The Grand Council of the Crees

Section 8, Sovereign Injustice - Grand Council of the Crees

8. Relevance of the James Bay and Northern Quebec Agreement

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8.1 JBNQA Negotiations - Inequitable Conditions and Circumstances

8.2 Denial of Crees Self-Determination Under JBNQA

8.3 Legal Status of JBNQA on the Context of Quebec Secession

8.3.1 Effect of JBNQA under Canadian law
8.3.2 Effect of JBNQA under international law

8. Relevance of the James Bay and Northern Quebec Agreement

"Given the constitutional protection extended to the rights flowing from the agreement, the JBNQA will necessarily have to be considered in any process involving the sovereignty of Quebec. As a signatory to the agreement, the federal government is bound by constitutional obligations that cannot be waived without the consent of the other parties to the agreement." {882} [Emphasis added.]

R. Dupuis, 1995

The James Bay and Northern Quebec Agreement (JBNQA) is a treaty and the rights of the Crees and Inuit are recognized and protected as treaty rights under Canada's Constitution. {883} This treaty arose as a result of a wide range of threats to Cree rights, communities, territory and way of life, because of the declaration of the Québec government to proceed unilaterally with the construction of the largest hydroelectric project in North America.

No respect or consideration whatsoever was accorded at that time by the Québec and federal governments, or by Québec Crown corporations, for Cree territorial rights. Moreover, no environmental and social impact assessment was ever carried out prior to the construction of the James Bay hydroelectric project. It was only after litigation was initiated by the James Bay Crees that Québec and the federal government decided to negotiate an agreement with the Crees and Inuit on this matter.

It has at times been declared by the Québec government that the James Bay and Northern Quebec Agreement stands as a model of fairness and generosity, {884} in regard to Québec's dealings with Aboriginal peoples. In addition, Québec political leaders claim that the Crees and Inuit already enjoy autonomy under JBNQA.

At the same time, it has been said that JBNQA has extinguished the rights of Aboriginal peoples so that they cannot make any claim to self-determination (and therefore to the northern territory) under international law. {885}

The James Bay Crees take serious issue with all of these statements. Consequently, the Cree position is substantiated in the sub-headings below. Although the Québec and federal governments refer to the JBNQA as a land claims agreement (which is intended to significantly enhance the development of the Crees), it is increasingly being used to diminish or deny {886} Cree fundamental rights. It is particularly disturbing that the JBNQA has become an instrument of suppression and oppression in the hands of non-Aboriginal governments. As D. Soyez (University of Cologne, Germany) observes, the Agreement is being used by the Québec government in a manner contrary to that intended by the Crees:

"Pour les Cris, c'est un `contrat social', un cadre qu'il agissait ? en l'ajustant ? de nouveaux probl?mes qui surgiraient ? de continuer ? d?velopper. Le Québec, semble aujourd'hui au contraire ?tre moins int?ress? ? une dynamisation et ? une modernisation du contrat; il y voit en effet ? ? la lumi?re d'une interpr?tation strictement juridique (l?galiste) des clauses sign?es ? l'?poque par les Cris au sujet de projets ? venir ? une carte blanche pour la poursuite de l'am?nagement hydro-?lectrique." {887}
[Emphasis added.]

A most vivid example relates to the Great Whale hydro-electric project. For a number of years, the JBNQA treaty has been invoked or otherwise interpreted by the Québec and federal governments in a manner that would suppress Cree values, priorities and concerns in regard to hydroelectric development and its adverse effects on the northern environment. Only recently, have the two governments felt compelled {888} to alter somewhat their attitude and at least proceed with an environmental impact assessment process for the Great Whale project that did not overtly compromise basic environmental principles.

Previously, both governments have unsuccessfully attempted to argue before the courts that their commitments in the treaty to subject the project to federal environmental and social impact assessment do not mean anything in law. {889} They have tried to argue that the signatures of their government leaders and the subsequent approval by their legislatures did not create legally binding obligations in favour of Aboriginal peoples. These specious and duplicitous arguments have been consistently rebuked by Canadian courts. {890} The ongoing attempts of Québec to use the JBNQA to deny or minimize Cree fundamental rights both under Canadian and international law are seriously eroding any remnants of Cree confidence in the James Bay and Northern Quebec Agreement.

Prior to assessing the JBNQA in the context of Québec secession, it is essential to first describe the circumstances in which the Agreement was negotiated and why it constitutes for the most part a denial of Cree self-determination. Such denial has important implications, in terms of the rights of the James Bay Crees in the event of a UDI by Québec. It also demonstrates the unacceptable treatment to be anticipated by the Crees within an independent Québec.

8.1 JBNQA Negotiations ? Inequitable Conditions and Circumstances [Top]

"...Aboriginal peoples believe they have not been dealt with fairly in the treaties that have been signed in recent years. Many feel the modern treaties have only been signed by Aboriginal peoples because they had to sign. Many signed because they needed the funding and other benefits for their impoverished people." {891}

Hon. A.C. Hamilton (former Associate Justice of the Manitoba Court of Queen's Bench), 1995

It is the firm view of the Crees that the Agreement was negotiated in 1974-75 under circumstances that were clearly inequitable, highly pressured and, in a number of key respects, unconscionable. Reasons to support this position include the following:

i) Duress. Construction of Phase I of the James Bay Hydroelectric Project (La Grande) was allowed to proceed by Quebec, against the wishes of the Crees, during the actual negotiations concerning the project. As Chief Billy Diamond explains, with the real and imminent threat of destruction of rivers and flooding of vast areas of Cree traditional lands, there really was no choice but to try and negotiate an agreement under pressured and unjust conditions:

"Our feeling was that no one can buy a way of life and culture with money. We were ready to proceed in court, but we saw the need to limit the damages, seek remedial works and have certain fundamental rights recognized. We decided to attempt to negotiate a settlement. We really had no other choice." {892}
[Emphasis added.]

In addition, Chief Diamond refers to threats of unilateral extinguishment of Cree rights as another form of duress:

"...not only did the negotiators come in with [surrender and extinguishment] as a condition which was not subject to discussion or debate, but Canada made it clear that if we did not proceed with the agreement process, unilateral legislation would have been imposed on us in any case." {893} [Whole quote bold in original.]

In 1976, the Right Honourable Joe Clark (then leader of the Opposition and subsequently the Prime Minister of Canada) confirmed in the House of Commons the duress to which the Aboriginal parties to the negotiations were subjected in the negotiation of the JBNQA:

"It is not acceptable to me or to my colleagues...that we approve of a process which has had the effect of forcing upon native people in a distant part of this land agreements which in all reasonable likelihood they would not have accepted had they been able to negotiate free of the constraints that were placed upon them." {894} [Emphasis added.]

Mr. Clark indicated:

"The native people of the James Bay region were negotiating under the gun of a deadline to which they had to adhere. If they did not adhere, they and their people would suffer serious consequences." {895} [Emphasis added.]

In November 1993, the Grand Council of the Crees described to the Royal Commission on Aboriginal Peoples the various "conditions of pressure and duress under which this agreement was negotiated" {896} :

"a) construction of the La Grande mega-project was continuing without interruption. Our rights to our lands and waters and way of life were being taken from us while we negotiated;

b) by the time we could reach the Supreme Court of Canada in the Kanatewat case the construction would be completed or the balance of convenience would be against us;

c) the Federal Government was threatening to cut off funds we depended upon to defend our rights;

d) all governments were using false and illegitimate arguments to debate us, including that we had no aboriginal rights or title. We were told we were squatters. The Agreement was thus negotiated under conditions of fundamental error, if governments truly believed what they told us, or under conditions of fraud if they did not;

e) the social position of our people was desperate, and programs upon which we depended were being cut and frozen, including while negotiations were underway;

f) the governments stated that certain fundamental matters were non- negotiable, including the issues of surrender and extinguishment;

g) we were forced to accept structures, institutions and principles that did not reflect Cree law, culture or belief but rather those of the dominant societies. This was in contravention of our fundamental right of self-determination including the right to determine our own institutions, and our social, economic and cultural rights;

i) we were obliged to negotiate against the might of three development corporations and two governments; and

j) the federal government failed to assert its fiduciary obligation to protect our rights and interests. Instead, in this first `modern' land negotiation, the federal Crown maintained a morally and legally bankrupt position of `alert neutrality'." {897}
[Emphasis in original.]

P. Cumming (Osgoode Hall, York University) states that the Crees and Inuit in Québec were subjected to a "forced purchase" in regard to the JBNQA:

"The James Bay settlement is simply a forced purchase, an `offer that could not be refused' in the sense that no other offer would be made. Construction on the hydroelectric project went on throughout the negotiations. All provincial parties supported the hydroelectric scheme, the largest development project in Canada's history...The federal government was not prepared, and indeed was politically unable, to exert any pressure upon the Quebec government. It was the provincial government that negotiated this settlement." {898} [Emphasis added.]

The issue of coercion or duress of Aboriginal parties during the JBNQA negotiations has been examined in a 1995 study prepared for the Royal Commission on Aboriginal Peoples. In this regard, P. Joffe & M.E. Turpel conclude:

"...in assessing the conduct of the federal and Québec governments in the overall context, it would be most difficult to avoid the conclusion that the Aboriginal parties to JBNQA were repeatedly subjected to inappropriate, unlawful coercion or duress. These actions were incompatible with the fiduciary obligations of both governments and substantially affected the fundamental terms of the "agreement" reached by all parties concerned." {899} [Emphasis added.]

ii) False premises concerning the existence of aboriginal rights in northern Québec. The Québec government vigorously maintained throughout the litigation and the subsequent land claims negotiations that the Crees and Inuit had no native rights. {900} The government also argued (until an agreement was reached) that the obligations in the Quebec Boundaries Extensions Act, 1912 to "recognize the rights of Indian inhabitants in the territory" were not applicable to the Crees and Inuit.

The Crees and other Aboriginal peoples concerned were compelled to negotiate under these false premises. As a result, the Aboriginal parties to the negotiations had little or no leverage to reach a just and equitable agreement. Just seven years after the signing of JBNQA, however, aboriginal rights were recognized and affirmed in Canada's Constitution. {901} This fundamental affirmation, had it occurred earlier, would have made it impossible for governments to argue the non-existence of aboriginal rights within the province of Québec.

iii) Reliance on erroneous conclusions of the Dorion Commission. In adopting an anti- aboriginal rights position concerning land claims in northern Québec, the Québec government relied to a significant extent on the 1971 Report of the Commission sur l'int?grit? du territoire du Québec (Dorion Commission). {902} In examining the issue of aboriginal rights in Québec, the Commission never even consulted with Aboriginal peoples as to the nature and scope of their rights. Twenty years later, the basic postulates of the Dorion Commission have been seriously challenged by a Québec jurist as being untenable and erroneou. {903}

The research carried out for the Commission in this regard was published in 1974 in a text by H. Brun. {904} This extremely narrow, self-serving theory on aboriginal rights (limited to some hunting, fishing and trapping, if they exist at all) in Québec are seen to be anachronistic today.{905}

Today, it would appear that H. Brun (Universit? Laval) no longer maintains such a narrow and definitive position. Moreover, Brun has in effect conceded that the rights of Aboriginal peoples are more broad (though undefined) than he set out in his research study for the Dorion Commission:

"...l'objet de ces droits demeure encore tr?s flou. Leurs droits ancestraux, leurs droits ? l'autonomie gouvrnementale et les territoires sur lesquels portent ces diff?rents droits sont, pour l'instant, largement inconnu." {906} [Emphasis added.]

And Brun now adds:

"Les droits territoriaux des autochtones existent depuis toujours. Ils sont reconnus depuis relativement peu de temps, depuis une vingtaine d'ann?es..." {907}
[Emphasis added.]

The credibility of the Dorion Commission's findings are further undermined by the candid admission of Henri Dorion, former head of the Commission, when he repeatedly made it clear on October 17, 1991 to the Committee on sovereignty that he is not an expert or specialist on the territorial rights of Aboriginal peoples. {908}

It is an outrage that, for the past twenty years, the Québec government has based its negotiating position in regard to Cree and Inuit land claims negotiations relating to northern Québec (as well as most other territorial claims) on the unreliable, erroneous and prejudicial findings of the Dorion Commission. In particular, it seriously affected the ability of Aboriginal peoples to negotiate a fair agreement with Québec in regard to JBNQA.

iv) Government insistence that Aboriginal peoples relinquish fundamental rights for essential services. Despite the obligation of federal and provincial governments to provide all peoples in Canada with essential services, {909} Québec and Ottawa in effect insisted that Aboriginal peoples had to relinquish some of their fundamental rights to receive such services. {910}

In the "Philosophy of the Agreement", John Ciaccia, Special Representative of Premier Robert Bourassa during the JBNQA negotiations, confirmed how basic services to northern Québec would have had to be provided even in the absence of a James Bay hydro project:

"The inhabitants of Québec's North, like everybody else, have to have schools. They have to be able to depend on health services. they have to have the security of justice and a system of law enforcement. The Agreement responds to those needs, and provides the structures through which they can be met. There will be local school boards, police units, fire brigades, municipal courts, public utilities, roads, and sanitation services....
....
These are all steps that would have to be taken, these are all services that would have to be provided and developed anyway, regardless of whether or not there was a James Bay project." {911} [Emphasis added.]

It is unacceptable and discriminatory that Aboriginal peoples were compelled to forfeit certain fundamental rights pertaining to their lands, in order for the Québec and federal government to agree to provide essential services and programs that non-aboriginal Canadians receive as a matter of course. {912} Since the James Bay Crees and Inuit had no choice but to improve their "Third World" conditions, Québec and Ottawa chose to insensitively exploit this most vulnerable position.

v) Land selection criteria violated the basic rights of peoples. During the negotiation of the JBNQA, the Québec government unjustly imposed specific criteria for land selection that excluded all Cree and Inuit traditional lands with mineral potential. This denied the Crees "the inherent right...to enjoy and utilize fully and freely their natural wealth and resources". {913} It constituted a major violation of the Aboriginal right to economic self-determination. It still serves to perpetuate dependency among Aboriginal peoples. No other land claims agreement in Canada has prohibited Aboriginal peoples from selecting lands with resource potential. {914}

As D. Sanders (University of British Columbia) has highlighted to the 1989 U.N. Seminar on racism, the denial of indigenous peoples' ownership and control over resources cannot be justified:

"Modern international law must be taken to recognize the right of ownership and control of lands and resources by indigenous peoples. This is a proper concern of international law...A denial of indigenous rights to lands and resources can only be supported by invoking doctrines of racism and colonialism. Ideas of 'discovery' and 'terra nullius' {915} can not be considered legally valid." {916} [Emphasis added.]

Although the PQ government's Commission nationale sur l'avenir du Québec seeks to deny that Aboriginal peoples in Canada are "peoples", {917} even this highly partisan body concedes that international law recognizes extensive territorial rights in relation to indigenous peoples:

"...la Commission rappelle que le droit international contemporain tend ? reconna?tre aux peuples autochtones des droits ?tendus sur leurs terres et territoires ancestraux." {918}

In conclusion, it can be said that the land selection criteria imposed by the Québec government on the Crees and Inuit in the JBNQA negotiations remains as a black mark on the history of Québec, is contrary to Canadian and international standards, and, twenty years later, has still not been redressed.

vi) Québec's development corporations should not have been land claims negotiators. The Aboriginal parties in the negotiations were forced to face not only federal and Québec government negotiators, but also Hydro-Québec, Soci?t? d'?nergie de la Baie James and Soci?t? de d?veloppement de la Baie James. Nowhere else in Canada have Aboriginal peoples been compelled to negotiate land claims with development corporations as well as federal and provincial governments.

The three development corporations, were each considered as separate negotiating parties and they coordinated strategies with the Québec government against the Aboriginal parties. Generally, the harsh positions taken by Québec were set by the development corporations. These corporate entities could have had input in negotiating technical modifications to the James Bay hydro project, but they were fully involved in all aspects of the land claims negotiation. As a result, rights and protections in regard to our northern environment, lands, resources and development were severely affected.

vii) Rights of Aboriginal third parties extinguished. {919} Upon the insistence of the government of Québec, {920} the federal government and Parliament purportedly extinguished certain land rights of Aboriginal peoples in northern Québec, even though they were not party to the James Bay negotiations. Although such unilateral extinguishment appears to be invalid and unconstitutional, {921} this most serious violation of fundamental human rights has never been redressed.{922}

viii) Abdication of federal fiduciary responsibility. Although the federal fiduciary responsibility was specifically confirmed in the Quebec Boundaries Extension Act, 1912, {923} the federal government failed to act as a "trustee". It failed to act in any way to safeguard the aboriginal rights and interests of the Cree and Inuit. Instead, it casually permitted the above transgressions to occur despite the extreme prejudice caused to the Aboriginal parties in the JBNQA negotiations.

Rather than fulfill its statutory and constitutional obligation, the federal government generally allowed Quebec to "set the rules" while Ottawa claimed it was assuming a role of "alert neutrality". According to this artifical notion, the federal government did not take action when the Québec government committed wrongful acts against indigenous peoples and indigenous lands, or engaged in wrongdoing in other areas of federal jurisdiction (eg. migratory birds, fisheries, navigable waters). Instead, the federal government funded Aboriginal peoples to take legal action.{924}

In 1976, the Right Honourable Joe Clark (as Leader of the Opposition) commented on the federal government's disgraceful policy of alert neutrality as follows:

"It is not acceptable for us to have the government of Canada abandon its responsibility and retreat to a position of alert neutrality. We owe more to the native people of Canada; we owe more to the concept of social justice; we owe more to any minority which could be the next victim of a government that is prepared to abandon its responsibilities in the name of alert neutrality. For that reason,...my colleagues and I cannot accept the process which has led to the agreement which is enshrined in the bill before us today." {925} [Emphasis added.]

As the following comment by the Hon. A.C. Hamilton would suggest, a policy of alert neutrality is inconsistent with the federal government's fiduciary duty:

"In exercising its fiduciary obligation..., the Government must seek to determine the type of treaty that will protect the interests of the Aboriginal party while at the same time establishing a firm basis for a new and harmonious relationship between Aboriginal peoples and other Canadians." {926} [Emphasis added.]

8.2 Denial of Cree Self-Determination Under JBNQA [Top]

"My people, the Crees of James Bay, signed a treaty only 16 years ago with Canada...but that treaty has become a shameful reminder of Canada's duplicity and ingratitude. That treaty has shown how greed triumphs over respect for the law, how politics supersedes constitutional responsibility. Our treaty has become infamous as Canada's first modern broken treaty." {927}

Grand Chief Matthew Coon Come, 1992

At the time the JBNQA was signed (and for a period thereafter), Cree leaders had spoken in highly favourable terms of the Agreement. Despite its many defects, the Crees were committed to making the Agreement work. Since then, harsh lessons have been learned. The word of the governments cannot be trusted. Chief Billy Diamond, who negotiated the Agreement, declares that:

"[h]e would not have signed the James Bay and Northern Quebec Agreement in 1975 if he had known then how the solemn commitments of the Agreement would be interpreted, twisted' and ignored."{928}

It has been suggested in the Québec National Assembly Committee on Sovereignty that the JBNQA is a "remarkable" application of governmental autonomy for the Crees. {929} The James Bay Crees disagree with this assessment.

Reasons why JBNQA is in fact a denial of Cree self-determination within Quebec and Canada include the following:

i) Self-Government Never Adequately Nor Equitably Negotiated. When threatened with the unilateral imposition of the La Grande hydroelectric project, the Crees attempted through JBNQA to negotiate greater control over various aspects of their lives and territory. The Cree- Naskapi (of Quebec) Act {930} was negotiated with the federal government as an attempt to free the James Bay Crees from the oppressive and colonial Indian Act. {931} However, the Cree- Naskapi replacement legislation fails to cover the major portion of Cree traditional territory and includes mainly Category IA lands, {932} less than 2% of Cree traditional lands.

Prior to the James Bay negotiations, the Crees were robbed of their traditional lands when Québec unilaterally created on Cree territory a massive "municipality" administered by the Soci?t? de d?veloppement de la Baie James (SDBJ). {933} This dispossession of Cree territory took place when the Québec government decided to proceed with the construction of the James Bay hydroelectric project (see Map at the beginning of Study).

Moreover, on Category IB lands, {934} the James Bay Crees were compelled to negotiate "public corporations" that conformed to Quebec's municipal legislation to serve as Cree local government. In both instances, the Cree nation was denied the right to determine freely its own institutions. {935} The powers negotiated do not constitute adequate internal self- determination or self-government. As S.J. Anaya states, non-indigenous governments cannot impose political institutions on indigenous peoples:

"Constitutive self-determination...requires that such political institutions not be imposed upon indigenous peoples but rather be the outcome of procedures that defer to their preferences."{936}

ii) Integrity of Cree Traditional Territory Severely Undermined. As already described in the above paragraph, Québec's unilateral action of creating a SDBJ Municipality in most of Cree traditional territory severely undermined the JBNQA negotiations and the principle of maintaining the integrity of Cree traditional territory. This gross and continuing injustice must be fully corrected. As Chief Billy Diamond explains:

"Prior to the James Bay negotiations, a huge James Bay Municipality was created on our land, simply ignoring the fact that we relied upon, used and governed every square foot of our Territory. This was a massive land- theft...Quebec did not have the constitutional or any other right to rob us of our land in this way." {937}
[Emphasis added.]

iii) JBNQA Used By Governments to Continue Colonial Forms of Domination. It cannot be said by the Quebec and federal government that the Agreement provides for the right to autonomy or self-government. The Agreement is continually used by governments to disenfranchise the Crees rather than confirm the empowerment and jurisdiction of the Cree nation. A recent example is the Great Whale hydroelectric project, where both levels of government have repeatedly tried to circumvent their obligations in regard to environmental and social impact assessment and, at the same time, deny the Crees a meaningful role. {938}

R. Stavenhagen describes the resulting damage from a lack of Aboriginal control over their territories:

"Indigenous peoples are aware of the fact that unless they are able to retain control over their land and territories, their survival as identifiable, distinct societies and cultures is seriously endangered." {939} [Emphasis added.]

iv) JBNQA Does Not Meet Minimum International Standards. Regardless of whether the JBNQA contravenes Canadian norms, it fails to meet both existing and emerging international standards. {940} The Hon. Jules Desch?nes has already brought to the attention of the Committee on Sovereignty the importance of respecting international standards. {941} Judge Desch?nes emphasized that simply meeting the requirements of Canadian or Québec law is often not sufficient.

International standards are emerging through the standard-setting process of the United Nations Working Group on Indigenous Populations in Geneva. {942} However, even the minimal (and often inadequate) norms provided in the Indigenous and Tribal Peoples Convention, 1989 (No. 169) {943} are not met by JBNQA.

Examples are numerous. Our right to retain our own customs and institutions {944} is for the most part not respected. There is insufficient regard for Cree customs or laws {945} under JBNQA (eg. Cree customary adoptions are not specifically recognized under Québec and Canadian law). Our rights to resources {946} on our traditional territory have not been safeguarded. Our right to decide our own priorities for development {947} have not been recognized. We have not been assured the right to participate in the formulation, implementation and evaluation of development plans and programs {948} that affect us. Studies for environmental and social impact assessment are not carried out in cooperation with us. {949} The integrity of our values, practices and institutions {950} have been at particular risk in relation to hydroelectric development.

v) Inequitable Justice System Not Fundamentally Altered. Although some positive changes are proposed in JBNQA (c. 18) to make the administration of justice more sensitive to the culture and needs of the Crees, the basic inequities of the current justice system, as it affects Aboriginal peoples, are still in place. Moreover, the JBNQA does not provide for adequate control of our own justice system and is, therefore, not consistent with Cree self- determination. {951}

In the December 1991 report {952} of the Law Reform Commission of Canada, separate aboriginal justice systems (established through negotiations with First Nations) are strongly recommended. The report says that the current system has "utterly failed" Aboriginal peoples. {953} In this context, it is provided:

"The historical disadvantage suffered by aboriginal persons in the justice system has been too long ignored....
....
From the aborginal perspective, the criminal justice system is an alien one, imposed by the dominant white society." {954}

In addition, it is said that the law and the findings of five provincial inquiries "...reveal serious inequities and evidence of racism". {955}

vi) Certain terms of JBNQA Promote Cultural Genocide. {956} JBNQA stipulates that there will be no social impact assessment for the Great Whale and the Nottaway, Broadback and Rupert hydroelectric projects and further actually purports to constrain the Crees from opposing or preventing these projects on sociological grounds. In this regard, s. 8.1.3 of JBNQA provides:

"...these known projects...if built, shall be considered as future projects subject to the environmental regime only in respect to ecological impacts and that sociological factors or impacts shall not be grounds for the Crees and/or Inuit to oppose or prevent the said developments." [Emphasis added.]

The James Bay Crees are of the firm view that the above provision is unconstitutional, since it violates s.7 of the Canadian Charter of Rights and Freedoms, namely, the right of an individual to "life, liberty and security of the person". In addition, in seeking to deny the Crees the right to oppose or prevent certain proposed hydro developments on sociological grounds, the provision purports to deny the Crees an effective remedy pertaining to far-reaching and fundamental human rights matters. In the view of this Study, this denial contravenes the Universal Declaration of Human Rights, {957} as well as other more recent or emerging human rights instruments.{958}

Moreover, particularly in the case of indigenous peoples, it would be unconscionable to ignore social and cultural impacts that affect their ongoing development and determine their survival. In Friends of the Oldman River Society v. Canada, the Supreme Court of Canada held that social factors are an integral part of decision-making on environment and development matters:

"I cannot accept that the concept of environmental quality is confined to the biophysical environment alone: such an interpretation is unduly myopic and contrary to the generally held view that the environment' is a diffuse subject matter....
....
Surely the potential consequences for a community's livelihood, health and other social matters from environmental change are integral to decision- making on matters affecting environmental quality..." {959} [Emphasis added.]

The James Bay Crees also believe that, in collective terms, the above provision (s. 8.1.3) promotes the cultural genocide of the Crees. {960} R. Stavenhagen points out the link between hydroelectric and other regional development projects and cultural genocide as follows:

"Much damage has been done to indigenous peoples through economic development projects, particularly hydroelectric dams and other regional development schemes...Neither State planners nor multinational corporations nor international development agencies have hesitated to implement strategies to incorporate' these areas into the national and international economy. In the process, indigenous and tribal peoples have suffered genocide {961} and ethnocide." {962} [Emphasis added.]

C. Tennant and M.E. Turpel have written on acts of ethnocide and genocide affecting indigenous peoples:

"...ethnocide is unlike genocide in that the fact of the destruction of a culture is sufficient: the intentions of those responsible are irrelevant. While there is no instrument binding on states which explicitly prohibits ethnocide, the right to protection can arguably be read into the Genocide Convention." {963} [Emphasis added.]

K. Parker and L. Neglon link the destruction of indigenous lands to genocide:

"While genocide clearly violates jus cogens, there has been little guidance on what acts constitute genocide. One key issue is the removal of indigenous peoples from their lands or the destruction of their lands. In the United States, for instance, these acts cause physical and cultural annihilation because land is an integral part of American Indian religion and cultural cohesiveness." {964} [Emphasis added.]

The draft United Nations Declaration on the Rights of Indigenous Peoples defines "cultural genocide" as including:

"(a) Any act which has the aim or effect of depriving [indigenous peoples] of their integrity as distinct peoples, or of their cultural values or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;...". {965} [Emphasis added.]

In 1976, the Right Honourable Joe Clark (then Leader of the Opposition and subsequently the Prime Minister of Canada) characterized the duress, discriminatory treatment, and the denial of the right to invoke sociological factors in regard to hydroelectric projects in the following terms:

"...[the Crees and Inuit] were forced to negotiate under the gun of extraordinary conditions, conditions to which a people of a different kind of background would probably not have been subjected. One of those, for example, had to do with the fact that the government of Quebec made it clear from the outset that there would be no agreement by the government without the consent of Quebec Hydro. Quebec Hydro indicated that it would agree only if the Inuit people who were affected would accept conditions which denied in advance their right to invoke social impact factors of proposed hydroelectric projects.......That was a great deal to ask! It was, in my judgement, an unreasonable imposition to place upon native peoples of that place at that time. But that was another of the conditions into which they were forced to enter in those negotiations." {966} [Emphasis added.]

In view of the unconscionable nature of s. 8.1.3 of JBNQA, the James Bay Crees have consistently opposed its implementation. It is worth noting that s. 8.1.3 was incorporated into Québec's Environment Quality Act. {967} However, any efforts to enforce this provision were ultimately abandoned by the Québec government in relation to the Great Whale hydroelectric project. Further, since the PQ government did not wish the Great Whale project to become an issue in the Québec secession debate, the government shelved the entire project. {968}

vii) Key Elements of "Control" and "Consent" Lacking in Most Aspects of JBNQA. If the JBNQA were to represent an equitable example of autonomy or self-government, it would clearly provide for aboriginal control and consent. In most instances in the Agreement, only advisory bodies were allowed to be created, enabling the Québec and federal governments to circumvent Aboriginal values, priorities and aspirations.

Even for matters outside the jurisdiction of Aboriginal peoples but which have an impact on our traditional territories, Aboriginal consent is imperative. It is only in this way that internal self-determination can become a reality. In this regard, the United Nations Meeting of Experts on Indigenous Autonomy and Self-Government concluded:

"Where autonomies and self-governments are affected by matters outside their jurisdiction, including actions taken by the regional and local governments of federated states, [indigenous peoples] should be closely involved in the planning stages of these activities and their consent should be obtained by States before these activities are implemented." [Emphasis added.] {969}

viii) JBNQA Repeatedly Invoked By Québec to Promote Extinguishment of Rights. In the current debate, Québec is arguing that it requires greater jurisdiction, powers and rights recognized by the rest of Canada in order to adequately provide for the future development of Quebecers. Yet, in regard to JBNQA and the Crees, the Québec government seeks to establish that the rights of the Crees to their traditional territory have been extinguished.

Chief Billy Diamond strongly repudiates the validity and legitimacy of government extinguishment policies in the following terms:

"The entire Federal Policy on Extinguishment has always been an anachronistic antique from the days of colonialism and attempted conquest. It has taken a long time, but it is now being condemned {970} ... {971}"

Nevertheless, Québec political leaders seek to establish that, in view of such purported surrender and extinguishment of rights, the Cree people have no right to self-determination. {972} In this regard, the comments of MNA Jacques Brassard (currently Minister of Environment) in the Québec National Assemby Committee on Sovereignty are an example of this profoundly disturbing double standard:

"Dans cette convention, recevant un certain nombre de choses en contrepartie: de l'argent, bien s?r, mais d'autres choses aussi, dont une certaine autonomie gouvernementale, les Cris renoncent ? l'article 2 est tr?s clair ? ? leurs droits sur le territoire nordique du Québec. C'est une renonciation en bonne et due forme, ?a a ?t? souvent cit? dans cette commission..." {973}

In response, Mr. Brassard was cautioned by A. Patry (Universit? de Montr?al) that to accept the MNA's logic would mean that basically the Crees are no longer Aboriginal peoples (i.e. cultural genocide, to say the least):

"Si on consid?re que les aborig?nes ont ced? tous leurs droits, il n'y a plus d'aborig?nes puisqu'un aborig?ne est celui qui entretient avec la nature un rapport quasi mystique, dans l'optique des autochtones, un rapport de subsistance...Il n'est pas question de souverainet? ni de propri?t?, ces termes n'existent pas dans les langues autochtones. Mais leur concept, c'est un concept de g?rance, un concept de reponsabilit?: respecter la nature et suivre son destin. S'ils ont abandonn? tous ces droits-l?, ils ne sont plus autochtones." {974} [Emphasis added.]

Chairperson of the Committee on Sovereignty, Guy B?langer, asked Henri Dorion (Mus?e de la civilisation du Québec) why he believed an "ambiguity" persisted in regard to the territorial rights of Aboriginal peoples and Québec in the 1912 territory. Mr. Dorion responded by way of illustration:

"Par exemple, les droits aux richesses souterraines. La loi de 1867 n'?tablissait rien de bien pr?cis l?-dessus. Et cela peut faire l'objet, comme cela a ?t? le cas par exemple des autochtones ou de l'Ouest, de l'Alaska avec les ?tats-Unis, etc. Ce que je veux dire par l?, c'est que la r?ponse juridique donn?e quant ? la validit? de la Convention de la Baie James, de la loi qui confirme, etc., ne r?gle pas pour autant tous les probl?mes des communaut?s autochtones.....

C'est que tous ces probl?mes sont toujours un m?lange d'aspects juridiques et g?opolitiques..." {975} [Emphasis added.]

Based on all of the above, the JBNQA serves more to deny Aboriginal peoples their fundamental right to self-determination than to facilitate its exercise. Moreover, recent studies have shown that JBNQA did not improve the economic conditions of the Cree and Inuit. {976} It is difficult to understand how MNA Jacques Brassard and others can claim that, on the one hand, the JBNQA is an example of governmental autonomy yet declare, on the other hand, that the same agreement eliminates the right to self-determination of Aboriginal peoples.

It would appear that A. Patry (Universit? de Montr?al) would disagree with Brassard on whether the Cree and Inuit exercise governmental autonomy under JBNQA. In his testimony before the Committee on Sovereignty, Patry indicated:

"[Le Groenland]...c'est le seul pays o? les Inuit ont leur autonomie...Un jour, peut- ?tre que cet ?tat-l? sera souverain, mais pour l'instant il a une autonomie tr?s large et ?a, encore une fois, c'est la seule des quatre r?gions esquimaudes [dans les r?gions circompolaires]... qui jouisse d'une autonomie administrative et gouvernementale." {977} [Emphasis added.]

8.3 Legal Status of JBNQA in the Context of Québec Secession [Top]

MNA Jacques Brassard (currently Minister of the Environment) may possibly have also been speaking for others when he suggested in the Québec National Assembly Committee on Sovereignty that s. 2.1 {978} of JBNQA could be used to deny the Crees and Inuit the concept of a sovereign aboriginal state:

"[L'article 2.1 de la Convention] n'exclut pas les n?gotiations pour une certaine autonomie gouvernementale. Mais pour qu'on puisse imaginer un ?tat souverain autochtone, ? m?me une partie du territoire du Québec, je pense que ?a, c'est exclu." {979} [Emphasis added.]

It is curious that Brassard is of the view that the above clause does not exclude negotiations on internal self-government, but would preclude external self-determination. D. Turp takes a different view, when he cautions against invoking "surrender and extinguishment of rights" arguments based on land claims agreements in order to deny Aboriginal peoples their right to self-determination under international law:

"This argument based on territorial rights as established by domestic public law is, however, hardly convincing insofar as the right to self-determination is claimed under international law, which does not necessarily take domestic law into account if such law is an obstacle to the exercise of a people's right to self- determination." {980}
[Emphasis added.]

In addition, in a study prepared for the Royal Commission on Aboriginal Peoples, P. Joffe & M.E. Turpel conclude:

"...there is no justification for governments in Canada to invoke surrender and extinguishment' clauses relating to land claims agreements or other treaties for the purposes of denying Aboriginal peoples in Québec equal recognition of their right to self-determination in the context of Québec secession. Such arguments are wholly erroneous, are an abuse of the treaty- making process, and demonstrate a lack of respect for the solemn commitments made between Aboriginal peoples and non-Aboriginal governments." {981}

It is respectfully submitted that it must first be determined whether i) JBNQA is an internal or domestic agreement with no status under international law; or ii) a treaty subject to the rules of international law. In either case, it is demonstrated in this Study that the Québec government cannot unilaterally alter or otherwise violate in a fundamental manner the terms and conditions of this multilateral treaty.

If JBNQA is an internal document subject solely to the laws of Canada, the Agreement would no longer have any validity in the context of a unilateral secession by Québec. Under these circumstances, Québec would be relying solely on international law for the validity or legitimacy of its action and the terms of JBNQA and all Canadian constitutional instruments {982} would no longer apply.

In particular, Québec could not selectively invoke certain provisions (eg. s. 2.1) of JBNQA after unilaterally altering the terms of the Agreement in a fundamental way. If JBNQA is merely an internal document with no international consequences, no clause under the Agreement (taken out of the federal context in which it was negotiated) could affect the legal position of the parties under international law. {983} However, any unilateral alteration or abrogation of the Agreement by Québec could be invoked by the other parties to show bad faith or possibly to seek termination of the Agreement.

If, on the other hand, the JBNQA is deemed to be a treaty subject to the rules of international law, the legal analysis would likely be very different. However, the requirement of Québec to respect its own signature and to respect the principle of Aboriginal consent would still apply.

Before arriving at any firm conclusions, it is essential to examine the legal effect of the JBNQA treaty under both Canadian and international law.

8.3.1 Effect of JBNQA under Canadian law [Top]

Under Canadian law, unilateral secession would be illegal since it would require a constitutional amendment for any province to secede from Canada. {984} In addition, it would be a violation of the treaty rights of Aboriginal peoples under the Constitution Act, 1982, s. 35 {985} if Québec unilaterally abrogated or altered any of the terms of the JBNQA. Cree treaty rights can only be amended with Cree consent. {986} In this regard, D. Pharand (University of Ottawa) provides:

"...some Indigenous peoples maintain that any change in Quebec's political status requires their consent, in so far as their rights could be affected. Certainly, their consent would be necessary to make any change in the rights guaranteed by the provisions of the James Bay and Northern Quebec Agreement, since they are parties to it." {987}
[Emphasis added.]

The Agreement provides for both federal and Québec obligations to continue in perpetuity in favour of the James Bay Cree and Inuit. In an independent Québec, federal obligations would no longer be able to be carried out. Therefore, Québec secession is incompatible with the legal and constitutional arrangements under JBNQA as agreed to by the Québec government and approved by the Québec National Assembly. {988}

By agreeing to the terms and conditions in JBNQA in 1975, Québec freely opted for a federalist arrangement that is intended to continue indefinitely (unless the Aboriginal and other interested parties consent to other arrangements). This free choice by the Québec government constituted a further exercise of its right to internal self-determination, supplementing its earlier act of accepting the 1912 boundaries extension as a province in Canada.

Under Canadian law, Québec cannot unilaterally undertake to fulfill all federal obligations when it becomes a sovereign state. The James Bay Crees signed the Agreement in a federalist context and derive particular safeguards from having obligations met by two levels of government (eg. both federal and provincial impact assessment processes for the Great Whale hydroelectric Project).

It is clear that Cree and Inuit parties would have negotiated very different terms and conditions if they had been negotiating treaties with one government, representing a unitary Québec state. Moreover, the terms negotiated with the province of Québec were done on the basis that the other government party, Canada, retained a separate and distinct fiduciary responsibility for the Aboriginal peoples concerned. {989} As Grand Chief Matthew Coon Come states:

"...an independent Quebec could not respect the James Bay and Northern Quebec Agreement even if it chose to do so. The Agreement assumes and functions within a federal regime. Quebec as a unitary state would be unable to duplicate this governmental regime, with for example all of its inherent checks and balances, the Supreme Court of Canada, the federal Parliament and provincial legislature, and our fiduciary relationship with the federal Crown." {990} [Emphasis in original.]

The critical importance of the federalist context of JBNQA is also emphasized by A. Buchanan as follows:

"...[JBNQA] was an agreement made within the federal Constitution order, which includes a mandate for the federal government to protect the basic interests of native peoples. It cannot be accepted that the native peoples would have accepted the terms of the Agreement had the Agreement not taken place in the context of their interests and within the complex framework of the federal laws and administrative processes...The existence of the federal obligation and the institutional framework for fulfilling it is, therefore, a condition on the validity of the Agreement. Hence, it is an error to assume that the status of the Agreement would be unaffected by Quebec secession." {991}
[Emphasis in original.]

Similarly, M. Jackson (University of British Columbia) comments on the removal of the federal government as a party to JBNQA as follows:

"As a matter of contract and treaty law, when an agreement is changed in that kind of way, one of the parties can say this is a fundamental breach of the understanding which is the bedrock of the agreement". {992} [Emphasis added.]

Further, Québec cannot now claim that it has a right to unilaterally include the 1912 territory in a sovereign Québec, when such action would be in direct violation of the constitutional treaty arrangements it explicitly agreed to in the context of acquiring the provincial boundary extension. In light of the federal arrangement that Québec agreed to under the JBNQA treaty, it can be said that the Québec government has no legal right to include the 1912 territory in any secession without the consent of the Aboriginal parties to the Agreement. Under the terms of JBNQA, the consent of the government of Canada would also be required.

The fact that, in 1975, Québec specifically entered into this permanent federalist arrangement could colour in a highly unfavourable manner any arguments it may raise internationally as to why its unilateral accession to independence should be recognized by the international community. There is no justification for denying Cree self-determination in this context.

In regard to s. 2.1 of JBNQA, it would be totally dishonest to attempt to apply this clause in a secession scenario when it was negotiated within the context of federalism. It would constitute a unilateral revision, repudiation or breach of the treaty by the Québec government. Such action would be vigorously opposed by the James Bay Cree people (Eeyouch).

Clearly, it cannot be said that the Crees ever intended to enable Québec to claim full rights to the northern territory in the event of secession. The basis of the JBNQA treaty is the perpetual existence of both the federal and provincial governments (in their current respective capacities) and both having perpetual obligations towards the James Bay Crees.

Therefore, it can be concluded that, in the context of JBNQA as recognized under Canadian law, the Québec government and National Assembly have no right whatsoever to forcibly include Aboriginal peoples and their traditional territories in a new secessionist state. Such unilateral action by a seceding Québec would fundamentally contravene the terms and conditions of the JBNQA treaty. Further, it would further detract from any claims of legitimacy that the PQ government is attempting to make.

Equally important, such a fundamental breach of the JBNQA by the PQ government would open the door to the Crees claiming full rights and jurisdiction over the whole of their traditional territory. Any sharing arrangements arrived at under JBNQA with the Québec government would be effectively repudiated. {993}

8.3.2 Effect of JBNQA under international law [Top]

It is interesting to note that, under Canadian law, the Committee to Examine Matters Relating to the Accession of Québec to Sovereignty explicitly recognizes the need to obtain Aboriginal consent to any alterations of JBNQA:

"There is no denying that the Northern Quebec Agreements cannot be changed without the agreement of the aboriginal nations that signed them...Section 35 of the Constitution Act, 1982 invested it with constitutional value. Unless the Constitution is amended, it is impossible to depart from an agreement unless the aboriginal peoples who signed it give their consent." {994}

At the same time, the same Committee suggests that Québec need not respect the principle of Aboriginal consent in the context of Québec secession since agreements with Aboriginal peoples are not recognized as treaties under international law. {995} In reaching this conclusion, the Committee relies on both the study {996} of the five experts commissioned by the National Assembly and the Supreme Court of Canada. However, the Supreme Court of Canada stated in Simon v. The Queen that international principles may be applied even if the treaties of Aboriginal peoples were neither created nor terminated under international law:

"While it may be helpful in some instances to analogize the principles of international treaty law to Indian treaties, these principles are not determinative. An Indian treaty is unique; it is an agreement sui generis which is neither created nor terminated according to the rules of international law." {997} [Emphasis added.]

This aspect of the Supreme Court's judgement was not acknowledged by the National Assembly Committee nor by the five experts in their study, {998} even though the latter also relied on the views of the Supreme Court of Canada in devising their opinion on this matter. {999} If the Supreme Court of Canada recognizes the possibility of applying international principles to Aboriginal peoples' treaties within the context of the Canadian federation, then why should one conclude that international principles would not apply should Québec unilaterally attempt to secede from Canada? Moreover, in the context of a UDI by Québec, secessionists could hardly invoke the decisions of the Supreme Court of Canada to assert the view that the treaties of Aboriginal peoples are not "international" in status.{1000}

The characterization of Aboriginal peoples' treaties by the Supreme Court of Canada is not fully consistent with other judicial decisions {1001} or with the views of a number of legal commentators. {1002} As G. Alfredsson emphasizes, the international character of indigenous peoples' treaties were often altered unilaterally after the fact:

"These agreements were of an international character until the status of one of the parties was eliminated by way of unilateral acts of the other party, sometimes by legislation, sometimes by the courts, often by force, and as a rule without indigenous consent. This status is now being addressed by a Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities." {1003} [Emphasis added.]

Yet, even if one were to accept the legal characterization of Aboriginal peoples' treaties as sui generis, this would not mean that international law principles would not apply. {1004} In fact, the application of international (as well as domestic) law principles to treaties of a sui generis nature is hardly a strange occurrence. {1005} As O. Lissitzyn states, international law does not prevent making agreements of mixed character "containing both obligations governed by public international law and undertakings governed by municipal law". {1006} Lissitzyn adds that "there is no norm of international law that limits the class of territorial entities with treaty-making capacities to independent States, or indeed to `States' however defined." {1007}

Moreover, in practice, treaties concerning Aboriginal peoples are increasingly being scrutinized by the United Nations and are currently the subject of a global United Nations study. {1008} In addition, the draft U.N. Declaration on the Rights of Indigenous Peoples recognizes that treaties between Aboriginal peoples and states are a valid concern of the international community. In particular, the draft Declaration provides that unresolved conflicts and disputes concerning treaties (and other agreements concluded with states) should be submitted to competent international bodies for resolution:

"Indigenous peoples have the right to recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors, according to their original spirit and intent, and to have States honour and respect such treaties, agreements and other constructive arrangements. Conflicts and disputes which cannot otherwise be settled should be submitted to competent international bodies agreed to by all parties concerned." {1009} [Emphasis added.]

Through such developments, Aboriginal treaties are clearly becoming subjects of international concern and regulation. {1010} At the same time, in applying international law, it is important to incorporate equitable principles {1011} appropriate to indigenous peoples. {1012} Application of international law principles is especially important in view of the growing recognition of indigenous peoples' distinct international personality. {1013}

Consistent with their status, the James Bay Crees and other indigenous peoples view their treaties as being subject to appropriate international adjudication. In this regard, M. Simon (currently Canadian Ambassador for Circumpolar Affairs) explains:

"Treaties between indigenous peoples and states must be fully respected under international law. Such treaties include modern land claims agreements. Indigenous treaties were not signed only as domestic instruments. They must not be turned into domestic instruments after the fact." {1014} [Emphasis added.]

Should the JBNQA be determined to be a treaty where the rules of international law may be applied, it still does not appear that an independent Québec could unilaterally choose to assume the obligations of the federal government party under the Agreement. Reasons substantiating this position of the James Bay Crees are set out below.

Cree right to self-determination

Under international law, the James Bay Crees have a right to exercise their right to self-determination, including the right to choose to remain in Canada. {1015} In regard to Cree traditional territory, the Cree people have pre-existing sovereignty, {1016} jurisdiction and rights. In the context of Québec secession, the Québec government cannot establish a legitimate competing claim to Cree traditional territory, regardless of whether the government is claiming to act on behalf of the Québec people or the French- Canadian nation. A seceding Québec government cannot forcibly include the Crees and their traditional territory within a new Québec state. In other words, the right to self-determination of the Cree people in regard to their territory must be respected, without discrimination or threats of use of force. {1017}

Moreover, the Québec government can no more assume it would unilaterally take over federal obligations under the JBNQA than the Crees would take over the rights and obligations of Québec or the federal government. Even if there were competing or conflicting rights of self-determination, it is all the more difficult and arbitrary (if not totally unworkable) for one party to unilaterally determine that it will assume the obligations and rights of another party to the multilateral Agreement. {1018} Nevertheless, D. Cliche, the Parliamentary Assistant to Premier Parizeau for Aboriginal Affairs, insists that an independent Québec will unilaterally assume all obligations of the Canadian government in such agreements as JBNQA:

"Québec will...assume all Canadian commitments in current contracts and agreements between Canada and Québec's aboriginal nations, such as the James Bay and Northern Quebec Agreement." {1019}

Both the Québec government and the National Assembly explicitly agreed to the permanent federalist arrangement in regard to Cree and Inuit traditional territory in northern Québec. Either Québec would have to respect the federalist nature of the JBNQA treaty or the treaty, as a whole, would fail.

Parti Qu?b?cois leader, Jacques Parizeau, has declared that a sovereign Québec would gain international recognition since Québec would "guarantee that it will respect the 1,388 international treaties signed by Canada". {1020} However, it does not appear that the PQ leader, his party or other Québec separatist political leaders are willing to respect the JBNQA treaty. Nor is Premier Parizeau prepared to respect the International Covenants, insofar as these human rights instruments provide for recognition of the right to self-determination of all peoples ? including the James Bay Crees.

Should the JBNQA fail to be fully respected by the PQ government, the Crees would view such deliberate action by the government in the context of secession as a most serious violation of their human rights. {1021} Such violation would serve to substantially reinforce the right to self-determination of the Crees under international law.

Principle of pacta sunt servanda

The fundamental international principle of pacta sunt servanda would apply. In regard to the obligation to respect treaties, D. Koplow emphasizes their importance:

"Perhaps the most basic principle of the law of treaties is the maxim pacta sunt servanda (treaties must be kept)." {1022}

Lord McNair highlights the presumption against unilateral termination of treaties as follows:

"No government would decline to accept the principle of pacta sunt servanda....A long series of inter-governmental discussions of this nature can be invoked to show that there is a general presumption against the existence of any right of unilateral termination of a treaty." {1023}

McNair indicates that a treaty normally is intended to be in force in perpetuity, unless it can be shown to be expressly or impliedly intended otherwise:

"... The normal approach adopted...in most States..towards a treaty is that it is intended to be of perpetual duration and incapable of unilateral termination, unless, expressly or by implication, it contains a right of unilateral termination or some other provision for its coming to an end. {1024} [Emphasis added.]

The fact that there might be treaties that bind the parties forever, and that cannot be altered except by mutual consent, is underlined by McNair:

"There is nothing juridically impossible in the existence of a treaty creating obligations which are incapable of termination except by the agreement of all parties. Some existing British treaties have endured for nearly six centuries, and many for three." {1025} [Emphasis added.]

Consequently, under the rule of pacta sunt servanda, the permanent federalist arrangement in the JBNQA would have to be respected in Cree traditional territory unless otherwise consented to by the Crees. In regard to JBNQA, the Québec government was and continues to be an independent party to the treaty and, therefore, must now keep its word. Consistent with the principle of pacta sunt servanda, the PQ government cannot unilaterally alter in a fundamental manner the terms and conditions of the Agreement. This principle of international law serves to further preclude the PQ government from forcibly including Aboriginal peoples and their traditional territories, contrary to the terms and conditions of the JBNQA, in any new Québec state.

Exception of change of circumstances

As described below, international law provides on an exceptional basis for terminating a treaty based on a fundamental change of circumstances. However, it will be shown that the exception of rebus sic stantibus (fundamental change of circumstances) cannot be invoked by a secessionist PQ government to apply in favour of Québec.

Art. 62 of the Vienna Convention on the Law of Treaties sets out the rule on fundamental change of circumstances and is said to be declaratory of customary international law {1026}. Paragraph 1 of article 62 provides:

"A fundamental change of circumstances which has occured with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty". [Emphasis added.]

Para. 1 of art. 62 refers solely to a fundamental change of circumstances "which was not foreseen by the parties". Yet, in 1975 (when the Agreement was signed) and in 1976 (when the National Assembly approved the Agreement), the issue of Québec independence was not only foreseen by the parties but was a central issue in Québec with the impending election of a Parti Qu?b?cois government. {1027} If the Québec government would have wished to provide for this foreseen possibility, it would have brought the issue to the negotiating table concerning JBNQA.

In addition, it should be noted that para. 2 of art.62 severely limits the exception in para. 1:

"A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

(a) if the treaty establishes a boundary; or

(b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty." [Emphasis added.]

In examining the criteria in para. 2 of art. 62, it does not seem possible for Québec to invoke the exception of rebus sic stantibus since it is highly unlikely that it can meet the specific requirements of para. 2. The JBNQA is a treaty that "establishes a boundary", at least to the extent that the boundaries of the various land rights of the Crees and Inuit have been delineated. {1028} Further, if it would be Québec that would attempt to secede from Canada, then it would be Québec that would be said to be causing a fundamental change of circumstances. For these reasons, Québec would appear to fail to qualify under the exception of rebus sic stantibus, since it cannot meet the conditions in art. 62, paras.(a) and (b).

It has been shown above why Québec could not invoke the exception of a fundamental change of circumstances, in the event that Québec attempted to secede from Canada. However, the James Bay Crees could repudiate the whole JBNQA treaty if Québec purported to secede. This Study has already described how a UDI by Québec would constitute a fundamental breach of the JBNQA treaty, in the event that a secessionist government attempted to forcibly include Aboriginal peoples and their territories in northern Québec in any new Québec state. {1029} Therefore, the arguments will not be repeated here. At the same time, it is worth noting that an editorial of The Gazette takes a similar position as the James Bay Crees:

"...Quebecers have the right to self-determination {1030} ? if they choose, they can leave Canada. The native people could, if they chose, make an equally strong case. Indeed, they could argue that by leaving Canada, Quebec had changed one of the fundamental conditions under which the James Bay treaty was signed." {1031} [Emphasis added.]

Limitations of rules on state succession

Generally, it should be pointed out that the rules on succession of states are far from clear. Each particular fact situation or issue must be carefully considered before reaching any conclusion that international law rules on state succession can be successfully invoked by a seceding Québec. As. I. Brownlie explains:

"State succession is an area of great uncertainty and controversy. This is due partly to the fact that much of state practice is equivocal and could be explained on the basis of special agreement and various rules distinct from the category of state succession. Indeed, it is perfectly possible to take the view that not many settled legal rules have emerged as yet." {1032} [Emphasis added.]

The usual situation is that a newly formed state (eg. Québec) would consider whether it wished to adhere to bilateral and multilateral treaties entered into by the parent state (eg. Canada) to which it belonged. {1033} However, the JBNQA is a somewhat different situation. In this case, Québec is an independent party and a signatory to the treaty, having negotiated and agreed to it in Québec's own capacity. Should a seceding Québec choose to renounce the Agreement, with its perpetual federal arrangement involving Aboriginal peoples as parties to the same Agreement, the PQ government would be repudiating its own signature.

Similarly, should Québec seek to unilaterally alter the terms and conditions of the JBNQA treaty, the government would be violating the legal principle of pacta sunt servanda. In addition, the government would be radically altering a fundamental object and purpose of the treaty, {1034} namely to carefully determine the distribution of Canadian and Québec government powers and responsibilities in northern Québec, so that a particular balance could be achieved in the various areas of the Agreement.

In regard to the Crees, certain land areas were expressly negotiated to be under federal and not provincial control. In relation to both Cree and Inuit, environmental and social impact assessment regimes were negotiated so that there would be concurrent and different processes under federal and provincial jurisdiction. Equally important, economic and social programs and services were negotiated so that the Crees and Inuit would have access to programs and services from two separate levels of government. This arrangement provided greater security that a reasonable level of programs and services could be achieved.

Similarly, government powers to be exercised by the Aboriginal peoples concerned were negotiated in the context of an agreed distribution of federal and Québec government powers in northern Québec. Also, all financial obligations in respect to every subject matter under the Agreement was carefully negotiated by the Aboriginal parties with the understanding that there would be two levels of government involved in perpetuity. Moreover, the rights of Crees and Inuit as Canadian citizens were confirmed in the JBNQA treaty. {1035}

In addition, the rights and powers of Crees and Inuit in regard to extensive offshore areas surrounding northern Québec were agreed by all parties to be negotiated under a primarily federal regime. This aspect of the land claims negotiations has never been completed and the federal commitments in this regard remain unfulfilled. However, without such federal commitments it is far from certain that any land claims agreement in regard to those portions of Aboriginal traditional territory within northern Québec would have been reached.

Any rule on state succession that might allow Québec to determine whether it wished to assume federal obligations under JBNQA would be subject to Québec respecting the right of the James Bay Crees to self-determination. In this regard, I. Brownlie indicates:

"...rules concerning succession must conform with any existing principles of jus cogens. {1036} Points about jus cogens are made with particular reference to the principle of self-determination". {1037} [Emphasis added.]

In addition, if one were to examine the 1978 Vienna Convention on the Succession of States in Respect of Treaties {1038} (not yet in force {1039} nor ratified by Canada {1040}), there would appear to be a number of qualifications in the Convention that would severely limit or eliminate its applicability to JBNQA and the 1898 and 1912 territories. For example, art. 6 provides:

"The present Convention applies only to the effects of a succession of States occurring in conformity with international law and, in particular, the principles of international law embodied in the Charter of the United Nations." [Emphasis added.]

Québec would not be acting in conformity with international law if it were to illegally deprive Aboriginal peoples appropriate exercise of their right to self-determination and forcibly include their traditional territories in a new Québec state.

In addition, art. 11 provides:

"A succession of States does not as such affect:

(a) a boundary established by treaty; or

(b) obligations and rights established by a treaty and relating to the regime of a boundary." {1041} [Emphasis added.]

The JBNQA treaty establishes boundaries. Moreover, it also provides for "obligations and rights" relating to various boundary regimes.

Further, art. 13 addresses the issue of natural wealth and resources:

"Nothing in the present Convention shall affect the principles of international law affirming the permanent sovereignty of every people and every State over its natural wealth and resources."

Therefore, in the event of secession, the Convention could not be used to advance in any way Québec's claims in regard to the natural wealth and resources in the 1898 and 1912 territories.

In conclusion, Québec is unlikely to derive any benefit (in the context of Québec secession) by invoking the James Bay and Northern Quebec Agreement against the Crees. Rather, it is much more likely that the JBNQA could be invoked by the Crees to point out the permanent federalist arrangement agreed to by the Québec government and subsequently approved by the Québec National Assembly.

The James Bay and Northern Quebec treaty cannot be altered without the consent of the Crees. In addition, the obligations of the federal government cannot unilaterally be assumed by a secessionist Québec. As already demonstrated, the situation respecting Aboriginal peoples in the context of Québec secession is far more complex. Equally important, nothing in the JBNQA can be used to deny the James Bay Crees and other Aboriginal peoples their right to self-determination.

Footnotes

{882} 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 40.

{883} Constitution Act, 1982, s. 35(3): "For greater certainty, in subsection (1) 'treaty rights' includes rights that now exist by way of land claims agreements or may be so acquired." Section 35(1) provides: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed."

{884} See also Assembl?e nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, 17 Dec. 1991, No. 17, at CEAS-456 (Jacques-Yvan Morin).

{885} See H. Aubin, "Ottawa, Cree putting squeeze on Quebec: Parizeau", The Gazette, August 17, 1991, at A4; M. Fontaine, "Parizeau ne pr?voit pas d'obstacle ? la reconnaissance internationale du Québec", La Presse, January 24, 1992, at B1.

{886} See Cree Regional Authority et al. v. A.G. Québec, (1991) 42 F.T.R. 160 at 168, where Rouleau J. makes reference to government use of JBNQA to deprive Cree and Inuit of their rights as follows: "I feel a profound sense of duty to respond favourably. Any contrary determination would once again provoke, within the native groups, a sense of victimization by white society and its institutions. This agreement was signed in good faith for the protection of the Cree and Inuit peoples, not to deprive them of their rights and territories without due consideration." [Emphasis added.]The decision was affirmed by the Federal Court of Appeal in (1991) 127 N.R. 52, 43 F.T.R. 240.

{887} D. Soyez, La baie James: faut-il repatrier ou mondaliser le d?bat?, Cahiers de G?ographie du Québec, vol. 39, no. 106, April 1995, 63 at 65. Unofficial English translation: "For the Crees, it is `a social contract', a framework which must ? in adjusting to new problems that arise ? continue to develop. On the contrary, Québec appears today to be less interested in a dynamization and modernization of the contract; it views it in effect ? in light of a strictly juridical (legalistic) interpretation of clauses signed at that time by the Crees in regard to future projects ? as a carte blanche to pursue hydroelectric development." [Emphasis added.]

{888} It is generally acknowledged that an international and national environmental campaign against the Great Whale project by the Grand Council of the Crees was the most influential factor that caused the change in position of the two governments.

{889} See generally Friends of the Oldman River Society v. Canada, [1992] 1 S.C.R. 3 (S.C.C.), Stevenson J. dissenting, where the court concluded that an affirmative regulatory duty in regard to environmental and social impact assessment existed in regard to federal authorities. This case was based on the Environmental Assessment and Review Process Guidelines Order, SOR/84-467, which had national application in Canada at the time.

{890} See Procureur G?n?ral du Québec v. Cree Regional Authority et al., (1991) 127 N.R. 52, 43 F.T.R. 240, per McGuigan J.A. (Fed. C.A.); affirming Cree Regional Authority et al. v. A.G. Québec, (1991) 42 F.T.R. 160. Leave for appeal was denied by the Supreme Court of Canada on July 4, 1991. See also R. Laurent, "Ottawa trying to shirk its duties to natives in project row:judge", The Gazette, Montreal, July 18, 1991, at A4; W. Johnson, "Damning judgement: Ottawa, Quebec betrayed' the Cree, judge suggests", The Gazette, Montreal, September 13, 1991, at B3.

{891} A.C. Hamilton, Canada and Aboriginal Peoples [:] A New Partnership (Ottawa: Minister of Public Works and Government Services, 1995), at 11-12. At 39, it is added: "If one or more of the parties sign an agreement reluctantly or under some indirect pressure and does not really accept all of its terms, the technical certainty thought to have been achieved through surrender may be fleeting and illusory." [Emphasis added.]

{892} B. Diamond, "Villages of the Dammed", Arctic Circle, November/December 1990,
24 at 27.

{893} 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 20.

{894} House of Commons, Debates, December 14, 1976, at 2002.

{895} House of Commons, Debates, December 14, 1976, at 1999.

{896} Grand Council of the Crees (of Quebec), Presentation to the Royal Commission on Aboriginal Peoples, Montreal, November 18, 1993, at 8.

{897} Ibid.

{898} P. Cumming, "Canada's North and Native Rights" in B. Morse (ed.), Aboriginal Peoples and the Law: Indian, M?tis and Inuit Rights in Canada (Ottawa: Carleton, 1989), 695 at 723.

{899} P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 3, at 633.

{900} Id., at 612 et seq.

{901} Constitution Act, 1982, s. 35.

{902} Rapport de la Commission d'?tude sur l'int?grit? du territoire du Québec (Québec: ?diteur Officiel, 1971), vol. 4.1 (Dorion Report).

{903} P. Dionne, Les postulats de la Commission Dorion et le titre aborig?ne au Québec: vingt ans apr?s, (1991) 51 Revue du Barreau 127.

{904} H. Brun, Le territoire du Québec (Québec: Les Presses de l'Universit? Laval, 1974).

{905} R. v. Sparrow, [1990] 1 S.C.R. 1075 (S.C.C.) at 1093, where the Supreme Court of Canada gives a much more expansive view of aboriginal rights "so as to permit their evolution over time".

{906} 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-267. Unofficial English translation: "...the subject of these rights are still very blurred. Their ancestral rights, their rights to governmental autonomy and the territories on which the rights apply are, for the time being, largely unknown." [Emphasis added.]

{907} 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-281. Unofficial English translation: "The territorial rights of Aboriginal peoples have always existed. They have been recognized for a relatively short time, for the past twenty years..." [Emphasis added.]

{908} See Assembl?e nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, 17 oct. 1991, No. 6, at CEAS-160, CEAS-167 and CEAS-181. In addition, aboriginal territorial rights, self- government and self-determination are related to international law. Yet, H. Brun has recently indicated both to the Committee on Sovereignty and to the Committee on Offers for a New Constitutional Partnership that international law is not his domaine. See pp. CEAS-274 and CEAS-275; see also Assembl?e nationale, Journal des d?bats, Commission d'?tude sur toute offre d'un nouveau partenariat de nature constitutionnelle, 10 October 1991, No. 4, at CEOC-101.

{909} This commitment is now enshrined in the Constitution Act, 1982, s. 36 (1)(c): "providing essential public services of reasonable quality to all Canadians".

{910} See also P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 3, at 626 et seq., where the practices of the Québec and federal governments in relation to essential services are criticized.

{911} James Bay and Northern Quebec Agreement, at xv-xvi.

{912} Presently, the provision of essential services to Inuit in northern Québec is being used by the PQ government to encourage them to vote in favour of the upcoming referendum. See "Les Inuit attendent beaucoup de Québec", Le Devoir, August 31, 1995, at A4, where it is reported that, two months before the referendum on Québec's future, the PQ government is holding out a hand to the Inuit by signing agreements on housing and policing.

{913} International Covenant on Civil and Political Rights, article 47.

{914} See, for example, the Inuit land claims agreement in the eastern Arctic (Northwest Territories): Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in right of Canada (Ottawa: Indian and Northern Affairs Canada, 1993). Signed on May 25, 1993. In the Nunavut Agreement, it is provided that Inuit beneficiaries will have, in addition to financial compensation, recognized ownership of 136,000 sq. mi. (about 18% of their traditional territory); approximately 14,000 sq. mi. will include mineral, oil and gas rights. See "The Nunavut Agreement: Inuit Determine Their Future Now!", Arctic Circle, January/February 1992, at 30. In comparison, Cree and Inuit under the James Bay and Northern Quebec Agreement purportedly have less than 2% of their traditional territory in recognized ownership and virtually no mineral rights (but some financial compensation).

{915} In relation to Aboriginal peoples and their territories, the doctrine of terra nullius has been wholly repudiated in Mabo et al. v. State of Queensland, (1992) 107 A.L.R. 1 (High Court of Australia).

{916} See conclusions in D. Sanders, "Indigenous Participation in National Economic Life", Background paper, United Nations Seminar on the Effects of Racism and Racial Discrimination on the Social and Economic Relations Between Indigenous Peoples and States, Geneva, January 16-20, 1989, at 14 (para. 22). The Sanders paper is reproduced in the Report on the United Nations Seminar on the effects of racism and racial discrimination on the social and economic relations between indigenous peoples and States, Geneva, Switzerland, 16-20 January 1989, E/CN.4/1989/22, 8 February 1989, para. 22, at 51.

{917} Commission nationale sur l'avenir du Québec, Rapport (Québec: Biblioth?que nationale du Québec, 1995), at 56, where it is said that, since 1867, there have only been two peoples (i.e. French and English) in Canada.

{918} Id. at 60. Unofficial English translation: "...the Commission recalls that contemporary international law tends to recognize to Aboriginal peoples extensive rights on their ancestral lands and territories."

{919} The James Bay Crees believe that any "extinguishment" of fundamental human rights is abominable and should be condemned. Generally, in regard to the inappropriateness and unacceptability of this colonial concept, see P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, 3 vols., June 1995.

See also Report of the Aboriginal Justice Inquiry of Manitoba, The Justice System and Aboriginal People (Winnipeg, Manitoba: Queen's Printer, 1991), vol. 1, at 183, where it is recommended that: "The governments of Manitoba and Canada refrain from requiring Aboriginal groups to consent to extinguish Aboriginal rights when entering into land claims agreements." See also p. 137, where the view is expressed that there is no basis in international law that the "Europeans [in North America] had acquired the right to extinguish Indian title however they pleased" and that this principle was unquestionable.

{920} The insistence of the government of Québec that the rights of third parties be extinguished by Parliament was communicated to the federal government in writing: see House of Commons, Debates, April 28, 1977, at 5090 (Hon. Warren Allmand, Min. of Indian Affairs and Northern Development).

{921} It is said that the unilateral extinguishment of Aboriginal third party rights that purportedly took place in connection with the James Bay and Northern Quebec Agreement is of doubtful constitutionality: see P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, sub-heading 7.1.1, at 315 et seq. Similarly, see also the view of R. Dupuis, in regard to JBNQA, in 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 37: "...we have seen that the 1870 Rupert's Land Order placed a constitutional obligation on Canada to settle Aboriginal land claims. As this obligation would probably be violated by unilateral extinguishment, it may be that the extinguishment of the land rights of non-signatories is invalid."

{922} The Naskapi in Québec sought to avoid the consequences of this draconian measure by quickly negotiating the Northeastern Quebec Agreement of 1978. As a result, they suffered hardships similar to those experienced by the Crees.

{923} Section 2(e) of the Act provides: "that the trusteeship 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."

{924} See House of Commons, Debates, December 7, 1976, vol. 120, no. 39, at 1759 (J.R. Holmes).

{925} House of Commons, Debates, December 14, 1976, at 2002.

{926} A.C. Hamilton, Canada and Aboriginal Peoples [:] A New Partnership (Ottawa: Minister of Public Works and Government Services, 1995), at 97.

{927} M. Coon-Come, "Self-determination an inherent right of indigenous peoples" in Canadian Speeches: Issues of the day, January 1992, vol. 5, issue 9, 13 at 14.

{928} B. Diamond, "Villages of the Dammed" in Arctic Circle, November/December 1990, at 24.

{929} See Assembl?e nationale, Journal des d?bats, Commission d'?tude sur toute offre d'un nouveau partenariat de nature constitutionnelle, 18 December 1991, No. 14, at CEOC-471 (Jacques Brassard).

{930} Cree - Naskapi (of Quebec) Act, S.C. 1984, c. 24; proclaimed in force by Order-in-Council 1984-2652, July 25, 1984.

{931} Indian Act, R.S.C. 1970, c. I-6 (now R.S.C. 1985, c.I-5).

{932} "Category IA lands" are lands subject to federal jurisdiction (see JBNQA, s. 5.1.2). They comprise an area of approximately 1,274 sq. mi. and include the areas of most of the Cree communities.

{933} See James Bay Region Development Act (Bill 50), R.S.Q., c. D-8.

{934} "Category IB lands" are comprised of an area of 884 sq. mi. and are under provincial jurisdiction (see JBNQA, s. 5.1.3).

{935} See, for example, the draft United Nations Declaration on the Rights of Indigenous Peoples, art. 19, which provides in part for the "right...to maintain and develop their own indigenous decision-making institutions"; and the Indigenous and Tribal Peoples Convention, 1989 (No. 169), art. 4: "Special measures shall be adopted as appropriate for safeguarding the persons, institutions,...cultures...of the [indigenous and tribal] peoples concerned."
[Emphasis added.]

{936} 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 360.

{937} B. Diamond, Presentation by Chief Billy Diamond to the Eeyou Astchee Commission, August 30, 1995, at 9. The Eeyou Astchee Commission was established in 1995 to consult the Cree people on the matter of Cree status and rights in the context of Québec secession.

{938} See beginning of heading 8 above.

{939} R. Stavenhagen, The Ethnic Question: Conflicts, Development, and Human Rights (Tokyo: United Nations University Press, 1990), at 105.

{940} See, for example, 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 360, where the author suggests that states are bound to uphold new and developing norms concerning indigenous peoples, insofar as those norms form part of the principle of self-determination, derive from related treaty norms, or are part of the general or customary international law.

{941} The Honourable Jules Desch?nes specifically highlighted the Sandra Lovelace case (Lovelace v. Canada, (1981) 1 Can. Human Rts. Yrbk. 305 (discrimination against Indian women)) and Quebec's sign law legislation (Bill 178), in cautioning Québec against violating international norms. See Assembl?e nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, 2 Dec. 1991, No. 11, at CEAS-290 & CEAS-302. The sign law was ultimately amended, after condemnation by the United Nations Human Rights Committee in Geneva.

{942} Reference is made here to the draft United Nations Declaration on the Rights of Indigenous Peoples.

{943} This Convention came into force on September 5, 1991, since at least two ratifications have been registered with the International Labour Organization (ILO) by member states (Norway and Mexico). Canada has not yet ratified this instrument.

{944} Indigenous and Tribal Peoples Convention, 1989 (No. 169), article 8, para. 2: "...the right to retain their own customs and institutions..."

{945} Id., art. 8, para. 1: "...due regard shall be had to [indigenous peoples'] customs or customary laws."

{946} Id., at art. 15: "The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources."

{947} Id., at art. 7, para. 1: "...the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development."

{948} Id. , art. 7, para. 1: "...[Indigenous peoples] shall participate in the formulation, implementation and evaluation of plans and programs for national and regional development which may affect them directly."

{949} Id., at art. 7, para. 3: "Governments shall ensure that, whenever appropriate, studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities." After years of conflict and spending millions of dollars, the James Bay Crees have reached an agreement with the federal and Quebec governments on how the environmental and social impact assessment process might proceed. See G. Hamilton, "Governments, Cree and Inuit agree on Great Whale review", The Gazette, Montreal, January 25, 1992, at A5; A. Picard, "Great Whale project to get review: Crees, Inuit, two governments agree on steps toward unified assessment", Globe and Mail, January 25, 1992, at A5.

{950} Id., at art. 5(b): "the integrity of the values, practices and institutions of [indigenous peoples] shall be respected".

{951} For an example of the range of matters that would have to be addressed, see Report of the Aboriginal Justice Inquiry of Manitoba, The Justice System and Aboriginal People (Winnipeg, Manitoba: Queen's Printer, 1991), vol. 1. See also J.-C. Coutu, "De Solon ? Ovide Mercredi ? ou ? Sommes-nous si ?loign?s les uns des autres?" in H.P. Glenn & M. Ouellette, (eds.), Culture, Justice and Law\ La culture, la justice et le droit 1992, note 39, supra, 227.

{952} Law Reform Commission of Canada, Aboriginal Peoples and Criminal Justice: Equality, Respect and the Search for Justice (Ottawa: December 1991), Report 34.

{953} Id., at 5; see also N. Bindman, "Panel backs separate legal system for natives", The Gazette, Dec. 12, 1991, at B1.

{954} N. Bindman, "Panel backs separate legal system for natives", The Gazette, Dec. 12, 1991, at B1. See, generally, Royal Commission on Aboriginal Peoples, Report of the Roundtable on Justice (Ottawa: Minister of Supply and Services, 1993).

{955} See R. Platiel, "Native justice system backed by law panel", Globe and Mail, Dec. 12, 1991, at A6.

{956} It is not being suggested here that the whole Agreement promotes cultural genocide, but only certain provisions. Moreover, it is important to underline that what is being raised here is "cultural genocide" and not "genocide" which is a distinctly different notion under international human rights law.

{957} See, for example, article 8: "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law." [Emphasis added.] See also art. 3: "Everyone has the right to life, liberty and security of person."

{958} See, for example, Indigenous and Tribal Peoples Convention, 1989 (No. 169), arts. 7, para. 1 (right to decide their own priorities for the process of development); 7, para. 3 (social and environmental impact studies); 12 (right to take legal proceedings for effective protection of their rights). In addition, see generally the draft United Nations Declaration on the Rights of Indigenous Peoples where a number of relevant norms are provided.

{959} Friends of the Oldman River Society v. Canada, [1992] 1 S.C.R. 3 (S.C.C.).

{960} This point has also been made in Grand Council of the Crees (of Quebec), Response to Dartmouth College Council on Investor Responsibility [:] James Bay Hydroelectric Project, November 1992, (on file with the Grand Council of the Crees).

{961} Generally, in regard to acts of genocide and ethnocide committed against the world's indigenous peoples, see P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 2, at 371 et seq. However, for the purposes of the present analysis of JBNQA, it is "cultural genocide" as understood in international human rights law, and not "genocide" that is being discussed here.

{962} R. Stavenhagen, The Ethnic Question: Conflicts, Development, and Human Rights (Tokyo: United Nations University Press, 1990), at 105.

{963} C. Tennant & M.E. Turpel, A Case Study of Indigenous Peoples: Genocide, Ethnocide and Self-Determination, [1991] Nordic J. Int'l L. 287 at 297.

{964} K. Parker & L. Neglon, Jus Cogens: The Compelling Law of Human Rights, (1989) 12 Hastings Int'l and Comp. L.R. 411 at 430.

{965} Art. 7

{966} House of Commons, Debates, December 14, 1976, at 1999.

{967} Section 208 of the Environment Quality Act, R.S.Q., c. Q-2, provides in part: "Projects contemplated in paragraph 8.1.3 of the Agreement are subject to the assessment and review procedures contemplated in [this chapter of the Act], but only in respect of ecological impacts." [Emphasis added.]

{968} See, for example, A. Dubuc, "La mort de la grande baleine blanche", La Presse (editorial), November 22, 1994, at B2. However, Dubuc mentions that it is a false impression that the PQ government's decision was made purely for political reasons, since there are strong economic and environmental grounds for the government to shelve the project.

{969} Report of the Meeting of Experts to Review the Experience of Countries in the Operation of Schemes of Internal Self-government for Indigenous Peoples, U.N. ESCOR, Comm'n on Hum. Rts., 48th Sess., U.N. Doc. E/CN.4/1992/42 and Add.1 (1992) (Nuuk Meeting), Conclusions and Recommendations, para. 15.

{970} See P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, 3 vols., June 1995; A.C. Hamilton, Canada and Aboriginal Peoples [:] A New Partnership (Ottawa: Minister of Public Works and Government Services, 1995); and Royal Commission on Aboriginal Peoples, Treaty Making in the Spirit of Co-Existence [:] An Alternative to Extinguishment (Ottawa: Minister of Supply and Services, 1995).

{971} 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 15. At 26, Chief Diamond concludes: "...the doctrine of extinguishment and surrender can no longer be accepted as it is illegitimate, immoral and has no effect on our fundamental rights."

{972} See M. Fontaine, "Parizeau ne pr?voit pas d'obstacle ? la reconnaissance internationale du Québec", La Presse, January 24, 1991, at B1.

{973} See Assembl?e nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, 7 Nov. 1991, No. 8, at CEAS-203. Unofficial English translation: "In this Agreement, in return for receiving a certain number of things: money, very certainly, but also other things, including a certain governmental autonomy, the Crees renounce ? section 2 is clear ? to their rights to the northern territory of Quebec. This is a renunciation in good and valid form, this has often been cited in this Committee..." [Emphasis added.]

{974} See Assembl?e nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, 7 Nov. 1991, No. 8, at CEAS-203. Unofficial English translation: "If one considers that the Aboriginal peoples have ceded all their rights, there would no longer be Aboriginal peoples because an Aboriginal person is one who maintains with nature a quasi-mystical relationship, in the perspective of Aboriginal peoples, a relationship of subsistence...There is no question of sovereignty nor of ownership, these terms do not exist in the native languages. But their concept, it is a concept of management, a concept of responsibility: to respect nature and follow its destiny. If they abandon all these rights, they are no longer Aboriginal peoples." [Emphasis added.]

{975} See Assembl?e nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, 22 Oct. 1991, No. 7, at CEAS-187. Unofficial English translation: "For example, the rights to subsurface resources. The law of 1867 did not establish anything precise in this regard. And that could be the case for example of Aboriginal peoples or the West, of Alaska with the United States, etc. What I wish to say is that a given legal response with regard to the James Bay Agreement, of the law which confirms it, etc., for all that does not settle all the problems of Aboriginal communities...[new para.] It is that all of these problems are always a mixture of legal and geopolitical factors..." [Emphasis added.]

{976} J.-J. Simard (Universit? Laval) has reported that the Crees and Inuit have not experienced any financial windfall. See B. Bisson, "La Convention de la Baie James n'aurait pas am?lior? les conditions ?conomique des Cris", La Presse, Dec. 4, 1991; G. Hamilton, "James Bay deal didn't make Cree and Inuit wealthy:study", The Gazette, Montreal, Dec. 4, 1991, at A5.

{977} See Assembl?e nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, 7 Nov. 1991, No. 8, at CEAS-199. Unofficial English translation: "...[Greenland] is the only country where Inuit have their autonomy...One day, perhaps this State will be sovereign, but for the moment it has a very broad autonomy and this, once again, this is the only one of the four Eskimo regions [in the circumpolar regions]...that enjoys administrative and governmental autonomy." [Emphasis added.]

{978} Section 2.1 of JBNQA provides: "In consideration of the rights and benefits herein set forth in favour of the James Bay Crees and the Inuit of Quebec, the James Bay Crees and the Inuit hereby cede, release, surrender and convey all their Native claims, rights, titles and interests, whatever they may be, in and to land in the Territory and in Quebec, and Quebec and Canada accept such surrender."

{979} See Assembl?e nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, 17 Oct. 1991, No. 6, at CEAS-162. Unofficial English translation: "[Section 2.1 of JBNQA] does not exclude possible negotiations with the aboriginal peoples for a certain governmental autonomy. But that one might imagine a sovereign aboriginal State, even on a part of the territory of Quebec, I think that that is excluded." [Emphasis added.]

{980} 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 119-120.

{981} P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, at 190-191.

{982} In the case of unilateral secession, Québec would be required to argue that all Canadian constitutional instruments no longer apply. This includes the Constitution Act, 1867, which confirms (see preamble) the agreement of Québec and three other legislatures to unite in a Canadian federation: "Whereas the Provinces of Canada, Nova Scotia and New Brunswick have expressed a desire to be federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom..." [Emphasis added.]

{983} For a contrary view, see the comments of R. Dupuis (Minist?re de la Justice) in Assembl?e nationale, Journal des d?bats, Commission d'?tude sur toute offre d'un nouveau partenariat de nature constitutionnelle, 18 Dec. 1991, No. 14, at CEOC-476.

{984} See discussion under sub-heading 3.1 supra. The illegality of any unilateral secession by Québec was also declared in 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.

{985} See also Cree Regional Authority et al. v. A.G. Québec, (1991) 42 F.T.R. 160, where Mr. Justice Rouleau provides: "...for any sceptics, I would add that the rights enjoyed by the Crees under the JBNQ Agreement are further protected by section 35(1) of the Constitution Act, 1982."

{986} See JBNQA, s. 2.15: "The Agreement may be, from time to time, amended or modified in the manner provided in the Agreement, or in the absence of such provision, with the consent of all the Parties." See also the end provision of most of the chapters of JBNQA, which provides for the consent of the interested Native party (Cree or Inuit).

{987} D. Pharand, "Canada's Fiduciary Obligation to Indigenous Peoples in Quebec and the Recognition of Quebec as a State", in Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 216, supra, vol. 1, at 78. Although Pharand then proceeds to suggest ways in which the rights of Aboriginal peoples in an independent Québec may be safeguarded, he fails to address the situation where Aboriginal peoples under JBNQA refuse to give their consent to altering the federalist nature of this land claims treaty.

{988} See G. Hamilton, "Separation would kill James Bay treaty: Cree", The Gazette, Montreal, March 11, 1991, at A4.

{989} See, for example, the James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976-77, c. 32, where the preamble in part provides: "AND WHEREAS Parliament and the Government of Canada recognize and affirm a special responsibility for the said Crees and Inuit". The wording of this legislative provision was specifically negotiated by the Aboriginal parties to the JBNQA and, therefore, constitutes a treaty right of Aboriginal peoples.

{990} Grand Council of the Crees (of Quebec), Remarks of Grand Chief Matthew Coon Come to the Canadian Club, Toronto, Ontario, March 13, 1995 (on file with the Grand Council), at 5.

{991} A. Buchanan, "Quebec, Secession and Aboriginal Territorial Rights" in The Network, No. 3 (March 1992) (Newsletter of the Network on the Constitution), 2 at 3. See also R. Young, The Secession of Quebec and the Future of Canada (Montreal/Kingston: McGill - Queen's University Press, 1995), at 214: "In the North, if secession materially changes the agreements between Native peoples, Quebec and Canada, their extinguishment of land claims could be voided."

{992} M. Jackson, as quoted in A. Derfel, "World opinion a factor in aboriginals' planning", The Gazette, Montreal, April 2, 1995, at A4.

{993} If the JBNQA were deemed to be an internal document subject solely to Canadian law, the Agreement would have no effect or validity in the context of Québec secession. In such case, the right to self-determination of the James Bay Crees under international law would prevail. Québec could not unilaterally determine that JBNQA would continue to have effect and that Québec would assume all federal obligations.

{994} Committee to Examine Matters Relating to the Accession of Québec to Sovereignty, Draft Report, note 8, 1662, supra, at 29-30

{995} Id at 30-31

{996} 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.

{997} Simon v. The Queen, [1985] 2 S.C.R. 387 (S.C.C.) at 404. See also R. v. Sioui, [1990] 1 S.C.R. 1025 (S.C.C.).

{998} ? 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 436-437.

A further problem with the five experts' analysis is that they failed to characterize the JBNQA treaty as a manifestation of the nation-to-nation relationship that solely Aboriginal peoples have with the Crown. Instead, the five experts impliedly characterize the Agreement as a simple contract ? no different from that with non-Aboriginal people. In this regard, the experts state that the Crees, Inuit and Naskapis cannot rely on their land claims agreements and oppose Québec independence any more than any other owner of property who, because of independence, loses the recourse to federal jurisdictions that are accessible today (see p. 405). Perhaps, such mischaracterization of Aboriginal peoples' status and their treaties is a result of the experts' self-proclaimed lack of competence (see p. 390) in determining the meaning of constitutional provisions pertaining to Aboriginal peoples in Canada. Moreover, the experts fail to note the growing trend to view Aboriginal peoples' treaties and other agreements with states as a subject of international concern.

{999} See also P. Hutchins, "International Law and Aboriginal Domestic Litigation" in Proceedings of the 1993 Conference of the Canadian Council on International Law, Aboriginal Rights and International Law (Ottawa: Canadian Council on International Law, 1992) 11 at 13: "...we cannot infer from Chief Justice Dickson's statement that he rejected an application of international law. We should rather take it to mean that Canadian courts should not limit themselves to the strict application of one set of principles or another, but that they should look ot any source which might be pertinent, including international law in some instances."

{1000} This appears to be another indication of a double standard where Canadian law is selectively invoked in a secessionist context against Aboriginal peoples, but not applied to a seceding Québec. Further, in terms of international law, Québec separatists proceed to justify secession solely on the basis of what they call "legitimacy" or "democracy". Yet, in regard to Aboriginal peoples, narrow self-serving interpretations of international law are invoked by these same separatists to justify their denial of Aboriginal peoples' right to self-determination and to determine their own future.

{1001} In regard to the U.S. Supreme Court, see Worcester v. State of Georgia, 31 U.S. (6 Pet.)515 (1832) at 559-560: "The words `treaty' and `nation' are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having a definite and well understood meaning. We have applied them to all in the same sense." [Emphasis added.]

{1002} See, for example, J. Henderson, "The Status of Indian Treaties in International Law" in Proceedings of the 1993 Conference of the Canadian Council on International Law, Aboriginal Rights and International Law, (Ottawa: Canadian Council on International Law, 1992) 126 at 134: "[Indigenous peoples' treaties] are not sui generis in international law, but instead are an ordinary part of the Treaty Order. European states used the same wording in their treaties with other European states, or with indigenous peoples, as they used with First Nations in Canada..." [Emphasis in original.] Note, also, that treaties with Aboriginal peoples were "treated [by the British] as documents of international significance and published in official treaty series": B. Kingsbury, "The Treaty of Waitangi: some international law aspects" in I. Kawaharu, (ed.), Waitangi [:] Maori and Pakeha Perspectives of the Treaty of Waitangi (Auckland: Oxford University Press, 1989), 121 at 122.

{1003} G. Alfredsson, "The Right of Self-Determination and Indigenous Peoples" in C. Tomuschat, (ed.), Modern Law of Self- Determination, note 23, 1662, supra, at 47.

{1004} Art. 2 (1)(a) of the Vienna Convention on the Law of Treaties defines "treaty" as "an international agreement concluded between States in written form and governed by international law..." However, this does not mean that the principles in this Convention are intended to be limited to agreements between states. For example, art. 3(b) of the Convention leaves open the possibility of applying the principles in the Convention to other situations: "The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect: ...(b) the application of them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention". [Emphasis added.]

{1005} See, for example, B. Kingsbury, "The Treaty of Waitangi: some international law aspects" in I. Kawaharu, (ed.), Waitangi [:] M ori and P keh Perspectives of the Treaty of Waitangi (Auckland: Oxford University Press, 1989), 121 at 134, where the author mentions that the Tribunal, mandated to interpret and address issues pertaining to the Treaty of Waitangi (entered into by Maori and Crown representatives), "takes it into areas where other principles and approaches found in international and comparative law are relevant." [Emphasis added.]

{1006} O. Lissitzyn, "Territorial Entities Other Than Independent States in the Law of Treaties, (1970) 1 Receuil des Cours: Collected Courses of the Hague Academy of International Law 1 at 83.

{1007} Id. at 87

{1008} See Study on treaties, agreements and other constructive arrangements between States and indigenous populations [:] First progress report submitted by Mr. Miguel Alfonso Martinez, Special Rapporteur, U.N. Doc. E/CN.4/Sub.2/1992/32, 25 August 1992.

{1009} Art. 36.

{1010} See also conclusions in the Advisory Services in the Field of Human Rights: Report of the United Nations Seminar on the Effects of Racism and Racial Discrimination on the Social and Economic Relations Between Indigenous Peoples and States, U.N. ESCOR, Comm'n on Hum. Rts., 45th Sess., U.N. Doc. E/CN.4/1989/22, (1989), para. 40(g), at 10: "Treaties and agreements between indigenous peoples and States, and treaties between States that affect indigenous peoples should be subject to international supervision to secure their enforcement."

{1011} See, for example, Mabo et al. v. State of Queensland, (1992) 107 A.L.R. 1 (High Court of Australia), at 157, where Toohey J. provides: "...the power to affect the interests of a person adversely...gives rise to a duty to act in the interests of that person; the very vulnerability gives rise to the need for the application of equitable principles." [Emphasis added.]

{1012} The same point is made in P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1 at 283: "The contending sovereignty of Aboriginal peoples, their increasingly recognized international personality, and their growing role in international affairs strongly support the application of relevant international rules together with equitable principles." At 287, the authors conclude: "...there does not appear to be any valid reason for refusing to apply relevant international rules (subject to equitable principles) to treaties between Aboriginal peoples and the Crown...The application of international legal principles would be in keeping with existing and emerging international norms that directly pertain to indigenous peoples and states."

{1013} See A. Buchanan, The Role of Collective Rights in the Theory of Indigenous Peoples' Rights, (1993) 3 Transnat'l L. & Contemp. Probs. 89 at 90: "Indigenous peoples have secured standing to speak with their own voices in the major fora in which international law is made. No longer are they held captive by the traditional conception that only states have standing under international law. [new para.]The second major thrust of the indigenous peoples' movement goes beyond recognition of the status of indigenous peoples as distinct subjects of international law. It is the growing recognition of various rights of indigenous peoples under domestic and international law..." [Emphasis added.]

See also R. Dupuis, "L'avenir du Québec et les peuples autochtones" in Choix [:] s?rie Québec-Canada, Les peuples autochtones et l'avenir du Québec (Montreal: Institute for Research on Public Policy, June 1995), vol. 1, no. 10, 20 at 21, where the author cautions against analyzing the future of Aboriginal peoples in solely a Québec context and refers to the emergence of international standards recognizing indigenous peoples as distinct subjects of international law.

{1014} M. Simon, Statement to U.N. General Assembly, in Living History [:] Inauguration of the "International Year of the World's Indigenous People", (1993) 3 Transnat'l L. & Contemp. Probs. 210 at 212. Simon was speaking on behalf of a broad cross-section of Inuit, Indian and Metis organizations in Canada (including the James Bay Crees).

{1015} See discussion under sub-heading 2.1 supra.

{1016} For a discussion of the contending sovereignties of Aboriginal peoples in Canada, see P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, at 134 et seq.

{1017} In regard to the threat of use of force, see discussion under sub-heading 4.2 supra.

{1018} This situation becomes even more complex, should the James Bay Cree and Inuit parties to JBNQA exercise totally different options of external self-determination.

{1019} D. Cliche, Sovereign Québec and its Aboriginal Peoples, text of the speech delivered to members of the Grand Council of the Crees (of Québec), Montreal, September 21, 1995, at 7.

{1020} H. Aubin, "World would embrace separate Quebec: Parizeau", The Gazette, Montreal, January 24, 1992, at A5.

{1021} In this regard, it is worth underlining that the JBNQA deals with diverse economic, social, cultural and political matters that include important human rights dimensions.

{1022} D. Koplow, Constitutional Bait and Switch: Executive Reinterpretation of Arms Control Treaties, (1989) 137 Univ. of Penn. L.R. 1353 at 1384, n.128.

{1023} Lord McNair, The Law of Treaties (Oxford: Clarendon Press, 1961) (re-issued in 1986), at 493.

{1024} Id. at 493-494.

{1025} Id. at 494.

{1026} See I. Sinclair, The Vienna Convention on the Law of Treaties, 2nd ed. (Manchester: Manchester University Press, 1984) at 20, where the Fisheries Jurisdiction Case (U.K. v. Iceland), [1973] I.C.J. Rep. 3 at 18, is cited in support.

{1027} The Parti Qu?b?cois was elected as the government of Québec in November 1976. Moreover, the raison d'?tre of the PQ is expressly stated to be separation from Canada and the formation of a new state.

{1028} See J. Clinebell & J. Thomson, Sovereignty and Self-Determination: The Rights of Native Americans Under International Law, (1978) 27 Buffalo L.R. 669 at 699, where the same conclusion is reached concerning rebus sic stantibus and Aboriginal treaties.

{1029} See earlier discussion under heading 8.3.

{1030} While Quebecers exercise the right to self-determination within Canada, this right cannot be relied upon to claim any legal right to secede. See discussion under heading 2 supra.

{1031} "Reality is not that simple: Mr. Parizeau wears rose-coloured glasses", The Gazette, Montreal, January 25, 1992, at B2.

{1032} I. Brownlie, Principles of Public International Law, note 203, 1662, supra, at 655.

{1033} See J. Brossard, L'accession ? la souverainet? et le cas du Québec, note 65, 1662, supra, at 429-463.

{1034} In this regard, see the 1978 Vienna Convention on the Succession of States in Respect of Treaties (not yet in force, but discussed below), where art. 34, para. 2 provides that a successor State cannot claim that a treaty in force at the time of the succession would continue in force in respect of that successor State alone if: "(b) it appears from the treaty or is otherwise established that the application of the treaty in respect of the successor State would be incompatible with the object and purpose of the treaty or would radically change the conditions for its operation." [Emphasis added.]

See also D. Turp, L'Avant-projet de loi sur la souverainet? du Québec [:] Texte annot? (Cowansville, Québec: Les ?ditions Yvon Blais, 1995), at 79-80, where it is suggested by the author that a seceding Québec would generally seek to secure continuity in the application of existing treaties along the lines of art. 34 supra.

{1035} JBNQA, s. 2.11.

{1036} These are rules of customary international law which cannot be set aside by treaty or acquiescence but only by the formation of a subsequent customary law rule. See I. Brownlie, Principles of Public International Law, note 203, 1662, supra, at 512. See also L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law [:] Historical Development, Criteria, Present Status (Helsinki: Finnish Lawyers' Publishing Co., 1988). In regard to rules concerning customary international law, see A.F. Bayefsky, International Human Rights Law [:] Use in Canadian Charter of Rights and Freedoms Litigation (Toronto: Butterworths, 1992), ch. 2, at 4 et seq.

{1037} I. Brownlie, Principles of Public International Law, note 203, 1662, supra, at 673. Brownlie is making specific reference here to the views of several members of the International Law Commission.

{1038} Vienna Convention on Succession of States in Respect of Treaties, opened for signature August 23, 1978, U.N. Doc. A/CONF.80/31 (1978), reprinted in (1978) 17 Int'l Legal Materials 1488. See generally M. Arbour, Secession and International Law ? Some Economic Problems in Relation to State Succession, (1978) 19 Cahiers de Droit 285; D. Turp & F. Gouin, "?tude sur la succession du Québec aux trait?s auxquels le Canada est partie dans l'hypoth?se d'une 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, 687; S. Williams, International Legal Effects of Secession by Quebec (North York, Ontario: York University Centre for Public Law and Public Policy, 1992); M. Yasseen, La Convention de Vienne sur la succession d'?tats en mati?re de trait?s, (1978) 24 A.F.D.I. 59.

{1039} See D. Desjardins & C. Gendron, "Legal Issues Concerning the Division of Assets and Debt in State Succession: The Canada- Quebec Debate" in J. McCallum (ed.), Closing the Books: Dividing Federal Assets and Debt if Canada Breaks Up (Toronto: C.D.Howe Institute, 1991), No. 8, 1 at 3.

{1040} It is reported that 54 of the 90 states attending the U.N. Conference that adopted the Vienna Convention approved it, 11 states (including Canada) voted against, and 11 countries abstained. See D. Desjardins & C. Gendron, "Legal Issues Concerning the Division of Assets and Debt in State Succession: The Canada-Quebec Debate" in J. McCallum (ed.), Closing the Books: Dividing Federal Assets and Debt if Canada Breaks Up (Toronto: C.D.Howe Institute, 1991), No. 8, 1 at 3.

{1041} See also 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 396 et seq., where art. 11 is said to be applicable to an independent Québec to protect its own boundaries. However, it should be emphasized that the five experts are only referring to the hypothetical period after Québec would have achieved effective control of the seceding territory and the independent state of Québec were recognized by the international community.