The Grand Council of the Crees

Section 5, Sovereign Injustice - Grand Council of the Crees

5. Boundary Issues in the Context of Qu?bec Secession

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5.1 Québec's Borders at Risk Following UDI

5.2 The Notion of Uti Possidetis

5.3 The Notion of Uti Possidetis to the Canada/Québec/Aboriginal Context

5.4 The 1989 and 1912 Boundary Extensions in Québec

5.4.1 Rationale for provincial boundary extensions in 1912
5.4.2 Failure to obtain Aboriginal peoples' consent to 1989 and 1912 trandfers

5. Boundary Issues in the Context of Québec Secession

In the context of the Québec secession debate, boundary issues are a major concern for both Quebecers and Aboriginal peoples. As this Study makes clear, there is a great deal at stake for all parties affected. While the Parizeau government continues to act as if it is guaranteed {614} that a sovereign Québec would maintain its current borders, the political and legal situation following a unilateral declaration of independence by Québec is far from certain. Aboriginal peoples in Québec could opt to stay within Canada. If so, the borders of a sovereign Québec could well turn out to be substantially diminished or otherwise altered.

According to the Council for Canadian Unity that monitored the regional commission hearings on Québec's future, a majority of intervenors who raised the issue of the integrity of Québec territory following independence, linked this question to the competing claims of Aboriginal peoples. {615} Despite Parizeau's public claims that there is nothing that can affect the preservation of Québec's present borders, the Council found that elected sovereignists sitting on the regional commissions were "evasive" when questions were being posed by participants. {616} In this regard, regional commission members, especially Québec government members, were not forthcoming in their responses:

"...la grande majorit? [de ces] participants...ont, ? maintes reprises, demand? aux membres de leur commission quelle portion du territoire qu?b?cois serait touch?e par le r?glement des revendications territoriales des autochtones, dans un Québec souverain. Un fait qui m?rite d'?tre soulign?, est l'absence de r?ponse pr?cise de la part des membres des commissions et, surtout des membres du gouvernement, dans ce dossier." {617} [Complete text in bold and capitals in original.]

Perhaps the Québec government and other regional commission members felt it would be better not to focus too much on the potentially explosive issue of the borders of an independent Québec. Perhaps they had other reasons. However, in view of the critical importance of boundary issues and their far- reaching consequences, these questions are examined in the following sub-headings. Generally, the potential risks to Québec's existing borders following a UDI by Québec are highlighted, as well as the inappropriateness of the theories being relied on by the Québec government. In addition, relevant aspects of the 1898 and 1912 territorial extensions in Québec are also discussed.

5.1 Québec's Borders at Risk Following a UDI [Top]

"For the right to self-determination, it is up to the majority population of a given territory to determine its political status. This argument has been upheld by the International Court of Justice {618}...[W]here members of native nations are in the majority, the status of these territories would be freely determined by the majority of the individuals living there." {619}

D. Turp, 1992

"[Sovereignists are saying] Québec is indivisible, but these people are ready to divide up Canada. It's one or the other. Either the two are divisible or the two are indivisible. And if Canada is indivisible, what is this story of separating
Quebec." {620}

Canadian Foreign Affairs Minister Andr? Ouellet, 1995

In regard to the boundaries of a secessionist Québec, PQ government leader Jacques Parizeau has indicated that the situation "could not be more clear". {621} Basically, the PQ position is that as long as Québec is a part of Canada, the boundaries of the province are protected by the Canadian Constitution; and should Québec declare independence, its same boundaries would be preserved and protected under international law. {622} Mr. Parizeau appears to rely on the five-expert study {623} commissioned by the National Assembly for reaching this conclusion. However, the conclusion arrived at by the five experts on this important matter does not support the Premier's position on this key aspect.

Furthermore, R. Falk (Princeton University) indicates that the five experts did not examine the most crucial aspects of the actual situation involving the competing claims of Aboriginal peoples and Québec:

"...given diverse and inconsistent claims based on appeals to the right to self-determination, under what conditions can a new state come into existence validly, validity being assessed primarily by diplomatic recognition in the international community and by admission to international institutions?" {624} [Emphasis added.]

Falk indicates that such question was outside the scope of inquiry of the five experts, "but this limitation greatly restricts the relevance of its findings and recommendations". {625} He then adds:

"Such a limitation of scope also renders dubious the central conclusion of the Pellet Report [five experts] that Quebec under no circumstances can be authoritatively influenced to alter its territorial domain in the course of accession to sovereignty. The impression of limits is very misleading here..." {626} [Emphasis added.]

In a recent address to the Québec Liberal Party, S. Dion describes the erroneous interpretation of the 5-expert study by Mr. Parizeau as follows:

"Touchant l'int?grit? du territoire du Québec en cas de s?cession, vous devrez dire aux Queb?cois la v?rit?, ? savoir que le droit international ne leur donne aucune garantie en ce sens, puisqu'il ne reconna?t le droit ? la s?cession qu'aux peuples coloniaux ou asservis, comme cela est d'ailleurs confirm? dans le fameux rapport des cinq experts... rapport que Monsieur Parizeau cite toujours incorrectement." {627}
[Emphasis added.]

["Concerning the integrity of Québec territory in case of secession, you should tell Quebecers the truth, to know that international law does not give them any guarantee in this regard, because it recognizes a right of secession solely for colonial or subjugated peoples, as this has been otherwise confirmed in the well-known report of the 5-experts...a report that Mr. Parizeau always cites incorrectly." [Unofficial English translation, emphasis added.]]

Conseqently, Dion cautions that the PQ process towards separation puts Québec's territorial integrity at grave risk:

"Autrement dit, si le territoire du Canada devait ?tre partag? en d?pit de l'int?grit? territoriale que lui garantit le droit international, le territoire du Québec aussi pourrait ?tre partag?...[L]a d?marche s?paratiste...fait courir un risque grave et mal calcul?."{628}

In addition, P. Monahan (York University) indicates that Québec's present borders are not guaranteed under international law:

"...le droit international ne conf?re pas au Québec le droit de faire s?cession ni ne garantit le maintien de ses fronti?res actuelles en cas de d?claration unilat?rale d'ind?pendance. L'issue d'une telle d?claration d?pendrait de la capacit? du Québec d'exercer un contr?le de fait sur l'ensemble de son territoire et de sa population et de les soustraire ? l'autorit? du gouvernement canadien." {629} [Emphasis added.]

K. Valaskakis and A. Fournier point out that the PQ government and the Bloc Qu?b?cois are utilizing arguments affecting Québec's boundaries that are equally available to others in Québec:

"Les ind?pendantistes savent que la question des fronti?res d'un Québec ind?pendant peut ?tre sujette ? discussion et que les m?mes arguments employ?s par le Québec pour l?galiser' le processus d'ind?pendance, peuvent ?tre utilis?s par d'autres groupes minoritaires ? l'int?rieur du Québec." {630}

J. Woehrling implies that, in relation to the principle of territorial integrity, there should be no double standard in relation to Aboriginal peoples and Québec:

"...sur le plan moral et politique, il existe un certain parall?lisme entre les revendications des peuples autochtones et celles du Québec lui-m?me. Par cons?quent, il ne sera pas facile de convaincre l'opinion publique canadienne et internationale que le droit ? l'autod?termination permet aux Qu?b?cois de remettre en cause l'int?grit? territoriale du Canada mais que, ? l'inverse, l'int?grit? territoriale du Québec s'oppose ? l'autod?termination des peuples autochtones."{631}

["...on the moral and political level, there exists a certain parallel between the claims of Aboriginal peoples and those of Québec itself. Consequently, it will not be easy to convince Canadian and international public opinion that the right to self-determination permits Quebecers to challenge the territorial integrity of Canada but that, on the other hand, the territorial integrity of Québec opposes the right to self-determination of Aboriginal peoples." [Unofficial English translation.]]

As indicated in the 5-expert Study, {632} international law would not apply to safeguard the boundaries of a secessionist Québec from the time that there was a unilateral declaration of independence. Rather, international law would only apply in regard to border issues after an "accession to sovereignty", {633} i.e. after Québec had established effective control over the whole of its claimed territory. {634} A test of the existence of effectiveness of a new regime would be recognition of an independent state by third party states.{635}

Further, in the 5-expert study, it is said that "accession to sovereignty" does not correspond to a "period", but is a "fact" at a certain moment ? even if that moment can be difficult to determine. {636} This does not mean that there is no "period of transition" before and after independence where the parties may seek to settle (if possible) the multiple problems that have arisen.{637}

Within this context, the 5 experts give the following opinion as to what law would apply before and after "accession to sovereignty":

"Avant qu'il survienne le Québec demeurera une province canadienne dont les relations avec le reste du Canada sont r?gies par le droit constitutionnel; apr?s, il s'agira de rapports entre ?tats souverains, soumis ? l'application du droit international." {638} [Emphasis added.]

Moreover, should Québec's attempts toward a unilateral secession fail, Québec would remain subject as a province to Canadian law. In this regard, J. Woehrling provides:

"Si une ?ventuelle s?cession unilat?rale ?chouait, le Québec serait ? nouveau r?uni ? la f?d?ration canadienne et le probl?me de son int?grit? se poserait ? l'int?rieur de la Constitution du Canada. On a vu pr?c?dement qu'en vertu de celle-ci le territoire d'une province ne peut ?tre modifi? sans le consentement de ses autorit?s l?gislatives." {639} [Emphasis added.]

It is true that, until a secessionist Québec actually achieves "accession to sovereignty" through effective control and international recognition, Canadian constitutional law would continue to apply and there would be no legal vacuum. {640} Yet, it appears that, during the indeterminate period when a secessionist Québec would be seeking to establish effective control, Québec would have no guaranteed legal protection of its borders under the Canadian Constitution or under international law.

In regard to this latter point, the 5-expert study appears to take a different view in regard to the legal protection of Québec's borders:

"...on voit mal ? quel moment cette protection cesserait: si le Canada profitait de la p?riode pr?c?dant l'accession du Québec ? la souverainet? pour modifier les limites existantes il se mettrait en contravention avec sa propre Constitution..." {641}

However, the five experts did not choose to delve any further into the question of whether a situation might arise where, according to the Canadian Constitution, Québec's borders could be modified in the period following a unilateral declaration of independence. Although the five experts refer to the constitutional protections currently available to Québec under Canada's Constitution, the study never considers explicitly the situation where Québec effectively renounces to the safeguards in Canada's Constitution by proceeding with a UDI.

In the view of this Study, a period of vulnerability would be triggered, in regard to Québec's borders, from the moment that Québec wholly repudiated application of the Canadian Constitution to Québec territory by unilaterally declaring the independence of Québec. In Bertrand v. A.G. Québec, {642} Québec Superior Court Judge Robert Lesage has already indicated in general terms that the PQ government's process leading to a UDI constitutes "une r?pudiation de la Constitution du Canada". {643}

By seeking to ensure that all Canadian laws no longer apply, a secessionist Québec would in effect be renouncing to the protection of its provincial boundaries in the Constitution Act, 1871. As P. Monahan confirms, a UDI by Québec does not leave it any option to maintain this specific protection but reject other constitutional laws or provisions that it does not favour:

"[Québec] could not pick and choose among parts of the Constitution, ignoring those provisions with which it disagreed while seeking to rely on others that operated in its favour. The decision to proceed by way of a UDI would be premised on a break in legal continuity; it would amount to a repudiation of the existing rules of the Canadian constitutional order." {644} [Emphasis added.]

Section 3 of the Constitution Act, 1871 provides:

"The Parliament of Canada may from time to time, with the consent of the Legislature of any Province of the said Dominion, increase, diminish, or otherwise alter the limits of such Province, upon such terms and conditions as may be agreed to by the said Legislature, and may, with the like consent, make provision respecting the effect and operation of any such increase or diminution or alteration of territory in relation to any Province affected thereby."
[Emphasis added.]

As soon as Québec is declared by the National Assembly to be a sovereign country in accordance with the Act respecting the sovereignty of Québec, the National Assembly will no longer be able to invoke the Constitution Act, 1871 and claim any alterations of Québec's borders requires its legislative consent. Since s. 3 of this Act is a "consent" provision, there can be no doubt about the National Assembly's right to effectively waive or renounce to the constitutional safeguards in this provision. {645} By declaring that Canadian laws no longer apply, it is not possible for a secessionist government and legislature to selectively claim at the same time the benefit of certain existing safeguards under Canadian law.

In the National Assembly's Act respecting the sovereignty of Québec, an attempt is made to ensure continuity of law in Québec, by incorporating "laws passed by the Parliament of Canada" {646} as the laws of a secessionist Québec, until amended or repealed by the National Assembly. However, this act of adopting some Canadian laws (through incorporation) in the legal system of an independent Québec does not maintain Canadian constitutional protection. It merely is an attempt by the seceding state to mirror in its own legal system some of the same laws that exist in the Canadian state. Moreover, the Constitution Act, 1871 is an Imperial enactment and does not constitute one of the "laws passed by the Parliament of Canada".

In regard to alteration of interprovincial boundaries, a further consideration pertains to s. 43 of the Constitution Act, 1982, which provides in part:

"An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all provinces, including

(a) any alteration to boundaries between provinces,...

may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies." [Emphasis added.]

This provision applies solely to "boundaries between provinces". In other words, s. 43 would have no application to those boundaries of Québec between the province and federal territory (offshore waters). {647} In fact, the 5-expert study confirms that, based on s. 43 alone, a secessionist Québec could be subject to significant diminution of territory in favour of the federally-controlled Northwest Territories. {648} Consequently, should the consent of the National Assembly under s. 3 of the Constitution Act, 1871 be deemed to have been renounced in view of a UDI by Québec's legislature, s. 43 could not prevent the transfer of large portions of northern Québec to the Northwest Territories, pursuant to constitutional amendment under the general amending formula.

Alterations to Québec's current boundaries could become necessary in the event of a UDI, in light of a wide range of interests that would require federal intervention and protection. These interests would include:

constitutional requirement of respecting treaties and treaty rights of Aboriginal peoples under the James Bay and Northern Quebec Agreement (Crees and Inuit) and the Northeastern Quebec Agreement (Naskapis);

fulfillment of fiduciary and constitutional responsibilities of the federal Crown, in favour of the Crees and numerous other Aboriginal peoples in Québec;

protection of the territorial integrity of Canada, by ensuring geographical continuity through large portions of northern Québec to the Atlantic provinces;

safeguarding of Aboriginal rights and Canadian jurisdiction in the extensive offshore areas surrounding northern Québec against secessionist claims {649} and so as to continue to administer federally these essential areas;

protection of Canadian economic, environmental and security interests in the offshore areas, as well as possibly in northern portions of Québec; and

ensuring under international law that certain portions of what is now currently part of the province of Québec would not be under the "effective control" of any secessionist government.

Should there be doubts as to how the Canadian Constitution should be applied, the Supreme Court of Canada appears to have considerable latitude in interpreting constitutional law in such an extraordinary situation as a UDI by Québec. For example, in the Manitoba Language Rights Reference, {650} the Supreme Court was concerned with maintaining the "integrity of Canada's Constitution", {651} while ensuring protection for minority French language rights in Manitoba. In so doing, the Court balanced two important aspects of the rule of law. In this regard, the Court provided:

"First, that the rule of law is supreme over officials of the government as well as private individuals, and thereby preclusive of arbitrary power...

Second, the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order. Law and order are indispensable to civilized life." {652} [Emphasis added.]

Consequently, the Supreme Court found an innovative solution in the Manitoba Language Reference in favour of safeguarding French language rights in all Manitoba legislation. Presently, a similar need for an imaginative approach could prove necessary by the Supreme Court should a secessionist Québec wholly repudiate the Canadian Constitution. In this context, it may be anticipated that Canada's highest court would tend to uphold the interests of those parties that are respecting Canadian law, as opposed to a secessionist Québec intent on revolution.

While it is true that questions concerning Québec's provincial boundaries would be determined within the context of the Canadian Constitution, this does not mean that the borders of Québec would not have possibly been altered following Québec's unilateral declaration of independence. Depending on what events transpired during the ensuing period and what actions were taken by the federal government, Aboriginal peoples and others who opposed Québec's attempts at effective control, Canadian courts could possibly determine that the province's borders had been lawfully modified.

Consequently, by engaging in a UDI, a secessionist Québec would be significantly weakening the position of Québecers, in relation to the protection of the province's current boundaries under Canada's Constitution. The more extreme the steps taken by a secessionist Québec following a UDI, the more likely that it might become necessary to amend Québec's existing borders. Immediately following a UDI, Québec could not insist selectively on its consent to any alteration of its borders. This conclusion appears to be consistent with the following comment by P. Monahan:

"...although it is true that, under the existing Constitution, Québec's borders cannot be altered without its consent, it is also true that the existing Constitution makes no provision whatever for the unilateral secession of Quebec from Canada. If Québec was attempting to ignore the Constitution and secede unilaterally, it could not be heard to complain that the borders of the new state differed from those permitted under the existing Canadian Constitution." {653} [Emphasis added.]

Moreover, from an international viewpoint, R. Falk makes clear that it cannot be concluded from the situation in Yugoslavia that all new states issuing from secession from a pre-existing state will retain their pre-existing boundaries:

"In fact...the international community has exhibited considerable ambivalence with regard to the pre-existing boundaries internal to Yugoslavia, especially with regard to its efforts to resolve the war in Bosnia. The...diplomatic initiatives, with broad United Nations backing, have involved radical redrawing of boundaries within Bosnia, even in some scenarios envisioning new confederations or federations that link ethnic portions of Bosnia with Croatia and Serbia. The point here is that the firmness of the boundaries is not fixed by law and that their outcome is shaped by an assessment of the context." {654} [Emphasis added.]

5.2 The Notion of Uti Possidetis {655} [Top]

"...it should first of all be noted that the uti possidetis rule is often used in a circular fashion: one first defines a state and then says that it possesses the territory that it happens to occupy." {656}

P. Szasz, 1994

The notion of uti possidetis has been used in Latin America, where the successor states of Spain agreed "for convenience and expediency" {657} to apply among themselves this doctrine for the settlement of international boundary disputes. Even where there has been agreement to apply the doctrine, "its application has not always been simple and straightforward" {658} and there can be strong differences of opinion as to which variation to apply. {659}

The principle of uti possidetis has also been employed in Africa {660} and Asia, in upholding the pre- independence boundaries of former colonial administrations. {661} The purpose of respecting former colonial boundaries in Africa was said to be to preserve stability in the region. {662}

In the Frontier Dispute (Burkina Faso/Mali), {663} Judge Abi-Saab describes the original purpose when Latin American countries were achieving independence:

"...the principle uti possidetis was formulated to serve a dual purpose: first, a defensive purpose towards the rest of the world, in the form of an outright denial that there was any land without a sovereign (or terra nullius) in the decolonized territories..;secondly, a preventive purpose: to avoid or at least minimize conflict occuring in the relationships among the successors, by freezing the carved-up territory in the format it exhibited at the moment of independence." {664} [Emphasis added.]

The actual principle has been described as follows:

"When the common sovereign power was withdrawn, it became indispensably necessary to agree on a general principle of demarcation, since there was a universal desire to avoid resort to force, and the principle adopted was a colonial uti possidetis; that is, the principle involving the preservation of the demarcations under the colonial regimes corresponding to each of the colonial entities that was constituted as a State." {665} [Emphasis added.]

It is critical to note that the principle of uti possidetis is not a mandatory one under international law. As I. Brownlie provides:

"It must be emphasized that the principle is by no means mandatory and the states concerned are free to adopt other principles as the basis of a settlement."
{666} [Emphasis added.]

In M. Whiteman, it is also provided:

"...in no case has the International Community recognized, as an institution of international law, the principle of uti possidetis. It remains, just like the Bull of Pope Alexander VI wherein it originates, derogatory to general international law, which insists on occupation as a basis for sovereignty. A rule derogating to generally accepted customary international law is binding only on those persons which have, by a Convention, expressly agreed to it." {667} [Emphasis added.]

Moreover, in Frontier Dispute (Burkina Faso/Mali), {668} Judge Abi-Saab underlines that "this principle [uti possidetis], like any other, is not to be conceived in the absolute; it has always to be interpreted in the light of its function within the international legal order." {669}

Additional characteristics (or lack of them) of uti possidetis include:

i) Uti possidetis not a peremptory norm. It is said that "[t]he exact status of the doctrine of uti possidetis is the subject of some controversy...At any rate, it would be impossible to argue that uti possidetis has become a peremptory norm of international law." {670}

ii) Uti possidetis merely a "principle" of law, subject to considerations of justice and equity. {671} Although it has at times been referred to as both, {672} uti possidetis appears to be a "principle" rather than a "rule" of law. {673} As J. Klabbers and R. Lefeber highlight: "[L]egal rules dictate specific results, whereas legal principles are deemed to be open-textured{674}'" . {675} In other words, principles allow for different applications {676} or even other options.

Further, the authors add that "other circumstances" or "considerations of justice and equity" can lead to the doctrine of uti possidetis being cast aside:

"...the proposition that uti possidetis is a principle rather than a rule is also supported by inductive analysis. In numerous instances international courts and tribunals have applied the doctrine rather loosely, leaving it aside if circumstances, or considerations of justice and equity so required." {677}

iii) Apparent contradiction between uti possidetis and self-determination. As indicated in Frontier Dispute (Burkina Faso/Mali), {678} an apparent contradiction exists between the principles of uti possidetis and self-determination. {679} While this contradiction is not resolved in this case, it is implied that self-determination may transcend colonial boundaries. In this regard, G. Naldi states:

"...the interesting proposition that emerges from the Chamber's statement is the implication that self-determination may transcend colonial boundaries. This surely is the only interpretation that can be given to the view that both principles may sometimes conflict. If the right to self-determination were to take effect solely within defined colonial boundaries no clash with the principle of uti possidetis would occur. Indeed, the two principles would be mutually compatible." {680} [Emphasis added.]

Further, it is said that in 1977 the Secretary-General of the Organization of American States indicated that "uti possidetis does not constitute a sacrosanct principle, but may instead be overruled or revised, especially in the light of the right to self-determination."{681}

iv) Effective control prevails over uti possidetis. Effective control and not uti possidetis determines the borders of new states. Moreover, minorities who feel mistreated or underrepresented are not obligated to respect the uti possidetis principle. As R. Higgins describes:

"The principle of uti possidetis provides that states accept their inherited colonial boundaries. It places no obligation upon minority groups to stay a part of a unit that mistreats them or in which they feel unrepresented. {682} It they do in fact establish an independent state, or join with an existing state, then that new reality is one which, when its permanence can be shown, will in due course be recognized by the international community." {683} [Emphasis added.]

Also, T. Franck provides:

"...the law of uti possidetis merely refutes [a] claim to a legal right to secession; it does not prohibit an effective act of secession by the people of such a region. It is neutral about that." {684} [Emphasis added.]

v) Uti possidetis does not necessarily promote stability. Uti possidetis is sometimes invoked to suggest that adherence to this principle might promote stability. However, as J. Klabbers and R. Lefeber caution, "a stable world order may not always be achieved by a rigorous application of the principle of uti possidetis." {685}

v) Uti possidetis is not synonymous with territorial integrity. It is also important to note that uti possidetis is a different principle from territorial integrity. As R. Higgins explains, uti possidetis is a principle within a colonial context:

"Uti possidetis is the principle...whereby states become independent within their colonial boundaries, forfeiting any historical claims they might aspire to regarding territories now held within the old colonial boundaries of others. Territorial integrity, quite simply, is what is required by Article 2(4) of the Charter ? that no force be used against the territory of an independent state...Uti possidetis is to do with parallel moments of decolonization; territorial integrity is a basic Charter principle applicable to all states." {686}

Based on the above analysis, it cannot be said that uti possidetis is a mandatory or absolute principle. Moreover, its application (if applied at all) may be qualified by considerations of equity and justice. In addition, competing rights of self-determination can mean that colonial boundaries are transcended. Further, in a context of opposing peoples or minority groups seeking to maintain or establish effective control, it is this latter principle which will prevail over uti possidetis.

5.3 Inapplicability of Uti Possidetis to the
Canada/Québec/ Aboriginal Context [Top]

It has been suggested by the PQ government that there is no doubt that the principle of uti possidetis would apply to preserve Québec's current administrative boundaries, in the event of unilateral secession by Québec. However, no such definitive conclusion is warranted, especially in view of the existing Canada/Québec/Aboriginal context.

In support of its position, the PQ government is relying primarily on the analysis in the 5-expert study commissioned by the National Assembly of Québec. {687} In regard to the application of the principle of uti possidetis, the five experts provide as follows:

"L'affirmation de l'applicabilit? du principe de l'uti possidetis dans tous les cas d'accession ? l'ind?pendance, en dehors m?me du cadre de la d?colonisation correspond ? une pratique que l'actualit? r?cente a rendue relativement abondante: qu'il s'agisse des ?tats de la Communaut? des ?tats ind?pendants ou de ceux issus du d?membrement de la Yugoslavie, tous ont acc?d? ? l'ind?pendance dans le cadre des limites administratives qui ?taient les leurs ant?rieurement et qui ont ?t? reconnues par les ?tats tiers comme leurs nouvelles fronti?res." {688}

However, this view of uti possidetis expressed by the five experts is highly questionable and the premises on which their view rests are challenged by jurists both in Canada and internationally. For example, P. Monahan concludes:

"...le principe uti possidetis ne pourrait d'aucune fa?on s'appliquer en cas de diff?rend frontalier ou territorial entre le Canada et le Québec. J'estime que l'int?grit? territoriale du Québec ne serait garantie par aucun principle du droit international public si la province tentait de se s?parer unilat?ralement du reste du Canada." {689}

Also, N. Finkelstein, G. Vegh & C. Joly provide:

"There are, however, limitations to the application of this principle to Québec's borders, and in our view the five experts misapplied it." {690}

In addition, R. Falk generally cautions:

"Th[e] tension between practice and doctrinal preference, as expressed in the opinions of the Badinter Commission and the Pellet Report [five experts], generates very confused legal analyses of the scope and character of the right of self-determination..." {691} [Emphasis added.]

Generally, in the absence of express agreement by the specific parties concerned, the application of the principle of uti possidetis to modern non-colonial situations is not clearly accepted by legal commentators. In particular, the application of the principle of uti possidetis to the situation in the former Yugoslavia has been severely and repeatedly criticized. For example, J. Frowein criticizes the decision of the EC Arbitration Commission (the Badinter Commission) {692} in this regard as follows:

"At the time of the opinions on these matters, Bosnia-Herzegovina was certainly not a State recognized by the member States of the European Community, nor were Croatia and Slovenia at that time. The Committee, for very good reasons, tried to preserve the existing territorial boundaries although they were certainly not yet international frontiers. To simply apply uti possidetis without any underlying justification is hardly convincing. According to the principle of self-determination,...one would probably have had to organize plebiscites in many frontier areas of Croatia and Bosnia- Herzegovina...[O]ne wonders whether lawyers should automatically declare, as legally prescribed, what they consider to be the most appropriate solution in political terms." {693} [Emphasis added.]

P. Szasz states:

"The Badinter Commission decided...that even though the Croatian and Bosnian Serbs were entitled to self-determination, that did not imply a right to change boundaries ? that is, to carve their own states out of Croatia and Bosnia-Hercegovina, in the same way that these former republics of the SFRY were allowed to separate themselves from the latter. There is no abstract logic in this distinction." {694} [Emphasis added.]

Further, B. Kingsbury indicates that "European Community practice with regard to Yugoslavia exhibits an amalgam of often contradictory and unrectified considerations about existing law, order, and justice." {695} In regard to border questions and the application of the principle of uti possidetis, Kingsbury underlines the inconsistency of the EC Arbitration Commission's decisions:

"The Commission stated that...the internal boundaries of Yugoslavia could only be modified by free agreement; that in the absence of such agreement the internal boundaries would take on the character of frontiers protected by international law by virtue of the general international legal principles of uti possidetis juris...[I]t is interesting that none of the texts cited by the Commission is directly binding, and indeed the Commission's position as to modification of internal boundaries...is not fully consistent with practice." {696} [Emphasis added.]

R. Falk is also highly critical, indicating that "[t]he Commission never discusses the crucial issue relating to when a minority becomes a people and thus seems to miss the main point: the right of self- determination as a collective right of a people." {697} Falk adds:

"Furthermore, the Commission's extension of the uti possidetis approach in Opinion No. 3 to internal administrative boundaries of a fragmented state rests on shaky grounds of policy and legal authority. The emergent legal authority in the decolonization setting was directed at the maintenance of external boundaries." {698} [Emphasis in original.]

H. Hannum cautions that the approach taken in the former Yugoslavia does not serve as any kind of precedent but represents a "one-time reaction" by Europe. {699} In this regard, Hannum adds:

"The principle that borders should not be altered except by mutual agreement has been elevated to a hypocritical immutability and contradicted by the very act of recognizing secessionist states. New minorities have been trapped, not by any comprehensible legal principle, but by the historical accident of adminstrative borders drawn by an undemocratic government." {700} [Emphasis added.]

Also Hannum provides:

"This opinion {701} [of the Badinter Arbitration Commission] is dubious if it purports to identify a rule of international law which requires the maintenance of existing administrative borders outside the colonial context..." {702} [Emphasis added.]

In Frontier Dispute (Burkina Faso/Mali) (separate opinion of Judge Luchaire), it is indicated that, in the case of a colony, exercise of the right to self-determination "does not necessarily lead to the independence of a State with the same frontiers as a former colony." {703} In this regard, Judge Luchaire adds:

"...the exercise of the right of self-determination may evidently lead certain plainly individualized parts of the former colony to a different option from that followed by the other parts.

The history of the last few decades provides numerous examples of very different options being preferred from among these solutions." {704} [Emphasis added.]

Although Québec is not a colony, the above statement of Judge Luchaire would appear to have some relevance and application to the Québec context. While the PQ government is not relying on any right to self-determination in order to accede to independence, the Aboriginal peoples in Québec are asserting a right to self-determination in order to choose (if they so desire) to remain in Canada. In light of the right to self-determination of the James Bay Crees and other Aboriginal peoples, their respective right to hold their own referendums and opt to remain with Canada must be respected.

The principle of uti possidetis has its strongest application in a colonial context. If even in the colonial context the principle of self-determination can prevail over the principle of uti possidetis, then it could hardly be argued that the latter would automatically prevail over the former in a non-colonial situation as that of Québec.

H. Hannum points out the unclear relevance of uti possidetis to modern situations and the equally compelling case of self-determination:

"When secession does occur, the related issues of respect for territorial integrity and the principle of uti possidetis arise...Originally developed as a political principle to delimit frontiers and defuse conflicts in post- independence Latin America in the nineteenth century, uti possidetis was employed to similar ends in post-colonial Africa. However, its relevance to modern situations of secession is at best unclear to this observer, contrary to the current insistence of the European Community and others that administrative borders in Yugoslavia should be sacrosanct as the state has disintegrated. Certainly an equally compelling case could be made for recognizing the peaceful right of self-determination on the part of minorities trapped within new states, as opposed to replacing an old set of artificial borders with a new one." {705} [Emphasis added.]

In the Canadian context, the borders of Québec and other provinces are not the only ones with constitutional relevance. For example, the vast area north of the 55th parallel in northern Québec that delimits the Kativik Regional Government (negotiated by Inuit of northern Québec under the James Bay and Northern Quebec Agreement) enjoys constitutional recognition and protection. This is because the arrangements negotiated in favour of the Inuit and Cree parties under JBNQA constitute their respective "treaty rights" under s. 35 of the Constitution Act, 1982. {706}

Moreover, even in the case of territories defined for transfer by Great Britain to Canada or for annexation to existing provinces, constitutional conditions and obligations are included in favour of the Aboriginal peoples in such regions. In regard to Québec, such constitutional conditions and obligations are found in the Royal Proclamation of 1763, the 1870 Rupert's Land and North-Western Territory Order, and the Quebec Boundaries Extension Act, 1912. {707} Further, s. 35 of the Constitution Act, 1982 is said to include an inherent right to self-government of Aboriginal peoples, {708} which presumes in most instances that such constitutional rights to jurisdiction have a territorial base.

Unilateral application of the uti possidetis rule in northern Québec would be most unjust and inappropriate, since there are most significant assertions of indigenous peoples to self-determination. Particularly in northern Québec, these claims are stronger and more compelling than those of French and other Quebecers. Further, the indigenous peoples' traditional territories in northern Québec transcend the administrative boundaries of the province of Québec and substantially extend into the offshore and other land areas in Canada.

Aside from considerations based on Canadian law, the recognition and demarcation of indigenous territories is also viewed as having significance in international law. In this regard, P. Thornberry states:

"Also at a sub-State level, recognition and demarcation of indigenous territories has assumed prominence in international instruments. For some purposes, therefore, internal boundaries may have international significance." {709} [Emphasis added.]

In view of the significance of Aboriginal territories both under Canadian constitutional law and international law, it cannot be concluded that uti possidetis could be appropriately invoked in favour of a secessionist Québec. Aboriginal territories and boundaries in Québec have competing significance with Québec provincial boundaries under Canadian and international law. Moreover, as R. Higgins and T. Franck (two of the authors in the 5-expert study) make clear, effective control prevails over the doctrine of uti possidetis.{710}

In addition, D. Turp (currently legal advisor to the federal separatist party, Bloc Qu?b?cois) has suggested that the boundaries of an independent Québec are subject to modification in accordance with the right of Aboriginal peoples to self-determination and to democratic secession:

"Yet even if one agrees that both the Qu?b?cois and the native nations have the right to self-determination and to democratic secession, one must still have the territorial question, which could cause problems from the standpoint of international law...If [Aboriginal peoples] wished to secede from Quebec to become sovereign states or to remain within Canada, these problems would become more complex. The territorial borders of the secessionist native nations would have to be determined, and the divergent views on the very existence of a territory belonging to a native nation, as well as on its boundaries, would have to be reconciled." {711} [Emphasis added.]

S.J. Anaya highlights that the right of self-determination of peoples in the modern context transcends issues of "existing or perceived sovereign boundaries" and considers the "multiple patterns of human association and interdependency":

"Any model of self-determination that does not take into account the larger context of multiple patterns of human association and interdependency is at best incomplete (and is more likely distorted). To be treated as a generally applicable human rights norm relevant to modern trends and conditions, the international norm of self-determination must account for the multiple and overlapping spheres of human association and political ordering that actually exist. Appropriately understood, therefore, self-determination benefits individuals and groups throughout the spectrum of humanity's complex web of interrelationships and loyalties, and not just groups defined by existing or perceived sovereign boundaries..." {712} [Emphasis added.]

In regard to the Crees and other Aboriginal peoples in Québec, there are "multiple patterns of human association and interdependency" that are critical and cannot be dismissed by the PQ government on the basis of misguided claims of absolute rules concerning boundaries. The James Bay Crees seek to exercise self-determination through self-government based on a Canadian context; in a manner that fosters the further development of their relationships with other Crees and with other Aboriginal and non-Aboriginal peoples in Canada, including Québec; and in such a way as to enable their historical relationship with the federal Crown to continue and evolve.

Cree patterns of association certainly include, but are not limited to, people in Québec. No legal "rule" concerning boundaries could possibly force the Crees to abandon significant and longstanding historical relationships, curtail their rights of self-determination, and limit their pattern of existence to an independent Québec.

As S.J. Anaya adds:

"...self-determination concerns human beings in regard to the constitution and functioning of all levels and forms of government under which they live." {713}

Finally, A. Buchanan cautions against applying the January 11, 1992 decision of the EC Arbitration Commission (the Badinter Commission) and uti possidetis to all secession situations, especially that in Québec:

"...this decision was an attempt to produce a truce during an armed conflict. It is not plausible to read it as the enunciation of a sweeping norm of international law to cover all secession situations, and certainly not that of Quebec." {714} [Emphasis added.]

5.4 The 1898 and 1912 Boundary Extensions in Québec [Top]

In the context of Aborginal peoples and Québec secession, a key question that arises is the future of the northern territories that were added to the province of Québec after 1867. The territorial extensions carried out in 1898 {715} and 1912 {716} comprise two-thirds of the land area of what is today the province of Québec (see Map of Study).

Crees, Inuit and other indigenous peoples had used and occupied their traditional territories in what is now northern Québec for thousands of years. Yet what took place in terms of territorial transfers in 1670, the latter part of the 1800s and early 1900s virtually ignored the pre-existing rights of Aboriginal peoples. As Grand Chief Matthew Coon Come describes:

"In 1670, King Charles of England gave much of [what is now northern] Canada ? all the land that sheds water into Hudson's Bay ? to the Hudson's Bay Company. He named this land Rupert's Land after his cousin Rupert. Nobody told or asked us the real owners of these lands, which included Eeyouch, our people the Crees.

In 1870 another Royal colonial grant was made. This time Rupert's Land was granted to Canada, a country that was just three years old. Again no-one spoke to us or told us.

Then again in 1898 and 1912, Rupert's Land was transferred once more, this time by [the Canadian] Parliament to a number of provinces including Quebec. Again nobody thought to inform, let alone consult us." {717}

As the Hon. A.C. Hamilton states in general terms:

"...there have been no wars of conquest by which the lands belonging to Aboriginal peoples were acquired by European nations. The land cannot be described as having been acquired through discovery or occupation as the land was already the domain of Aboriginal nations. The land was not terra nullius, a vast and empty wilderness and thus open to occupation when newcomers came to it. No European government or monarch had the right or authority to claim or grant lands which they did not lawfully possess." {718} [Emphasis added.]

It is important to note that in 1867, when Canada was established, Québec was only one-third its geographical area today. {719} The northern traditional territories of Aboriginal peoples were said to be at that time part of Rupert's Land administered by the Hudson's Bay Company. When this land was transferred to the Dominion of Canada in 1870, P. Hogg emphasizes that the territories were entirely subject to federal (as opposed to provincial) control:

"From the Rocky Mountains eastward into what is now northern Ontario and northern Quebec lay the huge territories of Rupert's Land and the North- western Territory. In 1870, the procedure established by s. 146 [of the British North America Act,
1867 {720} ] was employed to admit these territories into Canada. {721} On admission, they did not become provinces; they became federal territories, entirely subject to the authority of the federal Parliament." {722} [Emphasis added.]

The actual surrender of Rupert's Land by the Hudson's Bay Company is described as follows:

"On November 19, 1869, the Hudson's Bay Company signed a Deed of Surrender ending 199 years of rule by the Company in an area covering approximately forty per cent of the territory of Canada. An Order-in-Council transferring the territory to Canada was signed by Queen Victoria on June 23, 1870. The transfer included Ungava. The government of Canada paid 300,000 pounds as compensation to the Hudson's Bay Company for the surrender." {723}

On July 15, 1870, an Imperial Order-in-Council {724} decreed that Rupert's Land was now a part of Canada. However, there were certain Addresses of the Senate and House of Commons in Canada that preceded the Order and that were considered to be a part of the constitutional terms and conditions on which the land transfer to Canada was made. {725} The Canadian Parliament committed itself to deal with Aboriginal peoples' territorial rights in the following terms:

"...upon the transference of the territories in question to the Canadian Government, the claims of the Indian tribes to compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines." {726} [December 1867 Address] [Emphasis added.]

"That upon the transference of the territories in question to the Canadian Government it will be our duty to make adequate provision for the protection of the Indian tribes whose interests and well-being are involved in the transfer..." {727}
[May 1869 Address] [Emphasis added.]

In 1898, the first boundary extension in favour of Québec was effected:

"The first extension occurred in 1898 with the addition of two areas. One was an area of land along the Ontario border about the size of the State of Minnesota. The northern boundary was now extended to James Bay and followed the Eastmain River to a point where it met the old northern boundary of Quebec. The other area was in the east, where the Province of Quebec's jurisdiction was extended into what is today part of
Labrador {728}." {729}

In 1912, the second boundary extension was legislated:

"In 1912, all of the remaining portion of the peninsula north of the 1898 border which was not part of Labrador became territory under the Province of Quebec's jurisdiction. The name of the territory was changed from Ungava to New Quebec." {730}

Concurrent legislation {731} was passed by both the federal Parliament and the Québec legislature to give effect to the 1912 boundaries extension, subject to certain conditions. These conditions {732} included:

"(c) That the province of Quebec will recognize the rights of the Indian {733} inhabitants in the territory above described to the same extent, and will obtain surrenders {734} of such rights in the same manner, as the Government of Canada has heretofore recognized such rights and has obtained surrender thereof, and the said province shall bear and satisfy all charges and expenditures in connection with or arising out of such surrenders;

(d) That no such surrender shall be made or obtained except with the approval of the Governor in Council;

(e) That the trusteeship {735} of the Indians in the said territory, and the management of any lands now or hereafter reserved for their use, shall remain in the Government of Canada subject to the control of Parliament." {736} [Emphasis added.]

The territorial rights of the James Bay Crees and Inuit would likely have continued to be ignored, had the Québec government, Hydro-Québec and other development corporations not initiated the James Bay hydroelectric project on aboriginal traditional territory. {737} In 1974-75, after extensive litigation {738} by the Crees and Inuit concerning the James Bay hydroelectric project and aboriginal rights, negotiations finally took place to address the obligations of Québec under the 1912 boundaries extension legislation. As the Supreme Court of Canada commented in the Sparrow case:

"...the James Bay development by Quebec Hydro was originally initiated without regard to the rights of the Indians who lived there, even though these were expressly protected by a constitutional instrument: see The Quebec Boundaries Extension Act, 1912, S.C. 1912, c.45. It took a number of judicial decisions and notably the Calder case in this Court (1973) to prompt a reassessment of the position being taken by the government." {739} [Emphasis added.]

The Québec government insisted throughout the negotiations with the Cree and Inuit that there were no native rights and no obligations to meet. The lack of an appropriate federal response to Québec's position of non-recognition of rights violated the constitutional commitments concerning equitable dealings with First Nations that were made in the above-cited Addresses of the Canadian Parliament in 1867 and 1869. {740}

Once an agreement was reached, it was then said that the above conditions were satisfied by the James Bay and Northern Quebec Agreement. When the federal and Québec legislation were adopted to approve, give effect to and declare valid the Agreement, the above statutory conditions in the boundaries legislation were repealed. {741}

According to T. Franck, R. Higgins, A. Pellet, M. Shaw, & C. Tomuschat, historical considerations are not relevant in determining the borders of a new state:

"Il est...inutile d'invoquer le principe de l'uti possidetis, quelle que puisse ?tre sa port?e...pour admettre que les consid?rations historiques ne pr?sentent pas de pertinence pour la d?termination des fronti?res du nouvel ?tat. Quelles qu'aient ?t? les circonstances et les raisons qui ont conduit ? la fixation des limites territoriales existant au moment de l'accession ? l'ind?pendance, celle-ci `arr?te la montre sans lui faire remonter le temps' {742}." {743} [Emphasis added.]

However, these five authors are to a large degree basing their rationale on the doctrine of uti possidetis, which this Study demonstrates would not be applicable {744} or appropriate to the current Aboriginal/Canada/Québec context. {745} The five authors emphasize that that they are not depending on uti possidetis in concluding that historical considerations are not relevant in determining the borders of an independant state. Yet, closer examination reveals otherwise. The authors rely solely on the Burkina Faso/Mali case, where the ICJ specifically ties its reasoning to the principle of uti possidetis. {746}

In any event, S.J. Anaya emphasizes that ongoing injustices can render historical actions relevant and even "effective control" over a territory (should it occur) is subject to the modern law of self- determination:

"...the doctrine of effectiveness confirms de jure sovereignty over territory to the extent it is exercised de facto, without questioning the events leading to the effective control. The modern international law of self-determination, however, forges an exception to the doctrine of effectiveness. Pursuant to the principle of self-determination, the international community has deemed illegitimate historical patterns giving rise to colonial rule and has promoted corresponding remedial measures, irrespective of the effective control exercised by the colonial power." {747} [Emphasis added.]

And Anaya adds:

"Decolonization demonstrates that constitutional processes may be judged retroactively in light of self-determination values ? notwithstanding effective control ? where...such processes remain relevant to the legitimacy of governmental authority or otherwise manifest themselves in contemporary inequities." {748} [Emphasis added.]

In any event, it is important to note that the five authors are referring solely to the point in time when "accession to independence" has in fact been achieved. {749} In other words, it is only after effective control has been demonstrated by a seceding entity and recognized by third party states that the five authors state that historical considerations are not relevant in determining the borders of the new state. In the context of Québec secession, historical considerations would regardless continue to be relevant during the preceding, indeterminate period should a UDI by Québec have been made and the struggle for effective control begin to take place.

Based on the above, it is concluded that historical considerations and injustices against indigenous peoples in Québec are relevant to the Québec secession debate. In particular, these considerations could seriously undermine the claims of Québec separatists to "legitimacy" in seeking to establish a new state. Moreover, the denial of the right of self-determination of indigenous peoples, through forcible inclusion in a seceding Québec, could result in a lack of effective control by the latter under international law and non-recognition by third party states.

In the sub-heading below, the situation that existed in 1912 when boundary extensions were carried out in Canada in favour of the provinces of Québec, Ontario and Manitoba is described. This historical account retains legal and political significance, in view of the historical and contemporary inequities imposed on the Aboriginal peoples concerned.

5.4.1 Rationale for provincial boundary extensions in 1912 [Top]

According to H. Brun, Rupert's Land and the North-Western Territory were transferred by Britain to "Canada" in 1870 not as the federal government but as somehow representing the interests of the four existing provinces {750} at the time Canada was created. {751} With respect, this theory does not appear to be sustainable in fact or in law.

First, the Rupert's Land and North-Western Territory Order explicitly refers to the Canadian government and Parliament (as opposed to the provincial governments and legislatures). In particular, the obligations in favour of Aboriginal peoples that are contained in and attached to the 1870 Order clearly refer to federal executive and legislative authorities. {752} In addition, it was always British policy to ensure a uniform policy in regard to Aboriginal peoples and their territories. This policy was maintained by conferring jurisdiction to the central authority in Canada, who was empowered to safeguard Aboriginal peoples and their lands from prejudicial actions by the provinces. {753} Consequently, when the 1870 Order refers to the Canadian government, it clearly means the federal government and not also the provinces.

Second, the Constitution Act, 1871, which was adopted by the Imperial Parliament only one year later, expressly provided that any new provinces could be created by the Canadian Parliament acting alone. This hardly is consistent with H. Brun's theory of existing provincial interests. Third, the statements and representations of Canadian and provincial government leaders at the time of the annexations suggest that the federal government and Parliament were transferred sole responsibility for Rupert's Land and the North-Western Territory. {754} Subject to constitutional obligations owed in favour of Aboriginal peoples, the federal government and Parliament maintained complete discretion vis-a-vis the provinces as to how to administer or otherwise deal with these territories.

It is important to note that the boundaries of not only Québec, but also Ontario {755} and Manitoba {756} were extended in 1912. {757} Based on the sessional papers and other legislative records during this early period of Canada's history, it seems that the motivating reasons for these provincial boundary extensions were clearly not to compensate provinces for any claims they might have to such territories. Rather the extensions appeared to be carried out solely in a spirit of enabling the provinces to better develop as provinces and thereby further unify the Canadian federation.

Solely provincial law-making powers were extended to these provinces and the issue of ownership of land and resources was not addressed. P. Hogg takes the following view with respect to the 1912 transfers:

"It has always been assumed that the effect of these annexations was to extend the laws of each province into the territory annexed to that province." {758}

At the time of the extensions, Canada's Prime Minister, Sir Wilfred Laurier, indicated that he wanted the various provinces to have equal access to Hudson's Bay:

"...the Province of Manitoba is not the only one whose territory could be extended towards the Hudson's Bay. The Province of Ontario would have the same right; the Province of Quebec would have also that right, and the new Province of Saskatchewan would have an equal right to have her territory extended to the shore of Hudson's Bay." {759} [Emphasis added.]

Similarly, it has been stated in reference to Manitoba that one of the reasons for the territorial extension was "to preserve geographical symmetry" within Canada {760} and that the granting of such extension was a question of "equality" and "essential for confederation". {761}

The government of Manitoba's stated understanding at the time of the extensions also strongly suggests that the boundaries extensions were solely in the context of fairness and of unifying the federation:

"The Province of Manitoba maintains, as the truth is and the facts warrant, that it has not received at the hands of the federal authorities that fair, open and just treatment respecting the premises it had a right to expect and is entitled to as a constituent part of the confederation of Canada, or that is calculated to best promote and cement the unity of the Dominion as a whole." {762} [Emphasis added.]

In regard to Québec, the transfer was also always couched in terms of an extension of "provincial boundaries" and not a grant on any other basis. In the Quebec Boundaries Extension Act, 1912, it is provided in the preamble:

"Whereas...the House of Commons resolved that the limits of the province of Quebec should be increased by the extension of the boundaries of the province northwards so as to include the territory hereinafter described..." [Emphasis added.]

Also, the Québec legislature has always expressed its understanding of the transfer in identical terms.

In regard to Québec, D. Varty provides:

"Quebec did not have any territorial claims to Ungava. Apart from a brief period prior to the Treaty of Utrecht, for 228 years leading up to 1898, and for 242 years prior to 1912, the Ungava territory had been a common law jurisdiction. Ungava had been under the claim of sovereignty of the British Crown and later, Canada...

The sole basis of the transfer of jurisdiction to Ungava was Quebec's status as a province. The continuation of Quebec's status as a province was an implied condition of the transfer." {763} [Emphasis added.]

And it is added:

"The territory was not purchased by the Province of Quebec. Instead there was a voluntary transfer to Quebec of certain powers allocated to provinces under the constitution with respect to the territory. Canada retained the remaining powers...Jurisdiction with respect to the territory was thus held jointly."
{764} [Emphasis added.]

S. Scott (McGill University) expresses his view as follows:

"An independent Quebec has no valid historical {765} or legal claim to the northern part of the present province. The immense territories added to Quebec by the Canadian Parliament in 1898 and 1912 were territories under English sovereignty long before the cession of New France in 1763, and having no connection with New France. These territories were added to Quebec to be governed as part of a Canadian province." {766} [Emphasis in original.]

Similarly, N. Finkelstein, G. Vegh & C. Joly conclude:

"By legislation in 1898 and 1912, Parliament, with the consent of the Québec Legislature, extended the northern boundaries of Québec to its current area. That territory was never settled by the French, and Québec obtained jurisdiction by federal grant within the context of the Canadian federal system." [Emphasis in original.]

A 1991 editorial in Canada's national newspaper, the Globe and Mail, takes a similar view:

"...the district of Ungava, covering the northern two-thirds of Quebec ? including, crucially, James Bay ? was ceded to Quebec by acts of Parliament, as part of Canada. It was not meant as a going away present." {767} [Emphasis in original.]

It is clear from the above that Québec's boundaries were extended as a province and for purposes entirely related to the strengthening of the Canadian federation. The territory was transferred to the province to extend its provincial law-making powers to such areas. It was not in any way a grant to the French Canadian nation or to Quebecers as a people.

5.4.2 Failure to obtain Aboriginal peoples'
consent to 1898 and 1912 transfers [Top]

In regard to the 1898 and 1912 territories, it would appear that both Québec and Canada consciously violated basic national and international principles in the process of annexing these land areas and resources to the province of Québec. The 1898 and 1912 territories constitute primarily the traditional territories of the Crees and other indigenous peoples in northern Québec. Yet this territory was added to the province of Québec without indigenous peoples' knowledge and consent. The Crees and other Aboriginal peoples were only officially informed by the Québec government of these transfers over 50 years after the 1912 boundary extension.

In examining the sessional papers of the early 1900s, it appears that the accepted and principal standard of the Canadian Parliament was to only transfer territory to a province if it were consistent with the wishes of the inhabitants of such territory. {768} This essential principle seems to have been applied to some extent in relation to the provinces of Manitoba and Saskatchewan. However, this standard was totally violated in regard to Crees and other Aboriginal peoples in northern Québec.

In a report dated March 21, 1905, a Committee of the Privy Council of Canada highlighted the importance of respecting the wishes of the inhabitants and cited the commitment of the Prime Minister of Canada as follows:

"...to force people into a union with the province of Manitoba after a declaration that such a course is 'repugnant' to them, would be an act on the part of the government requiring strong grounds for its justification. Besides, it is maintained that the people occupying this territory have the express promise of the Right Honourable Sir Wilfred Laurier that they would not be forced into a union with Manitoba against their wishes...
...
Here we have the explicit declaration of the Prime Minister that if the people of this very territory do not consent to be united with the province of Manitoba, the parliament of Canada ought not to make the grant against their wishes." {769}
[Emphasis added.]

In 1906, the government of Saskatchewan endorsed this same principle, describing it as both a "duty" of the federal government and in the "general interest of the Dominion":

"...notwithstanding the claims and pleas put forward by any province with respect to areas outside of provincial jurisdiction it is the duty of the responsible Dominion authority in alloting such areas to keep first in view the interest and welfare of the actual and prospective inhabitants of the areas themselves, and that by so doing the general interest of the Dominion of Canada will be conserved." {770} [Emphasis added.]

The same type of statements are recorded in the sessional papers of 1911-1912. {771}

The principle of not making territorial transfers against the wishes of the local inhabitants clearly was intended to apply to all people in any territory that might be affected. However, in view of its fiduciary responsibility for Aboriginal peoples, the duty of the federal government to fully respect this basic principle was and continues to be of the highest order.

In Québec, no steps were taken to either inform or seek the consent of Aboriginal peoples when the transfer of the Ungava territory was contemplated. On April 27, 1909, the Premier of Québec, Lomer Gouin, tabled a resolution for adoption in the Québec Legislative Assembly that provided in part as follows:

"Whereas the territory of Ungava in question in one of the resolutions above set forth and adopted by the Parliament of Canada at its last session, geographically forms part of the Province of Quebec, and it is in the interest of such territory as well as in that of the province, that it be annexed to the territory of the Province of Quebec." {772}
[Emphasis added.]

Therefore, without determining the wishes of the Aboriginal peoples in the Ungava territory, the Québec legislature deemed that it was in the "interest of [the] territory" to be added to the province of Québec.

If Canada were ever to cede part of its territory to an independent Québec, it would appear that international law would require Canada to obtain the consent of the Aboriginal peoples in the northern territory of Québec. In regard to cessions of territory from one state to another, L. Bucheit provides:

"Although occasionally disputed, {773} a growing opinion suggests that a State must consult {774} the wishes of the inhabitants of a region for which a cession is contemplated and that a failure to do so is a violation of their right to self- determination." {775} [Emphasis added.]

In terms of international law, L. Chen and W.M. Reisman underline the importance of indigenous peoples' consent in the case of Non-Self-Governing Territories. However, they add that the same principle of determining the wishes of the inhabitants would also apply to other territories: {776}

The language of the Charter as well as General Assembly practice clearly confirm that the ultimate sovereignty over territory resides with the indigenous people, and that a genuine assessment of their consent is a peremptory component of title." {777}
[Emphasis added.]

It is worth noting that the important principle of respecting the wishes of the local people is consistent with the rulings of the International Court of Justice. In this regard, E. Suzuki provides:

"Whatever historical relations might have been, the present and future perspectives of the affected group must be given greater weight. In this respect it is significant that in the Western Sahara case, the ICJ repeatedly stressed the consistent policy which the U.N. General Assembly has sought to maintain with respect to the decolonization process, {778} a policy 'which will respect the right of the population of Western Sahara to determine their future political status by their own freely expressed will.'{779}" {780} [Emphasis added.]

In 1918, U.S. President Woodrow Wilson emphasized the fundamental objective of securing a people's consent (in the context of self-determination and territorial transfers) as follows:

"The settlement of every question, whether of territory, of sovereignty, of economic arrangement, or of political relationship, [must be] upon the basis of the free acceptance of that settlement by the people immediately concerned..." {781} [Emphasis added.]

Similarly, J.-J. Rousseau declares:

"It is making fools of people to tell them seriously that one can at one's pleasure transfer people from master to master, like herds of cattle, without consulting their interests or their wishes." {782} [Emphasis added.]

In regard to the Algonquin people in northern Québec, R. Falk has testified before the Québec National Assembly Committee on Sovereignty:

"...at the least, the Algonquin people possess the right to approve or disapprove of the creation of any new State which would have the consequence of altering the status of their traditional lands, and creating new problems in maintaining the unity of their people." {783}

From the above, it is concluded that Canada and Québec should have determined the wishes of the James Bay Crees and other Aboriginal peoples in the northern territories before proceeding with any possible boundary extension.

As previously indicated, the Crees and other indigenous peoples were compelled to negotiate the James Bay and Northern Quebec Agreement under unconscionable conditions where Québec and Canada vigorously and repeatedly denied that they had any land and resource rights to their own traditional territory. During these negotiations, the federal government totally abdicated its constitutional and fiduciary responsibility to protect Aboriginal peoples' rights and territories, by adopting a position of "alert neutrality" in regard to Québec's actions and their impact on indigenous peoples' status and rights.

Despite Canada's obligations under the Rupert's Land and North-Western Territory Order, 1870 and the statutory obligation of Québec to recognize the rights of Aboriginal peoples in the 1912 Quebec Boundaries Extension Acts, the governments of Canada and Québec never supported the assertion of aboriginal rights. In particular, the federal government never insisted that Québec had a legal duty to recognize that the Aboriginal peoples in northern Québec had pre-existing territorial rights.

Quebec Premier Jacques Parizeau, Bloc Qu?b?cois leader Lucien Bouchard and other political leaders in Québec often react with strong indignation to anyone who suggests that the territories in northern Québec could be partitioned in the event of unilateral secession by Québec. A similar response is often forthcoming if the authority of Québec over the development of natural resources is even questioned. Yet, the above description of colonialism and violations committed against the James Bay Cree people (Eenouch) portray a very different picture of historical injustices and territorial and resource rights.

Footnotes

{614} See also Commission nationale sur l'avenir du Québec, Rapport (Québec: Biblioth?que nationale du Québec, 1995), at 60, where it is stated that, upon the accession of Québec to sovereignty, the integrity of Québec's territory is "guaranteed" under international law. The report of the Commission (made up for the most part of Québec sovereignists appointed by the government) does not offer any substantiation for this position. Nor does the report indicate when international law considers "accession of Québec to sovereignty" to have occurred (see discussion under heading 7 infra).

{615} Conseil pour l'unit? canadienne, Les Commissions sur l'Avenir du Québec [:] Rapport factuel (April 1995), at 49.

{616} Id.

{617} Id. Unofficial English translation: "...the majority of [these] participants...had repeatedly asked the members of their commission what portion of Québec territory would be affected by the settlement of territorial claims of Aboriginal peoples, in a sovereign Québec. A fact which merits being underlined, is the absence of precise response on the part of the members of the commissions and, above all members of the government, on this question." [Complete text in bold and capitals in original.]

{618} Western Sahara Case, [1975] I.C.J. 12

{619} 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 120.

{620} Sarah Scott, "Ouellet questions whether borders would stay the same if Quebec separates", The Gazette, Montreal, September 20, 1995, at A11.

{621} J. Parizeau, "Fronti?res d'un Québec souverain: la situation est on ne peut plus claire'", La Presse, May 25, 1994, at B3. At the time of the article, Mr. Parizeau was opposition leader (not government leader) in the National Assembly, but the PQ position has not changed.

{622} The same position on Québec's boundaries is taken by D. Cliche (currently a Member of the National Assembly and special advisor to Mr. Parizeau on Aboriginal affairs). See D. Cliche, "The Sovereignty and Territorial Integrity of Quebec", The Network, No. 5 (May 1992) (Newsletter of the Network on the Constitution); D. Cliche, "Quebec's existing borders will remain", Ottawa Citizen, June 5, 1994, at A9.

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

{624} 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 69.

{625} Id.

{626} Id. At 69-70, Falk adds: "...the process of accession is a matter of negotiations, where competing claims will need to be reconciled to the extent possible on the basis of legal guidelines and their enlightened application."

{627} S. Dion, "Le PLQ doit bien se garder de promettre une r?forme constitutionnelle majeure", La Presse, February 8, 1995, at B3.

{628} Id. Unofficial English translation: "In other words, if the territory of Canada must be divisible despite the territorial integrity that is guaranteed it under international law, the territory of Québec could also be divided...[T]he separatist process...is running a serious and poorly calculated risk." [Emphasis added.] The same point is made in K. Valaskakis & A. Fournier, Le pi?ge de l'ind?pendance [:] Le Québec sera-t-il affaibli par la souverainet??, note 299, 1662, supra, at 171.

{629} P. Monahan, "La s?cession du Québec: consid?rations juridiques et politiques" in Choix [:] s?rie Québec-Canada, L'accession du Québec ? la souverainet?: aspects juridiques" (Montreal: Institute for Research on Public Policy, June 1995), vol. 1, no. 12, 4 at 5. Unofficial English translation: "...international law does not confer on Québec the right to secede nor does it guarantee the preservation of its current borders in case of a unilateral declaration of independence. The outcome of such a declaration would depend on the capacity of Québec to exercise control in fact over the whole of its territory and its population and to exclude them from the authority of the Canadian government." [Emphasis added.]

{630} K. Valaskakis & A. Fournier, Le pi?ge de l'ind?pendance [:] Le Québec sera-t-il affaibli par la souverainet??, note 299, 1662, supra, at 160. Unofficial English translation: "The ind?pendantistes know that the question of the boundaries of an independent Québec can be subject to discussion and that the same arguments used by Québec to legalize' the processus of independence, can be used by other minority groups within Québec."

{631} J. Woehrling, "Les aspects juridiques et politiques d'une ?ventuelle accession du Québec ? la souverainet?" in Choix [:] s?rie Québec-Canada, L'accession du Québec ? la souverainet?: aspects juridiques" (Montreal: Institute for Research on Public Policy, June 1995), vol. 1, no. 12, 25 at 36. For a similar conclusion, see J. Woehrling, Les aspects juridiques d'une ?ventuelle s?cession du Québec, (1995) 74 Can. Bar Rev. 293 at 327-328.

{632} See discussion under heading 7 infra.

{633} T. Franck, R. Higgins, A. Pellet, M. Shaw, & C. Tomuschat, "L'int?grit? territoriale du Québec dans l'hypoth?se de l'accession ? la souverainet?" in Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, Les Attributs d'un Québec souverain, note 1662, 15, supra, vol. 1, at 385. At para. 1.22, the 5 experts make clear that the questions posed to them in the study are relevant only "after" accession to independence and that it is a matter of determining the role of international law "after" the event arises.

{634} Id., at 443-444.

{635} Id. at 444.

{636} Id. at 407-408.

{637} Id. at 407. The experts add that the principles pertaining to the law of succession of States are vague and incomplete and should be supplemented with negotiations.

{638} Id. at 408. Unofficial English translation: "Before it arises Québec will remain a Canadian province whose relations with the rest of Canada are governed by constitutional law; after, it is a matter of relations among sovereign States, subject to the application of international law." [Emphasis added.]

{639} J. Woehrling, "L'?volution et le r?am?nagement des rapports entre le Québec et le Canada anglais" in J.-Y. Morin & J. Woehrling, Demain, le Québec...[:] Choix politiques et constitutionnels d'un pays en devenir, note 19, 1662, supra, at 134. Unofficial English translation: "If an eventual unilateral secession failed, Québec would again be reunited with the Canadian federation and the problem of its territorial integrity would come up within the context of the Constitution of Canada. We have previously seen that, by virtue of the latter, the territory of a province cannot be modified without the consent of the legislative authorities."[Emphasis added.]

{640} T. Franck, R. Higgins, A. Pellet, M. Shaw, & C. Tomuschat, "L'int?grit? territoriale du Québec dans l'hypoth?se de l'accession ? la souverainet?" in Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, Les Attributs d'un Québec souverain, note 1662, 15, supra, vol. 1, at 408, where it is concluded that there would not be any legal vacuum at any time before, during, or after a process of secession by Québec.

However, the PQ government's draft Bill on the sovereignty of Québec makes clear that a secessionist Québec would have its own legal system from the moment that independence from Canada is declared. Consequently, there would inevitably be innumerable "clashes" among individuals, peoples, commercial entities and governments in terms of which laws apply and which courts have jurisdiction (i.e. Canada or a seceding Québec).

{641} Id. Unofficial English translation: "...we cannot see at what moment this protection would cease: if Canada took advantage from the period preceding accession of Québec to sovereignty to modify the existing limits it would be putting itself in contravention of its own Constitution..."

{642} Bertrand v. A.G. Québec, Québec Superior Court, Québec city, No. 200-05-002117-955, decision rendered on September 8, 1995 by Mr. Justice Robert Lesage

{643} Id. at 36. Unofficial English translation: "a repudiation of the Constitution of Canada".

{644} P. Monahan, Cooler Heads Shall Prevail: Assessing the Costs and Consequences of Quebec Separation, note 114, 1662, supra, at 15.

{645} For example, in regard to the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada has held that persons can waive a legal guarantee to a procedure conceived for their protection, if they have full knowledge of the effect of renouncing to such right: see Korponay v. A.G. Canada, [1982] 1 S.C.R. 41 (S.C.C.) at 49. In the present situation of a potential UDI by Québec, s. 3 of the Constitution Act, 1871 provides for consent so it clearly allows for waiver or renunciation of the safeguards concerned by the Québec legislature.

{646} Section 10 of the Act respecting the sovereignty of Québec provides: "Laws passed by the Parliament of Canada that apply in Québec at the time section 1 comes into force, and the regulations under such laws, shall remain in force until amended or repealed by the National Assembly." However, see generally J. Woehrling, "Les aspects juridiques et politiques d'une ?ventuelle accession du Québec ? la souverainet?" in Choix [:] s?rie Québec-Canada, L'accession du Québec ? la souverainet?: aspects juridiques" (Montreal: Institute for Research on Public Policy, June 1995), vol. 1, no. 12, 25 at 34, where the author states that Quebecers may experience a more or less long period of "judicial insecurity", in the event that competition arises between Canada and a seceding Québec in regard to the application of their respective legal systems.

{647} This point is confirmed in J. Woehrling, "Les aspects juridiques de la red?finition du statut politique et constitutionnel du Québec" in Commission sur l'avenir politique et constitutionnel du Quebec, ?l?ments d'analyse institutionnelle, juridique et d?molinguistique pertinents ? la r?vision du statut politique et constitutionnel du Québec, Document de travail, no. 2 (Québec: Assembl?e nationale du Québec, 1991), at 58-59.

{648} T. Franck, R. Higgins, A. Pellet, M. Shaw, & C. Tomuschat, "L'int?grit? territoriale du Québec dans l'hypoth?se de l'accession ? la souverainet?" in Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, Les Attributs d'un Québec souverain, note 1662, 15, supra, vol. 1, at 387.

{649} A secessionist Québec would claim inherent rights to the offshore, based on international law, if its boundaries were to extend to coastal areas. See the PQ government's Bill entitled, An Act respecting the future of Québec, s. 10: "...[Québec] shall exercise its jurisdiction...over the areas adjacent to its coast, in accordance with the rules of international law."

Offshore claims by Québec are said to be supported under international law, should secession take place. In this regard, see also H. Brun, "Les cons?quences territoriales de l'accession du Québec ? la souverainet?" in Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, Les Attributs d'un Québec souverain (Québec: Biblioth?que nationale du Québec, 1992), Expos?s et ?tudes, vol. 1, 477, at 489-490. T. Franck, R. Higgins, A. Pellet, M. Shaw, & C. Tomuschat, "L'int?grit? territoriale du Québec dans l'hypoth?se de l'accession ? la souverainet?" in Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, Les Attributs d'un Québec souverain, note 1662, 15, supra, vol. 1, at 406- 407.

However, it has also been concluded that resolution of offshore claims could be "particularly difficult" and that, in regard to Hudson's Bay and Hudson Strait, it might be ultimately found that these are internal waters that should remain with Canada: see J. Charney, "The Maritime Boundaries of Québec" in Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, Les Attributs d'un Québec souverain (Québec: Biblioth?que nationale du Québec, 1992), Expos?s et ?tudes, vol. 1, 493, esp. 504, 533-577. Generally, in regard to maritime boundaries, see J. Charney & L. Alexander, (eds.), International Maritime Boundaries (Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1993); J. Charney, Maritime Jurisdiction and the Secession of States: The Case of Québec, (1992) 25 Vanderbilt J. Transnat'l L. 343.

{650} Manitoba Language Rights Reference, [1985] 1 S.C.R. 721.

{651} P. Hogg, Constitutional Law of Canada, note 245, 1662, supra, vol. 2, at 55-16.

{652} Manitoba Language Rights Reference, [1985] 1 S.C.R. 721, at 748-749.

{653} P. Monahan, Cooler Heads Shall Prevail: Assessing the Costs and Consequences of Quebec Separation, note 114, 1662, supra, at 15.

{654} 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 69.

{655} In international law, the meaning is said to be more fully expressed by the words uti possidetis, ita possideatis, "as you possess, so you may possess". See S.W. Boggs, International Boundaries [:] A Study of Boundary Functions and Problems (New York: Columbia University Press, 1940), at 79. On the same page, Boggs states: "The term [uti possidetis] is derived from Roman Law, in which it designated an interdict of the Praetor, by which the disturbance of the existing state of possession of immovables, as between two individuals, was forbidden'." [Emphasis added.] Similarly, see also A.O. Cukwurah, The Settlement of Boundary Disputes in International Law (Manchester: Manchester University Press, 1967), at 113.

{656} P. Szasz, The Fragmentation of Yugoslavia, [1994] Am. Soc. Int'l L. Proc. 33 at 47 (remarks by Szasz in ensuing discussion).

{657} A.O. Cukwurah, The Settlement of Boundary Disputes in International Law (Manchester: Manchester University Press, 1967), at 112-113: "The new States of Latin America, for convenience and expediency, adopted as the basis of their boundaries, the administrative divisions of the mother country which existed at the date when the movement for independence broke out. That 'critical date', in the case of South America was generally taken to be 1810, in the case of Central America, it was 1821." [Emphasis added.]

{658} 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 55.

{659} Id. In the arbitration concerning Honduras Borders (Guatemala v. Honduras), II UNRIAA 1307, Guatemala argued for uti possidetis de facto, while Honduras argued that uti possidetis juris should be applied. The arbitrators appear to have slightly favoured the Guatemalan view of uti possidetis de facto (along with justice and equity considerations), but other cases have applied juris possidetis juris.

The distinction is explained in S.W. Boggs, International Boundaries [:] A Study of Boundary Functions and Problems (New York: Columbia University Press, 1940), at 79 as follows: "Sometimes a distinction is made between uti possidetis juris, meaning essentially as you have a legal right to possess' according to the documents antedating independence, and uti possidetis de facto, signifying as you now actually possess.'"

{660} Not all jurists share the view that the uti possidetis rule should be applied even in Africa. See C. Aquarone, Les frontiers du refus. Six s?paratismes africains (Paris: CNRS edition, 1988).

{661} I. Brownlie, Principles of Public International Law, note 203, 1662, supra, at 135.

{662} L.C. Green, International Law: A Canadian Perspective, 2nd ed. (Toronto: Carswell, 1988), at 246, ?247. However, see J. Aschenbach, "The Splintering of Africa: New Nations May Emerge as Colonial Boundaries are Erased", Chicago Tribune, January 26, 1993, Evening Update, at 8, where the volatility of existing African political boundaries and the likelihood of their alteration within the next decade are described.

{663} Frontier Dispute (Burkina Faso/Mali), [1986] I.C.J. Rep. 554.

{664} Id. at 661-662.

{665} This definition is reproduced in I. Brownlie, Principles of Public International Law, note 203, 1662, supra, at 134-135.

{666} I. Brownlie, Principles of Public International Law, note 203, 1662, supra, at 135. See also the Beagle Channel Arbitration (Argentina v. Chile), 52 I.L.R. 93 at 125, where the Court of Arbitration did not apply the principle of uti possidetis even though its application had been agreed to by the parties. The Court also noted: "The unsatisfactory or at least indeterminate nature of claims based on uti possidetis, given the existence of rival claims, similarly based, seems to have been recognized by both the Parties themselves..." [Emphasis added.]

{667} Bloomfield, Egypt, Israel and the Gulf of Aqaba (1957), at 107-108, quoted in M. Whiteman, Digest of International Law (Washington, D.C.: U.S. Government Printing Office, 1963), vol. 2, at 1086.

{668} Frontier Dispute (Burkina Faso/Mali), [1986] I.C.J. Rep. 554.

{669} Id. at 662.

{670} 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 59.

{671} In regard to equity as a general principle under international law, see, for example, Tunisia/Libya Continental Shelf Case, [1982] I.C.J. Rep. 18 at 60: "Equity as a legal concept is a direct emanation of the idea of justice."

{672} See, for example, Frontier Dispute (Burkina Faso/Mali), [1986] I.C.J. Rep. 554 at 557; and E. Decaux, L'arr?t de la Chambre de la Cour Internationale de Justice dans l'affaire du diff?rend frontalier (Burkina Faso/R?publique du Mali), (1986) 32 Ann. Fran. de Droit Int'l 215 at 225 et seq.

{673} For a contrary view, see A. Cassese, Self-Determination of Peoples: A Legal Appraisal (Cambridge: Cambridge University Press, 1995), at 192.

{674} O. Schachter, International Law in Theory and Practice (Boston/London: Martinus Nijhoff Publishers, 1991) at 20 et seq., where the author describes the difference between a "principle" of law and a "rule" of law.

{675} 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 60-61.

{676} See, for example, Honduras Borders (Guatemala v. Honduras), II UNRIAA 307, where both parties to the borders dispute agreed to the application of the doctrine of uti possidetis. However, Guatemala invoked uti possidetis de facto (actual possession or administration) and Honduras argued uti possidetis iuris (legal title). The arbitrators appeared to lean towards the Guatemalan position, but, in regard to a number of disputed aspects, considerations of justice and equity were determinative: see 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 55.

{677} 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 61.

{678} Frontier Dispute (Burkina Faso/Mali), [1986] I.C.J. Rep. 554.

{679} Id. at 567. See also G. Naldi, The Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali): Uti Possidetis in an African Perspective, (1987) 36 Int'l & Comp. L. Q. 893.

{680} G. Naldi, The Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali): Uti Possidetis in an African Perspective, (1987) 36 Int'l & Comp. L. Q. 893 at 900.

{681} 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 63.

{682} It is important to note that while Aboriginal peoples are increasingly being elected or appointed to the federal House of Commons and Senate, there is still no such political representation in the Québec National Assembly and never has been.

{683} R. Higgins, Problems and Process [:] International Law and How We Use It (Oxford: Clarendon Press, 1994), at 125.

{684} 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.

{685} 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 38.

{686} 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.

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

{688} Id. at 415. Unofficial English translation: "The affirmation of the applicability of the principle of uti possidetis in all cases of accession to independence, even outside the framework of decolonization, corresponds to a practice that recent events have made relatively abundant: whether it is a question of States from the Community of independent States or those from the dismemberment of Yugoslavia, they have all acceded to independence within the framework of administrative limits which was theirs previously and which have been recognized by third party States as their new borders."

{689} P. Monahan, "La s?cession du Québec: consid?rations juridiques et politiques" in Choix [:] s?rie Québec-Canada, L'accession du Québec ? la souverainet?: aspects juridiques" (Montreal: Institute for Research on Public Policy, June 1995), vol. 1, no. 12, 4 at 16. Unofficial English translation: "...the uti possidetis principle would not have application in any way in a border or territorial dispute between Canada and Québec. I believe that the territorial integrity of Québec would not be guaranteed by any principle of public international law should the province try to separate unilaterally from the rest of Canada."

{690} N. Finkelstein, G. Vegh & C. Joly, Does Québec Have a Right to Secede at International Law?, note 314, 1662, supra, at 259.

{691} 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. At 66, Falk reiterates: "The confusion arising from the opinions rendered by the Badinter Commission has been compounded in several respects by the 1992 Pellet Report..."

{692} Opinion No. 2, (1992) European J. of Int'l L. 183 at 184.

{693} 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 217.

{694} P. Szasz, The Fragmentation of Yugoslavia, [1994] Am. Soc. Int'l L. Proc. 33 at 47 (remarks by Szasz in ensuing discussion).

{695} B. Kingsbury, Claims by Non-State Groups in International Law, (1992) 25 Cornell Int'l L.J. 481 at 505. At 506, the author adds: "The opinions issued by the Arbitration Commission on November 29, 1991 and January 11, 1992, are an interesting blend of traditional and innovative international law. They are propositions that would not be generally accepted by international lawyers but clearly appealed to constitutional law judges seeking to address unusual and difficult situations." [Emphasis added.]

Further, at 485, Kingsbury questions the extent of legitimacy of the Arbitration Commission's norms and procedures: "...the compliance-pull or legitimacy of the norms and procedures prescribed ad hoc was thus, almost inevitably, very limited."

{696} Id. at 507.

{697} 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 65.

{698} Id.

{699} H. Hannum, Rethinking Self-Determination, note 133, 1662, supra, at 55.

{700} Id. at 55-56. 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 348: "...the recent secessionist violence in the former republics of Yugoslavia...will cool some of the enthusiasm for recognition of a secession right under international law and could encourage a return to the historical disapproval of secession in state practice."

{701} The opinion on uti posseditis referred to is Conference on Yugoslavia Arbitration Commission, Opinion No. 3, (Jan. 11, 1992), reprinted in 31 I.L.M. 1499.

{702} H. Hannum, Self-Determination, Yugoslavia, and Europe: Old Wine in New Bottles?, (1993) 3 Transnat'l L. & Contemp. Probs. 57 at 66. At 63 et seq., Hannum questions whether the Arbitration Commission's decisions concerning former Yugoslavia really represent a "second breath" (as suggested in A. Pellet, The Opinions of the Badinter Arbitration Committee [:] A Second Breath for the Self-Determination of Peoples, (1992) 3 Eur. J. Int'l L. 178) or "merely the last gasp of the Austro-Hungarian and Ottoman empires." See also H. Hannum, Rethinking Self-Determination, note 133, 1662, supra, at 55, where the author indicates that the Arbitration Commission in Yugoslavia misconstrued the Frontier Dispute (Burkina Faso v. Mali) case.

{703} Frontier Dispute (Burkina Faso/Mali), [1986] I.C.J. Rep. 554 at 652.

{704} Id at 653

{705} H. Hannum, "Synthesis of Discussions" in C. Br?lmann, R. Lefeber, M. Zieck, (eds.), Peoples and Minorities in International Law, note 46, supra, at 335.

{706} Section 35(3) of the Constitution Act, 1982 provides: "For greater certainty, in subsection (1) treaty rights' includes rights that now exist by way of land claims agreements or may be so acquired." S. 35(1) provides constitutional protection to treaty rights.

{707} P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, sub-headings 2.5 & 6.3.1; R. Dupuis & K. McNeil, Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 602, supra, vol. 2, at 29.

{708} See note 1112, infra.

{709} P. Thornberry, "The Democratic or Internal Aspect of Self-Determination With Some Remarks on Federalism" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 131-132.

{710} See text accompanying note 683, supra.

{711} 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 119.

{712} S.J. Anaya, A Contemporary Definition of the International Norm on Self-Determination, (1993) 3 Transnat'l L. & Contemp. Probs. 131 at 143.

{713} Id.

{714} A. Buchanan, "A Reply to Grand Chief Matthew Coon Come and Mr. David Cliche", The Network, No. 5 (May 1992) (Newsletter of the Network on the Constitution), 13 at 13. See also R. Bieber, European Community Recognition of Eastern European States: A New Perspective for International Law?, (1992) 86 Proc. Am. Soc'y Int'l L. 374 at 377: "It remains doubtful...whether the EC policy has contributed to determining the implications of a right of self-determination beyond what is already established by international practice."

{715} An Act respecting the north-western, northern and north-eastern boundaries of the province of Quebec, S.C. 1898, c.3; An Act respecting the delineation of the north-western, northern and north-eastern boundaries of the province of Quebec, S.Q. 1898, c. 6.

{716} An Act to extend the Boundaries of the Province of Quebec, S.C. 1912, c.45; An Act respecting the extension of the Province of Quebec by the annexation of Ungava, S.Q. 1912, c. 7.

{717} M. Coon Come, Submission to the Cree Eeyou Astchee Commission, Speaking Notes, Montreal, Québec, September 21, 1995 (on file with the Grand Council of the Crees), at 4.

{718} A.C. Hamilton, Canada and Aboriginal Peoples [:] A New Partnership (Ottawa: Minister of Public Works and Government Services, 1995), at 6.

{719} For a pictorial view of Quebec in 1867, see map accompanying the article by E.J. Arnett, "The Qu?b?cois can't take it all with them", Globe and Mail, October 19, 1991, at A19. See also "The Roots of the Struggle: A Turbulent Past Haunts Quebec", Maclean's, November 25, 1991, 26 at 28.

{720} This Act is now renamed the Constitution Act, 1867.

{721} Rupert's Land and North-Western Territory Order, 1870 (U.K.), R.S.C. 1970, Appendix II, No. 9.

{722} P. Hogg, Constitutional Law of Canada, note 245, 1662, supra, vol. 1, at 2-12 ? 2-13.

{723} D. Varty, Who Gets Ungava? (Vancouver: Varty and Co. Printers, 1991), at 16. However, H. Brun indicates that the government of Canada never purchased the territory; see Assembl?e Nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, 26 Nov. 1991, No. 10, at CEAS-265.

{724} Rupert's Land and North-Western Territory Order, R.S.C. 1985, App. II, No. 7, included as item 3 in the Schedule to the Constitution Act, 1982 as part of the Constitution of Canada.

{725} J. Woodward, Native Law (Toronto: Carswell, 1989), at 78-79. As to the constitutional status of these terms and conditions, see P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, at 66 et seq.

{726} Address to Her Majesty the Queen from the Senate and House of Commons of the Dominion of Canada, Schedule (A), R.S.C. 1985, App. II, No. 9, at 8-9.

{727} Address, Schedule (B), R.S.C. 1985, App. II, No. 9, at 16.

{728} "The portion of Labrador which had been included in the 1898 and 1912 extensions were determined to be British territory. The present boundaries were established in 1927." D. Varty, Who Gets Ungava? (Vancouver: Varty and Co. Printers, 1991), at 18. See also Re Labrador Boundary, [1927] 2 D.L.R. 401 (P.C.). In J. Woehrling, "Les aspects juridiques de la red?finition du statut politique et constitutionnel du Québec" in Commission sur l'avenir politique et constitutionnel du Quebec, ?l?ments d'analyse institutionnelle, juridique et d?molinguistique pertinents ? la r?vision du statut politique et constitutionnel du Québec, Document de travail, no. 2 (Québec: Assembl?e nationale du Québec, 1991), at 59, the author states that he does not believe that Québec can obtain Labrador in any accession to independence. For a similar view, see Assembl?e Nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, 26 Nov. 1991, No. 10, at CEAS-272.

{729} D. Varty, Who Gets Ungava? (Vancouver: Varty and Co. Printers, 1991), at 16-18.

{730} Id. at 18.

{731} An Act to extend the Boundaries of the Province of Quebec, S.C. 1912, c.45; An Act respecting the extension of the Province of Quebec by the annexation of Ungava, S.Q. 1912, c. 7.

{732} The same conditions are found in the Ontario Boundaries Extension Act, S.C. 1912, c. 40, but not in the Manitoba Boundaries Extension Act, S.C. 1912, c. 32.

{733} The constitutional term "Indian" would likely be interpreted to include Inuit. See Re Eskimo, [1939] S.C.R. 104. The French version of the legislation refers to "habitants sauvages".

{734} As to the likely unconstitutionality of the Canadian government or Parliament delegating responsibility for obtaining Aboriginal land surrenders to the Québec government, see P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, sub-heading 6.3.1; R. Dupuis & K. McNeil, Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 602, supra, vol. 2, at 31; H. Brun, "L'int?grit? territoriale d'un Québec souverain" in A.-G. Gagnon et F. Rocher, (ed.), R?pliques aux d?tracteurs de la souverainet? du Québec, note 210, supra, at 78.

{735} Although s. 2(e) of the Quebec Boundaries Extension Act was repealed by the James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976-77, c. 32, the preamble of this Act makes clear that the federal fiduciary responsibility for the James Bay Crees and Inuit continues: "AND WHEREAS Parliament and the Government of Canada recognize and affirm a special responsibility for the said Crees and Inuit". In any event, a repeal of the declaratory provision in s. 2(e) could not have the effect of amending the federal fiduciary responsibility in s. 91(24) of the Constitution Act, 1867.

In regard to the fiduciary obligations of the Crown in Canada, see R. v. Sparrow, [1990] 1 S.C.R. 1075 (S.C.C.); Guerin v. The Queen, [1984] 2 S.C.R. 335 (S.C.C.).

{736} An Act respecting the extension of the Province of Quebec by the annexation of Ungava, S.Q. 1912, c. 7, Schedule, ss. 2(c),(d),&(e).

{737} For a similar view, see comments of Jacques-Yvan Morin, then leader of the Opposition (Parti Qu?b?cois) in Journal des d?bats, 12 May 1976, vol. 17, no. 29, at 1590.

{738} Kanatewat v. James Bay Development Corp., [1975] C.A. 166, reversing [1974] R.P. 38, leave to appeal to S.C.C. dismissed [1975] 1 S.C.R. 48.

{739} R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1103-4.

{740} P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, at 263; vol. 3, at 616 et seq.

{741} James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976-1977, c.32, s. 7; An Act Approving the Agreement Concerning James Bay and Northern Quebec, R.S.Q. 1977, c. C-67, s.5.

{742} Frontier Dispute (Burkina Faso/Mali), [1986] I.C.J. Rep. 554 at 568.

{743} T. Franck, R. Higgins, A. Pellet, M. Shaw, & C. Tomuschat, "L'int?grit? territoriale du Québec dans l'hypoth?se de l'accession ? la souverainet?" in Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, Les Attributs d'un Québec souverain, note 1662, 15, supra, vol. 1, at 404. Unofficial English translation: "It is useless...to invoke the principle of uti possidetis, whatever its scope might be..., to admit that historical considerations are not relevant in determining the borders of a new State. Whatever had been the circumstances and the reasons which led it to the fixation of the territorial limits existing at the moment of accession to independence, the latter `stops the clock, but does not put back the hands'." [Emphasis added.]

{744} Of course, if all interested parties explicitly agreed, the doctrine of uti possidetis may have some applicability subject to how a court might later determine related boundary questions.

{745} See discussion under sub-heading 5.3 supra.

{746} The sentence in Burkina Faso/Mali (at 568), that is partially quoted by the five authors, reads in full as follows: "The principle of uti possidetis freezes the territorial title; it stops the clock, but does not put back the hands." The International Court of Justice applied to some extent the principle of uti possidetis in this case, since such application was expressly agreed to by the parties concerned.

{747} S.J. Anaya, The Native Hawaiian People and International Human Rights Law: Toward a Remedy for Past and Continuing Wrongs, (1994) 28 Georgia L. Rev. 309 at 329-330.

See also B. Kingsbury, Claims by Non-State Groups in International Law, (1992) 25 Cornell Int'l L.J. 481 at at 496: "...assertions of historical sovereignty have been important in the dissolution or disintegration of federal states, and were crucial in legitimizing the claims to independence of Lithuania, Latvia and Estonia..." At the author notes on the same page, "Crees in Quebec...have argued that if the province proceeded to exercise the right to self-determination, the Cree would have a separate international legal right to self-determination; that historically Cree sovereignty was not surrendered to Quebec and could properly be (re)asserted..." [Emphasis added.]

{748} S.J. Anaya, The Native Hawaiian People and International Human Rights Law: Toward a Remedy for Past and Continuing Wrongs, (1994) 28 Georgia L. Rev. 309 at 330.

{749} An in-depth discussion of this point, particularly the accession of Québec to sovereignty, is provided under heading 7 infra.

{750} At the time of Canada's inception in 1867, the four existing provinces were Ontario, Québec, New Brunswick and Nova Scotia.

{751} H. Brun, "L'int?grit? territoriale d'un Québec souverain" in A.-G. Gagnon et F. Rocher, (ed.), R?pliques aux d?tracteurs de la souverainet? du Québec, note 210, supra, at 74-76.

{752} H. Brun reaches a similar conclusion at 84-85, n. 18.

{753} See 1837 Report of the Imperial House of Commons' Select Committee on Aborigines (British Settlements), where it is recommended: "The protection of the Aborigines should be considered as a duty peculiarly belonging and appropriate to the Executive Department Government, as administered either in this country or by the Governors of the respective Colonies. This is not a trust which could conveniently be confided to the local Legislatures..." [Emphasis added.] Quoted in R. Barsh & J. Henderson, Aboriginal Rights, Treaty Rights, and Human Rights: Indian Tribes and `Constitutional Renewal', (1982) 17 J. of Can. Studies 55 at 68. See also discussion in P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, at 61 et seq.

{754} See sub-heading 5.4.1 infra.

{755} Ontario Boundaries Extension Act, S.C. 1912, c. 40. See Note, The Legality of an Independent Quebec: Canadian Constitutional Law and Self-Determination in International Law, (1979) B.C. Int'l & Comp. L. Rev. 99 at 108, n.24.

{756} Manitoba Boundaries Extension Act, S.C. 1912, c. 32. Manitoba received additional territory under the Manitoba Boundaries Extension Act, S.C. 1930, c.28. See Note, The Legality of an Independent Quebec: Canadian Constitutional Law and Self- Determination in International Law, (1979) B.C. Int'l & Comp. L. Rev. 99, at 108, n.24.

{757} A motion moved by Prime Minister Laurier on July 13, 1909 addressed all three annexations at the same time. See Dominion of Canada, Journals of the House of Commons, 1907-8, at 634-635. See also Dominion of Canada, Sessional Paper No. 94, 1911- 1912, vol. 24, at 1, where a letter dated January 3, 1912 from Premier of Québec, Lomer Gouin, to the Premier of the Dominion of Canada, R.L. Borden, is reproduced. Premier Gouin in part provides: "Report has it now that you will shortly consider the question of the extension of the boundaries of Manitoba and Ontario and I would suggest that the annexation of Ungava to Québec should be settled at the same time."

{758} P. Hogg, Constitutional Law of Canada, note 245, 1662, supra, vol. 1, at 2-11, n. 37. See also J.E. Cot?, The Reception of English Law, [1977] 15 Alta. L. Rev. 29 at 52. H. Brun takes a similar view, but adds that a secondary consequence of such legislative power was ownership of the northern territory. See Assembl?e nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, 26 Nov. 1991, No. 10, at CEAS-264. However, the question of ownership of lands and resources is far more complex and must be addressed separately.

{759} Dominion of Canada, Sessional Paper No. 110a, 1911-1912, vol. 24, at 43. For statements to the same effect, see Dominion of Canada, Sessional Paper No. 64a, 1906-7, vol. 13, at 11, 15, 31 & 44.

{760} Dominion of Canada, Sessional Paper No. 64a, 1906-7, vol. 13, at 28.

{761} Dominion of Canada, Sessional Paper No. 110a, 1911-1912, vol. 24, at 23. Manitoba's concern with the issue of equality with Québec and the other provinces is raised at 8, 19-21, 28.

{762} Dominion of Canada, Sessional Paper No. 64a, 1906-7, vol. 13, at 21.

{763} D. Varty, Who Gets Ungava? (Vancouver: Varty and Co. Printers, 1991), at 29.

{764} Id. at 32.

{765} Similar statements on the lack of historical rights of Quebec in the 1898 and 1912 territories have been made by Scott before the Committee on Sovereignty. See Assembl?e nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, 26 Nov. 1991, No. 10, at CEAS-257-258.

{766} S. Scott, Secession or Reform? Mechanisms and Directions of Constitutional Change in Canada, speech for conference organized by North American Studies and Department of Economics, McGill University, May 30-31, 1991, at 10.

{767} "All gall divided into three parts", Globe and Mail, editorial, August 7, 1991, at A14.

{768} This principle of consent of the people of the territory is the same as found in the Atlantic Charter of August 14, 1941. See A. Kiss, The Peoples' Right to Self-Determination, [1986] 7 Human Rights L.J. 165 at 166, where the author also notes that the origins of self-determination, as it has been devised in the Charter of the United Nations, have been said to be found in the Atlantic Charter. See also P. Monahan & L. Covello, An Agenda for Constitutional Reform, Final Report of the York University Constitutional Reform Project, (North York, Ontario: York University Centre for Public Law and Policy, 1992), at 103: "...the borders of an independent Quebec should be based, to the greatest extent possible, on the wishes of the people concerned."

{769} Dominion of Canada, Sessional Paper No. 64a, 1906-7, vol. 13, at 43-44.

{770} Dominion of Canada, Sessional Paper No. 64a, 1906-7, vol. 13, at 48.

{771} Dominion of Canada, Sessional Paper No. 110a, 1911-1912, vol. 24, at 39-40, 41-42, 47.

{772} Dominion of Canada, Sessional Paper No. 94, 1911-1912, vol. 24, at 3. To the same effect, see also p. 5.

{773} E. Lauterpacht (ed.), Oppenheim, International Law: A Treatise, 8th ed. (London/Toronto: Longmans, 1955), vol.1, ?219.

{774} Bucheit makes clear on the following page (p. 26) that "consult" means "ratified by the local inhabitants".

{775} L. Bucheit, Secession [:] The Legitimacy of Self-Determination, note 29, 1662, supra, at 25. See also H.S. Johnson, Self- Determination Within the Community of Nations (Leydon: Sythoff, 1967) at 59-61.

{776} L. Chen & W.M. Reisman, Who Owns Taiwan: A Search for International Title, (1972) 81 Yale L.J. 599 at 659-660.

{777} Id. at 659. To the same effect, see p. 238: "...it is sufficient to note that the doctrines of self-determination and the prohibition of use of force for territorial changes,...had transformed the component of acquiescence of the indigenous people into a peremptory aspect, and a virtual requirement of lawful transfers of territorial title." And at 602: "A jus cogens or peremptory norm is a fundamental normative demand in a legal system which operates to override any contravening arrangement or practice but cannot itself be changed or terminated other than by inclusive community procedures."

{778} Advisory Opinion on Western Sahara, [1975] I.C.J. 6, 31-33, 35-36.

{779} Id. at 36.

{780} E. Suzuki, Self-Determination and World Public Order: Community Response to Territorial Separation, (1976) 16 Va. J. Int'l L. 779 at 827. To the same effect, see Note, The Logic of Secession, (1980) Yale L.J. 802 at 806.

{781} Quoted from President Wilson's Mount Vernon address and found in G.H. Hackworth, Digest of International Law (Washington: Gov't Printing Office, 1940), vol. 1, at 425.

{782} J.-J. Rousseau, Political Writings (Vaughan ed., 1915) at 340-341, cited in E. Suzuki, Self-Determination and World Public Order: Community Response to Territorial Separation, (1976) 16 Va. J. Int'l L. 779 at 828.

{783} Assembl?e nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, February 4, 1992, at CEAS-705 (R. Falk).