereignty will be a matter of fact and it will be recognized if its effectiveness is proven and if the accession to sovereignty respects the Aboriginal peoples' right to self-determination. Acting without Aboriginal consent would constitute a denial of their right to self- determination." {533} [Emphasis added.]

As J.E.S. Fawcett states:

"The criterion of organized government is that there must be a central government having effective control over the national territory, for the purpose of making and executing all those decisions that good government entails. Here we may bring in the idea of self-determination. If there is a systematic and constitutional denial to a substantial minority, or still worse ? to a majority of the people, of a place and a say in the government, the criterion of organized government is not met. {534} [Emphasis added.]

Considerations of "effectiveness" can be overridden if the rights of self-determination of other peoples are being violated. In referring to the unilateral declaration of independence (UDI) in Southern Rhodesia, V. Gowlland-Debbas indicates:

"In determining that the act of UDI had no legal validity in international law and in refusing the normal legal consequences arising from it, on the grounds that that act was in violation of a substantive norm of international law, namely the right of self-determination, the United Nations appeared to consider this violation as of such gravity as to override considerations of effectiveness." {535} [Emphasis added.]

In regard to the UDI in Rhodesia, J. Crawford concludes:

"It appears then that a new rule has come into existence, prohibiting entities from claiming statehood if their creation is in violation of an applicable right to self-determination." {536}

If "a new rule has come into existence", then it is of little consequence that the situation of UDI in Rhodesia may be very different from a UDI in Qu?bec. {537} This rule would simply signify that every new situation that arises would have to be evaluated on its own merits. Moreover, the right to self- determination has evolved considerably since the time of the UDI in Rhodesia in 1965. {538} This may well mean that, in order to invoke "effective control" as a means to international recognition, seceding entities would have an even stronger obligation today to respect the rights of self-determination of others.

In the context of a UDI by Qu?bec, there is more than the denial of self-determination of Aboriginal peoples that is relevant. There is also a real threat that a secessionist Qu?bec would forcibly include Aboriginal territories as part of a new Qu?bec state. As this Study describes, {539} any such threat or use of force is illegal under international law. Consequently, Aboriginal peoples are fully justified in raising these specific arguments in a timely manner with the United Nations.

International recognition is extremely important, in order for new states to enter into treaties or gain admission to the United Nations and its specialized agencies. Also, as R. Higgins explains, there can be domestic consequences as well from a failure to secure recognition as a new state:

"In many countries an unrecognized state or government will not be able to sue in the courts of the forum; nor will private persons be able to claim title through decrees or legislative acts of an unrecognized government; nor will an unrecognized government be able to claim those privileges and immunities from jurisdiction afforded by international law." {540}

T. Franck adds that the international community has regarded favourably secessions that have been "accomplished peacefully or by negotiated agreement":

"Neither the [International Covenant on Civil and Political Rights] nor any other international law requires the members of the international community to deny recognition to a successful secession except when it has been achieved through the military intervention of third parties...
...
When secession has been accomplished peacefully or by negotiated agreement, the international community and the United Nations have given rapid recognition to the successor states, as, most recently, in the case of the constituent republics of the former Soviet Union." {541} [Emphasis added]

In the absence of a negotiated agreement, attempts to establish effective control by a seceding group in most situations may be far from "peaceful". The existing state may challenge the actions of secessionist forces. In addition, there may be other peoples or groups within the same state who assert a right of self-determination and oppose being forcibly included within a new independent state. {542} As J.-P. Derriennic cautions:

"Nous serions alors dans une situation tr?s p?rilleuse. Si le gouvernement du Qu?bec cesse de gouverner par la loi...certains de ses adversaires ? l'int?rieur de la province continueront ? respecter les lois f?d?rales et certains d'entre eux se mettront ? agir eux aussi en dehors de toute loi." {543}

In the face of such opposition, the attainment of effective control over a territory is not assured. If the secession is to be successful, effective control must be demonstrated for a sufficiently long period. {544} As J. Woehrling provides:

"La s?cession serait consid?r?e comme r?ussie si, durant un temps suffisamment long, les autorit?s qu?b?coises parvenaient ? exclure l'application du droit canadien sur leur territoire et, au contraire, r?ussissaient ? faire r?gner l'ordre juridique d?coulant de leurs propres lois et d?cisions." {545} [Emphasis added.]

Also, E.J. Arnett indicates:

"...a secessionist government could gain legal rights over territory if it could establish effective control over that land, and if it was not challenged by someone else with a legitimate claim ? in this case the federal government or, failing that, the aboriginal peoples inhabiting some of that territory." {546}

Moreover, P. Monahan adds that should Qu?bec fail to exercise effective control over a portion of the territory currently within the province, Qu?bec's claims to political independence would be accordingly reduced or compromised. {547}

In the case of Qu?bec secession from Canada by means of a UDI, the use of force by a secessionist Qu?bec is a scenario that must be seriously evaluated. Some separatists point to the secession of Singapore from the Greater Malaysian Union in 1965, as an example of how a segment of a federated state can peacefully achieve secession outside the rule of law. However, A. Cassese cautions that the situation in Qu?bec is highly different from that which existed in Malaysia:

"This is precisely a case in which Qu?b?cois greatly rely. It should however be stressed that, first, Malaysia had been set up as a federal State only in 1963 and, secondly, that Malaysia was a contrived constellation whose component had been forced into federation for external and adventitious reasons and upon the assumption that the territories tacked on to Malaya could not exist on their own' {548} ...The situation is markedly different in Quebec." {549} [Emphasis added.]

The possible use of force would remain a factor in Qu?bec so long as there exist opposing interests that are not prepared to accept what they view as an unlawful and insurgent regime. {550} Presently, there exist extensive and diverse rights, interests and positions of others that appear to run directly counter to the notion of Qu?bec independence. Aside from the clear interests of the federal government, the governments of the other nine provinces, and the Canadians they represent, there are also the rights and positions of peoples and groups within Qu?bec.

Should there be resistance from different peoples or groups {551} within the province, the separatists' objective of achieving effective control could result in the use of force by the PQ government. {552} If the continued opposition to the new secessionist regime were not forcibly quelled by Qu?bec, it could entail a failure to meet the requirements of effective control. P. Monahan points out how the use of force enters into the struggle for effective control:

"In significant areas of the province of Qu?bec, the majority of the local population may actively resist the attempt to secede. (The most obvious such areas would be the lands in northern Quebec with a majority population and certain Indian reserves near Montreal.) Any defiance of the new regime would pose a problem for the leaders of the new Quebec state. They would face a choice between using force to suppress this challenge to their authority ? such a response being certain to provoke further unrest or civil disorder ? and allowing the challenge to go unmet." {553} [Emphasis added.]

Further, P. Russell foresees a possible scenario of force and violence should Aboriginal peoples be "forced" to be a part of a sovereign Qu?bec:

"The confrontation would not be over the right of French-speaking Quebeckers to form their own sovereign nation, but about the right to force ethnic minorities, especially Aboriginal peoples, to be a part of a sovereign Quebec. Such circumstances would pose a tremendous challenge to Canada's civilized ways: violence could supplant tedium as the central feature of our constitutional politics." {554}

In light of the possible deterioration of relations and opposition in the event of a UDI by Qu?bec, the issue of potential use of force is examined further under the next sub-heading.

4.2 Potential Use of Force by Governments [Top]

The threat or use of force is not a new issue for the Parti Qu?b?cois government vis-a-vis Aboriginal peoples. For example, in 1977, the PQ government of the day sent up riot police {555} to Kuujjuaq (formerly Fort Chimo) in northern Qu?bec, when Inuit demonstrated against the imposition of Qu?bec's proposed Charter of the French Language (Bill 1) that would force them to use French. {556} Inuit and Cree had charged that Qu?bec was violating their right to choose what language to use in community or regional affairs. Furthermore, the Aborginal parties indicated that the language bill was in contravention of the terms of the James Bay and Northern Quebec Agreement, which the Qu?bec National Assembly had recently approved. {557}

At the time, response to the PQ government's actions against Aboriginal peoples in the language law issue was highly critical. For example, a Montreal Star editorial commented:

"It is ironic that a government which is committed to the preservation of a language and culture which it claims are endangered should be so insensitive to the needs of another people, whose culture and language are genuinely in jeopardy. {558} Compared with the problems confronting the Inuit, the problems confronting French-speaking Quebec are minuscule. Where indeed they might have expected understanding, the Inuit are getting gamesmanship; where they might have expected sympathy, they are treated instead to the riot squad." {559} [Emphasis added.]

Also, in a 1977 paper, D. Burman, D. Proulx, & D. Turp (Universit? de Montr?al) analysed the linguistic rights of Aboriginal peoples in Qu?bec and the debate over Qu?bec's language laws and the authors concluded:

"Ce qui est plut?t incompr?hensible et franchement inacceptable, c'est ce revirement de l'id?ologie du gouvernement du Parti Qu?b?cois qui, de d?colonisateur des Qu?b?cois qu'il se pr?tend, se place dans une situation de colonialiste envers les autochtones du Qu?bec, au lieu de n?gocier avec eux sur un pied d'?galit?..." {560} [Emphasis added.]

The PQ government's attitude towards Aboriginal peoples, as described and recommended by the three jurists, is also relevant to the current debate on Qu?bec secession. In regard to the territory contemplated by the James Bay and Northern Quebec Agreement, Burman, Proulx & Turp make clear that this region remains Aboriginal territory where it would be inappropriate for the Qu?bec government to seek to impose its own rules:

"La seule attitude acceptable, eu ?gard ? la philosophie de base d'un gouvernement issu du Parti Qu?b?cois, c'est de consid?rer que g?n?ralement, mais plus sp?cifiquement quant aux territoires d?sign?s' de la Convention, ce ne sont pas les autochtones qui occupent NOTRE territoire mais bien nous qui tentons d'occuper LE LEUR...Dans ce contexte, vouloir imposer nos propres r?gles du jeu aux autochtones comme dans les exemples que nous avons soulev?s avec la loi 101, cela rel?ve d'un comportement colonialiste et imp?rialiste inqualifiable dans le cas du pr?sent gouvernement si?geant ? Qu?bec." {561} [Emphasis added, capitals in original.]

Ultimately, changes to Qu?bec's Charter of the French Language {562} (Bill 101{563}) were negotiated, so as to recognize at least some language rights of Crees, Inuit and Naskapis and to include certain exemptions to the language legislation. These changes were a direct result of the Aboriginal protest to Qu?bec's unilateral actions. However, a much-quoted subsequent study {564} of Qu?bec's treatment of Aboriginal peoples makes no mention whatsoever of the deep conflicts and use of police riot squads that took place. Instead, the study compliments the Qu?bec government for its efforts to support Aboriginal languages. {565}

If use of force can be deployed in regard to an Inuit protest over Qu?bec's language legislation, such actions could easily recur in the context of a UDI by a secessionist Qu?bec. In the latter case, the stakes would be much greater. Consequently, in regard to Qu?bec secession, the threat or use of force by the Qu?bec or federal government is examined further below.

4.2.1 Use of force by PQ government [Top]

"We [Crees] are not contemplating secession or insurrection. We have never and will never use violence. We ask ourselves, however, in the face of the potential breakup of Canada: Who is it that is really threatening these things?" {566}

Grand Chief Matthew Coon Come, 1994

The question arises as to whether a unilateral declaration of independence, in the absence of any legal right to secede, can justify the use of force by Qu?bec to maintain its self-proclaimed state. J.-P. Derriennic forewarns that the scenario of a unilateral declaration of independence in Qu?bec (based on a simple majority vote) could lead to violence:

"Il ne faut pas non plus commettre l'erreur de croire que nos conflits politiques ne peuvent pas devenir violents..." {567}

The James Bay Crees abhor any use of force or any resort to violence. In particular, in the context of Qu?bec secession, disputes should be resolved peacefully based on full recognition of and respect for the equal rights of peoples. Unfortunately, there appear to be significant indications that the use of force and acts of violence are likely to be a by-product of a unilateral declaration of independence by Qu?bec. As M.E. Turpel cautions:

"You can never predict what will happen...Just because Canada is a peaceful country doesn't mean you can't have a civil war. If you can have an armed conflict over a small burial ground [such as in Oka {568}], then what can you have if you're talking about an entire territory?" {569}

As indicated in this Study, a successful UDI by Qu?bec can only be achieved through effective control over the whole of the claimed territory. Should there be significant resistance to such illegal and unconstitutional action, then use of force might be perceived as the only means to ensure a successful revolution by a secessionist Qu?bec. In this regard, J. Crawford states:

"...attempts at secession, which may be defined as the creation of a State by the use or threat of force and without the consent of the former sovereign, have been frequent." {570}

Also, S.A. de Smith & R. Brazier provide:

"Successful revolution sooner or later begets its own legality...Thus, might becomes right in the eye of the law." {571}

C. Tomuschat adds:

"As a rule, advocacy to break loose from a given State breeds, or is accompanied by, disorder and violence." {572}

In regard to northern Qu?bec, P. Monahan states:

"If natives in northern Qu?bec refuse to recognize the authority of the new Quebec state, Quebec will be unable to lay claim to that territory unless it can, through the exercise of force if required, demonstrate that it has effective control over it." {573}
[Emphasis added.]

As discussed above, in the face of resistance from different groups, a secessionist Qu?bec could feel compelled to resort to the use of force or else fail by default to establish effective control. In December 1991, PQ leader Jacques Parizeau made front page news when he declared that he would count on the army to ensure peace in the period following a declaration of independence. As G. Normand describes:

"Jacques Parizeau compte sur l'arm?e canadienne pour assurer la paix sur le territoire qu?b?cois, durant la p?riode de transition qui suivra la d?claration d'ind?pendance du gouvernement du Qu?bec." {574}

More recently, former PQ Whip Jacques Brassard (currently Minister of the Environment) declared that an independent Qu?bec would resort to force to ensure its territorial integrity. As M. Adam reports, Brassard highlights such possible force against "Aboriginal peoples and other dissident groups":

"...La semaine derni?re,...Jacques Brassard d?clarait que le gouvernement d'un Qu?bec souverain pourrait avoir recours aux forces de l'ordre pour garantir l'int?grit? de son territoire et asseoir son autorit? ? l'int?rieur de ses frontiers, notamment sur les autochtones et autres groupes dissidents." {575} [Emphasis added.]

Further, in the testimony of experts before the Qu?bec National Assembly Committee on Sovereignty in 1992, it was repeatedly recommended that an independent Qu?bec should have an army for civil purposes (among others) to defend "its" territorial integrity and avoid any dismemberment. In this regard, J. Coulon provides:

"Je pense que les missions sont multiples. Elles partent de la d?fense du territoire, de la souverainet?, d'assurer le contr?le du territoire, de la baie d'Ungava ? l'Estrie en passant par le T?miscamingue jusqu'en Gasp?sie. Donc, faire en sorte qu'on assure le contr?le du territoire puisqu'il y a des gens qui contestent que...puisqu'il y a des gens, m?me, qui avancent que le Qu?bec peut ?tre d?p?c?." {576}

In addition, in his brief to the Committee, Coulon states:

"Une des premi?res choses que demandent ? une nouvel ?tat les pays qui l'accueuillent dans le syst?me international est de prouver sa capacit? ? contr?ler son territoire et d'assurer sa d?fense et sa securit?. Cela ne peut ?tre fait sans une force militaire." {577}

A. Legault (Universit? Laval) suggests that to keep internal order in respect to possible crises involving Aboriginal peoples, Qu?bec would need the sophisticated operations of an army:

"Quant ? l'ordre int?rieur, le Qu?bec de par ses installations ? Valcartier et ? Montr?al devrait pouvoir continuer ? se doter de tous les moyens n?cessaires pour r?pondre ? ce genre de situation, m?me si dans l'ensemble des op?rations d'Oka et de Kahnawake plusieurs ?l?ments militaires sis ? l'ext?rieur du Qu?bec ont ?t? n?cessaires au bon fonctionnement des op?rations, par exemple le 2e Escadron de guerre ?lectronique et la 1re Companie de renseignement de Kingston.

Le Qu?bec serait peut-?tre cependant en difficult?s, tout comme le Canada d'ailleurs, si celui-l? devait faire face ? deux ou trois crises d'Oka simultan?ment." {578}

In regard to Aboriginal peoples in Qu?bec resisting Qu?bec's accession to independence, member of the National Assembly, C. Maciocia, asked witness Legault directly:

"Dans la mesure o? certaines nations autochtones du Qu?bec n'entendent pas respecter cette volont? d?mocratique et qu'ils d?cident, disons, d'une certaine mani?re, de cr?er un certain d?sordre, est-ce que c'est r?aliste de penser que les Forces arm?es canadiennes puissent intervenir sur la demande des autochtones pour se faire proteger?" {579}

In response, Legault felt it was better to seek the opinion of a jurist; however, politically, he felt that there would be little motivation to bring in the Canadian army. {580}

C.-P. David (Coll?ge militaire royal de St-Jean) testified that a Qu?bec army may not be necessary to confront civil disorders in an independent Qu?bec, but he still suggests that special forces should be trained for such purposes:

"Enfin, nombreux sont ceux qui croient qu'il faudra d?sormais substituer fr?quement l'utilisation de l'arm?e ? celle des corps policiers pour affronter les d?sordres civils provoqu?s par un ?ventuel nouveau statut politique du Qu?bec. Ils ignorent le fait que cette mission peut ?tre accomplie tout aussi bien par une gendarmerie ou une garde nationale entrain?e aux besoins particuliers de telles ?ventualit?s." {581}

Should a secessionist Qu?bec resort to the use of force against Aboriginal peoples exercising their right to self- determination and choosing to remain in Canada, it would appear to be contrary to international law. {582} In this regard, M. Bothe provides:

"As formulated in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, the use of force to suppress the exercise of the right of self-determination constitutes a forbidden use of force. If this is accepted, one could deduce that any counterforce constitutes self-defence, and that outside help given to that kind of counterforce would constitute collective self-defence within the meaning of Article 51 of the Charter." {583} [Emphasis added.]

Assistance to Aboriginal peoples from the government of Canada in such a scenario would of course not constitute "outside help". Moreover, in light of the constitutional and fiduciary obligations of the federal Crown towards Aboriginal peoples in Qu?bec and the illegality of a unilateral declaration of independence (as well as its lack of legitimacy), it would be expected that the Canadian government would take some appropriate action in response to any unanticipated use of force by Qu?bec.

It is the contention of the James Bay Crees that denial of their right to self-determination, including the right to choose to remain in Canada, cannot legitimately be enforced through the use of force by a secessionist Qu?bec under international law. In this regard, D. Murswiek provides that severe violation of human rights could give rise to a right to secede and a right of self-defence:

"...if the ethnic group were treated by the government in a way that violated its fundamental human rights, evidently and severely, there would then be a right of secession. Under such circumstances, as the definition of aggression {584} of the General Assembly of the United Nations would confirm, the right of secession has the character of a right of self-defence and also might be vindicated by force." {585}
[Emphasis added.]

In the U.N. General Assembly's 'Definition of Aggression' Resolution, {586} the preamble reaffirms:

"the duty of States not to use armed force to deprive peoples of their right to self-determination, freedom and independence, or to disrupt territorial integrity". [Emphasis added.]

It is worth noting that "State" is defined in a manner that could include a secessionist Qu?bec, regardless of whether it had achieved effective control or international recognition or membership in the United Nations. {587} Therefore, an unrecognized, seceding Qu?bec would not escape the limitations placed on the threat or use of force under international law. Moreover, article 5 of the Resolution provides in part:

"3. No territorial acquisition or special advantage resulting from aggression {588} is or shall be recognized as lawful."

In addition, in regard to aspiring new states in Eastern Europe and the Soviet Union, the Council of the European Community has indicated that aggression by an entity shall lead to non-recognition:

"The Community and its Member States will not recognise entities which are the result of aggression. They would take account of the effects of recognition on neighbouring states." {589}

M. Shaw indicates that the use of force has limitations under international law, but might be used to some extent in situations of self-determination:

"It is more likely that the principle of self-determination itself provides that where forcible action has been taken to suppress this right, force may be used in order to counter this and achieve self-determination. The use of force to suppress self-determination is now clearly unacceptable, as is help by third parties given to that end." {590} [Emphasis added.]

Based on the above, the PQ government could not use force to quell attempts by Aboriginal peoples to exercise their right to self-determination and choose to remain in Canada (if they so desired). Moreover, Qu?bec could not invoke the self-determination exception {591} under the U.N.'s Definition of Aggression' Resolution in order to use force against Aboriginal peoples. First, as this Study shows, Qu?bec cannot rely on any right to self-determination to support its attempt to secede from Canada. Second, the self-determination exception under the Resolution does not appear to cover non-colonial situations such as those relating to Quebecers. {592}

Again, it is the position of the James Bay Crees that use of force must have no place in any struggle for effective control.

4.2.2 Use of force by Canadian government [Top]

In regard to the use of force by the federal government, it is useful to consider the following comment by R. Higgins:

"Today we frequently hear it said that frontiers may not be altered by force. This has, for example, been a guiding precept in the various avis handed down by the Commission Arbitrale established within the Conference on Yugoslavia. I confess that, so far as normative guidance is concerned, I found this a somewhat unsatisfactory principle...Does the principle that frontiers may not be altered by force mean that the federal government may use no force at all to prevent [a province with no right to secede from seceding]?" {593} [Emphasis added.]

S. Scott is of the view that acts by Canada to protect the Constitution, laws and territorial integrity of the state constitute legitimate self-defense. {594} P. Monahan also indicates that, although extremely unlikely to be exercised, there exists a right for the Canadian government to defend Canada's territorial integrity under international and Canadian law:

"Military action to defend the country's physical integrity would not be prohibited under international law; it would also be permitted under the National Defence Act." {595}

Similarly, J. Woehrling does not anticipate the use of force, but the jurist confirms that use of force by Canada in the context of unilateral secession would be lawful: {596}

"En cas de s?cession unilat?rale, l'?tat englobant commencera pratiquement toujours par s'opposer ? celle-ci. S'il d?cide de le faire par les armes, ce que le droit constitutionnel lui permet et ce que le droit international ne lui interdit pas, les organisations internationales s'abstiendront g?n?ralement d'intervenir, comme le montrent les pr?c?dents, ? moins que le conflit ne s'internationalise." {597} [Emphasis added.]

Barring exceptional circumstances, pressure to resort to force need not arise in regard to the Canadian government. First, the burden is on a secessionist government to demonstrate that it has established effective control. As P. Hogg points out:

"As long as [the federal government] asserted its continuing authority over Quebec in areas of federal jurisdiction, it would be difficult for the courts to characterize the secession as successful. Notice that a mere likelihood of success would not justify the courts in changing sides', for that would have the perverse effect of rendering illegal any efforts by the federal government to assert its authority, which would tend to implicate the courts in the political struggle. {598} The courts would have to uphold the pre-existing law of the federation until it was certain that it had been effectively replaced." {599} [Emphasis added.]

Second, there are a number of non-violent measures that the Canadian government can implement in either a supportive or initiating role. Such actions would effectively counter an illegal secession and the attempts of the PQ government to establish exclusive control over the whole of its claimed territory. {600}

Steps to defend the rule of law, the Constitution of Canada, its territorial integrity and national unity, as well as the right of Aboriginal peoples to choose to remain in Canada and their territories and resources, can be taken without resorting to the use of force or violence. {601} These measures include, among others:

i) Court challenges in Canadian courts to emphasize the uncon-stitutionality, illegality, and illegitimacy of the PQ government's unilateral declaration of independence, accompanying legislation, and ensuing acts; {602}

ii) Issuance of a declaration that Qu?bec remains a part of Canada, thereby discouraging or denying international recognition of a secessionist Qu?bec by third party states; {603}

iii) Continued recognition of legitimate representatives of the Qu?bec population, including members of the House of Commons and Senate, under Canada's Parliament of Canada Act; {604}

iv) Continued recognition of Aboriginal peoples in Qu?bec as nationals and citizens of their own respective nations and of Canada (if they so desire); {605}

v) Continued (if not increased {606}) application of federal, as well as Aboriginal laws, in at least some regions of the province of Qu?bec; {607}

vi) Collection of income and other taxes from the Qu?bec population; {608}

vii) Maintenance of Canadian airports and seaports, as well as customs and border officials at U.S.-Canada border crossings in Qu?bec; {609}

viii) Provision of federal programs and services to Aboriginal peoples, in accordance with the desires of the peoples concerned, their treaty rights and Canadian law; {610}

ix) Provision of additional programs and services to Aboriginal peoples in Qu?bec in those territories where Aboriginal peoples refuse to recognize the claimed jurisdiction of a seceding Qu?bec, in order to make up for any loss of programs and services from Qu?bec;

x) Discussions with major third party states, with a view to ensuring that no international recognition is given to a secessionist Qu?bec state; {611}

xi) Renegotiation of existing treaties with Aboriginal peoples in northern Qu?bec, including boundary questions. This would be necessary in light of an attempt by a secessionist Qu?bec to unilaterally assume all treaty obligations of the Canadian government contrary to the spirit and letter of these treaties.

As opposed to the use of force, it is the position of the James Bay Crees that any fundamental alteration of the constitutional status of Qu?bec must be based on peaceful negotiations and the consent {612} of the peoples concerned. In this regard, it is worth noting the following words of M. van Walt van Praag that stresses consensual relations and not coercion:

"Peace and stability can be achieved only when nations are formed on the basis of consensual relations among peoples, not when coercion is applied. The potential for explosive disintegration lurks in all states where people's human rights, including the right to self-determination, are denied." {613} [Emphasis added.]

Footnotes

{513} M. Masse, "Pour la libert? [:] Avec un NON", Le Devoir, September 24, 1995, at A11. Unofficial English translation: "A province cannot separate without the agreement of the rest of Canada unless it is prepared to impose, if necessary by force, its illegal authority. International law only recognizes this act of force if it succeeds." [Emphasis added.] M. Masse is a founding member of Les Amis de la libert?. The article is co-signed by J.L. Migu?, G. Gu?nette, R. Blatter, and C. Martin-Flynn.

{514} See discussion under sub-heading 3.1 supra.

{515} See discussion under heading 2 & sub-heading 3.4 supra.

{516} See, for example, Assembl?e nationale, Journal des d?bats, Commission d'?tude sur toute offre d'un nouveau partenariat de nature constitutionnelle, 10 Oct. 1991, No. 4, at CEOC-84, where Y. de Montigny (Universit? d'Ottawa) explains how it may be possible to act illegally at the internal level yet gain recognition from the international community under international law.

{517} The basic criteria for statehood are set forth in Convention on the Rights and Duties of States (Montevideo Convention), 49 Stat. 3097, T.S. 881, 165 L.N.T.S. 19. Signed at Montevideo, Uruguay, on December 26, 1933; entered into force on December 26, 1934, art. 1: "The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States." These criteria are said to be based on the principle of "effectiveness" among territorial units.

{518} J. Crawford, The Creation of States in International Law (Oxford: Clarendon
Press, 1979), at 45.

{519} Id. at 46.

{520} See, for example, S.A. de Smith & R. Brazier, Constitutional and Administrative Law, 6th ed. (London: Penguin Books, 1989), at 68, where it is said "legal theorists have no option but to accomodate their concepts to the facts of political life".

{521} Unilateral secession is considered to be illegal and unconstitutional under Canadian law. However, such secession may be viewed as "neither legal nor illegal in international law, but a legally neutral act the consequences of which are, or may be, regulated internationally": J. Crawford, The Creation of States in International Law (Oxford: Clarendon Press, 1979), at 268. The author indicates that international illegality may be associated with secession, in cases where there may be a threat to international peace and security or in certain cases of foreign intervention.

{522} K. Gagnon, "Le gouvernement du Qu?bec ignore la mise en demeure de l'avocat Guy Bertrand", La Presse, August 10, 1995, at B1.

{523} See also J. Crawford, The Creation of States in International Law (Oxford: Clarendon Press, 1979), at 247, n. 1: "...the term secession', which is restricted in its meaning to revolutionary creations of new States, is preferred"; and Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 (S.C.C.) at 882: "...creating a state of legal discontinuity...is...a form of revolution." See also 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 465, where Qu?bec independence in contravention of the Canadian Constitution is referred to as a "revolutionary act" ("acte r?volutionnaire").

In J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 114, the author refers to the act of independence and abolition of the federal government in Qu?bec (based on a simple majority vote) as a "coup d'?tat" that would be unacceptable to those in Qu?bec who wish to remain Canadians.

{524} G. Marchildon & E. Maxwell, Quebec's Right of Secession Under Canadian and International Law, note 110, 1662, supra, at 620.

{525} P. Monahan, Cooler Heads Shall Prevail: Assessing the Costs and Consequences of Quebec Separation, note 114, 1662, supra, at 10.

{526} Premier Parizeau's draft Act respecting the future of Qu?bec attempts to provide for legal continuity by providing that all Acts of the Parliament of Canada would be incorporated as Qu?bec law on the date that Qu?bec becomes a sovereign country (s. 18); and by establishing a rival judicial system (s. 22) to replace that of Canada's.

However, the notion of opposing systems of courts and laws can lead to instability and chaos. See B. Pelletier, "La continuit? juridique", Le Devoir, September 22, 1995, at A11, where the University of Ottawa law professor indicates that the courts are not obliged to give effect to the secessionist movement. On the contrary, the courts must support the federal principle of Canada until it can be said with certainty that the secession will succeed on the facts. Pelletier adds that the Act respecting the future of Qu?bec gives rise to serious problems that cannot be ignored and cannot be treated as simple technicalities without importance.

{527} P. Hogg, Constitutional Law of Canada, note 245, 1662, supra, vol. 1, at 5-32.

{528} N. Finkelstein, G. Vegh & C. Joly, Does Qu?bec Have a Right to Secede at International Law?, note 314, 1662, supra, at 229, n. 9.

{529} 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. For the precise statement of the five experts on this matter, see text accompanying note 819, infra.

{530} See, for example, J.-P. Derriennic, "Le droit international admet la s?cession, il ne la facilite pas" in Le Devoir, September 5, 1995, at A11.

{531} However, see Committee to Examine Matters Relating to the Accession of Qu?bec to Sovereignty, Draft Report, note 8, 1662, supra, at 55, where it is acknowledged: "...should Qu?bec declare independence unilaterally, [international] recognition could take time."

{532} 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 24. Similarly, see R. Higgins, Problems and Process [:] International Law and How We Use It (Oxford: Clarendon Press, 1994), at 126.

{533} P. Hutchins, "And do the Indians Pass With It ? Quebec Sovereignty, Aboriginal Peoples and the Treaty Order", paper presented at the Canadian Bar Association Seminar on The Act Respecting the Sovereignty of Quebec: Legal Perspectives, Montreal, May 6, 1995, at 18.

{534} J.E.S. Fawcett, The Law of Nations (Middlesex: Penguin Books, 1971), at 46. Quoted in V. Gowland-Debbas, Collective Responses to Illegal Acts in International Law: United Nations Action in the Question of Southern Rhodesia (London: Martinus Nijhoff Publishers, 1990), at 208.

{535} V. Gowland-Debbas, Collective Responses to Illegal Acts in International Law: United Nations Action in the Question of Southern Rhodesia (London: Martinus Nijhoff Publishers, 1990), at 240.

{536} J. Crawford, The Creation of States in International Law (Oxford: Clarendon Press, 1979), at 106.

{537} It has been said that Aboriginal peoples in Qu?bec cannot invoke the international law rule that prevents the creation of states where the principle of self-determination has been violated, since the Aboriginal peoples concerned could not claim a repression comparable to that suffered by Black Africans in Rhodesia. See R. Young, The Secession of Quebec and the Future of Canada (Montreal/Kingston: McGill - Queen's University Press, 1995), at 108. Young appears to rely totally on the opinion expressed in 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 60-64. However, Finkelstein & Vegh provide virtually no analysis for reaching this conclusion. In particular, they do not indicate why the sole acceptable criteria for such a "rule" to apply would be a situation comparable to that in Rhodesia in the 1960s.

Since 1992, the authors appear to have altered their views at least to a significant degree. See, for example, N. Finkelstein, G. Vegh & C. Joly, Does Qu?bec Have a Right to Secede at International Law?, note 314, 1662, supra, at 252: "...others in Qu?bec may equally have a claim to secede from Qu?bec, or remain in Canada, on the basis that they are also a people whose rights to self-determination will not be vindicated in an independent Qu?bec, e.g. natives and anglophones."

{538} The evolution of the right to self-determination is described under heading 2 supra.

{539} See discussion under sub-heading 4.2 & 11.1 infra.

{540} R. Higgins, Problems and Process [:] International Law and How We Use It (Oxford: Clarendon Press, 1994), at 45.

{541} 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 12.

{542} See, for example, J.-P. Derriennic, "Le droit international admet la s?cession, il ne la facilite pas" in Le Devoir, September 5, 1995, at A11, where it is said that, in the case of Qu?bec, secession is not a right. It is either realized by force or by mutual consent

{543} J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 70-71. Unofficial English translation: "We would then be in a very perilous situation. If the Qu?bec government ceases to govern by law...certain of its adversaries within the province will continue to respect federal laws and certain of them will also act outside of any law."

{544} In relation to the vast Aboriginal territories in northern Qu?bec, a claim by Qu?bec of "effective control" would not be assured even in the long term. It would hardly be possible for Quebec to apply successfully the rule of effective control, if the question of the 1898 and 1912 territories (i.e. two-thirds of the current province) were not resolved.

{545} 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 131. Unofficial English translation: "Secession would be considered as succeeded, if during a sufficiently long time, the Qu?bec authorities have managed to exclude the application of Canadian law on their territory and, on the contrary, succeeded in making legal order prevail flowing from their own laws and decisions." [Emphasis added.]

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

{547} 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 13. The same opinion is expressed in 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 42, n. 22. Woehrling criticizes the contrary view expressed on this point in 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 410-417.

{548} P. Calvocoressi, World Politics Since 1945, 4th ed. (London & New York: 1982), at 315.

{549} A. Cassese, Self-Determination of Peoples: A Legal Appraisal (Cambridge: Cambridge University Press, 1995), at 253, n. 75.

{550} See, for example, R. Young, The Secession of Quebec and the Future of Canada (Montreal/Kingston: McGill - Queen's University Press, 1995), at 107: "...a UDI can lead right through the law to a contest of force."

{551} Peoples or groups in Qu?bec who actively oppose an unlawful secessionist attempt in Qu?bec could include Aboriginal peoples, anglophones, allophones, as well as francophones who support the existing federal arrangement in Canada.

{552} See, for example, S.J. Anaya, R. Falk, & D. Pharand, "Conclusions on Canada's Fiduciary Obligations To Aboriginal Peoples in Quebec under International Law", in Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 216, supra, vol. 1, at 98: "One unfortunate consequence of treating secession as a matter of fact, not law, is to foster the belief that only by force ? that is, by creating facts on the ground ? can the results of self-determination be achieved, since the right to reach such results is being resisted so strenuously." [Emphasis in original.]

{553} P. Monahan, Cooler Heads Shall Prevail: Assessing the Costs and Consequences of Quebec Separation, note 114, 1662, supra, at 28.

{554} P. Russell, "The End of Mega Constitutional Politics in Canada?" in K. McRoberts & P. Monahan, (eds.), The Charlottetown Accord, the Referendum and the Future of Canada (Toronto: Univ. of Toronto Press, 1993) 211 at 218. Russell foresees such potential confrontations (even prior to any implemented strategy by Qu?bec for effective control), in the event that there would be a Yes vote in a Qu?bec referendum on secession.

{555} See, for example, "25 policiers de la SQ ont ?t? d?p?ch?s ? Fort Chimo", La Presse, August 25, 1977, at A1; L. Diebel, "More cops readied for Inuit protest", Montreal Star, August 30, 1977, at A1; "Quebec's show of force angers' Eskimo villages", Globe and Mail, August 26, 1977, at A1.

{556} Ironically, as Qu?bec was taking steps to become more unilingual and establish French as the sole official language in the province, the PQ government was in effect expecting Aboriginal peoples (whose second language was English) to become trilingual (i.e. Aboriginal language, English, and French).

{557} L. Diebel, "Bill 1 threatens James Bay pact", Montreal Star, May 19, 1977, at A1; S. Oziewicz, "Crees, Eskimos contend Bill 1 could breach James Bay pact", Globe and Mail, May 6, 1977; S. Schwartz, "Inuit say Quebec violating 1975 agreement on rights", The Gazette, Montreal, June 14, 1977, at 5.

{558} See B. Morse, "Comparative Assessments of Indigenous Peoples in Qu?bec, Canada and Abroad" 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, 307, at 339: "There are 53 distinct languages that have survived centuries of colonization and linguistic suppression in Canada with numerous dialects emanating from 10 major language families. Tragically, many experts predict that up to 40 of these languages may disappear within the next two decades with some having only a few living speakers left. Only three of these languages are on a reasonably solid foundation (Inuktitut, Cree and Ojibway) and even they are not adapting sufficiently quickly to develop new words to respond to increasing consumerism and technological change." In regard to Aboriginal languages, see also A. McMillan, Native Peoples and Cultures of Canada (Vancouver/Toronto: Douglas & McIntyre, 1995), at 3-7.

{559} "Chimo and distrust", Montreal Star, August 30, 1977.

{560} D. Burman, D. Proulx, & D. Turp, Les droits linguistiques des Am?rindiens et Inuit du Qu?bec (Montr?al: Facult? des ?tudes Sup?rieures, Ma?trise en Droit, D?cembre 1977) (paper), at 76. Unofficial English translation: "What is above all incomprehensible and frankly unacceptable, is the reversal of ideology of the Parti Qu?b?cois government who, from decolonizer of the Qu?b?cois which it claims, places itself in a colonialist situation towards the Aboriginal peoples of Qu?bec, instead of negotiating with them on a footing of equality..." [Emphasis added.]

For a "sanitized" view of Qu?bec language policies in regard to Aboriginal peoples (i.e. that fails to mention any of the related conflicts), see E. Gourdeau, "Le Qu?bec et la question autochtone" in A.-G. Gagnon, Qu?bec: ?tat et soci?t?, note 39, supra, at 340.

{561} Id. at 77. Unofficial English translation: "The sole attitude, having regard to the basic philosophy of a government emanating from the Parti Qu?becois, is to consider that generally, but more specifically in relation to the designated territories' of the Agreement, it is not the Aboriginal peoples who occupy OUR territory but rather we who are attempting to occupy THEIRS...In this context, to seek to impose our own rules of the game on Aboriginal peoples as in the examples we raised in connection with Bill 101, that is a matter of unspeakable imperialist and colonialist conduct in the case of the present government sitting in Qu?bec." [Emphasis added, capitals in original.]

{562} Charter of the French Language, R.S.Q., c. C-11, ss. 87, 88, 95, 96.

{563} Bill 101 was originally tabled as Bill 1 in the previous session of the Qu?bec legislature

{564} B. Morse, "Comparative Assessments of Indigenous Peoples in Qu?bec, Canada and Abroad" 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, 307, at 339-341.

{565} Id. at 341: "No other provincial government has made the limited yet relatively concerted efforts to support the survival of Aboriginal languages on a par with Qu?bec..." The Morse study also fails to address Cree charges of duress by the Qu?bec government and its Crown corporations, in regard to the purported surrender and extinguishment of rights under the James Bay and Northern Quebec Agreement.

Nor does the Morse study make reference to the fact that the 1985 National Assembly Resolution on aboriginal rights was adopted against the wishes of Aboriginal nations in Qu?bec (see discussion at 343). This unilateral action was taken by the PQ government at that time, even though former Premier Ren? L?vesque had officially promised Aboriginal leaders not to table any such resolution in the National Assembly without their consent. Instead, the PQ government unilaterally deleted provisions it did not like from the draft resolution being negotiated and simply tabled and adopted a version of its choosing.

{566} M. 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 13.

{567} J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 113. Unofficial English translation: "We must also not commit the error of believing that our political conflicts cannot become violent..."

{568} For a discussion of the crisis in 1990 in Kanesatake (Oka), see G. York & L. Pindera, People of the Pines [:] The Warriors and the Legacy of Oka (Boston/London/Toronto: Little, Brown & Co. (Canada) Limited, 1992); M. Rochon & P. Lepage, Oka-Kanehsatake ? ?t? 1990 [:] Le choc collectif (Qu?bec: Commission des droits de la personne du Qu?bec, 1991); Standing Committee on Aboriginal Affairs, The Summer of 1990 (Ottawa: House of Commons, May 1991), Fifth Report.

The Oka conflict turned many francophone Quebecers against Mohawks and other Aboriginal peoples in Qu?bec. However, see Rapport d'enqu?te de coroner Guy Gilbert sur les cas et circonstances du d?c?s de Monsieur Marcel Lemay (Qu?bec: Gouvernement du Qu?bec, le 21 juillet 1995), where Coroner Guy Gilbert determines that, while none of the parties involved are without responsibility, a substantial portion of the blame must lie with the Qu?bec police force. The Coroner determined that the S?ret? du Qu?bec (SQ) negligently initiated the raid on the Mohawks, in a premature manner and without justification or notifying government authorities. See A. N?el, "Oka: la SQ a ?t? n?gligente", La Presse, August 17, 1995, at A1; A. Gruda, "Rapport Gilbert: une police sans contr?le", La Presse, August 17, 1995, at B1; J. Mennie, "SQ acted in context of confusion': coroner", The Gazette, Montreal, August 17, 1995, at A6; G. Lesage, "Oka: une gaffe de soci?t?", Le Devoir, August 17, 1995, at A6.

{569} C. Turner, "1990 Confrontation Haunts Debate Over Quebec", Los Angeles Times, January 1, 1995. For a description of armed conflicts worldwide, see Project Ploughshares, Armed Conflicts Report 1993 (Waterloo, Ontario: Institute of Peace and Conflict Studies, 1994), where it is reported that 38 different states were engaged in armed conflict in 1993.

{570} J. Crawford, The Creation of States in International Law (Oxford: Clarendon Press, 1979), at 247.

{571} S.A. de Smith & R. Brazier, Constitutional and Administrative Law, 6th ed. (London: Penguin Books, 1989), at 68.

{572} C. Tomuschat, "Self-Determination in a Post-Colonial World" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23,1662, supra, at 11.

{573} P. Monahan, "International law isn't on Mr. Parizeau's side", Globe and Mail, May 19, 1994.

{574} G. Normand, "Parizeau compte sur l'arm?e pour la p?riode suivant l'ind?pendance", La Presse, December 15, 1991, at A1. Unofficial English translation: "Jacques Parizeau is counting on the Canadian army to ensure the peace on Qu?bec territory, during the transition period which will follow a declaration of independence by the Qu?bec government."

See also P. Mooney, "Quebec army not farfetched but would be costly: expert", The Gazette, Montreal, August 19, 1994, at A7: "The Parti Qu?b?cois leader reiterated his desire for a Quebec army while campaigning this week in Montreal. [new para.] We'll need one...Maybe not as elaborate as the Canadian army...but we'll need one.'"

{575} M. Adam, "Le PQ n'exclut pas l'usage de la force pour s'imposer dans un Qu?bec souverain", La Presse, June 11, 1994, at B2. Unofficial English translation: "Last week...Jacques Brassard...declared that the government of a sovereign Qu?bec could resort to the forces of order to guarantee the integrity of its territory and establish its authority within its borders, particularly against Aboriginal peoples and other dissident groups." [Emphasis added.] Similarly, see "Sovereign Quebec would use police against dissident natives, PQ official says", Ottawa Citizen, May 31, 1994, at A3.

{576} Testimony of J. Coulon in Assembl?e nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, February 12, 1992, at CEAS-911. Unofficial English translation: "I think the missions are multiple. They begin with the defence of the territory, of sovereignty, of assuring control of the territory, from the Ungava Bay to the Eastern Townships, passing by the Temiscaming to the Gasp?. Therefore, to see to it that one can control the territory because there are some people who contest that...because there are some people, even, who suggest that Qu?bec can be dismembered."

{577} J. Coulon, "La d?fense dans un Qu?bec souverain" in Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, Les implications de la mise en oeuvre de la souverainet?: les aspects juridiques [et] les services gouvernementaux (Qu?bec: Biblioth?que nationale du Qu?bec, 1992), Expos?s et ?tudes, vol. 2, 411 at 413. Unofficial English translation: "One of the first things that is requested of a new State by countries that welcome it into the international system is to prove its capacity to control its territory and ensure its defense and its security. That cannot be done without a military force."

{578} A. Legault, "R?flexions sur la politique de d?fense du Canada et sur celle d'un ?ventuel Qu?bec ind?pendent" in Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, Les implications de la mise en oeuvre de la souverainet?: les aspects juridiques [et] les services gouvernementaux (Qu?bec: Biblioth?que nationale du Qu?bec, 1992), Expos?s et ?tudes, vol. 2, 309 at 333. Unofficial English translation: "With respect to internal order, Qu?bec with its installations at Valcartier and Montreal should be able to equip itself with all the means necessary to respond to this type of this situation, even if in the totality of operations in Oka and Kahnawake several military elements located outside Qu?bec had been necessary for the good functioning of the operations, for example the 2nd Squadron for electronic war and the 1st Company for information at Kingston. [new para.] Qu?bec would be however in difficulties, as would Canada elsewhere, if the former had to face two or three Okas simultaneously."

{579} Assembl?e nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, January 22, 1992, at CEAS-530. Unofficial English translation: "In the event that certain Aboriginal nations of Qu?bec do not agree to respect the democratic process and that they decide, let us say, in a certain way to create a certain disorder, is it realistic to think that the Canadian Armed Forces could intervene upon request of the Aboriginal peoples to protect them?"

{580} Id. See also 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 136, where the author indicates that military force by Canada to exclude Qu?bec sovereignty in northern Qu?bec would be easy and would result in the extinguishment of rights of Qu?bec (according to the principle of effectivity).

{581} C.-P. David, "La d?fense d'un Qu?bec souverain: ses pi?ges et ses possibilit?s" in Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, Les implications de la mise en oeuvre de la souverainet?: les aspects juridiques [et] les services gouvernementaux (Qu?bec: Biblioth?que nationale du Qu?bec, 1992), Expos?s et ?tudes, vol. 2, 395 at 399. Unofficial English translation: "Finally, numerous are those who believe that it will be necessary in the future to substitute often the use of an army for that of the police corps to confront civil disorders provoked by an eventual new political status of Qu?bec. They ignore the fact that this mission could be accomplished by a gendarmerie or national guard trained for the particular needs of such eventualities."

{582} See, for example, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970). Advisory Opinion, [1971] I.C.J. 16 at 89-90 (separate opinion of Vice- President Ammoun): "The [representative of Pakistan] rightly viewed the act of using force with the object of frustrating the right of self-determination as an act of aggression, which is all the more grave in that the right of self-determination is a norm of the nature of jus cogens, derogation from which is not permissable under any circumstances." [Official translation.] See also J.-P. Brodeur, "L'obstacle des troubles int?rieurs" in A.-G. Gagnon et F. Rocher, (ed.), R?pliques aux d?tracteurs de la souverainet? du Qu?bec, note 210, supra, at 111, where the author states that the price that a sovereign Qu?bec would pay in regard to its international reputation for violent suppression of internal conflicts would be high.

{583} M. Bothe, "The Legitimacy of the Use of Force to Protect Peoples and Minorities" in C. Br?lmann, R. Lefeber, M. Zieck, (eds.), Peoples and Minorities in International Law, note 46, supra, at 291.

{584} Definition of Aggression' Resolution, G.A. Res. 3314 (XXIX) (1974). Art. 7 provides: "Nothing in this Definition...could in any way prejudice the right to self-determination,...as described from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations...; nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration."
[Emphasis added.]

{585} D. Murswiek, "The Issue of a Right of Secession ? Reconsidered" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 26.

{586} Definition of Aggression' Resolution, G.A. Res. 3314 (XXIX) (1974). Adopted by the U.N. General Assembly without a vote on December 14, 1974.

{587} Id., art. 1 provides in part: "Explanatory note: In this Definition the term State': (a) Is used without prejudice to questions of recognition or to whether a State is a Member of the United Nations;..."

{588} It is worth noting that article 4 provides: "The acts enumerated [in the Resolution] are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter."

{589} See 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.

{590} M. Shaw, International Law, 3rd ed. (Cambridge: Grotius Publications, 1994), at 701.

{591} The self-determination exception is provided in article 7 of the Resolution: see note 584, supra.

{592} In regard to interpreting this exception, see M. Shaw, International Law, 3rd ed. (Cambridge: Grotius Publications, 1994), at 700: "...the issue centred upon whether the use of force by peoples entitled to self-determination was legitimate as self-defence against the very existence of colonialism itself or whether as a response to force utilised to suppress the right to self-determination. The former view was taken by most Third World states and the latter by many western states. In the event, a rather cumbersome formulation was presented in article 7 of the Definition..." [Emphasis added.]

{593} 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 34.

{594} 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 474.

{595} P. Monahan, Cooler Heads Shall Prevail: Assessing the Costs and Consequences of Quebec Separation, note 114, 1662, supra, at 29.

{596} See also Committee to Examine Matters Relating to the Accession of Qu?bec to Sovereignty, Draft Report, note 8, 1662, supra, at 64: "...through the Emergencies Act [R.S.C. 1985, c. 22, 4th Supp.], Parliament has already conferred on the federal government the power to intervene rapidly by order-in-council in the event of major crises, especially in situations that seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada.'" [Emphasis added.]

{597} 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 130. Unofficial translation: "In the case of unilateral secession, the surrounding state will almost always begin by opposing it. If it decides to do this with weapons, which constitutional law permits it and which international law does not prohibit it, the international organizations will abstain from intervening, as it is shown by precedents, unless the conflict becomes internationalized." [Emphasis added.]

{598} Madzimbamuto v. Lardner-Burke, [1969] 1 A.C. 645 (P.C.) at 725.

{599} P. Hogg, Constitutional Law of Canada, note 245, 1662, supra, vol. 1, at 5-33 ? 5-34.

{600} See also W. Johnson, "False dichotomy [:] Courts, not the army, can be used to fight secession", The Gazette, Montreal, January 6, 1995, at B3.

{601} See also J.-Y. Morin & J. Woehrling, Demain, le Qu?bec...[:] Choix politiques et constitutionnels d'un pays en devenir, note 19,1662, supra, at 131, where the authors indicate that the federal government can choose a wide number of ways of opposing a unilateral secession by Qu?bec, without resorting to the use of force.

{602} Id. The possibility of court challenges is also raised in A. Coyne, "It's no narrow legalism' to ask if Quebecers want a law-based state", Globe and Mail, January 23, 1995, at A20. The federal government could also apply directly to the Supreme Court of Canada by way of reference for an opinion that a UDI is unconstitutional and a violation of aboriginal and treaty rights: see R. Dupuis & K. McNeil, Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec (Ottawa: Minister of Supply and Services Canada, 1995), vol. 2, Domestic Dimensions, at 69.

{603} R. Dupuis & K. McNeil, Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 602, supra, at 68.

{604} Such an action is anticipated as a logical position by the Canadian government, should unilateral secession by Qu?bec be opposed: see J.-Y. Morin & J. Woehrling, Demain, le Qu?bec...[:] Choix politiques et constitutionnels d'un pays en devenir, note 19, 1662, supra, at 114. Similarly, see J. Brossard, L'accession ? la souverainet? et le cas du Qu?bec, note 65, 1662, supra, at 623.

{605} In regard to Crees and Inuit in Qu?bec, see also s. 2.11 of the James Bay and Northern Quebec Agreement (JBNQA): "...the [Crees and Inuit] shall continue to be entitled to all of the rights and benefits of all other citizens as well as those resulting from the Indian Act (as applicable) and from any other legislation applicable to them from time to time." Both the Qu?bec government and the National Assembly specifically agreed to the perpetual application of the JBNQA in a federalist context, unless changes are made with the consent of the government and Aboriginal parties concerned.

See also D. Johnston, "First Nations and Canadian Citizenship", in W. Kaplan, (ed.), Belonging: The Meaning and Future of Canadian Citizenship, note 39, supra, 349.

{606} See Committee to Examine Matters Relating to the Accession of Qu?bec to Sovereignty, Draft Report, note 8, 1662, supra, at 64: "Federal authorities would be in a position to fully occupy those fields of jurisdiction needed to maintain public order, and as a result, to formally maintain the application of a Canadian legal order along with the legal order implemented by the new Qu?bec authorities. [new para.] As a result, for a time, uncertainty might persist among Quebecers about which body of laws prevails."

{607} See also E.J. Arnett, "The law is on Canada's side, not the separatists'", Globe and Mail, January 3, 1995, at A17: "...if Ottawa wanted to thwart the success of a UDI, it would have to take measures to govern over Quebec, or over that part of Quebec which it wished to retain for Canada. In the short term, this would require legislation and administration to establish federal control over such areas even in matters now dealt with by the provincial government." [Emphasis added.]

{608} Problems in tax collection from Qu?bec taxpayers by both the Canadian government and a secessionist Qu?bec are envisaged in P. Monahan, Cooler Heads Shall Prevail: Assessing the Costs and Consequences of Quebec Separation, note 114, 1662, supra, at 28-29.

{609} The same point is made in 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 16-17, where the author concludes that, in the absence of Canada's agreement, a secessionist Qu?bec would not be able to exercise control in fact over its territory.

{610} The Canadian government would have a fiduciary obligation of a constitutional nature to provide such programs and services to those Aboriginal peoples who chose to remain in Canada. Moreover, the James Bay and Northern Quebec Agreement provides for constitutionally-protected treaty rights, in favour of Crees and Inuit in Qu?bec, in regard to federal programs and services. Section 2.12 of JBNQA provides: "Federal and provincial programs and funding, and the obligations of the Federal and Provincial Governments, shall continue to apply to the James Bay Crees and the Inuit of Qu?bec on the same basis as to the other Indians and Inuit of Canada in the case of federal programs..." Both the Qu?bec government and the National Assembly specifically agreed to the perpetual application of the JBNQA in a federalist context, unless changes are made with the consent of the government and Aboriginal parties concerned.

{611} R. Dupuis & K. McNeil, Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 602, supra, at 68.

{612} 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 28, where the author suggests that a political precedent may well exist to include representatives of Aboriginal peoples and of the Yukon and Northwest Territories in constitutional negotiations.

{613} M. van Walt van Praag, "The Position of UNPO in the International Legal Order" in C. Br?lmann, R. Lefeber, M. Zieck, (eds.), Peoples and Minorities in International Law, note 46, supra, at 316.