The Grand Council of the Crees

Section 9, Sovereign Injustice - Grand Council of the Crees

9. Québec's 1995 Referendum on Independence

Posted: 0000-00-00

9.1 Inherent Limitations of Referendums and Lack of Legitimacy in Québec's Process

9.2 Significance of Referendums by Aboriginal Peoples in Québec

9.3 Inadequacies of a Simple Majority Vote

9.3.1 July 1948 Newfoundland referendum ? a precedent for Québec secession?

9.4 Absence of a Proposed Constitution and Other Negotiated
Arrangements for a New Québec State

9. Québec's 1995 Referendum on Independence

"Principles of democracy and legitimacy would be unacceptably compromised by events in Quebec, if the fundamental human right of indigenous peoples to determine their own future is denied in the process." {1042}

Arctic Leaders' Summit, Tromso, Norway, 1995

As the present Study has already described, Quebecers cannot claim any unilateral right to secede from Canada according to Canadian or international law. In particular, it has been concluded that they cannot rely on the right to self-determination as a basis for secession. {1043}

However, the PQ government takes the position that a simple majority vote in a Québec referendum would constitute a democratic expression of the will of the population in Québec. Consequently, it is argued that such an affirmative vote would provide "legitimacy" for a unilateral declaration of independence by the Québec government.

T. Franck describes "legitimacy" as follows:

"Legitimacy is a property of a rule or rule-making institution which itself exerts a pull toward compliance on those addressed normatively because those addressed believe that the rule or institution has come into being and operates in accordance with generally accepted principles of right process." {1044} [Emphasis added.]

B. Kingsbury comments on this definition as follows:

"Expressed this way, legitimacy is a function of the norm-creating process and of fairness and efficacy in implementation." {1045} [Emphasis added.]

In regard to Québec and its claims of legitimacy, M. Lebel provides:

"Il faut admettre que la l?gitimit? du projet souverainiste du gouvernement du Québec n'a pas d'assise juridique, tant en droit interne qu'en droit international. Sa l?gitimit? ne peut donc relever que de principes politiques et en particulier du principe d?mocratique." {1046}

As will be further described below, legitimacy is not simply determined by a majority vote by Quebecers in a single referendum. In order to ensure legitimacy, numerous factors would have to be equitably considered and implemented. This is especially important when the rights of other peoples, such as Aboriginal peoples, are directly affected. Even in cases where secession is based on the right to self-determination (which is not the case in Québec), the rights of others must be taken into account. Moreover, there exist clashing legitimacies that must be fully considered. As R. Iglar describes:

"...a people exercising self-determination have the duty to exercise their right without causing undue economic and political impact on the parent state. Additionally, such a people cannot exercise their right at the expense of the legitimate rights of other peoples living in the parent state." {1047} [Emphasis added.]

L. Bucheit underlines that there are international and national considerations that must be balanced:

"A determination of legitimacy in a particular case can be reached by balancing the general interests of the world community and the remaining State against the strength of the claimants' argument for a right of self- determination." {1048} [Emphasis added.]

As K. Valaskakis and A. Fournier emphasize, the rest of Canada has an immense interest in the current debate in light of the foreseeable impacts:

"Tout d'abord, le reste du Canada a un int?r?t immense dans ce d?bat: un regard prospectif' sur l'avenir nous permet de pr?voir une crise ?conomique et financi?re grave pour le reste du Canada (tout comme le Québec d'ailleurs), si le Québec venait ? se s?parer. On assisterait, par ailleurs, tr?s certainement ? un renforcement des forces de d?membrement dans le reste du Canada et l'on pourrait assister ? court ou moyen terme ? un fractionnement du reste du Canada en diverses entit?s et m?me au rattachement de certaines de ces entit?s aux ?tats- Unis." {1049} [Emphasis added.]

In regard to Canada's position, federal Minister of Intergovernmental Affairs Marcel Mass? has stated that Canada will respect the referendum law, because it cannot infringe a law to which it is not subject. {1050} The Minister adds that a provincial law cannot obligate the federal government. {1051} This would indicate that the federal government does not recognize that any referendum law emanating from a province (or any provincial referendum that may be held) as legally binding on the federal government.

In the present situation of Québec, the PQ government is not claiming a right of external self- determination, but rather legitimacy based on a majority vote. The government has not felt it necessary to make a strong case against national and international considerations. In particular, Québec has not established sufficient grounds for claiming that its "right" to independence should prevail over the principle of territorial integrity applicable to the Canadian state. {1052}

While the case for legitimacy as put forward by the PQ government can already be seen to be very weak, it is still important to examine more closely the inherent limitations of referendums and Québec's referendum process towards establishing an independent state. This is especially required since an affirmative referendum result in Québec's process is intended by the PQ government to be imposed on Aboriginal peoples, whose own fundamental status and rights to determine their future are being largely ignored.

9.1 Inherent Limitations of Referendums and Lack of
Legitimacy in Québec's Process [Top]

"[L]e peuple qu?b?cois n'a pas de permission ? demander, ni [au premier ministre Chr?tien] ni ? personne, pour d?cider de son avenir..." {1053}

Bloc Qu?b?cois Leader, Lucien Bouchard, 1995

"I find it totally hypocritical that Mr. Bouchard and the separatists can say these things, and at the same time deny the democratic rights of all Aboriginal peoples in Quebec to determine their own future." {1054}

Grand Chief Matthew Coon Come, 1995

According to Canadian law, referendums are not legally binding, but are consultative in nature. {1055} Referendum processes can only have a binding effect on governments and the adoption of constitutional laws, if these processes would be so recognized in Canada's Constitution. {1056}

P. Hogg indicates that an affirmative referendum vote on secession would not have any constitutional significance and would not settle the issue for the federal or provincial governments in Canada:

"Even if a referendum showed that a majority of the people in a province wanted to secede, the referendum would have no constitutional significance in itself, {1057} and there is no basis in history or politics to suppose that the referendum would settle the policy of the federal government (or of the provincial governments). {1058}

Hogg adds that the federal government has to take a number of other considerations into account as well:

"It may well feel that it has no mandate to break up the country, or at least that the governments or people in other parts of the country should be consulted as to the appropriate federal attitude. The federal government will also be concerned that it has a responsibility towards the minority in the seceding province who desire to remain in Canada." {1059} [Emphasis added.]

The distinction between a "consultative" and a "binding" referendum has already arisen in the context of the PQ government's referendum process. In August 1995, Québec city lawyer Guy Bertrand instituted proceedings in Québec's Superior Court to seek an interlocutory and permanent injunction to stop the PQ's referendum process. {1060} Bertrand alleged that the government's process is "illegal, unconstitutional and immoral" and a violation of his Charter rights. Bertrand did not seek to deny Quebecers the right to vote in a consultative referendum. What he challenged was the power of the PQ government to hold a binding referendum, where an affirmative vote would be the basis of a unilateral secession by Québec.

At the preliminary stage, Judge Robert Lesage ruled that he would hear arguments from both sides in the Bertrand case. In so doing, he rejected arguments by Québec government lawyers that the case should not be heard because the matter is political and not for the courts. {1061} However, when the government lost this first round in the Bertrand litigation, Premier Parizeau announced publicly that his government lawyers would no longer attend the court hearings. In seeking to ignore or deny the jurisdiction of the courts, Parizeau added:

"Quebecers want to vote, they have the right to vote, they will vote. We cannot submit Quebecers' right to vote to a decision by the court. It would be contrary to our whole democratic system." {1062}

Parizeau's position is erroneous and misleading for a number of reasons. First, the Bertrand case did not seek to deny Quebecers the right to vote in a referendum. Instead, the case challenged the government's illegal and illegitimate context of unilateral secession. Second, it was incorrect for the Premier to suggest that it would be undemocratic for the right to vote to be subjected to judicial scrutiny or challenge. In fact, in regard to citizens' voting rights in elections, the democratic tradition in all parts of Canada provides for federal, provincial and municipal laws to be subject to judicial review. Third, as will be described further below, democracy has as its foundations respect for the rule of law and, save for exceptional circumstances, {1063} should not be perceived as a separate notion.

Even if there were to be an affirmative vote in a referendum on secession, a referendum does not determine the terms or conditions for separation. As the following comments of A. Buchanan suggest, one of the inherent limitations of a YES vote in a Québec referendum would be that it could not settle any of the conditions for separation nor fairly address the self-determination of Aboriginal peoples:

"...it is one thing to say that [it] is right to allow secession, quite another to determine the conditions under which secession is to proceed. Among the most important conditions is the clarification of the status of native peoples and their interests, including their interests in self-determination." [1064] [Emphasis added.]

Buchanan adds that an affirmative vote in the Québec referendum would still leave unresolved the interests of Aboriginal peoples which are inextricably linked to any settlement of territorial issues:

"Since it cannot be prejudged that the adequate protection of these interests will not require significant jurisdictional powers over territory or even adjustments in the border between Canada and Québec if the native peoples choose to remain under Canadian jurisdiction, the native question and the territoriality issue are inextricably linked. Neither can be dismissed." {1065} [Emphasis added.]

It is most difficult to fathom how a simple majority vote in a Québec referendum could be perceived as either democratic or legitimate, if it denies Aboriginal peoples in Québec their right to self- determination. As T. Franck indicates, self-determination is at the core of democratic entitlement:

"Since self-determination is the oldest aspect of the democratic entitlement, its pedigree is the best established. Self-determination postulates the right of a people organized in an established territory to determine its collective political destiny in a democratic fashion and is therefore at the core of the democratic entitlement." {1066} [Emphasis added.]

Unlike Québec referendum procedures in the past which were solely of an advisory nature, {1067} the original draft Bill of the PQ government entitled An Act respecting the sovereignty of Québec attempted to have a permanently binding effect on all parties concerned. It required the National Assembly of Québec to unilaterally declare the independence of Québec within a maximum of one year in the event of an affirmative vote in its upcoming referendum. In this regard, the draft Act provided:

"This Act [declaring Québec a sovereign country {1068} ] comes into force one year after its approval by referendum, unless the National Assembly fixes an earlier date." {1069} [Emphasis added.]

In effect, a YES vote in the Québec referendum would have purported to require the National Assembly to enact a number of provisions whose unconstitutionality and illegality are apparent. These unconstitutional provisions included:

i) unilateral declaration of Québec as a sovereign country; {1070}

ii) adoption of a new constitution for a sovereign Québec, in accordance with the procedure determined by the National Assembly; {1071}

iii) unilaterally delimiting the boundaries of an independent Québec; {1072}

iv) unilateral assumption of obligations and rights arising out of treaties to which Canada is a party; {1073}

v) incorporation of all laws passed by the Parliament of Canada as the laws of a sovereign Québec, until such laws are amended or repealed by the National Assembly; {1074}

vi) unilateral ousting of the jurisdiction of the Supreme Court of Canada as the court of highest jurisdiction in Québec; and {1075}

vii) unilateral alteration of the procedure to enact provincial laws by requiring prior affirmation by majority vote in a referendum. {1076}

However, apparently as a result of the decision in the Bertrand case, {1077} the PQ government altered to some degree its strategy. The government tabled a new Bill that does not expressly require the National Assembly to adopt legislation proclaiming a UDI, in the event of a simple majority vote in the 1995 Québec referendum. In fact, the draft Act respecting the future of Québec makes no mention of any referendum. Therefore, from a strictly legal viewpoint, it appears that the 1995 referendum to be held by the PQ government is consultative and not legally binding. {1078}

Although the question for the 1995 Québec referendum asks Quebecers whether they agree that Québec should become a sovereign country, the National Assembly is not obliged to act on the result in the event of an affirmative referendum vote. The question provides as follows:

"Do you agree that Québec should become sovereign, after having made a formal offer to Canada for a new economic and political partnership, within the scope of the bill respecting the future of Québec and of the agreement {1079} signed on June 12, 1995?"

Nevertheless, the latest draft Act includes virtually all of the other unconstitutional provisions that are highlighted above. {1080} In particular, this Act purports to authorize the National Assembly to unilaterally establish an independent Québec state.

In regard to any legislative action that purports to amend the existing constitution of Québec, it is worth noting that such amendment would be unconstitutional if it were "indivisibly related to the implementation of the federal principle or to a fundamental term or condition of the union [formed in 1867]." {1081} In other words, under Canada's Constitution, the Québec National Assembly cannot amend the province's constitution in a manner that would establish a unitary state and contravene the "federal principle" of the Canadian federation.

It is also worth noting that, in 1913, the Alberta legislature passed the Direct Legislation Act to provide electors with the power to initiate draft legislation, have it submitted for approval in a referendum, and, if successful, require the provincial legislature to enact the proposed legislation. This procedure was used to enact the Liquor Act of 1916 and was upheld by the Privy Council in R. v. Nat Bell Liquors. {1082} Although the referendum procedure appeared to reduce the role of the Alberta legislature to a rubber stamp, the Privy Council ruled as follows:

"It is impossible to say that [the Liquor Act] was not an act of the Legislature and it is none the less a statute because it was the statutory duty of the Legislature to pass it." {1083}

This ruling has been criticized by P. Hogg as going against the earlier ruling in Re Initiative and Referendum Act, {1084} where the Privy Council concluded that the role of the Lieutenant Governor in assenting to laws cannot be impaired and primary legislative power must not be granted away from the legislature. {1085} Moreover, P. Hogg adds:

"Another difficulty with the decision in R. v. Nat Bell Liquors is that it violates a basic rule of parliamentary sovereignty, namely, that a legislative body cannot bind itself as to the substance (as opposed to the manner and form) of its future enactments...Such a self-imposed restraint on the discretion of future Legislatures [as found in Alberta's Direct Legislation Act] should not have been upheld." {1086} [Emphasis added.]

Québec's original draft Bill on sovereignty {1087} appeared to provide a similar referendum process as in the 1913 Alberta Direct Legislation Act, insofar as creating a legally binding effect. Since Québec's draft Bill (had it been adopted) would have clearly bound the National Assembly on "substance" and not simply "manner and form", it would have been unconstitutional. At the same time, the draft Bill can be distinguished from the 1913 Alberta legislation since the original draft Bill purported to bind the National Assembly to enact legislation that would have clearly gone beyond the legislative powers or jurisdiction of the province. It is unconstitutional for the National Assembly to enact legislation that would create such a referendum power and it is unconstitutional for any referendum to purport to have such a binding effect. {1088}

It would appear that the Québec government has abandoned any attempt whatsoever to establish the constitutionality of the present draft Act respecting the future of Québec, as well as its original draft Bill. Instead, the PQ government is relying on establishing the democratic and legitimate (as opposed to legal) process it has embarked upon based on a future affirmative result in its referendum. {1089}

However, how can any referendum in Québec claim to be "democratic" and "legitimate" if it denies the rights and competing legitimacies of other peoples in the process? In particular, reference is being made here to Aboriginal peoples in Québec, who each identify themselves as distinct peoples separate from Quebecers for purposes of exercising their right to self-determination.

In regard to "democracy", the Charter of Paris makes clear that democracy is integrally related to the rule of law:

"Democracy has as its foundations respect for the human person and the rule of law." [Emphasis addedl.]

Similarly, at their Moscow Meeting in October 1991, the participating states of the CSCE (including Canada and the United States) not only linked human rights, democracy and the rule of law, but indicated that these are matters of "international" concern:

"The participating States emphasize that issues relating to human rights, fundamental freedoms, democracy and the rule of law are of international concern, as respect for these rights and freedoms constitutes one of the foundations of the international order. They categorically and irrevocable declare that the commitments undertaken in the field of the human dimension of the CSCE are matters of direct and legitimate concern to all participating States and do not belong exclusively to the internal affairs of the State concerned." {1090} [Emphasis added.]

In the context of Québec secession, there can be no justification for the PQ government and the National Assembly ignoring the legal rights of the Crees and other Aboriginal peoples in Québec under Canadian and international law. While circumstances sometimes exist where the rule of law lacks legitimacy or democracy, this is not the situation affecting Quebecers. Consequently, there can be no justification for denying Aboriginal peoples their right to self-determination in the present context.

Moreover, the exercise of the right to self-determination by Aboriginal peoples and access to democracy are interrelated. In this regard, E.-I. Daes emphasizes that denial of Aboriginal peoples' right to self-determination would leave them with no recourse to genuine democracy:

"It is not realistic to fear indigenous peoples' exercise of the right to self- determination. It is far more realistic to fear that the denial of indigenous peoples' right to self-determination will leave the most marginalized and excluded of all the world's peoples without a legal, peaceful weapon to press for genuine democracy in the states in which they live." {1091} [Emphasis added.]

In relation to the PQ government's failure to respect fully the right of Aboriginal peoples in Québec to determine their own future, Grand Chief of the Grand Council of the Crees, Matthew Coon Come underlines the double standard being invoked by Québec:

"...if Quebec was to hold [a referendum], I don't think the Crees should be lumped within the general referendum, where their wishes would be submerged by the Quebec majority. This isn't an approach Quebec would tolerate if proposed by Canada. Why should we?" {1092} [Emphasis added.]

If Quebecers say they have a right to determine their own future, then they must apply the same standard without discrimination to Aboriginal peoples in Québec. As P. Joffe & M.E. Turpel underline in a study for the Royal Commission on Aboriginal Peoples:

"For purposes of self-determination, Aboriginal peoples can no more be included as a part of a "Quebec people" against their will, than Quebecers included as a part of a "Canadian people" where a single majority vote determines everyone's future." {1093}

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

"...if the majority of all Quebecers can bind the different peoples of Québec, it should follow that the majority of all Canadians can bind the different peoples of Canada, including Quebecers." {1094}

Also, P. Russell (University of Toronto) declares:

"With few exceptions, aboriginal peoples in Quebec wish to enjoy their right to self-government within Canada ? not within a sovereign Quebec. They are not nations that can be yanked out of Canada against their will by a provincial majority." {1095}
[Emphasis added.]

The PQ government appears to be adopting a strategy that Aboriginal peoples in Québec can be denied their rights to self-determination, including the right to choose to remain in Canada, as long as an independent Québec demonstrates to the international community that they will treat Aboriginal peoples well. This is no different than if abductors were to attempt to justify a kidnapping {1096} by saying they are treating their subjects well.

For the PQ government to suggest that all people in Québec, including Aboriginal peoples, must decide their future in a single referendum is coercive and devoid of legitimacy. Similarly, to forcibly include Aboriginal peoples in a secessionist Québec is fundamentally wrong, undemocratic and illegitimate. Such an approach of inequality and forced dominance can best be described as yet another version of colonialism for the 1990s. {1097} It is the antithesis of a democratic process. D. Schnapper describes the difference between "colonial society" and "modern democracy" as follows:

"La soci?t? coloniale ?tait fond?e sur l'in?galit? de statut juridique et politique des membres qui la composaient, alors que la l?gitimit? de la d?mocratie moderne consiste ? accorder l'?galit? ? tous." {1098} [Emphasis added.]

In view of the right of Aboriginal peoples to determine their own future, the issue of Aboriginal peoples holding their own Aboriginal referendums in the context of Québec secession is examined under the following sub-heading.

9.2 Significance of Referendums by Aboriginal Peoples in Québec [Top]

"The Inuit can hold their own referendum if they want to and so can the Cree. But where we disagree is on the impact of such a referendum...We cannot accept that the territory of Quebec be taken apart. This position is not new. We've been saying that for years. But we do respect the right to [aboriginal] self-determination." {1099} [Emphasis added.]

D. Cliche, member of the National Assembly and special advisor on Aboriginal affairs to Premier Parizeau, 1995

"Should Qu?b?cois fail to deal with aboriginal self-determination, their movement stands to lose a great deal of legitimacy and support both in Canada and the international community." {1100}

M.E. Turpel, 1992

If there are to be meaningful consultations by all peoples in Québec in regard to Québec secession, the PQ government must fully recognize the right of Aboriginal peoples in Québec to self- determination. This would include the right of Aboriginal peoples to choose their own future by holding their own referendums. As B. Came describes, a number of Aboriginal nations in Québec are planning to hold their own referendums:

"In order to underscore the trans-boundary nature of their nation, the Inuit are planning their own referendum {1101} on Québec's future, probably before Parizeau calls his own provincewide vote. All Inuit, no matter where they reside, will be eligible to vote.

Most of Quebec's major aboriginal nations are contemplating similar moves. Like the Inuit, the three largest Amerindian nations ? the Mohawks, the Montagnais and the Cree ? are all planning to poll their own peoples. Others may follow. There is even some thought of a pan-aboriginal referendum to parallel Parizeau's." {1102}
[Emphasis added.]

In the case of the James Bay Crees, a Cree referendum will take place (during the same period as Québec's referendum) in relation to the future of the Crees and their traditional territory. {1103} In addition, the Cree Eeyou Astchee Commission has been established to consult the Cree people on their future.

In the context of referendums, C. Hilling emphasizes the importance of respecting Aboriginal peoples' right to self-determination:

"...si l'on veut convaincre les peuples autochtones de participer ? une consultation populaire, encore faudrait-il exprimer clairement la volont? de respecter leur droit ? l'autod?termination." {1105}

In order to respect Aboriginal peoples' right to self-determination, the PQ government must balance the rights of Quebecers with those of Aboriginal peoples. As C. Hilling attests, this is something that the separatist government in Québec is not prepared to do:

"Il est clair qu'aucun droit n'est absolu et qu'il est n?cessaire d'arriver ? un juste ?quilibre qui tienne compte ? la fois du droit des peuples autochtones et de celui du peuple qu?b?cois ? choisir leur destin?e. Malheureusement, il ne semble y avoir aucune volont? de la part du gouvernement du Québec de trouver ce juste ?quilibre." {1106}

Recently, Premier Parizeau indicated in an interview with Le Monde that referendums are the acts of governments and not Aboriginal peoples:

"Le r?f?rendum proc?de de lois d'un gouvernement...Un r?f?rendum pour se d?tacher du Québec, je ne vois pas tr?s bien comment ils [les Am?rindiens...] pourraient le faire, car les r?f?rendums sont des actes de gouvernement." {1107}

The Premier added that this did not prevent them from consulting among themselves, taking positions or negotiating. {1108}

Generally, Aboriginal peoples in Québec have their own governments ? even if their rights to self- determination and self-government are inadequately recognized by Québec in practice. In any event, the position of Premier Parizeau on referendums by Aboriginal peoples has no basis in Canadian and international law or in terms of democracy, fairness and legitimacy. Reasons include the following:

i) Double standard. The PQ government is taking the position that the fact that UDI by Québec would be illegal under Canadian law is irrelevant as is the fact that there is no recognized right to secede under international law. In the view of Premier Parizeau, all that is important is that Quebecers express their democratic will through a referendum. Consequently, it is a discriminatory, double standard for Parizeau to suggest that Aboriginal peoples in Québec have no right to hold their own referendums to express their democratic will and determine their future as distinct peoples {1109} in the context of Québec secession.

It is ironic that Mr. Parizeau is attempting to construct legal arguments in insisting that the right to hold referendums flows from the "law of a government". In the case of his government's own draft Bill, it is clearly illegal and unconstitutional. Moreover, M. Suksi points out that no government law is generally needed:

"[A plebiscite] may be an ad hoc referendum' for which there exist no permanent provisions in the constitution or in ordinary legislation." {1110}

ii) Aboriginal referendums not a contravention of Canadian law. Aboriginal peoples are not seeking to secede from Canada, either through referendums or otherwise. Unlike the Québec referendum on independence, referendums conducted by Aboriginal peoples in Québec are intended to be consultative mechanisms to determine the collective will of each of the distinct peoples concerned. Consistent with their advisory nature, Aboriginal referendums do not purport to legally alter or violate in any way Canadian law. Although referendums may often be held by governments in Canada, this does not mean that a "people" or others cannot hold their own referendums. As P. Boyer indicates:

"The vote in Quebec on continued adherence to Confederation, and the proposals of non-separatist groups or peoples in certain areas within Quebec to hold their own votes in the event of separation, are other examples where, on territorial matters, a citizens' right to vote has been asserted." {1111} [Emphasis added.]

iii) Right to hold referendums flows from constitutional status and rights of Aboriginal peoples. The aboriginal and treaty rights of Aboriginal peoples are principally collective rights and are of a constitutional nature. In order to determine the collective will of the people on its collective rights, there is no doubt that Aboriginal peoples would have recourse to referendums (among other mechanisms).

In addition, it is the view of an increasing number of jurists and others that s. 35 of the Constitution Act, 1982 includes the inherent right to self-government. {1112} This is also the formal position of the federal government in Canada. {1113} Based on this view, the right to hold referendums would also flow from Aboriginal peoples' inherent and constitutional right to self-government. Within the Canadian constitutional context, Aboriginal peoples have never relinquished their sovereignty {1114} and, in light of such status, it makes no sense to suggest that they would be unable to hold their own referendums.

Further, the Québec National Assembly has formally recognized each of the Aboriginal peoples in Québec as distinct "nations". {1115} Consequently, it is absurd for Premier Parizeau to suggest that Aboriginal peoples in Québec do not have the right to hold referendums to determine the collective will of the people.

iv) Practice in Canada for Aboriginal peoples to hold referendums. In Québec, Inuit held there own referendum at the time of the 1980 Québec referendum on sovereignty- association. {1116} Neither the Québec or Canadian government ever indicated their opposition to the Inuit referendum. Moreover, the Inuit referendum was not done pursuant to any "law of government".

In addition, in 1976, the approval of the James Bay and Northern Quebec Agreement by the Inuit and Crees was carried out by means of referendums organized by the Aboriginal parties concerned. These processes to ratify the land claims treaty were fully agreed to by both the Québec and federal governments, but were not established by any governmental law. Moreover, since 1986, it is federal policy to require formal ratifications of land claims agreements in all parts of Canada by the Aboriginal people concerned (generally through a referendum process). {1117}

v) Right to self-determination includes right to hold referendums. As this Study indicates, Aboriginal peoples in Québec have the right to self-determination including the "right to choose" to remain with Canada. This right to self-determination includes the right to hold referendums to determine the collective will of a people. As M. Suksi indicates:

"The concept of self-determination offered a perfect remedy, that is, the institution of the referendum, against the disregard of the popular will: the referendum was ? and still is ? a method of finding out what the people or population concerned really wants. Currently, the concept of self- determination has various interrelated dimensions...[A] people's right to self-determination can be understood as a right of (a certain part of) a population to choose the state under which authority they live." {1118}
[Emphasis added.]

In the 5-expert study commissioned by the National Assembly, it is indicated that Aboriginal peoples in Québec have the right to self-determination under international law (but not a right to secede). {1119} This includes the right to choose their
future: {1120}

"Self-determination, in its many forms, must be recognized as the basic pre- condition for the enjoyment by indigenous peoples of their fundamental rights and the determination of their own future. It must also be recognized that the right to self-determination exists at various levels and includes economic, social, cultural and political factors. In essence, it constitutes the exercise of free choice by indigenous peoples who must, to a large extent, create the specific content of this principle, in both its internal and external expressions, which do not necessarily include the right to secede from the state in which they live and to set themselves up as sovereign entities." [Emphasis added.] {1121}

It is most disturbing that the PQ government readily cites the five-expert study for its own purposes, but fails to respect the findings of the study if they favour Aboriginal peoples in Québec.

vi) Referendums organized by United Nations. {1122} Internationally, there is also no rule or practice that referendums are organized solely by governments. As M. Suksi describes, referendums have often been organized by the United Nations:

"The main bulk of territorial plebiscites held after the Second World War were connected with the United Nations Trust Territories...and those areas ...considered Non-Self-Governing. The purpose was to implement the right to self-determination...Over and above these cases, a number of other territorial questions have been settled by means of the plebiscite." {1123}

vii) Precedent for holding separate referendums in a territory. Internationally, there is precedent for holding separate referendums in a territory in order to determine the wishes of different claimants. For example, in regard to the British Cameroons, the U.N. General Assembly called for the holding of a plebiscite in each of two regions so that the wishes of rival claimants could be satisfied. As M. Pomerance describes:

"The Assembly's insistence that the plebiscite unit embrace the entire former colonial territory and its willingness at other times to allow the conduct of separate plebiscites within a territory's component parts have had significant implications for the respective rights of rival claimants. As a result of dividing British Cameroons into two plebiscite units, the northern part merged with Nigeria rather than with Cameroon." {1124}
[Emphasis added.]

Despite this array of arguments of a legal, democratic and legitimate nature in favour of Aboriginal referendums, Bloc Qu?b?cois leader Lucien Bouchard applies a double standard. On the one hand, Bouchard and other separatists believe that the territorial integrity of Canada can be undermined by simply holding a referendum in Québec and then unilaterally forming a new state. On the other hand, he invokes the "territorial integrity" of Québec to argue that an Inuit referendum in Québec cannot have any weight in determining the future of Inuit or their vast territory in northern Québec:

"Il y a un ?tat unitaire au Québec, c'est l'?tat du Québec. Le r?f?rendum portera sur l'avenir de l'ensemble de l'?tat du Québec. Nous considerons que le territoire du Québec est characteris? par son int?grit? qui en fait un seul ?tat. Il y a un seul r?f?rendum qui fera autorit?, c'est celui de l'ensemble de la population..." {1125}
[Emphasis added.]

A. Dubuc criticizes this position of Bouchard in the following terms:

"Pourquoi ce deux poids deux mesures?
...
Le d?bat r?f?rendaire, rappelons-le, est possible parce que le reste du Canada se comporte de fa?on civilis?e face ? la d?marche souverainiste en faisant preuve de fair-play et de sens d?mocratique. Au nom de ce m?me fair-play, il serait ?l?mentaire que les leaders souverainistes, qu'ils soient d'accord ou non avec les autochtones, manifestent un minimum de respect ? [ces] groupes..." {1126}

In contrast to the undemocratic positions of Premier Parizeau and Lucien Bouchard on the holding of Aboriginal referendums, it is worth noting the comments of the pro-independence editor of Le Devoir, L. Bissonnette. Bissonnette concedes that it is the "most obvious right" of Aboriginal peoples in Québec to hold a separate referendum, {1127} even if she views such action as a major "provocation". {1128}

In the current Québec/Canada/Aboriginal context, it may also be useful to reflect on the following comment by C. Tomuschat of the lawfulness of political opposition in a truly democratic society:

"Lawfulness of political opposition is a distinctive criterion of every truly democratic society, one which permits competition between all of its societal groups and refrains to the greatest extent possible from imposing on its members values and principles that may not be challenged and are surrounded by a protective wall of sanctity." {1129}
[Emphasis added.]

It important to emphasize that the holding of a referendum by Québec does not per se make its process democratic. As M. Suksi concludes:

"Whether political systems equipped with the institution of the referendum are democratic' or not is a question that can only receive an ambiguous answer: some of them are, some of them are not...The referendum is not a precondition for democracy', but a properly designed and utilized referendum institution can enhance the legitimacy of a constitutional and political system and contribute to democratic governance." {1130} [Emphasis added.]

Based on the above, the PQ government should totally reverse its position on Aboriginal referendums consistent with law, democracy and justice. As K. Valaskakis and A. Fournier state, Aboriginal peoples have the right to their own independence and request to remain a part of Canada:

"Les fronti?res actuelles du Québec ne sont pas coul?es dans le b?ton car les peuples autochtones peuvent, eux aussi, invoquer leur propre ind?pendance en se basant sur les m?mes arguments que le Québec (r?f?rendum populaire, contr?le d'un territoire, appel ? la sympathie internationale, etc.). Ils peuvent aussi demander un rattachement au Canada." {1131} [Emphasis added.]

["The present boundaries of Québec are not cast in concrete because the Aboriginal peoples can also invoke their own independence using the same arguments as Québec (popular referendum, control of territory, appeal to international sympathy, etc.). They can also request to remain a part of Canada." [Unofficial English translation, emphasis added.]]

In addition, it is worth noting that Quebecers take a more democratic view of the rights of Aboriginal peoples than does the PQ government. In regard to a February 1995 poll by CROP-Environics, it was reported in The Gazette that "54 per cent of Quebecers believe Quebec's Indians should be allowed to attach their ancestral lands to Canada, even if Quebec separates." {1132} This suggests that a majority of the Québec population not only supports the right of Aboriginal peoples in Québec to hold their own referendums to determine their future, but that they have a right to choose to remain with Canada.

Any referendums held by Aboriginal peoples, in the context of Québec secession, necessarily qualify the results of the 1995 Québec referendum. While the results of the Québec referendum might indicate the extent of popular will among Quebecers, it would be a travesty to suggest that these same results could bind Aboriginal peoples in Québec in any way. Should the results of Aboriginal referendums indicate a free and clear choice to remain in Canada, an affirmative vote in the Québec referendum cannot be used to forcibly include such Aboriginal peoples (and their territories and resources) in an independent Québec.

The issue of Aboriginal referendums is not the only factor detracting from the legitimacy and democracy of the Québec referendum. Other aspects are briefly examined below.

9.3 Inadequacies of a Simple Majority Vote [Top]

"I'm certainly going to respect what [former Premier Ren?] L?vesque said. Democracy begins with being honest with citizens and asking a clear question. I will not break up the country with a one-vote [majority for the separatists]. It's not real democracy." {1133}

Prime Minister Jean Chr?tien, 1995

"How can you break up a country on a judicial recount?... Isn't it a little bizarre to have a judicial recount to find out if you break up a country or not?" {1134}

Québec Opposition Party Leader Daniel Johnson, 1995

In an interview on the public television show, Mac Neil/Lehrer Newshour, Premier Parizeau was asked whether a vote of 50% plus one would be sufficient to settle the issue of Québec secession:

"Mr. Krause [Interviewer]: Do you think that 50 percent plus one vote really is enough -- it's a very contentious issue, as you know -- and it's only a very slight majority, one way or another, is that really going to settle this issue?

Jacques Parizeau: This is a very democratic people, very democratic. Remember, our parliament, we, last year, celebrated the 200th year of that parliament in Quebec. Oh, yes. You know the rules of the game are well understood. Look at the margins by which European countries decide these days whether they're entering the European Union or not, 1 percent, .1 of 1 percent in certain...cases as to whether they'll go in or what. Now that's how democracy functions." {1135} [Emphasis added.]

Similarly, Bloc Qu?b?cois leader Lucien Bouchard equates "democracy" with a simple majority vote by Quebecers in a referendum:

"If we succeed to achieve a majority of Quebecers supporting the sovereignty movement of Quebec, then I think that those Quebecers who did not support the project will have to because this is the name of the game. We live in a democracy." {1136}

However, true democracy is not always achieved by a simple majority vote. Votes of 50% plus one are used in elections and other situations, where votes are held every few years and the decisions taken are not irreversible. {1137} If a simple majority vote were always definitive, a pan-Canadian referendum could determine the future of Quebecers. {1138} As an alternative to such a majoritarian type of democracy, it is said that "consociational democracy" {1139} is "more suitable for good government in plural societies divided by ethnic, linguistic, religious or cultural differences, where the groups are clearly identifiable." {1140} Simple majoritarian democracy can in some circumstances be oppressive and illegitimate. As P. Allott cautions:

"Democracy is not some natural equilibrium state of societies, the point of balance between tyranny and anarchy. The outward forms of democracy (parliament, elections) are compatible with structural corruption, the oppression of minorities, internal and external lawlessness. Democracy is not inherently stable, let alone progressive."{1141}

Similarly, J. Salmon adds:

"The concepts of democracy and representation are therefore to be handled with care. It seems indispensable to advocate a concept of democracy suffiently wide to encompass the diversity of forms of representation rooted in the culture and the history of peoples, provided their genuine will is ascertained." {1142} [Emphasis added.]

H. Hannum cautions that the one-person, one-vote notion of democracy was not intended to respond to competing demands for self-determination:

"Among the pillars of human rights norms...the demands of democracy are generally seen to be fulfilled in a democratic system which ensures one- person, one-vote. However,...these human rights norms were not intended to respond to demands for self-determination that include an ethnic, linguistic, or similar component and arise within an existing state." {1143} [Emphasis added.]

Under the present circumstances, Mr. Parizeau's claim of 50 percent plus one as democratic can hardly be said to be representative of the "genuine will" of the various peoples concerned. The PQ leader's claim is hardly convincing for a host of other reasons as well. First, an affirmative vote alone would not meet the requirements under the Canadian Constitution to effect such a radical change as secession. As P. Monahan concludes:

"Even if a majority of Quebecers support sovereignty in a referendum, Quebec secession would still require a formal constitutional amendment...[which would entail] the consent of the federal government, the provinces, and the aboriginal peoples in Quebec.

The alternative to an amendment permitting Quebec to secede is to jump outside the existing Constitution and unilaterally declare its sovereignty from Canada. Yet..., a Quebec UDI would produce disastrous economic consequences for all Canadians, including Quebecers." {1144}

Second, the suggestion that there is an established precedent from European countries joining the European Community is not an appropriate comparison. The decision to secede from an independent state is markedly different from a vote to become a member of a supranational body for certain defined purposes. Further, unilateral secession not only entails more far-reaching consequences, but also includes a notion of finality that would be most difficult to reverse. {1145} As R. Young cautions:

"...it is inconceivable that Quebec and Canada would reunite. The process of peaceful secession has a momentum that has never been reversed and that will not be reversed in this case." {1146}

Third, as already indicated in this Study, European countries that have achieved independence from an existing federation did so based on factors clearly distinguishable from, and far more compelling than, those in Québec. {1147} For example, in deference to the principle of territorial integrity, the international community and the United Nations appeared to require the consent of the Soviet Union before recognizing the independence of the Baltic states. {1148} Moreover, it is also worth noting that the registered affirmative votes in two of the republics of former Yugoslavia exceeded eighty or ninety percent. {1149} Similarly, high support was registered in the Ukraine vote on independence in 1991, {1150} the Baltic states in 1991, {1151} and in the case of Norway in 1905. {1152} As N. Finkelstein, G. Vegh & C. Joly indicate:

"It is not useful to speculate on a magic number which must be achieved in a referendum to satisfy the subjective criteria of the unequivocal expression of a will to live separate and apart from Canada. However, in the example of the Baltic and Yugoslavian states..., the level of support for unqualified independence was between 74-94%. Based on the precedents, a simple majority would be insufficient to support this claim." {1153}
[Emphasis added.]

Also, K. Valaskakis and A. Fournier provide:

"Si le Québec d?cide de d?clarer unilat?ralement l'ind?pendance apr?s un r?f?rendum o? le Québec serait presque coup? en deux (51% pour, 49% contre), il est peu probable que les pays les plus importants de la communaut? internationale acceptent de reconna?tre un Québec ind?pendant." {1154}

Fourth, in the absence of other compelling factors (such as repeated deprivation of human rights and other extreme circumstances {1155}), a referendum vote is simply one of a number of factors that might serve to establish legitimacy. {1156} As J.-P. Derriennic (Universit? Laval) concludes, Québec cannot make a case for compelling circumstances justifying secession. Therefore, a secession on the basis of a simple majority vote in Québec of 52% would be unprecedented, and not a normal application of the rules in terms of either democracy or international law:

"Les deux premi?res conditions, in?galit?s juridiques et ins?curit?, sont absentes dans le cas du Québec. La troisi?me, un vote d'autod?termination qui donnerait un r?sultat presque unanime, est hors de question. En cons?quence, si le Québec se s?pare du Canada ? la suite d'un simple r?f?rendum avec une simple majorit? de 52%, ce sera un ?v?nement unique et sans pr?c?dent, et non l'application normale d'une r?gle pouvant ?tre deduite des principes de la d?mocratie et de ceux du droit international, comme voudraient le faire croire les dirigeants ind?pendantistes." {1157}
[Emphasis added.]

In another article, Derriennic illustrates the grave inadequacies of a simple majority vote in the 1995 Québec referendum with the following scenario:

"Imaginons un scenario qui n'est tr?s probable ni impossible. Pour des raisons multiples...le r?f?rendum donnerait ce type de r?sultat: 35% d'abstentions, 34% de OUI et 31% de NON, en pourcentages des ?lecteurs inscrits...Les difficult?s de l'entreprise appara?traient alors et les sondages, dans trois mois, nous diraient que 60% des Qu?b?cois ne veulent pas l'ind?pendance. Pense-t-on s?rieusement que le devoir d?mocratique de M. Chr?tien serait de les pousser hors du Canada contre leur volont??" {1158}

["Imagine a scenario that is neither very probable nor impossible. For a number of reasons...the referendum would produce this type of result: 35% abstentions, 34% YES and 31% NO, in terms of percentages of registered voters...The difficulties of the venture would then appear and the polls, within three months, would tell us that 60% of Quebecers do not want independence. Do you seriously think that the democratic duty of Mr. Chr?tien would be to push them out of Canada against their will?" [Unofficial English translation.]

Also, as G. Binder points out, even with a strong separatist vote, that alone may not justify secession:

"I agree that the separatist preferences of most of a territory's residents are not by themselves enough to justify independence. I agree that self- determination can sometimes be secured by privileges short of statehood." {1159} [Emphasis added.]

Further, as S. Dion (Universit? de Montr?al) underlines, there may be "clashes of legitimacies" that must be taken into account:

"[Une s?paration d?cr?t?e unilateralement] provoquerait des heurts de l?gitimit?s aux cons?quences impr?visibles. ? ceux qui diront que la majorit? d'un peuple a le droit de faire s?cession, d'autres r?pliqueront que rien ne permet de se r?server pour soi le titre de peuple ou de nation, que si le Canada est partageable le Québec l'est aussi, que si une minorit? canadienne a le droit de s'extraire du Canada, alors une minorit? qu?b?coise a le droit de se soustraire ? une s?cession dont elle ne veut pas." {1160}
[Emphasis added.]

In other words, arguments of legitimacy by Quebecers are far from absolute. The PQ government faces competing legitimacies (as well as legal and constitutional arguments) from Aboriginal peoples and others that a Québec referendum simply cannot ignore. As M.E. Turpel comments:

"...if a vote is registered in favour of sovereignty, it could legitimize the appropriation of aboriginal territories and the assumption of authority over them...[new para.]Is a simple 50-plus-1 majority enough in these circumstances? If it was, this could mean that aboriginal peoples' self- determination rights would be overridden, as aboriginal peoples may simply be outvoted by larger populations in non-aboriginal regions of Québec. This kind of referendum could not be upheld internationally as supporting accession to sovereignty because of its implications for aboriginal peoples.

Referendums are numbers games and aboriginal peoples would be set up for exclusion unless double majorities or separate referendums are employed. Aboriginal peoples will have to insist on double majorities, or independent (traditional) means for expressing their views on accession to full sovereignty. They cannot be lumped into a general referendum if the result is to be accepted for any purposes as a legitimate mandate for statehood." {1161} [Emphasis added.]

Similarly, in regard to the 1898 and 1912 territories in northern Québec, N. Finkelstein, G. Vegh & C. Joly indicate:

"That territory is inhabited primarily by native people and...natives may have an equally valid claim to self-determination as francophones in portions of Québec where they presently predominate. Scholars have suggested that a methond of settling border disputes in the context of self- determination is a series of plebiscites to determine the territorial wishes of the affected peoples." {1162} [Emphasis added.]

Fifth, there are ample precedents for requiring substantially more than a simple majority vote if the latter would be unjust, undemocratic or impractical. For example, amendments to the Canadian Constitution require, as a general rule, approval of the federal Parliament along with two-thirds of the provincial legislatures. In other cases, where national institutions may be affected in a critical manner, unanimity is needed. {1163} In addition, issues of particular importance in corporations can easily call for a two-thirds or three-quarters majority vote. {1164} As W. Johnson describes:

"...to dissolve a fish and game club requires a two-thirds vote, according to...section [356] of the Quebec Civil Code.

But to dissolve the country of Canada, according to the Parti Qu?b?cois, the Bloc Qu?b?cois and the Reform Party of Canada a mere 50 per cent plus one will be enough.

And they call that democracy.

What has happened to the judgment of supposedly intelligent people in
this country?" {1165}

Also N. Auf der Maur comments:

"I just love those lectures on democracy the P?quistes are always giving us.

Fifty per cent plus one. Democracy. Majority rule...

Never mind the fact that if you joined the Kiwanis Club, the Royal Canadian Legion or the Montreal Press Club, you'd have to win a two-thirds majority to change the constitution. Or if you wanted to change the Canadian constitution right now you'd have to get seven out of 10 provinces with at least 50 per cent of the population or some other complicated formula depending on the degree of change." {1166} [Emphasis added.]

As P. Hogg points out, past history demonstrates that a majority vote alone has not been viewed as justifying secession from a federal state:

"...there is no doubt that the secessionist movements in Nova Scotia {1167} and Western Australia {1168} enjoyed the support of a majority of the people in those regions; yet this fact was not regarded as sufficient to justify federal cooperation or even acquiescence."{1169}

Even Québec jurists, who are in favour of Québec secession, have indicated that "an incontestable consensus within the Québec population" would be required. In this regard, J. Woehrling provides:

"...il faudrait que se d?gage un consensus incontestable au sein de la population qu?b?coise en faveur d'une option politique clairement d?finie pour provoquer un changement d'opinion au Canada anglais...? d?faut de convaincre les Canadiens anglais de changer d'attitude, l'existence d'un tel consensus populaire au Québec donnerait aux autorit?s qu?b?coises le mandat d?mocratique n?cessaire pour op?rer des changements ne respectant pas la l?galit? constitutionnelle interne..." {1170} [Emphasis added.]

Further, Woehrling states that, if there is a process to convince the rest of Canada to depart from existing constitutional requirements and negotiate "en bloc" with Québec, it would be a clear unilateral declaration of independence, "supported massively by the Québec population". {1171} Such language does not suggest that a simple majority vote would suffice. {1172} More recently, Woehrling indicates that a "clear and strong mandate from the population" {1173} would be required and reiterates that, aside from the criterion of effectiveness, the will of the Québec people to secede must be "incontestable and democratically expressed". {1174}

J. Brossard indicates that the majority generally required is an "absolute majority" {1175} (i.e. a majority of all registered voters) and not a simple majority. In this regard, Brossard adds:

"C'est sur le plan politique, surtout, qu'une majorit? trop restreinte pourrait para?tre insuffisante and non concluante." {1176} [Emphasis added.]

In addition, D. Turp (Universit? de Montr?al), Bloc qu?b?cois legal advisor, has stated that a referendum vote must not leave any doubt as to the will of the people:

"...l'authenticit? d'une revendication nationale authentique devrait ?tre v?rifi?e par voie r?f?rendaire de fa?on ? ce que la communaut? internationale ne puisse douter de la volont? d'affirmation et d'?mancipation des peuples b?n?ficiaires d'un droit de s?cession." {1177} [Emphasis added.]

The possibility of confusion among voters is another reason why a 50% plus one vote is not a reliable indicator of the "will of a people" in the context of secession. In regard to the 1995 Québec referendum, a poll {1178} in September 1995 indicated that many Quebecers do not understand the referendum question or the results of a YES vote. As an editorial in The Gazette highlighted:

"...the poll shows that among Yes voters, 49 per cent believe, incorrectly, that sovereignty would be declared only after the rest of Canada had agreed to a partnership deal with Quebec. Premier Parizeau's Bill says nothing of the sort...

But the confusion goes even deeper. The poll shows that 28 per cent of Yes voters think that a sovereign Quebec would still be a Canadian province. That is not only baffling, it's very troubling." {1179} [Emphasis added.]

Also, G. Bertrand, a Québec city lawyer formerly supportive of Québec independence and a co-founder of the Parti Qu?b?cois, recently highlighted the illegality of a unilateral declaration of independence by Québec under the Canadian Constitution. In this context, Bertrand characterizes the PQ process as an "aventure suicidaire" {1180} and foresees an "ungovernable" situation in Québec if the Yes side wins a "feeble majority" in the Québec referendum. As M. Venne reports:

"[M. Bertrand] pr?voit une situation ingouvernable' au Québec, si un OUI est obtenu par une faible majorit?. Il suppose que des f?d?ralistes pourraient contester le r?sultat devant les tribunaux et obtenir gain de cause, et continuer de payer leurs imp?ts ? Ottawa, tandis que les souverainistes les paieraient ? Québec.

M. Bertrand se dit toujours souverainiste, mais pas ? n'importe quel prix'. Il rappele que le Québec n'est pas le tiers monde'." {1181} [Emphasis added.]

Instead, Bertrand suggests that Québec sovereignists should be seeking a majority of 60 to 65% from Quebecers. {1182} Alternatively, Bertrand calls for a "double majority" {1183} that would include a majority vote in at least 85 of 125 regions in the province. {1184}

Further, the B?langer-Campeau Commission in 1991 referred to an "unequivocal, clearly expressed will among Quebecers", {1185} but did not elaborate on what that would mean. Surely, a simple majority affirmative vote would hardly qualify as a sufficient expression of clear, unequivocal will on the part of the Québec population to secede.

N. Dupl? (Universit? Laval) has indicated that, aside from proving effective control, Québec would have to demonstrate "a clear, manifest and unquestionable consensus of the Quebec population". {1186} The law professor cautioned that all would depend on prevailing attitudes following a referendum. In the absence of conflict, a simple majority could prove to be sufficient. However, even with a 60% affirmative vote, Dupl? warns that things will not go well if 40% of the voters are actively opposed to Québec secession. {1187}

Also, in a recent editorial in the Globe and Mail, it is said that a vote of 50% plus one in the Québec referendum would not be decisive:

"If they vote Yes this year, Quebecers will be voting to suspend the basic law under which they have lived for more than a century, to break up an admirable country in two and to rob the minority who vote No of their nationality. Surely that requires more than 50 per cent plus one. Surely it would require a matching referendum in the rest of Canada." {1188}

Similarly, D. Francis, editor of the Financial Post, comments:

"If there is a YES referendum outcome by a bare majority, that would mean 49% of Quebecers would still want to remain Canadian. Even a 60% YES vote would mean that about 2.8 million Quebecers would be opposed to secession.

That would be a mandate large enough to allow Ottawa to simply refuse to
negotiate." {1189}

M. Lebel (Universit? du Québec ? Montr?al) says that the adequacy of a simple majority vote on Québec secession is illusory, such acts being dangerous for the future of democracy. {1190} In this regard, Lebel adds:

"...il tombe sous le sens commun qu'il faut un appui populaire beaucoup plus massif, si on souhaite une d?cision irr?versible et rallier la minorit? ? la majorit?." {1191}
[Emphasis added.]

Generally, in regard to the level of popular will to be demonstrated in a referendum, A. Margalit and J. Raz call for an "overwhelming majority" and not a simple majority vote:

"The right [to external self-determination] belongs to the group. But how should it be exercised? Not necessarily by a simple majority vote. Given the long-term and irreversible nature of the decision..., the wish for a state must be shared by an overwhelming majority, reflecting deep-seated beliefs and feelings of an enduring nature, and not mere temporary popularity." {1193} [Emphasis added.]

Also M. Eisner highlights the inadequacy of a simple majority vote as follows:

"The...question about the plebiscite that must be addressed is what percentage of support should be required to sustain a proposal for autonomy or independence. A simple majority vote in the plebiscite should not be enough to confer independence on the disputed territory. Creating a new state, with all the complexities and sensitivities of redrawing boundaries, is an extremely significant change. It would be unduly disruptive of the international order to legitimize independence where only a bare majority supports it. A requirement of a supermajority would avoid the call to redraw boundaries in response to mere political mood swings within the disputed territory." {1194}
[Emphasis added.]

H. Hannum calls for a "substantial majority" and emphasizes that there should be no double standard on voting on territorial integrity and secession questions:

"Support for secession should be grounded in the desires of a substantial majority of the population, and the opposition of a significant proportion of the population to independence should influence the international response to independence claims. If adherence to the principle of one-person, one- vote is deemed insufficient to validate a central government's maintenance of territorial integrity, then neither should merely winning a plebiscite confer legitimacy on the numerical majority of a seceding entity." {1195} [Emphasis added.]

Aside from the categorical position being taken by the PQ government at the present time, there appears to be no set principle or rule that a simple majority vote is an adequate expression of popular consensus. In addition, a recent CROP poll indicates that even sovereignists in Québec feel that a simple majority vote is not adequate to begin the separation process:

"Of those who support independence, 61 per cent said it should require more than a simple majority...
...
Nearly two-thirds ? 65 percent ? of the 1,004 people surveyed...- separatists and federalists, anglophones and francophones ? said more than a simple majority should be required." {1196}

Yet the PQ government shows no inclination to shape its "legitimacy" and "democracy" arguments to reflect the views of the Québec population. This is especially disturbing, since the PQ government is acutely aware of the irreversible nature of secession. {1197} For example, it was recently reported that Premier Jacques Parizeau told a number of European ambassadors at a private meeting that a Yes vote in a referendum would make Quebecers "like lobsters thrown in boiling water". {1198} While there is some controversy as to whether Parizeau uttered this exact phrase, his comparison of Quebecers to "lobsters" and the metaphor of irreversibility are believed to be accurate. {1199}

Regardless of what level of vote (higher than a simple majority) might be deemed to be legitimate or democratic in the current context, this does not change the reality that an affirmative vote can only serve as one factor towards legitimacy. Such a vote in itself cannot legitimize a unilateral declaration of independence by Québec. Equally important, legitimacy and democracy could not possibly be claimed by Québec if, in the process, the legal rights of Aboriginal peoples are categorically denied as well as their own arguments of legitimacy.

9.3.1 July 1948 Newfoundland referendum ? a precedent for Québec secession? [Top]

It has been suggested by PQ government leaders that, since Newfoundland entered into the Canadian union in 1949 after a slim majority vote in a popular referendum, the same norm of 50% plus one should apply to Québec in the referendum on secession to be held in 1995. {1200} However, any suggestion that the referendum in Newfoundland can serve as a valid precedent for Québec secession is highly questionable and, therefore, is further examined under this sub-heading.

Prior to Newfoundland joining the Canadian federation in 1949, it had the status of a colony and was subject to British control. {1201} Further, as P. Hogg describes, the powers of the Newfoundland legislature were suspended in 1933, when the government found itself unable to pay its debts:

"In 1933, the Newfoundland Legislature formally requested the United Kingdom to suspend Newfoundland's constitution until Newfoundland became self-supporting again, and to replace the Legislature and other institutions of responsible government with a Commission of Government'...The Commission of Government exercised all legislative and executive power until 1949." {1202}

In 1949, the British North America Act, 1949 {1203} was adopted by the Parliament of the United Kingdom to effect Newfoundland's union with Canada. Prior to this action, there had been two referendums {1204} held in Newfoundland on this question. The second one on July 22, 1948 indicated that a slight majority of the people favoured joining Canada. {1205} It has been stated that the procedure of adopting an Imperial law was "a breach of convention by the United Kingdom, because union with Canada had never been requested by the Newfoundland Legislature". {1206} What should have been done was a restoration of the Legislature's powers so as to enable it to take the necessary steps towards entering into the Canadian union (if it so desired), in accordance with the usual procedure under s. 146 {1207} of the Constitution Act, 1867.

Based on the above, it would appear that the Newfoundland situation was hardly typical. The overall process leading to the terms of union with Canada was somewhat exceptional if not irregular. The factual and constitutional issues are so different in the case of Newfoundland as compared to Québec that it is difficult to see how a simple majority in the Newfoundland referendum is in any way a precedent in regard to Québec secession. Further, it was not the Newfoundland referendum in July 1948 but the valid exercise of legislative authority of the United Kingdom Parliament that led to Newfoundland joining Canada. {1208}

In other words, there are a number of factors that distinguish the Newfoundland situation from that pertaining to Québec secession. These include:

i) Agreement between Canada and the United Kingdom was a determining factor. As the preamble of the Terms of Union of Newfoundland with Canada indicate, authorized representatives of Canada and Newfoundland agreed on its terms, prior to the adoption of the Newfoundland Act by the U.K. Parliament. Had agreement not been reached between Canada and Newfoundland, it cannot be said that the U.K. Parliament would have acted simply based on the results of the July 1948 referendum. In fact, the U.K. Parliament had refused to act on a petition in 1868 from Nova Scotia where two-thirds of the voters had expressed the will to secede from Canada. {1209}

Consequently, if there are any precedents to be drawn from the situation in Newfoundland in 1948 or in Nova Scotia in 1868, it is that the agreement of Canada was a prerequisite and critical factor.

ii) Joining Canada different from secession. Québec entered into the Canadian union in 1867 without holding any referendum. However, this does not mean that there is a precedent for simply seceding from Canada in the same manner. Similarly, the fact that one of the steps taken by Newfoundland was to hold a popular referendum in regard to becoming part of Canada does not mean that Newfoundland or Québec can secede from Canada based on a simple majority vote.

Further, the act of a colony entering into a union with Canada does not adversely affect the territorial integrity of the parent state Rather the addition of new territory might very likely strengthen the existing state. On the other hand, secession by a constituent member of a federation has direct impacts on the territorial integrity and national unity of the country as a whole.

iii) New constitutional and international norms have developed. It would be inappropriate to simply refer to what was done in the case of Newfoundland joining Canada in 1949 or of Québec in 1867. Should Quebecers seek to secede from Canada, there now exist new constitutional and international norms that would have to be considered.

For example, prior to 1982, the federal Parliament alone could create new provinces. {1210} As a result, the provinces were not even consulted when Newfoundland joined confederation in 1949. {1211} In addition, prior to 1982, for a province to leave Canada would have required an Address by the Canadian Parliament to the Parliament at Westminster. {1212}

Since 1982, not only the creation of new provinces, but also secession by a province could only be accomplished in a legally valid manner through the appropriate constitutional amending formula. {1213} According to Canada's Constitution, secession would now mean obtaining the consent of Canada and at least seven provincial legislatures, or possibly all of them, as well as the consent of the Aboriginal peoples concerned. {1214}

At the international level, norms pertaining to the right to self-determination and to secession have emerged that either did not exist or were not firmly established in 1949. Relevant international standards or practices cannot be ignored by Québec in invoking a simple majority vote.

For example, it is clear that under international law, Quebecers cannot rely on the right to self-determination in order to claim a right to secede. {1215} Further, there is no rule or practice in international law that suggests that a simple majority vote in a provincial referendum establishes sufficient legitimacy for a province or group to secede. {1216} In fact, D. Cliche, the special advisor to Premier Parizeau on Aboriginal affairs, has recently made it clear that a secessionist Québec would not allow the James Bay Crees to choose to remain in Canada or secede from any new state. {1217}

iv) Unlike Newfoundland in 1948, Québec faces competing self-determination claims. In 1948, it is likely that Aboriginal peoples in Newfoundland and Labrador were not aware or sufficiently informed of events affecting the colony. Therefore, for this and possibly other reasons, they did not assert a right to determine their own future at the time Newfoundland decided to join Canada.

In contrast, the situation that exists in Québec today is totally different. In the context of Québec secession, the James Bay Crees and other Aboriginal peoples in Québec have made it clear that they will exercise their own rights to self-determination. {1218} In particular, as distinct peoples, {1219} they will determine their own future and that of their territories. Clearly, the situation of Newfoundland in 1948 would give the separatist PQ government no basis whatsoever for ignoring or denying the competing rights and legitimacies that exist in favour of Aboriginal peoples in Québec.

v) Selective invoking of simple majority vote from Canada-Newfoundland process inappropriate. As described in this Study, the PQ government is taking the position that any legal or constitutional requirements in Canada are irrelevant to Québec's "democratic" process towards independence. Therefore, it makes little sense that Québec would select one aspect of the process that led to Newfoundland joining the Canadian federation in 1949 and claim that this aspect alone establishes a precedent for Québec secession.

In conclusion, there is no justifiable basis for Québec separatists to maintain that the July 1948 referendum in Newfoundland constitutes an applicable precedent for Québec secession based on a simple majority vote in the province.

9.4 Absence of a Proposed Constitution and Other Negotiated
Arrangements for a New Québec State [Top]

Two political scientists, J. Daigneault and C. Galipeau, have brought to the attention of Quebecers that a central democratic principle is being violated by Premier Parizeau's referendum process. This principle is that Quebecers should give their approval to each of the steps which leads to a change in the political status of Québec. {1220} Daigneault & Galipeau highlight the inadequacies of the referendum process being implemented by Parizeau by comparing it to that proposed by former Premier Ren? L?vesque:

"...la d?marche r?f?rendaire de M. L?vesque contenait deux r?ferendums: l'un demandant le mandat de n?gocier une entente de souverainet?- association; l'autre assurant ? la population un droit de ratification avant tout changement de statut politique r?sultant de ces n?gotiations. La d?marche r?f?rendaire de M. L?vesque garantissait aux Qu?b?cois la ma?trise de leur avenir politique. ? aucun moment M. L?vesque n'a eu, contrairement ? M. Parizeau, l'intention de demander un ch?que en blanc aux Qu?b?cois." {1221} [Emphasis added.]

According to J.-Y. Morin, a draft of a new constitution for an independent Québec should be submitted for popular approval before asking Quebecers to vote on independence:

"Si le choix des Qu?b?cois doit s'effectuer en toute connaissance de cause, il est nettement pr?f?rable qu'on leur pr?sente le projet d'avenir le plus clair possible avant qu'ils ne tranchent la question de la souverainet?." {1222} [Emphasis added.]

The principle of people knowing and approving in advance fundamental arrangements to be implemented in the future is critical. {1223} This is important not only in regard to a constitution for a secessionist Québec, but also concerning Aboriginal peoples and Québec's possible association with Canada. In regard to Québec's future association with Canada and the undefined mandate and powers being sought by Premier Parizeau through the referendum, Daigneault & Galipeau provide:

"Il est clair que la d?marche de M. Parizeau n'offre aucune garantie aux Qu?b?cois quant ? la ma?trise de leur statut politique. Cet enjeu est important. M. Parizeau propose une d?marche o? lui seul dictera la version finale de la constitution qu?b?coise, d?terminera les ?l?ments d'une union ?conomique avec le reste du pays et, de surcro?t, s'accordera des pouvoirs extraordinaires pour r?aliser son projet souverainiste." {1224}

In addition, A. de Mestral (McGill University) highlights the undemocratic nature of Premier Parizeau's original draft Bill on sovereignty as follows (but his comments would apply as well to the present draft Act respecting the future of Québec):

"En violation des r?gles les plus ?l?mentaires de la d?mocratie, l'Avant projet de loi sur la souverainet? du Québec n'offre aucune garantie quant ? la conclusion d'une union ?conomique avec le Canada avant la d?claration de l'ind?pendance du Québec. Il n'offre pas aux citoyens la possibilit? de porter un jugement sur l'association ?conomique, qui constitue pourtant, aux yeux de beaucoup d'entre eux, la principale garantie de viabilit? d'un Québec ind?pendant; cette association devrait ?tre n?goci?e avant la proclamation de la souverainet?." {1225} [Emphasis added.]

The author expresses similar concerns that the citizens in Québec will not be invited to pronounce on a new Constitution of Québec prior to creating a new state. {1226}

J. Woehrling has also raised the undemocratic nature of asking Québec voters to approve the PQ government's bill on Québec independence without knowing the contents of a new Québec constitution or the result of negotiations with the rest of Canada. {1227} In this regard, Woehrling cautions against providing the government with a "blank cheque":

"Une telle consultation populaire, de pr?f?rence par voie de r?f?rendum, nous semble cependant indispensable pour respecter le principe d?mocratique et pour ?viter que l'approbation, par la population, de la loi sur la souverainet? ne constitue un ch?que en blanc' pour le gouvernement et sa majorit? parlementaire." {1228} [Emphasis added.]

Since there would likely be insufficient time to adopt a definitive new constitution during the period of one year or less before a sovereign Québec state would be declared, Woehrling suggests that at least a provisional constitution be drafted and submitted to electors prior to the referendum on independence. {1229} While provision has now been made in the draft Act respecting the future of Québec for a "Parliament of Québec" to draft an "interim constitution", this interim constitution will not be submitted to the electors either prior or subsequent to any accession of Québec to independence. {1230}

Political scientist D. Latouche, who favours Québec independence, also raises concerns about a "blank cheque" being given to the government:

"Ce qui m'?tonne dans les sondages, ce n'est pas tant que des francophones rejettent le projet gouvernemental, mais qu'ils s'en trouve aussi 50% pour avoir ? ce point confiance en Jacques [Parizeau], Lucien [Bouchard] et les autres qu'ils soient pr?ts ? leur signer un ch?que en blanc...Je me demande m?me si le contrat que le gouvernement nous offre passerait le test de la Loi de la protection des consommateurs." {1231}
[Emphasis added.]

B. Legendre expresses similar concerns as follows:

"Si le peuple qu?b?cois doit embarquer dans le train des nationalistes, le moindre que [les s?paratistes] pourraient faire...est de lui r?v?ler sa destination exacte." {1232}

K. Valaskakis expresses the uncertainty that would accompany a Yes vote in the Québec referendum as follows:

"...apr?s un oui', l'incertitude va continuer longtemps et il faudra attendre la r?solution de toutes les questions en suspens (partage de la dette, nouvelles fronti?res, etc.) avant d'y voir clair." {1233}

Based on the above, in the absence of a draft constitution, the different peoples in Québec would have no clear idea of the adequacy of proposed checks and balances; political and other institutions; and status, rights and powers of the peoples and governments involved. {1234} Nor would there be any clarity or certainty of future arrangements with Canada. Even if a person were to be favourably partial to Québec sovereignty, such a situation hardly allows for an informed vote on the far-reaching question of Québec secession.

To agree to secession without knowledge of the details of the future arrangements leaves peoples in Québec with varying degrees of vulnerability and little control over their future, should an affirmative vote take place. To date, it is far from clear that this essential message of the need for prior information as to the fundamental arrangements in an independent Québec, and its consequences, is being seriously taken by the Parti Qu?b?cois leadership. {1235}

Aside from the brief description of a future offer of economic and political union with Canada in the Agreement of June 12, 1995 (among separatist leaders), {1236} few details are known of the PQ government's possible offer to Canada. A recent poll indicates that 75% of Quebecers want the PQ government to make public its offer to Canada prior to the referendum. {1237} However, it appears that Quebecers are being asked to pronounce on Québec's future in the referendum even before the PQ government has fully worked out its own position. {1238}

In addition, the absence of any detailed information makes it extremely difficult for the James Bay Crees and other Aboriginal peoples to assess the impacts on them of any future offer of a Canada- Québec union by the PQ government. However, what appears to be clear is that there is no role contemplated by the PQ government in any of the new proposed Canada-Québec institutions for the Aboriginal peoples concerned.

Footnotes

{1042} Arctic Leaders' Summit, Indigenous Peoples' Right to Determine Their Own Future in the Context of Quebec Secession, Statement of Support, January 27, 1995, Tromso, Norway, para. 5 (on file with the Grand Council of the Crees).

{1043} See discussion under sub-heading 3.4 supra.

{1044} T. Franck, The Power of Legitimacy Among Nations (New York: Oxford University Press, 1990), at 25. In T. Franck, The Emerging Right to Democratic Governance, (1992) 86 Am. J. Int'l L. 46 at 50, "legitimacy" is described as "the quality of a rule, or a system of rules, or a process for making or interpreting rules that pulls both the rule makers and those addressed by the rules towards voluntary compliance."

{1045} B. Kingsbury, Claims by Non-State Groups in International Law, (1992) 25 Cornell Int'l L.J. 481, at 483. At 513, the author concludes: "In so far as legitimacy is the compliance-pull felt by established states or entities emerging in accordance with well- established legal standards, legitimacy is likely to attach to principles of order, including principles for managed transition where necessary. In so far as legitimacy is influenced by the perceptions of non-state groups with revisionist demands, it will depend both on the actual efficacy of the rules and on the extent to which they are consistent with claims of substantive and procedural justice." [Emphasis added.]

{1046} M. Lebel, "La l?gitimit? du projet souverainiste ne peut se fonder sur le droit", La Presse, August 30, 1995, at A7. Unofficial English translation: "It must be admitted that the legitimacy of the sovereignist project of the Québec government does not have a legal base, whether in internal law or international law. Its legitimacy can only raise therefore political principles and in particular the principle of democracy." Lebel adds that there seems to be a certain consensus among the "political class" in Canada that the issue should be resolved in terms of principles of legitimacy and democracy rather than law. However, see sub-heading 3.1.1 supra, where it is concluded that no "constitutional convention" has been established in Canada that would allow Québec to unilaterally secede from Canada.

{1047} R. Iglar, The Constitutional Crisis in Yugoslavia and the International Law of Self-Determination: Slovenia's and Croatia's Right to Secede, note 97, 1662, supra, at 229.

{1048} L. Bucheit, Secession [:] The Legitimacy of Self-Determination, note 29, 1662, supra, at 228.

{1049} K. Valaskakis & A. Fournier, Le pi?ge de l'ind?pendance [:] Le Québec sera-t-il affaibli par la souverainet??, note 299, 1662, supra, at 161. Unofficial English translation: "Above all, the rest of Canada has an immense interest in this debate: a prospective' look to the future permits us to foresee a serious economic and financial crisis for the rest of Canada (as for Québec elsewhere), if Québec began to separate. One would witness, moreover, very certainly a strengthening of the forces of dismemberment in the rest of Canada and one could witness in the short or medium term a breaking up of the rest of Canada into diverse entities and even a joining of some of these entities with the United States." [Emphasis added.]
The political survival of Canada is also discussed by the authors at 195.

{1050} G. Gauthier, "Ottawa respectera la loi r?f?rendaire, comme en 80'...", La Presse, June 9, 1995, at B1.

{1051} Id.

{1052} See text accompanying and following note 105 supra.

{1053} J. Dion, "Bouchard accuse Chr?tien de bafouer la d?mocratie", Le Devoir, September 21, 1995, at A4. Unofficial English translation: "[T]he Québec people do not have to ask the permission, neither of [Prime Minister Chr?tien] nor of anyone, to decide its own future..."

{1054} M. Coon Come, Submission to the Cree Eeyou Astchee Commission, Speaking Notes, Montreal, Québec, September 21, 1995 (on file with the Grand Council of the Crees), at 6. The Grand Chief was commenting on the above statement of Mr. Bouchard made the day before in the House of Commons.

{1055} Haig v. Canada, [1993] 2 S.C.R. 995 at 1032; 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, at 39. See also J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 100-101; Committee to Examine Matters Relating to the Accession of Québec to Sovereignty, Draft Report, note 8, 1662, supra, at 48, where based on the expert opinion heard, it is said: "Under the existing political system, a referendum cannot be binding, because such a procedure would violate the principle of the sovereignty of Parliament and, of course, affect the office of the Lieutenant Governor." [Emphasis added.]

{1056} Special Joint Committee of the Senate and House of Commons, The Process for Amending the Constitution of Canada (Ottawa: House of Commons, 1991) (Beaudoin-Edwards Report), at 33: "When not entrenched in the Constitution, a constitutional referendum is nothing more than a consultative mechanism." [Emphasis added.]

{1057} P. Hogg, Constitutional Law of Canada, note 245, 1662, supra, vol. 1, at 5-30: "Secession can, of course, be accomplished by amendment of the federal constitution ? in the case of a Canadian province, by amendment of the Constitution of Canada. Such an amendment could not be enacted by the province desiring to secede, under s. 45 of the amending procedure (provincial Legislature alone), because secession would not be simply an amendment of the constitution of the province'." [Emphasis added.]

{1058} Id. at 5-31.

{1059} Id.

{1060} See Bertrand v. A.G. Québec et al., Superior Court, District of Québec, No. 200-05-002117-955, August 10, 1995.

{1061} "Lawyer wins first round in bid to block referendum", The Gazette, Montreal, September 1, 1995, at A11. It is reported that Lesage J. indicated that "the threat that the Quebec government would create for the political institutions of the Canadian federation is a grave and serious question and by its nature, a legal matter with regard to the Canadian federation."

{1062} "Lawyer wins first round in bid to block referendum", The Gazette, Montreal, September 1, 1995, at A11. See also D. Lessard, "Le droit de vote des Qu?b?cois est sacr?, clame Jacques Parizeau", La Presse, September 2, 1995, at A1; K. Yakabuski, " Les Qu?b?cois veulent voter et vont voter'", Le Devoir, September 3, 1995, at A1.

{1063} For example, Aboriginal peoples may question the democratic nature of the rule of law in a state that denies them the right of democratic governance and virtually excludes them from participating in the affairs of the state.

{1064} A. Buchanan, "Quebec, Secession and Aboriginal Territorial Rights" in The Network, No. 3 (March 1992) (Newsletter of the Network on the Constitution), 2 at 4.

{1065} Id.

{1066} T. Franck, The Emerging Right to Democratic Governance, (1992) 86 Am. J. Int'l L. 46 at 52.

{1067} See, for example, An Act respecting the process for determining the political and constitutional future of Québec, S.Q. 1991, c. 34, assented to and given effect on June 20, 1991 by the National Assembly, First Session, 34th Legislature.

Separatists have sometimes argued that the referendum in Québec in 1980 serves as a precedent for the upcoming referendum on Québec secession. However, an affirmative vote in the 1980 referendum would have only given the PQ government at that time a mandate to negotiate sovereignty-association with the rest of Canada. Negotiations with Canada would then have had to take place and a further referendum held to approve or ratify the results. In contrast, an affirmative vote in the upcoming referendum on Québec secession is supposed to give the National Assembly the approval required to unilaterally declare Québec an independent state. For these reasons, it is said that the 1980 referendum constituted an implicit recognition by the Québec government that independence is not decided unilaterally. See J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 100.

{1068} Section 1 of the Act.

{1069} Section 16 of the Act.

{1070} Section 1: "Québec is a sovereign country."; and s. 16: "This Act comes into force one year after its approval by referendum, unless the National Assembly fixes an earlier date." Similarly, see also the current draft Act respecting the future of Québec, s. 1: "The National Assembly is authorized...to proclaim the sovereignty of Québec"; and s. 2: "On the date fixed in the proclamation of the National Assembly,...Québec shall become a sovereign country". See also s. 26 of the present draft Act.

{1071} Section 3: "The Government shall, in accordance with the procedure determined by the National Assembly, see to the drafting of a constitution for Québec and to its adoption." Similarly, see also the current draft Act respecting the future of Québec, s. 6. See also s. 24 of the present draft Act: "The Parliament of Québec may adopt the text of the interim constitution which will be in force from the date on which Québec becomes a sovereign country until the coming into force of the new constitution of Québec."

{1072} Section 4: "Québec shall retain the boundaries it has within the Canadian Confederation at the time section 1 comes into force..." Similarly, see also the current draft Act respecting the future of Québec, s. 10.

{1073} Section 7: "Québec shall assume the obligations and enjoy the rights arising out of the treaties to which Canada is a party and the international conventions to which Canada is a signatory, in accordance with the rules of international law." Similarly, see also the current draft Act respecting the future of Québec, s. 15.

{1074} Section 10: "Laws passed by the Parliament of Canada that apply in Québec at the time section 1 comes into force, and the regulations under such laws, shall remain in force until amended or repealed by the National Assembly." Similarly, see also the current draft Act respecting the future of Québec, s. 18.

{1075} Section 12: "...The Court of Appeal of Québec shall become the court of highest jurisdiction until a Supreme Court is established under the new constitution provided for in section 3." Similarly, see also the current draft Act respecting the future of Québec, s. 22.

{1076} Section 17: "...This Act may not come into force unless a majority of the votes cast by the electors in a referendum held in accordance with the Referendum Act on the following question are cast in the affirmative: "Are you in favour of the Act passed by the National Assembly declaring the sovereignty of Québec? YES or NO".

{1077} 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.

{1078} If the government in Québec is not legally bound by the results of the 1995 Québec referendum, it would be difficult to argue that other provincial governments or the federal government should feel automatically bound by an affirmative vote. In particular, no constitutional convention could be said to have been established to the effect that Québec has any right to unilaterally secede from Canada. For a discussion of the constitutional convention aspect, see sub-heading 3.1.1 supra.

{1079} See Text of the Agreement Between the Parti Qu?b?cois, the Bloc Qu?b?cois and the Action d?mocratique du Québec, ratified by Messrs. Jacques Parizeau, Lucien Bouchard and Mario Dumont in Québec city, June 12, 1995, in the Annex to An Act respecting the future of Québec (Bill 1), Québec National Assembly, First Sess., 35th Legisl., tabled by Premier Jacques Parizeau on September 7, 1995. This Agreement stipulates that "the National Assembly will be able to declare Québec sovereignty upon short notice."

{1080} See the text and accompanying footnotes at notes 1070 et seq., supra.

{1081} SEFPO v. Ontario (Attorney General), [1987] 2 S.C.R. 2 (S.C.C.), at 40. This aspect is discussed in H. Brun & G. Tremblay, Droit constitutionnel, 2e ?d. (Cowansville, Québec: Les ?ditions Yvon Blais, 1990), at 218.

{1082} R. v. Nat Bell Liquors, [1922] A.C. 128 (P.C.).

{1083} Id., at 134.

{1084} Re Initiative and Referendum Act, [1919] A.C. 935.

{1085} P. Hogg, Constitutional Law of Canada, note 245, 1662, supra, vol. 1, at 14-14.

{1086} Id.

{1087} An Act respecting the sovereignty of Québec (Draft Bill), Québec National Assembly, First Sess., 35th Legisl., 1994, tabled by Premier Jacques Parizeau on December 6, 1994.

{1088} See G.-A. Beaudoin, La Constitution du Canada (Montreal: Wilson & Lafleur, 1990), at 130, where it is said that, under the current constitutional system, referendums (other than at the local level) are only a formal poll that is not binding. See also H. Brun & G. Tremblay, Droit constitutionnel, 2e ?d. (Cowansville, Québec: Les ?ditions Yvon Blais, 1990), at 110, where it is stated that the Québec government's white paper that preceded its Referendum Act, S.Q. 1980, c. 6, took the position that Canada's constitutional system only allows for consultative referendums.

{1089} The wisdom of this government strategy has been questioned by former PQ minister Rodrigue Biron, during his testimony before the regional commissions on the future of Québec. See K. Yakabuski, "Les commissions plient baggage: et maintenant, quoi?", Le Devoir, March 6, 1995, at A1, where Biron comments on the ultra vires nature of the PQ government's draft Bill on Québec sovereignty and indicates the likelihood of legal challenge before the courts.

{1090} Conference on Security and Co-operation in Europe, Document of the Moscow Meeting on the Human Dimension, Emphasizing Respect for Human Rights, Pluralistic Democracy, the Rule of Law, and Procedures for Fact-Finding, October 3, 1991, (1991) 30 I.L.M. 1670, at 1672.

{1091} E.-I. Daes, Some Considerations on the Right of Indigenous Peoples to Self-Determination, note 22, 1662, supra, at 10.

{1092} W. Nicholls, "Who's seceding from whom?", the Nation, March 31, 1994, p. 10 (interview with Grand Chief Matthew Coon Come, Grand Council of the Crees (of Quebec)) at 11.

{1093} P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, at 192-193, n. 1051. See also G. Lefebvre & P. Gaboury, Pour un Québec qui se cherche (Ayer's Cliff, Québec: L'Agora, 1994), at 47, where it is said that Québec includes, as does the rest of the continent, many nations. The latter authors also point out that the idea of "one nation" of English Canada is as false as that of a single Québec nation.

{1094} N. Finkelstein, G. Vegh & C. Joly, Does Québec Have a Right to Secede at International Law?, note 314, 1662, supra, at 252.

{1095} P. Russell, Constitutional Odyssey [:] Can Canadians Be a Sovereign People? (Toronto: University of Toronto Press, 1992), at 170.

{1096} See S. Contenta, "Natives can play the spoilers", Toronto Star, September 3, 1994, at B4, where Bill Namagoose, Executive Director of the Grand Council of the Crees, is quoted as follows: "If the Crees are internationally kidnapped by an independent Quebec, we will become Quebec's Quebec."

{1097} See also G. Alfred, "L'avenir des relations entre les Autochtones et le Québec" 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, 4 at 18, where the author views the secession initiatives by the PQ government as instituting a new colonialism, in the absence of full recognition of Aboriginal peoples' right to self-determination in their own political, geographic and cultural space.

{1098} D. Schnapper, La communaut? des citoyens [:] Sur l'id?e moderne de nation (Paris: ?ditions Gallimard, 1994), at 152. Unofficial English translation: "Colonial society was founded on the inequality of legal and political status of the members that comprised it, while the legitimacy of the modern democracy consists of according equality to everyone."
[Emphasis added.]

{1099} A. Derfel, "We won't respect native plebiscites backing secession, PQ advisor says", The Gazette, Montreal, February 7, 1995, at A6. More recently, Cliche has indicated that he (not his government) supports the holding of a Cree referendum, but only speaks of it in the context of his government proving to the Crees that their rights would be guaranteed in a sovereign Québec: see P. O'Neill, "David Cliche souscrit au projet de r?f?rendum cri", Le Devoir, August 14, 1995, at A2. In other words, the central issue remains as to whether the PQ government (including Cliche) will fully respect the results of the Cree referendum should the Cree people decide to remain with their traditional territories within Canada.

{1100} M.E. Turpel, "Does the Road to Québec Sovereignty Run Through Aboriginal Territory?" in D. Drache & R. Perrin, (ed.), Negotiating With a Sovereign Québec (Toronto: James Lorimer & Co., 1992) 93, at 106.

{1101} See also J. Bell, "Nunavik Inuit to hold own vote on sovereignty", Nunatsiaq News, Northwest Territories, August 25, 1995, at 3; "Les Inuit auront leur propre r?f?rendum le 26 octobre", La Presse, September 15, 1995, at B6.

{1102} B. Came, "The Natives say No", Maclean's, February 27, 1995, 14 at 15.

{1103} See B. Myles, "Un r?f?rendum parall?le pour les Cris", Le Devoir, July 22-23, 1995, at A4, and K. Stewart, "Crees' hearings on sovereignty start next week", The Gazette, Montreal, July 23, 1995, at A4.

{1104} See Cree Eeyou Astchee Commission, Participation Guide (Summer 1995). The Cree Commission is co-chaired by Roderick Pachano and Romeo Saganash.

{1105} C. Hilling, "Autod?termination et s?cession confondues", Le Devoir, January 13, 1995, at A9. Unofficial English translation: "...if one wishes to convince Aboriginal peoples to participate in a popular consultation, again it is necessary to clearly express the will to respect their right to self-determination."

{1106} Id. Unofficial English translation: "It is clear that no right is absolute and that it is necessary to arrive at a fair balance which takes into account at the same time the right of Aboriginal peoples and that of Quebecers to choose their destiny. Unfortunately, there seems to be no will on the part of the government of Québec to find a just balance."

{1107} S. Tramier, "Jacques Parizeau souhaite que la France appuie le Québec en cas de victoire du oui' au r?f?rendum sur l'ind?pendance", Le Monde, Paris, January 24, 1995, at 6. Unofficial English translation: "The referendum emanates from the laws of government...A referendum to detach themselves from Québec, I do not see very well how they [the Amerindians...] could do it, because referendums are the acts of government."

{1108} Id.

{1109} It has been argued that a pan-Canadian referendum, based on a simple majority vote, to determine the Québec secession issue would mean that only the Canadian people is constitutionally recognized to the detriment of the Québec people: see E. Cloutier, "L'outil r?f?rendaire et la marche du Québec vers la souverainet?" in A.-G. Gagnon et F. Rocher, (ed.), R?pliques aux d?tracteurs de la souverainet? du Québec, note 210, supra, at 226-227. If such a pan-Canadian course of action is rejected by separatists, then how could they or a separatist government in Québec compel Aboriginal peoples to be bound by a simple majority vote in a province-wide referendum on secession? As already indicated, Aboriginal peoples are expressly recognized as "peoples" in Canada's Constitution and this status cannot be denied.

{1110} M. Suksi, Bringing In the People [:] A Comparison of Constitutional Forms and Practices of the Referendum (Dordrecht, Netherlands: Martinus Nijhoff Publishers, 1993), at 10.

{1111} P. Boyer, Lawmaking by the People: Referendums and Plebiscites in Canada (Toronto: Butterworths, 1982), at 15.

{1112} B. Ryder, Aboriginal Rights and Delgamuukw v. The Queen, (1994) 5 Constitutional Forum 43 at 45-46; B. Slattery, First Nations and the Constitution: A Question of Trust, (1992) 71 Can. Bar Rev. 261 at 278 et seq.; Royal Commission on Aboriginal Peoples, Partners in Confederation[:] Aboriginal Peoples, Self-Government, and the Constitution (Ottawa: Minister of Supply and Services, 1993), at 40-41. See also K. McNeil, Envisaging Constitutional Space for Aboriginal Governments, (1993) 19 Queen's L.J. 95 at 134; Committee to Examine Matters Relating to the Accession of Québec to Sovereignty, Draft Report, note 8, 1662, supra, at 27, where it is said: "Experts consider the inherent right of self-government is already included in section 35 of the Constitution Act, 1982." On the inherent nature of Aboriginal peoples' right to self-government, see R. Kuptana, The Inherent Right of Self- Government: Its Nature and Source, presentation to the Canadian Bar Association Conference on Constitutional Entrenchment of Aboriginal Self-Government, March 27, 1992; W. Moss, "Inuit Perspectives on Treaty Rights and Governance" in Aboriginal Self-Government [:] Legal and Constitutional Issues, Papers presented as part of the Research Program of the Royal Commission on Aboriginal Peoples (Ottawa: Minister of Supply and Services Canada, 1995) 55 at 87-95.

Some may argue that the doctrine of exhaustiveness suggests that all available jurisdiction in Canada is presently distributed between federal and provincial levels of government, as set out in the Constitution Act, 1867. However, see P. Hogg & M.E. Turpel, Implementing Aboriginal Self-Government: Constitutional and Jurisdictional Issues, (1995) 74 Can. Bar Rev. 187 at 192: "The doctrine of exhuaustiveness was... developed before section 35 of the Constitution Act, 1982 was introduced into the Canadian Constitution to give more explicit constitutonal protection to Aboriginal and treaty rights...The doctrine of exhaustiveness should not be an obstacle in the way of articulating Aboriginal government jurisdiction. It is a matter that requires discussion, but it is not fatal to the implementation of self-government within the existing constitutional framework."

{1113} Liberal Party of Canada, The Aboriginal Peoples of Canada [:] Summary (Ottawa: Liberal Party of Canada, September 1993) at 2: "A Liberal government will act on the premise that the inherent right of self-government is an existing Aboriginal and treaty right within the meaning of section 35 of the Constitution Act, 1982. Recognizing the inherent right is consistent with the historical fact that Aboriginal peoples governed this land prior to the arrival of Europeans to the various regions of North America." To date, the federal government has repeatedly reiterated this commitment.

{1114} P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, at 175 et seq.

For a contrary view, see 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 22, where it is said that sovereignty within the Canadian constitutional context is divided solely between the federal and provincial levels of government. However, at 31, the author acknowledges that the courts may determine that the inherent right of Aboriginal peoples to self-government is already included in s. 35 of the Constitution Act, 1982. Moreover, Dupuis does not question the right of Aboriginal peoples to hold their own referendums.

{1115} See Québec National Assembly Resolution, Motion for the recognition of aboriginal rights in Québec, March 20, 1985.

{1116} M. Berthault, "OUI massif des Inuit ? leur r?f?rendum", La Presse, May 15, 1980, at A16; S. Whittaker, "Quebec Inuit vote tomorrow in their own referendum", The Gazette, Montreal, May 13, 1980, at 12.

{1117} Indian and Northern Affairs Canada, Comprehensive Land Claims Policy (Ottawa: Indian Affairs and Northern Development, 1987), at 24.

{1118} M. Suksi, Bringing In the People [:] A Comparison of Constitutional Forms and Practices of the Referendum (Dordrecht, Netherlands: Martinus Nijhoff Publishers, 1993), at 236.

{1119} 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 442.

{1120} Id. at 420

{1121} Id. at 442, where the five experts quote with approval the U.N. Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Study of the Problem of Discrimination Against Indigenous Populations, U.N. Doc. E/CN.4/Sub.2/1986/7, Add. 4 (J. Cobo, Special Rapporteur), at paras. 579 & 580.

{1122} Generally, the United Nations will play a role in plebiscites or elections in a particular state or territory, if so authorized by the General Assembly or the Security Council: see J. Salmon, "Internal Aspects of the Right to Self-Determination: Towards a Democratic Legitimacy Principle?" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 274, where the policy of the U.N General Secretariat is quoted.

{1123} M. Suksi, Bringing In the People [:] A Comparison of Constitutional Forms and Practices of the Referendum (Dordrecht, Netherlands: Martinus Nijhoff Publishers, 1993), at 249. See also M. Merle, Les plebiscites organis?s par les Nations Unies, [1961] A.F.D.I. 425; L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law [:] Historical Development, Criteria, Present Status (Helsinki: Finnish Lawyers' Publishing Co., 1988), at 377: "In a number of cases the UN has found it sufficient to organize collective consultations' of the peoples of a given territory, and there have also been cases where consultation was held to be unnecessary, because of the opinion of a great majority was well known."

{1124} M. Pomerance, Self-Determination in Law and Practice (The Hague/Boston: Martinus Nijhoff Publishers, 1982), at 30. See also Grand Council of the Crees (of Quebec), Submission: Status and Rights of the James Bay Crees in the Context of Quebec's Secession from Canada (Submission to the U.N. Commission on Human Rights, February 1992), at 130, where it is suggested that regional majorities should also be necessary in any referendum on Québec's future; and G. Bertrand, "L'autre fa?on de proposer une entente Québec-Canada", Le Soleil, January 16, 1995, at A-7, where the jurist calls for a double majority that would include a majority vote in at least 85 of the 125 regions in the province. Similarly, the concept of "double majorities" or else separate referendums is advocated in M.E. Turpel, "Does the Road to Québec Sovereignty Run Through Aboriginal Territory?" in D. Drache & R. Perrin, (ed.), Negotiating With a Sovereign Québec (Toronto: James Lorimer & Co., 1992) 93 at 105-106. For further discussion of "double majorities", see discussion in note 1183 infra.

{1125} G. Normand, "Bouchard r?plique aux Inuit: Seul le r?f?rendum qu?b?cois fera autorit?'", La Presse, August 23, 1995, at B1. Unofficial English translation: "There is a unitary State in Québec, that is the State of Québec. We consider that the territory of Québec is characterized by its integrity which makes it a single State. There is a single referendum that will be authoritative, it is that of the whole population..." [Emphasis added.] Bouchard adds that if Aboriginal peoples hold referendums it will give him an indication of what they are thinking. See also "Le r?f?rendum inuit n'aurait aucune valeur", Le Devoir, August 23, 1995, at A4; J.-D. Bellavance, "Un seul r?f?rendum vaudra, celui du Québec", Le Soleil, August 23, 1995, at A11.

{1126} A. Dubuc, "La gaffe", La Presse (editorial), August 24, 1995, at B2. Unofficial English translation: "Wht this double standard?...[new para.] The referendum debate, let us remember, is possible because the rest of Canada conducts itself in a civilized way when faced with the sovereignist process in showing evidence of fair-play and a democratic direction. In the name of this same fair-play, it would be elementary that the sovereignist leaders, whether or not they be in agreement with the Aboriginal peoples, demonstrate a minimum of respect to [these] same groups..."

{1127} L. Bissonnette, "Le r?f?rendum cri", Le Devoir (editorial), July 25, 1995, at A6. The original French text provides: "C'est leur droit le plus clair de tenir un r?f?rendum s?par?..."

{1128} Id. However, to characterize a consultative referendum by Aboriginal peoples (who face a threat of forcible inclusion in a seceding Québec) as "provocation", while accepting that Québec can unilaterally secede from Canada based on a simple majority referendum vote is an inexplicable double standard that no fair-minded person can accept.

{1129} C. Tomuschat, "Democratic Pluralism: The Right to Political Opposition" in A. Rosas & J. Helgesen, (eds.), The Strength of Diversity: Human Rights and Pluralist Democracy (Dordrecht: Martinus Nijhoff Publishers, 1992) 27 at 27.

{1130} M. Suksi, Bringing In the People [:] A Comparison of Constitutional Forms and Practices of the Referendum (Dordrecht, Netherlands: Martinus Nijhoff Publishers, 1993), at 280.

{1131} K. Valaskakis & A. Fournier, Le pi?ge de l'ind?pendance [:] Le Québec sera-t-il affaibli par la souverainet??, note 299, 1662, supra, at 192.

{1132} P. Authier, "No 60%, Yes 40%: poll", The Gazette, Montreal, February 17, 1995, A1 at A2. The poll also indicated that 56 per cent of Quebecers indicated that regions of Québec that did not wish to separate should be allowed to stay in Canada.

{1133} P. Authier & T. Wills, "Slim won't do: Johnson", The Gazette, Montreal, September 20, 1995, A1 at A12.

{1134} Id at A1

{1135} Mac Neil/Lehrer NewsHour, New York, December 20, 1994, (transcript of interview with Jacques Parizeau, Premier, Québec), at 6-7.

{1136} "The sovereignty pitch [:] Quebecers would be better off if they were in charge, Bouchard says", The Gazette, Montreal, October 12, 1994, at B3 (Interview with Gazette editorial board). See also Commission nationale sur l'avenir du Québec, Rapport (Québec: Biblioth?que nationale du Québec, 1995), at 16, where this Commission set up by the Parizeau government in 1995 also states that a simple majority is all that is required for recognition internationally of a popular verdict of this type. However, the report of the Commission fails to provide any substantiation whatsoever for its statement.

{1137} See J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 93.

{1138} It would be a double standard for Quebecers to oppose a pan-Canadian referendum on Québec secession, yet insist that a simple majority vote in Québec could determine the future of all peoples in Québec. In this regard, see J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 87. Also, at 100, Derriennic states that, in the case of Algeria, a vote on its independence was held first in France in 1962 prior to holding a referendum vote in Algeria.

See also P. Monahan, Cooler Heads Shall Prevail: Assessing the Costs and Consequences of Quebec Separation, note 114, 1662, supra, at 25, where it is said that the case for holding a pan-Canadian referendum would be particularly strong to ratify any agreement on Québec secession that might be reached between Québec and the rest of Canada. In such case, a constitutional amendment would be required to permit Québec to secede from Canada and any such action should require the support of the people of Canada.

{1139} A. Eide, "In Search of Constructive Alternatives to Secession" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 166: "Consociational democracy is built on the principle of executive power-sharing and a certain degree of self-administration for each group, whether they live together or separately." In Canada, this would translate as self-government for Quebecers, Aboriginal peoples and others.

{1140} Id. at 165-166

{1141} P. Allott, "Self-Determination ? Absolute Right or Social Poetry?" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 204.

{1142} J. Salmon, "Internal Aspects of the Right to Self-Determination: Towards a Democratic Legitimacy Principle?" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 280.

{1143} H. Hannum, Rethinking Self-Determination, note 133, 1662, supra, at 60.

{1144} P. Monahan, Cooler Heads Shall Prevail: Assessing the Costs and Consequences of Quebec Separation, note 114, 1662, supra, at 30.

{1145} See, for example, J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 94, where the author emphasizes the irreversibility of a decision to secede in demonstrating the undemocratic nature of a simple majority vote.

{1146} R. Young, The Secession of Quebec and the Future of Canada (Montreal/Kingston: McGill - Queen's University Press, 1995), at 266. Young reaches this conclusion in regard to a presumed "peaceful" secession. The chances of reunification would likely be even more remote uld Québec secession ever take place unilaterally in an atmosphere of hostility and recrimination.

{1147} See discussion under sub-headings 3.4.1 & 3.4.2 supra.

{1148} S. Himmer, The Achievement of Independence in the Baltic States and Its Justifications, (1992) 6 Emory Int'l L. Rev. 253 at 253.

{1149} In plebiscites in the former Yugoslav republics of Slovenia and Croatia, over 88% and 94% respectively voted in favour of independence. See R. Iglar, The Constitutional Crisis in Yugoslavia and the International Law of Self-Determination: Slovenia's and Croatia's Right to Secede, note 97, 1662, supra, at 218, n.40; see also B. Bagwell, Yugoslavian Constitutional Questions: Self-Determination and Secession of Member Republics, note 196, 1662, supra, at 489, n. 4.

{1150} In regard to the Ukraine (in the former USSR), it is said that the voter support for independence in 1991 was at least 85%: see P. Juviler, Contested Ground: Rights to Self-Determination and the Experience of the Former Soviet Union, note 162, 1662, supra, at 80, n. 34.

{1151} On March 3, 1991, referendums were held in Latvia and Estonia and the vote in favour of independence was 77% and 78% respectively. Also, in February 1991, 90% of the voters in Lithuania supported independence: W. Allison, Self-Determination and Recent Developments in the Baltic States, note 201, 1662, supra, at 636.

{1152} See, generally, R. Lindgren, Norway-Sweden: Union, Disunion, and Scandinavian Integration (Princeton: Princeton University Press, 1959). When Norway separated from Sweden in 1905, the referendum that year included 15% abstentions and out of the other 85% of the electorate only 1 vote out of 2000 was against separation: see J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 54.

At 96, Derriennic indicates that that the only independence votes that have been successful appear to be those that have produced results close to unanimity. Aside from Norway in 1905, the author cites the case of Algeria in 1962, where 91% voted and 99% of those voted in favour of independence.

{1153} N. Finkelstein, G. Vegh & C. Joly, Does Québec Have a Right to Secede at International Law?, note 314, 1662, supra, at 251- 252.

{1154} K. Valaskakis & A. Fournier, Le pi?ge de l'ind?pendance [:] Le Québec sera-t-il affaibli par la souverainet??, note 299, 1662, supra, at 169. Unofficial English translation: "If Québec decides to unilaterally declare independence after a referendum where Québec were to be almost cut in half (51% for, 49% against), it is hardly likely that the more important countries of the international community would recognize an independent Québec."

{1155} Where extreme circumstances or situations involving colonized peoples give rise to an external right to self-determination (which is not the case with Quebecers), a majority vote of the people concerned may well be decisive for such compelling circumstances: see L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law [:] Historical Development, Criteria, Present Status (Helsinki: Finnish Lawyers' Publishing Co., 1988), at 377. However, even where a right to external sovereignty exists, should there be more than one people who can claim this right, it can hardly be said that a single majority vote would prevail.

{1156} N. Finkelstein, G. Vegh & C. Joly, Does Québec Have a Right to Secede at International Law?, note 314, 1662, supra, at 252: "...a national will, unequivocally expressed, is only one element in favour of a right to secede at international law." [Emphasis added.]

{1157} J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 107-108. Unofficial English translation: "The two primary conditions, juridical inequality and insecurity, are absent in the case of Québec. The third, a vote on self-determination which would give an almost unanimous result is out of the question. Consequently, if Québec separates from Canada following a simple referendum with a majority of 52%, this will be a unique event and without precedent, and not the normal application of a rule that could be deduced from principles of democracy and those from international law, as ind?pendantistes leaders would like to have us believe." [Emphasis added.]

{1158} J.-P. Derriennic, "Il faut souhaiter un r?sultat tr?s net", Le Devoir, September 27, 1995, at A4.

{1159} G. Binder, The Case for Self-Determination, (1992) Stanford J. Int'l L. 223 at 270.

{1160} S. Dion, "Antinationalisme et obsession constitutionnelle dans le d?bat r?f?rendaire", text presented to Cit? Libre, Montreal, January 12, 1995, and Ottawa, January 18, 1995, at 9. Unofficial English translation: "[A unilaterally decreed secession] would provoke clashes of legitimacies whose consequences are unforeseeable. To those who will say that a majority of a people has a right to secede, others will reply that nothing permits to reserve for itself the title of people or nation, that if Canada is divisible, then Québec is also, that if a Canadian minority has the right to extract itself from Canada, then a Qu?b?cois minority has the right to exclude itself from a secession that it does not wish." [Emphasis added.]

{1161} M.E. Turpel, "Does the Road to Québec Sovereignty Run Through Aboriginal Territory?" in D. Drache & R. Perrin, (ed.), Negotiating With a Sovereign Québec (Toronto: James Lorimer & Co., 1992) 93, at 105.

{1162} N. Finkelstein, G. Vegh & C. Joly, Does Québec Have a Right to Secede at International Law?, note 314, 1662, supra, at 259.

{1163} In J.-P. Derriennic, Nationalisme et D?mocratie [:] R?flexion sur les illusions des ind?pendantistes qu?b?cois, note 39, 1662, supra, at 88, it is said that democratic countries, such as Canada, United States, and Germany, have modified their constitutional procedures in seeking balanced compromises between a simple majority and unaninimity.

{1164} See also Quebec Civil Code, art. 356: "A legal person may also be dissolved by consent of not less than two-thirds of the vote given at a general meeting convened expressly for that purpose..." [Emphasis added.] In this context, a "legal person" is any body endowed with legal personality and established for public or private purposes.

{1165} W. Johnson, "Civil Code is clear: separation should require a two-thirds vote", The Gazette, Montreal, September 20, 1995, at B3

{1166} N. Auf der Maur, "It's high time the politicians started listening to the people", The Gazette, Montreal, September 14, 1994, at A2.

{1167} In 1868, Nova Scotia petitioned the Imperial Parliament for an amendment to enable the province to secede from Canada. At that time, nearly two-thirds of the voters had signed a petition in favour of secession. However, the petition was denied since it did not emanate from the federal government in Canada.

{1168} Hogg indicates that, in 1934, Western Australia requested an Imperial amendment to the Australian Constitution allowing it to secede from the Commonwealth. The request was not considered, since it did not come from the federal government (who was opposed to the proposed secession).

{1169} P. Hogg, Constitutional Law of Canada, note 245, 1662, supra, vol. 1, at 5-31. See also D. Matas, Can Quebec Separate?, (1975) 21 McGill L.J. 387 at 392.

{1170} J. Woehrling, "Les aspects juridiques de la red?finition du statut politique et constitutionnel du Québec" in Commission sur l'avenir politique et constitutionnel du Quebec, ?l?ments d'analyse institutionnelle, juridique et d?molinguistique pertinents ? la r?vision du statut politique et constitutionnel du Québec, Document de travail, no. 2 (Québec: Assembl?e nationale du Québec, 1991), at 38. Unofficial English translation: "...it is necessary to draw out an incontestable consensus within the Québec population in favour of the political option clearly defined to provoke a change of opinion in English Canada...In default of convincing English Canadians to change their attitude, the existence of such a popular consensus in Québec would give to Québec authorities the necessary democratic mandate to carry out changes that do not respect internal constitutional legality..." [Emphasis added.]

{1171} Id., at 98: "...adoption d'une d?claration unilat?rale d'ind?pendance claire, appuy?e massivement par la population qu?b?coise." [Emphasis in original.] See also K. Valaskakis & A. Fournier, Le pi?ge de l'ind?pendance [:] Le Québec sera-t-il affaibli par la souverainet??, note 299, 1662, supra, at 192, where the authors say that the international community would not legitimate the new situation unless Canada accepted the secession, following a "massive" yes vote and after long negotiations.

{1172} See also J. Woehrling, "La protection des droits et libert?s, et le sort des minorit?s" in A.-G. Gagnon et F. Rocher, (ed.), R?pliques aux d?tracteurs de la souverainet? du Québec, note 210, supra, at 159, where the author suggests that future derogations from Charter rights (through use of a "notwithstanding" clause) should require a 2/3 majority vote in the legislature of a sovereign Québec. If derogation from a recognized human right should require such a supra-majority vote, then surely the secession of Québec from Canada with all its far-reaching consequences merits much more than a simple majority vote in terms of popular approval.

{1173} J. Woehrling, "L'?volution et le r?am?nagement des rapports entre le Québec et le Canada anglais" in J.-Y. Morin & J. Woehrling, Demain, le Québec...[:] Choix politiques et constitutionnels d'un pays en devenir, note 19, 1662, supra, at 108. Official French text: "...mandat clair et fort de la population..."

{1174} Id., at 130. Original French text: "...incontestable et d?mocratiquement exprim?e..." This same criteria are said to be necessary in J. Woehrling, "Les aspects juridiques et politiques d'une ?ventuelle accession du Québec ? la souverainet?" in Choix [:] s?rie Québec-Canada, L'accession du Québec ? la souverainet?: aspects juridiques" (Montreal: Institute for Research on Public Policy, June 1995), vol. 1, no. 12, 25 at 33.

{1175} J. Brossard, L'accession ? la souverainet? et le cas du Québec, note 65, 1662,
supra, at 353.

{1176} Id. Unofficial English translation: "It is on the political level, above all, that a too limited majority could appear insufficient and inconclusive." [Emphasis added.] At 363, the same criterion of an absolute majority is emphasized by Brossard, adding that an even higher percentage of voter approval may be required based on political factors.

{1177} D. Turp, Le droit de s?cession en droit international public, [1982] C.Y.I.L. 24 at 77. Unofficial English translation: "...the authenticity of a genuine nationalist claim should be verified by way of referendum, in a way that the international community could not doubt the affirmative will of the people who are beneficiaries of a right of secession." [Emphasis added.] However, see discussion under heading 13 infra where it is said that Turp may be changing his previously published views in a questionable manner.

{1178} See "PQ's best weapon is mass confusion", The Gazette, Montreal, September 26, 1995, at B2, where it is reported that a Cr?atec poll conducted September 15-19 for the NO forces demonstrated a serious lack of understanding of the referendum question, especially among YES voters.

{1179} Id.

{1180} Unoffical English translation: "suicidal adventure". G. Bertrand's views were first revealed to Le Soleil: see D. Charette, "Une d?marche suicidaire", Le Soleil, January 16, 1995, at A-1.

See also L. Gagnon, "La cape et le toge", La Presse, January 19, 1995, at B3, who does not share Me Bertrand's proposed alternate strategy, but agrees that, in regard to content, especially the suicidal characterization of the Parizeau government's process, it would be very presumptuous not to side with Me Bertrand. See also P. Monahan, Cooler Heads Shall Prevail: Assessing the Costs and Consequences of Quebec Separation, note 114, 1662, supra, at 30, where it is concluded that the PQ strategy to take Québec out of Canada would lead to a "deadend".

{1181} M. Venne, "Guy Bertrand pose 19 questions", Le Devoir, January 17, 1995, at A4. Unofficial English translation: "[Mr. Bertrand] foresees an _'ungovernable' situation in Québec, if a YES is obtained by a feeble majority. He supposes that federalists could contest the result before the courts and win their cause, and continue to pay taxes to Ottawa, while the sovereignists pay them to Québec." [Emphasis added.] See also G. Normand, "Garon invite Guy Bertrand ? se rallier", La Presse, January 17, 1995, at B1.

{1182} D. Charette, "Une d?marche suicidaire", Le Soleil, January 16, 1995, at A-1.

{1183} The notion of "double majorities" that would include a majority popular vote, as well as approval in a majority of designated distinct regions, is recommended in a pan-Canadian context for constitutional amendments in Special Joint Committee of the Senate and House of Commons, The Process for Amending the Constitution of Canada (Ottawa: House of Commons, 1991) (Beaudoin-Edwards Report) at 41-42. See also J. Woehrling, "Les aspects juridiques de la red?finition du statut politique et constitutionnel du Québec" in Commission sur l'avenir politique et constitutionnel du Quebec, ?l?ments d'analyse institutionnelle, juridique et d?molinguistique pertinents ? la r?vision du statut politique et constitutionnel du Québec, Document de travail, no. 2 (Québec: Assembl?e nationale du Québec, 1991), at 35-36.

{1184} G. Bertrand, "L'autre fa?on de proposer une entente Québec-Canada", Le Soleil, January 16, 1995, at A-7.

{1185} Commission sur l'avenir politique et constitutionnel du Québec, Report of the Commission on the Political and Constitutional Future of Québec (Québec: 1991), at 52.

{1186} See Y. Le Bouthillier et R. Goulet, "Extraits de t?moignages pr?sent?s devant la Commission B?langer-Campeau et le Comit? Beaudoin-Edwards" in Canadian Council on International Law, Bulletin, vol. 8, no.1, August 1991, at 8. The original French testimony by N. Dupl? refers to: "un consensus de la population qu?b?coise clair, manifeste et indiscutable".

{1187} See testimony of N. Dupl? in Assembl?e nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Québec ? la souverainet?, December 17, 1991, at CEAS-472 and CEAS-473.

{1188} "Is 50 per cent plus one enough to end Canada?", Globe and Mail (editorial), January 10, 1995, at A16.

{1189} D. Francis, "Cree chief won't buy separatist line", Financial Post, June 25, 1994, at S3.

{1190} M. Lebel, "La classe politique m?rite bien le peu de consid?ration que lui porte le peuple", La Presse, June 6, 1995, at B3.

{1191} Id. Unofficial English translation: "...it is common sense that one must have a popular support that is a lot more massive, if one wishes an irreversible decision and to rally the minority towards the majority." [Emphasis added.]

{1192} The criterion of "overwhelming" support for a secessionist option is also put forward in A. Heraclides, Succession, Self- Determination and Non-Intervention: In Quest of a Normative Symbiosis, (1992) 45 J. of Int'l Affairs 399.

{1193} A. Margalit & J. Raz, National Self-Determination, (1990) LXXXVII J. of Philosophy 439 at 458.

{1194} M. Eisner, A Procedural Model for the Resolution of Secessionist Disputes, (1992) 33 Harvard Int'l L. J. 407 at 423.

{1195} H. Hannum, Rethinking Self-Determination, note 133, 1662, supra, at 56.

{1196} M. Girard, "Most sovereignists feel Yes side needs more than simple majority: poll", The Gazette, Montreal, March 13, 1995, at A4. See also B. Cox, "Sovereignty, but only with association", The Gazette, Montreal, June 19, 1995, at A1, where a federal poll (CROP-Express) done in March-April 1995 found that "only 24 per cent of respondents [in Québec] agreed with Premier Jacques Parizeau that he needs only 50% plus one vote to win the referendum." Further, in a poll by SOM Inc. conducted August 11-15, 1995 for The Gazette and the Québec newspaper Le Soleil, "64 per cent of respondents said half-plus-one is not sufficient": see "Job concerns top sovereignty: poll", The Gazette, Montreal, August 17, 1995, A1 at A12. The adequacy or legitimacy of a simple majority vote was also challenged by intervenors during the regional commission hearings in various sectors of Québec: see Conseil pour l'unit? canadienne, Les Commissions sur l'Avenir du Québec [:] Rapport factuel (April 1995), at 74.

{1197} See also P. Authier, "No future if No wins ? Premier", The Gazette, Montreal, September 21, 1995, at A1, where Québec Liberal leader Daniel Johnson states that voting Yes for Québec secession is "an irreversible act with irreparable economic and social consequences".

{1198} P. Wells, " Lobster' caldron boils over", The Gazette, Montreal, July 12, 1995, at A1. The story was originally published in C. H?bert, "Apr?s un OUI, les Qu?b?cois seront comme des homards", La Presse, July 11, 1995, at A1.

{1199} C. H?bert, "Parizeau dans l'eau bouillante", La Presse, July 12, 1995, at A1; A. Gruda, "Jacques Parizeau Thermidor", La Presse, July 13, 1995, at B2.

{1200} See also L. Beaudoin & J. Vall?e, "La reconnaissance internationale d'un Québec souverain" in A.-G. Gagnon et F. Rocher, (ed.), R?pliques aux d?tracteurs de la souverainet? du Québec, note 210, supra, at 187. Louise Beaudoin is currently Minister of Intergovernmental Affairs in the separatist Parizeau government in Québec.

{1201} See P. Hogg, Constitutional Law of Canada, note 245, 1662, supra, vol. 1, at 2-15.

{1202} Id. at 2-15 - 2-16

{1203} In 1982, the Act was renamed as the Newfoundland Act, R.S.C. 1985, Appendix II,
No. 32.

{1204} The first referendum was held on June 3, 1948, where three options were given: extending the form of trusteeship known as Commission of Government; confederation with Canada; or responsible government. A second "run-off" referendum was then held, which resulted in a vote for confederation. See P. Authier, "Out of the question, Johnson says of multiple-choice ballot", The Gazette, Montreal, February 23, 1995, at A13. See also G.-A. Beaudoin, La Constitution du Canada (Montreal: Wilson & Lafleur, 1990), at 584; J. Woehrling, "L'?volution constitutionnelle du Canada et du Québec de 1867 ? nos jours" in J.-Y. Morin & J. Woehrling, Les Constitutions du Canada et du Québec [:] du r?gime fran?ais ? nos jours (Montr?al: ?ditions Th?mis, 1992) 123 at 407-408.

{1205} Reference to the July 1948 referendum and majority popular support is found in the preamble of the Terms of Union of Newfoundland with Canada, included as a Schedule to the Newfoundland Act.

{1206} P. Hogg, Constitutional Law of Canada, note 245, 1662, supra, vol. 1, at 2-16, n. 66.

{1207} Section 146 provides: "It shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honourable Privy Council, on Addresses from the Houses of the Parliament of Canada, and from the Houses of the respective Legislatures of the Colonies or Provinces of Newfoundland, Prince Edward Island, and British Columbia, to admit those Colonies or Provinces, or any of them, into the Union...; and the Provisions of any Order in Council in that Behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland." [Emphasis added.]

{1208} See Currie v. Macdonald, (1948) 29 Nfld. & P.E.I.R. 314 (Nfld. Sup. Ct.); aff'd (1949) 29 Nfld. & P.E.I.R. 294 (Nfld. C.A.).

{1209} See note 1167 supra and accompanying text.

{1210} G.-A. Beaudoin, La Constitution du Canada (Montreal: Wilson & Lafleur, 1990), at 229, 584-585.

{1211} Id. See also H. Brun & G. Tremblay, Droit constitutionnel, 2e ?d. (Cowansville, Québec: Les ?ditions Yvon Blais, 1990), at 16.

{1212} G.-A. Beaudoin, La Constitution du Canada (Montreal: Wilson & Lafleur, 1990),
at 229.

{1213} In the case of the PQ government's current process, its illegality and unconstitutionality was determined 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.

{1214} See, for example, P. Monahan, Cooler Heads Shall Prevail: Assessing the Costs and Consequences of Quebec Separation, note 114,1662, supra, at 30, where it is said: "Quebec secession would still require a formal constitutional amendment...[which would entail] the consent of the federal government, the provinces, and the aboriginal peoples in Quebec."

{1215} See discussion under sub-heading 3.4 supra.

{1216} See discussion under sub-headings 9.1 & 9.3 supra.

{1217} "Les autochtones feront partie d'un Québec souverain, quoi qu'il advienne", Le Devoir, September 22, 1995, at A4.

{1218} See, for example, Grand Council of the Crees, Members' Resolution ? Cree Status and Rights in the context of possible secession of Quebec from Canada, Annual General Assembly, August 24, 1994; First Nations in Québec and Labrador, Declaration, resolution dated October 13, 1994, Lac Delage, Québec; Nunavik Leaders Conference, Implications of the Quebec Sovereignty Process, resolution dated December 8, 1994, Montreal, Québec; Inuit Tapirisat of Canada, Quebec Referendum, Resolution 95-04, 1995 Annual General Meeting. All of these resolutions are on file with the Grand Council of the Crees.

{1219} It is worth highlighting here that there exist subjective criteria for determining who are a "people" with a right to self- determination. In particular, it is said that for a people to be recognized as such it must become conscious of its own identity and assert its will to exist as a distinct and self-determining people. See discussion under heading 1 supra.

{1220} J. Daigneault & C. Galipeau, "Ren? L?vesque dirait-il NON?", Le Devoir, January 24, 1995, at A7.

{1221} Id. Unofficial English translation: "...the referendum process of Mr. L?vesque contained two referendums: one requesting a mandate to negotiate an agreement of sovereignty-association; the other assuring the population a right of ratification prior to any change in political status resulting from these negotiations. The referendum process of Mr. L?vesque guaranteed to Quebecers the control of their political future. At no moment did Mr. L?vesque, contrary to Mr. Parizeau, have the intention to request Quebecers for a blank cheque." [Emphasis added.]

{1222} J.-Y. Morin, "Pour une nouvelle Constitution du Québec" in J.-Y. Morin & J. Woehrling, Demain, le Québec...[:] Choix politiques et constitutionnels d'un pays en devenir, note 19, 1662, supra, 145 at 210. Unofficial English translation: "If the choice of Quebecers must be carried out with full knowledge of the case, it is clearly preferable that the draft of the future be presented to them most clearly as possible before they are to decide the question of sovereignty." [Emphasis added.] At 214, the author emphasize again that steps be taken before the referendum to attain the double objective of stabilizing institutions and indicating broad normative choices in a Québec constitution.

{1223} See, for example, Committee to Examine Matters Relating to the Accession of Québec to Sovereignty, Draft Report, note 8,1662, supra, at 50, where it is indicated that fundamental choices would have to be made as to whether "to maintain a constitutional monarchy in Québec" with a parliamentary system, or else institute a "republican system".

{1224} J. Daigneault & C. Galipeau, "Ren? L?vesque dirait-il NON?", Le Devoir, January 24, 1995, at A7. Unofficial English translation: "It is clear that the referendum process of Mr. Parizeau does not offer any guarantee to Quebecers in regard to the control of their political status. This issue is important. Mr. Parizeau proposes a process where he alone will dictate the final version of the Québec constitution, determine the elements of an economic union with the rest of the country and, moreover, give himself extraordinary powers to realize his sovereignty project."

{1225} A. de Mestral, "La structure de l'association ?conomique Québec-Canada" in Choix [:] s?rie Québec-Canada, Un Québec souverain et l'union ?conomique Québec-Canada (Montreal: Institute for Research on Public Policy, 1995), vol. 1, no. 6, 4 at 20. Unofficial English translation: "In violation of the most elementary rules of democracy, the Draft Bill respecting the sovereignty of Québec does not offer any guarantee in regard to the conclusion of an economic union with Canada before the declaration of independence of Québec. It does not offer to citizens the possibility of passing any judgment on economic association, which constitutes however, in the eyes of many among them, the principal guarantee of viability of an independent Québec; this association should be negotiated before the proclamation of sovereignty." [Emphasis added.]

See also Groupe des Cent, "L'entente tripartite: virage ou mirage?", La Presse, August 19, 1995, at B3, where similar concerns are expressed in relation to the lack of democracy in the current referendum process and the "blank cheque" in effect demanded by the leaders of the Parti Qu?b?cois, Bloc Qu?b?cois, and the Action D?mocratique in negotiating a future economic and political union with Canada. The Groupe des Cent is an assembly of youth 25 to 35 years of age, composed of professionals, business people, and academics.

{1226} Id.

{1227} J. Woehrling, "Souverainet?: la loi doit ?tre adopt?e par r?f?rendum en premier", La Presse, February 24, 1995, at B3.

{1228} Id. Unofficial English translation: "Such a popular consultation, preferably by way of referendum, seems to us however indispensable for respecting the democratic principle and for avoiding that approval, by the population, of the law on sovereignty constitute a blank cheque' for the government and its parliamentary majority." [Emphasis added.]

{1229} Id. See also Committee to Examine Matters Relating to the Accession of Québec to Sovereignty, Draft Report, note 8, 1662, supra, at 48, where a provisional constitution is also suggested to enhance legitimacy, provided that the basic principles of the provisional constitution had been proposed explicitly by the people during the referendum debate.

{1230} Section 24 of the draft Act.

{1231} D. Latouche, "La bonne question", Le Devoir, February 25-26, 1995, at A12. Unofficial English translation: "What surprises me in the polls is not that as much as 50% of francophones reject the governmental draft bill, but that one also finds that 50% have at this point sufficient confidence in Jacques [Parizeau], Lucien [Bouchard] and the others that they are prepared to give them a blank cheque...I question even whether this contract that the government is offering us would pass the test of the Consumer Protection Act." [Emphasis added.]

{1232} B. Legendre, "Le train r?f?rendaire, direction Waterloo", Le Devoir, August 15, 1995, at A7. Unofficial English translation: "If the Québec people must embark on the train of the nationalists, the least that [the separatists] could do...is reveal to the people the exact destination."

{1233} K. Valaskakis, "Que nous r?serve le reste de l'ann?e 1995?", La Presse, February 25, 1995, at B3. Unofficial English translation: "...after a yes', the uncertainty will continue for a long time and it will be necessary to wait for the resolution of all questions left hanging (sharing of the debt, new borders, etc.) before having a clear view."

{1234} See, for example, K. Yakabuski, "Il ne faudra pas constitutionnaliser' le pouvoir des r?gions, averti Simard", Le Devoir, March 27, 1995, at A4, where it is appears that there is no certainty as to the type of powers or checks and balances being planned for an independent Québec state. In this regard, it is indicated that Monique Simard, PQ Vice-President, warns against "constitutionalizing" the powers of local and regional governments and recommends that decentralization should take place through legislation.

{1235} See, for example, A. Riga, "Quebecers should vote Yes without all the answers: Simard", The Gazette, Montreal, March 27, 1995, at A6. Riga reports that the message from Monique Simard, PQ Vice-President, and Serge Turgeon, head of the Union des Artistes, to the national sovereignty commission is that "Quebecers should vote with their hearts and not expect all the answers on the economic consequences of a Yes vote".

{1236} Text of the Agreement Between the Parti Qu?b?cois, the Bloc Qu?b?cois and the Action d?mocratique du Québec, ratified by Messrs. Jacques Parizeau, Lucien Bouchard and Mario Dumont in Québec city, June 12, 1995, in the Annex to An Act respecting the future of Québec (Bill 1), Québec National Assembly, First Sess., 35th Legisl., tabled by Premier Jacques Parizeau on September 7, 1995.

{1237} The La Presse poll was conducted by SOM between September 15-18, 1995: see M. Fontaine, "L'offre de partenariat doit ?tre connue avant le r?f?rendum", La Presse, September 22, 1995, at B1.

{1238} P. Authier, "PQ working on economic-association offer but Parizeau won't release it", The Gazette, Montreal, September 14, 1995, at A8.