The Grand Council of the Crees

Section 6, Sovereign Injustice - Grand Council of the Crees

6. Qu?bec "Territorial Integrity" - Unilaterally Imposed on Aboriginal Peoples

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6. Québec "Territorial Integrity" ? Unilaterally Imposed on Aboriginal Peoples

"There is no way that any Quebecker would accept that a square inch of that territory be extracted from Quebec." {784}

Bloc Qu?b?cois Leader, Lucien Bouchard, 1994

"Et le principe de l'int?grit? territoriale...peut-il ? son tour ?tre invoqu? pour le Québec...sans heurter d'autres' droits ? l'autod?termination?" {785}

F. Brousseau, 1995

The PQ government takes the position that it can impair the territorial integrity and cause the break-up of Canada in its present form, in the event of an affirmative simple majority vote in the Québec referendum. At the same time, the government claims that the "territorial integrity" of Québec is unassailable, {786} regardless of the claims of self-determination of Aboriginal peoples (or an overwhelming supramajority in any Aboriginal referendum vote). In this regard, D. Cliche, special advisor on Aboriginal affairs to Premier Parizeau, states:

"...the freedom to walk away from an independent Quebec...That's where we don't agree...We can never accept the idea that aboriginal lands can be taken out of Quebec."{787}

S. Scott (McGill University) comments on this type of double standard {788} on the part of the PQ government as follows:

"Ceci am?ne ? la question de l'int?grit? territoriale et du double standard. Pour certains, le Canada est divisible, et le Québec ne l'est pas. Je ne puis accepter ce genre de raisonnement, soit sur le plan du droit constitutionnel, soit sur le plan du droit international, soit m?me sur le plan de la simple morale. Tout argument voulant que le Québec soit indivisible veut aussi que le Canada le soit ?galement. Et tout argument voulant que le Canada soit divisible veut que le Québec le soit aussi." {789}
[Emphasis in original.]

["This brings me to the question of territorial integrity and the double standard. I cannot accept this kind of reasoning, be it on the level of constitutional law, on the level of international law, even on level of simple morality. Any argument suggesting that Québec is indivisible suggests also that Canada is as well. And any argument suggesting that Canada is divisible suggests that Québec is also." [Unofficial English translation, emphasis in original.]]

In addition, S. Dion states:

"...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?." {790}

M. Venne reports on the position of the Chiefs of the First Nations in Québec as follows:

"Les chefs am?rindiens du Québec rejettent le concept de l'int?grit? du Québec' et affirment avoir le droit de choisir avec qui (ils veulent) s'associer,' que le Québec devienne souverain ou non. Ils soutiennent d'ailleurs que toute modification du cadre constitutionnel ou politique exigera (leur) consentement'." {791}

It is clear why Québec sovereignists are resorting to exaggerated claims and double standards in regard to the "territorial integrity" of Québec. As J. Aubry notes:

"The stakes over Quebec's territorial integrity are high. Without its North, an independent Quebec, with its emphasis on hydro development, would have difficulty remaining viable." {792}

F. Dumont exposes the artificial, self-serving and manipulative argument of those "tacticians" who seek to assert that there is a single Québec "nation", based on existing territorial boundaries:

"L'histoire a fa?onn? une nation fran?aise en Am?rique; par quelle d?cision subite pense-t-on la changer en une nation qu?b?coise? D?finir la nation par des fronti?res territoriales, c'est affirmer que l'?tat s'identifie ? elle; construction toute verbale et parfaitement artificielle de tacticiens politiques...De tout mani?re, anglophones et autochtones ne seront pas dupes; ils verront sans peine que nous d?sirons simplement ?pouser ? notre profit une logique que nous reprouvons lorsqu'elle nous d?favorise." {793} [Emphasis added.]

In relation to Aboriginal peoples in Québec, the notion that their fundamental rights be subject to the alleged "principle" of territorial integrity of Québec is totally inappropriate, inapplicable and unacceptable. Reasons supporting this position include the following: {794}

i) Pre-existing rights of Aboriginal peoples prevail. It would be absurd for Aboriginal peoples to recognize such a "principle" in regard to northern territories that have been occupied by Aboriginal peoples for thousands of years, and in which Quebec has no historic claims nor pre-existing rights. As Chief Billy Diamond makes clear:

"We Cree People live in and govern our Territory in the North...[A]s long as we continue to be Cree People and feel that attachment to our land and resources, no piece of paper nor legal scheme can change that." {795}

Further, in regard to territory within the province, it is worth remembering the words of former Québec Premier Ren? L?vesque when he commented in the National Assembly:

"...si on tient compte de quelques si?cles d'histoire et du fait que, m?me s'il n'?tait pas occup?, sauf intermittement, par des bandes ou des nations qui se promenaient sur le territoire, c'?tait leur pays et que, ce pays, nous le partageons maintenant..." {796} [Emphasis added.]

Also, B. Came challenges the validity of the "principle" of territorial integrity being invoked by the PQ government:

"...Quebec's vaunted territorial integrity is a faintly absurd concept viewed in light of the history of those who have inhabited the place continuously since the last ice age ended 10,000 years ago. To the natives, the current provincial frontiers are arbitrary lines on a map, drawn by European newcomers who paid scant attention to the well-established territories of many native populations." {797} [Emphasis added.]

ii) Wrong and unjust to validate past colonial actions against Aboriginal peoples. The James Bay Crees will not validate prejudicial and unfair colonial actions by Canada and Québec. Cree traditional territory, incrementally became a part of the province of Québec without Cree knowledge and consent in 1898 and 1912. {798} These colonial acts on the part of the federal and Québec governments violated basic national and international norms existing at that time. Such wrongful acts have had and continue to have far-reaching adverse consequences. It has led to a claim by Québec concerning Cree territorial resources. These prejudicial actions have not yet been equitably addressed.

iii) Integrity of territories of Aboriginal peoples must be safeguarded. The real and most urgent issue in regard to the 1898 and 1912 territories and elsewhere in Québec is the need to guarantee the integrity of the traditional territories of the Crees and other Aboriginal peoples. It is the Crees and other indigenous peoples who are confronted repeatedly by Québec and other governments with threats of dispossession, denial of title, unwanted development projects, environmental degradation, or other unacceptable actions. It is these prejudicial actions that severely undermine the ongoing development of the Crees and other First Nations within Québec and other parts of Canada.

As C. Hilling highlights, the right of Aboriginal peoples to self-determination includes respect for the integrity of their territories:

"Pour les peuple autochtones, l'exercice de ce droit inclut, notamment, le respect de l'int?grit? de leurs territoires, le respect de leurs droits ancestraux, de leurs trait?s et des droits issus de ces trait?s, le respect de leurs institutions et de leurs lois." {799}
[Emphasis added.]

["For Aboriginal peoples, the exercise of this right includes, particularly, respect for the integrity of their territories, respect for their aboriginal rights, treaties and treaty rights, respect for their institutions and their laws." [Unofficial English translation, emphasis added.]]

iv) Principle of equal rights of peoples must be respected. The alleged paramountcy of the "principle" of Québec territorial integrity seriously detracts from any principle of equal rights of peoples. Rather, it would entrench the concept of superior title, rights and status of Québec over indigenous peoples and their traditional territories. The perpetuation of colonial dominance, {800} rather than a relationship based on equality, would be the result.

v) "Principle" of territorial integrity of Québec serves to separate Aboriginal peoples from their lands. Recognition of this "principle" would serve as a further attempt to sever Aboriginal peoples from their own traditional territories and natural environment. To date, the Québec government has repeatedly attempted to exercise control over hydroelectric and other development in Cree traditional territory. Cree rights, values, priorities and concerns have been unjustly ignored. {801}

vi) No such guaranteed principle in favour of Québec under international law. As indicated elsewhere in this Study, {802} the territorial integrity of a secessionist Québec would be in doubt unless and until "effective control" over its territory were clearly established.

Even if Québec were recognized as an independent state, there is no rule in international law that provides that the principle of territorial integrity of states is always paramount. As provided in the 1970 U.N. Declaration on Friendly Relations, this principle could only be invoked by states "conducting themselves in compliance with the principle of equal rights and self-determination of peoples...and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour." In addition, this Study has listed numerous reasons why it would be inappropriate to apply the principle of uti possidetis against Aboriginal peoples in Québec. {803}

vii) Double standard used by PQ government in invoking territorial integrity of Québec. It is not legitimate for the Québec government and others to demand that, under international law, Aboriginal peoples should recognize the supremacy of Québec territorial integrity over aboriginal territorial and other rights. In promoting its own interests, the separatist government would never agree to a similar concession vis-a-vis Canada, i.e. the paramountcy of the principle of territorial integrity of Canada over the rights of Quebecers. Rather, in regard to the territorial integrity of Canada, the Québec government is seeking to minimize the significance of this international principle so as to enhance support for Québec secession.

viii) Exercise of Aboriginal peoples' right to self-determination severely undermined. Recognition of the paramountcy of Québec territorial integrity by Aboriginal peoples, in regard to their own traditional lands, could severely undermine the right of self-determination of Aboriginal peoples. Aboriginal peoples who recognize such a principle might be precluded from exercising the right to determine their own destiny in any way that would adversely affect the "principle" of Québec territorial integrity. {804}

In this way, the potential options of indigenous peoples could be seriously restricted if not totally denied. {805} In particular, should any Aboriginal peoples concede the principle of Québec territorial integrity, they would likely be faced with having their traditional territories automatically included in any secession by Québec from Canada, without their free and informed consent.

ix) Fiduciary obligation of federal Crown to safeguard Aboriginal territories. Based on existing constitutional provisions, the federal Crown has fiduciary responsibilities to protect Aboriginal territories should they be threatened, in the event of Québec secession, with forcible inclusion in a new Québec state. {806} These constitutional duties of the federal Crown would be reinforced by the fact that there is no existing right under Canadian or international law that a seceding Québec should have its territorial integrity respected. {807} Rather, in the event of a unilateral declaration of independence by the PQ government or the National Assembly, it would be the territorial integrity of Canada that would merit respect.

T. Hall (University of Lethbridge) underlines that recognition of the integrity of Aboriginal territories would strengthen the territorial integrity of Canada:

"By supporting the right of First Nations in Quebec to assert their own territorial integrity, the federal government would in turn be advancing the territorial integrity of Canada. The Cree in particular have made it clear that their preferred course of action is to retain their sovereign-to-sovereign treaty relations with the Crown of Canada regardless of the outcome of any future referendum in Quebec." {808} [Emphasis added.]

x) Aboriginal peoples' status and rights undermined. Recognition of Québec territorial integrity would have the effect of unfairly consolidating Québec's legal and political position in the secession debate, at the expense of Aboriginal status and rights.

Based on all of the above, recognition of Québec territorial integrity in the current context by First Nations is inappropriate and unacceptable. Aboriginal peoples must secure unequivocal recognition of their own right to self-determination and ensure the integrity of their traditional territories that remain highly vulnerable to the actions of others.

Footnotes

{784} E. Stewart, "Hands off Quebec's territory, Bloc leader warns Canadians", Ottawa Citizen, May 3, 1994, at A3.

{785} F. Brousseau, "Le droit des Tch?tch?nes", Le Devoir, January 10, 1995, at A8: "And the principle of territorial integrity...can it be invoked in turn in favour of Québec...without clashing with other' rights of self-determination?"

{786} However, see G. Craven, Of Federalism, Secession, Canada and Quebec, (1991) 14 Dalhousie L.J. 231 at 264: "The difficulty for a seceding region will always be that having itself fractured the previous federal union, it will often be in a weak position ? both morally and politically ? to resist a similar secession attempt upon its own integrity."

{787} B. Came, "The Natives say No", Maclean's, February 27, 1995, 14 at 15.

{788} This contradictory position is found among other secessionist forces. For example, see D. Murswiek, "The Issue of a Right of Secession ? Reconsidered" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 34, where the author describes the positions of the Czechs and Slovaks as follows: "...it is remarkable how vehemently the newly independent republics defend their territorial integrity against claims to secede or revise boundaries, put forward by other ethnic groups."

See also "Crimea put under Kiev's control", The Gazette, Montreal, April 2, 1995, at B1, where it is reported that the Ukraine government has recently taken strong measures to crush separatism in the pro-Russian Crimean peninsula. Approximately, two- thirds of the 2.7 million people in Crimea are said to be ethnic Russians.

{789} S. Scott, "Autod?termination, s?cession, division, l?galit?: observations" 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, 463, at 470.

{790} S. Dion, "Le PLQ doit bien se garder de promettre une r?forme constitutionnelle majeure", La Presse, February 8, 1995, at B3. Unofficial English translation: "...if the territory of Canada would have to be divided despite the territorial integrity guaranteed to it under international law, the territory of Québec could also be divided."

{791} M. Venne, "Le concept de l'int?grit? territoriale ne passe pas", Le Devoir, October 14, 1994, at A5. Unofficial English translation: "The Indian chiefs of Québec reject the concept of the integrity of Québec' and affirm having the right to choose whom (they wish) to associate with', whether Québec becomes sovereign or not. They emphasize that any amendment to the constitutional or political framework requires (their) consent'."

In this regard, see First Nations in Québec and Labrador, Declaration, resolution dated October 13, 1994, Lac Delage, Québec (on file with the Grand Council of the Crees): "Any change to the political or constitutional framework requires Aboriginal consent" and that the First Nations "reject and dismiss the concept of territorial integrity of Quebec". See also Nunavik Leaders Conference, Implications of the Quebec Sovereignty Process, resolution dated December 8, 1994, Montreal, Québec (on file with the Grand Council of the Crees), where it is declared that "the relationship between Inuit and Canada, and the distinct place of Inuit in Canada cannot be modified without Inuit consent".

{792} J. Aubry, "Quebec vs. natives: Who's sovereign first?", Ottawa Citizen, May 22, 1994, A1 at A2.

{793} F. Dumont, Raisons communes, note 50, 1662, supra, at 63-64. Unofficial English translation: "History has shaped a French nation in America; by what sudden decision do you think one can change it to a Québec nation? To define the nation by territorial borders, is to affirm that the State identifies with the nation; a construction that is wholly verbal and perfectly artificial of political tacticians...In any case, anglophones and Aboriginal peoples will not be duped; they will see without difficulty that we wish simply to adopt to our profit a logic that we condemn when it works to our disadvantage." [Emphasis added.]

{794} The following reasons are taken primarily from Grand Council of the Crees (of Quebec), Submission: Status and Rights of the James Bay Crees in the Context of Quebec's Secession from Canada (Submission to the U.N. Commission on Human Rights, February 1992), at 55-57.

{795} B. Diamond, Presentation by Chief Billy Diamond to the Eeyou Astchee Commission, August 30, 1995 (on file with the Grand Council of the Crees), at 17.

{796} Assembl? nationale, Journal des d?bats, Mar. 19, 1991, vol. 28, No. 38, at 2493. Unofficial English translation: "...if one takes into account several centuries of history and the fact that, even if it was not occupied, except intermittently, by some [Indian] bands or nations who travelled throughout the territory, it was their country and that, it is this country that we share now..." [Emphasis added.]

{797} B. Came, "The Natives say No", Maclean's, February 27, 1995, 14 at 15.

{798} This issue is discussed in detail in Grand Council of the Crees (of Quebec), Submission: Status and Rights of the James Bay Crees in the Context of Quebec's Secession from Canada (Submission to the U.N. Commission on Human Rights, February 1992), at 65 et seq. Generally, in regard to boundaries questions in Canada, see N. Nicholson, The Boundaries of the Canadian Federation (Toronto: Macmillan of Canada, 1979).

{799} C. Hilling, "Autod?termination et s?cession confondues", Le Devoir, January 13, 1995, at A9.

{800} Rather than seeking to invoke "territorial integrity" and other legal concepts to dominate or subjugate Aboriginal peoples, the PQ government should explore approaches that promote genuine cooperation and equality. In this regard, see, for example, H. Charlesworth, C. Chinkin and S. Wright, Feminist Approaches to International Law, (1991) 85 Am. J. Int'l Law 613; and C. Ku, "A Feminist Approach to International Relations: An Emerging Concept of Concurrent Identities" in Proceedings of the 1992 Conference of the Canadian Council on International Law, State Sovereignty: The Challenge of a Changing World (Ottawa: Canadian Council on International Law, 1992) 91 at 95.

{801} It was only through the persistent and effective opposition by James Bay Crees at the international level that the Great Whale hydroelectric project in northern Québec was indefinitely postponed by the Québec government. In regard to this hydro project, see L.-G. Francoeur, "Parizeau g?le le projet Grande-Baleine", Le Devoir, November 20, 1994, at A1; P. Authier & G. Hamilton, "Quebec shelves Great Whale", The Gazette, Montreal, November 19, 1994, at A1; "A fitting end to Great Whale", Globe and Mail, November 22, 1994, at A20.

{802} See discussion under heading 4 supra.

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

{804} In fact, the position being taken by Québec Premier Parizeau is that a secessionist Québec is "indivisible": see P. Cantin, " Le Québec est indivisible' [:] Le gouvernement Parizeau r?affirme sa position face aux premi?res nations", La Presse, October 15, 1994, at A1.

{805} In promoting the territorial integrity of a secessionist Québec, Bloc Qu?b?cois leader, Lucien Bouchard, has taken the following position: "The natives of Quebec don't have the right to self-determination. It doesn't belong to them." See T. Ha, "Quebec's borders are safe within Canada: Chr?tien", The Gazette, Montreal, May 25, 1994, A1 at A2.

{806} See discussion under sub-heading 10.1 infra.

{807} See discussion under sub-heading 5.1 supra.

{808} T. Hall, "Native land claims" (letter to the Editor), Globe and Mail, October 25, 1994, at A18. a