The Grand Council of the Crees

Section 12, Sovereign Injustice - Grand Council of the Crees

12 Potential Impacts of Qu?bec Secession on Aboriginal People

Posted: 0000-00-00

12.1 Canadian Federation versus a Unitary Qu?bec State ? Essential Differences Aboriginal peoples in Qu?bec potentially face a number of far-reaching impacts, in the event of a unilateral secession by Quebec. Some of these impacts could lead to long-standing conflicts and complex litigation. {1376} However, not all adverse effects are necessarily susceptible to legal resolution. In addition, in many instances, the impacts may not be foreseeable. For example, the "temporary" powers of a secessionist goverment in a new Qu?bec state could be most far-reaching and without adequate controls. As indicated in the Draft Report of the National Assembly's Committee on Sovereignty, extraordinary powers may have to be conferred to the new government to deal with "unforeseen circumstances": "In certain areas and for a limited time, it would probably be necessary for the National Assembly to empower the government to modify by order-in- council the law that previously obtained in order to adapt it to unforeseen circumstances." {1377} [Emphasis added.] Potential impacts that are foreseeable include the following: i) Denial of Aboriginal peoples' right to self-determination. As indicated in this Study, should a simple majority of Qu?becers opt in a referendum to secede from Canada, the Qu?bec government will unjustly seek to deny Aboriginal peoples in Qu?bec their status as "peoples" and their right to choose to remain with Canada. The Qu?bec government argues that it intends to treat Aboriginal peoples well in an independent Qu?bec. However, it is unacceptable that Aboriginal peoples would be first denied their human right to self-determination, in order that other people in Qu?bec might form an independent state that includes Aboriginal territories. This position by the PQ government in Qu?bec does not provide a solid basis for any future relationship. It puts into serious doubt government assurances that Aboriginal peoples' status and rights would be respected in the future. Further, this denial of Aboriginal self- determination (if not successfully countered) could serve as a negative precedent for indigenous peoples elsewhere, in a wide range of circumstances. ii) Denial of nationality or citizenship. {1378} Although the PQ government's draft Bill provides that "Quebec citizenship may be held concurrently with Canadian citizenship or that of any other country", {1379} the situation is not so simply addressed. {1380} As reflected in the Draft Report of the National Assembly's Committee on Sovereignty {1381} and as indicated by C. Emmanuelli, {1382} the option of retaining Canadian citizenship would likely not be made available to Quebecers. Alternatively, massive numbers of Quebecers with dual nationality would create substantial practical difficulties. {1383} As J. Woehrling cautions: "[I]l est...tr?s difficile d'imaginer le cas o? la totalit? ? ou la grande majorit? ? des citoyens d'un ?tat d?tiendraient ?galement la nationalit? d'un autre ?tat." {1384} S. Hartt concludes that, if faced with a successful UDI by Qu?bec, Canada would likely revoke Canadian citizenship. {1385} Such a step he states would be deemed necessary by Canada, so as not to be responsible for providing persons in Qu?bec with major social programs without such people contributing to the revenues of Canada. {1386} Therefore, it is quite possible that the impact for many people living in Qu?bec would be that they would lose their Canadian citizenship or nationality (and all of the accompanying benefits). {1387} Alternatively, dual citizenship for persons in Qu?bec would likely entail few rights or benefits vis-a-vis Canada. {1388} Under international law, the right to nationality is a fundamental human right. {1389} Also, a child has an independent right to nationality that is closely linked to her or his identity. {1390} These rights alone may not necessarily safeguard people in a sovereign Qu?bec from losing their Canadian nationality or citizenship. {1391} At the same time, the situation concerning Aboriginal peoples is far more complex, {1392} since individuals may be both citizens of their respective Aboriginal nation {1393} and the state in which they live. {1394} Moreover, the central relationship between Aboriginal peoples and the state is historically one of "nation-to-nation" and not one of citizen to state. {1395} Consequently, international and Canadian rules on nationality cannot simply be literally applied, without fully taking into account the distinct status and rights of Aboriginal peoples. {1396} In particular, the right to self-determination {1397} of Aboriginal peoples and the fiduciary obligations owed to them by the federal Crown would further constrain the power of the federal and Qu?bec governments. Such rights and obligations run counter to the notion that Aboriginal peoples in Qu?bec could be unilaterally deprived of their Canadian nationality or citizenship. However, the solution for Aboriginal peoples in Qu?bec is not dual citizenship, {1398} since in such a situation the rights and benefits of Canadian citizenship would still be substantially diminished.{1399} iii) Integrity of Aboriginal peoples and territories jeopardized. In the case of the Crees and many other Aboriginal peoples in Qu?bec, their traditional territories transcend the administrative boundaries of Qu?bec. {1400} From an Aboriginal perspective, the boundaries being claimed by Qu?bec secessionists are artificially-determined based on Qu?bec self- interest and make little sense. In addition, Aboriginal peoples would be separated (in terms of being in different countries) from their families, relatives and other members of their nations living in parts of Canada outside Qu?bec. {1401} Provincial boundaries and jurisdictions in Canada often affect the integrity of Aboriginal nations and territories. However, the imposition of policies and laws of an independent Qu?bec would exacerbate the present situation in ways that are not easy to foresee and redress. Aboriginal peoples already constitute the most vulnerable peoples in Canada. The integrity of Aboriginal societies must not be further jeopardized by forcibly including Aboriginal peoples and their territories within an independent Qu?bec. iv) Implications of imposing principle of territorial integrity on Aboriginal peoples in an independent Quebec. Should Qu?bec become an independent state, the government is not willing to recognize Aboriginal peoples' right to secede from Qu?bec for any reason. In this context, it is important to note that the PQ government is refusing to respect the principle of territorial integrity in relation to Canada. Should a majority of people in Qu?bec approve the unilateral secession of Qu?bec in a referendum, the PQ government is ready to take immediate steps to accede to independence. {1402} Yet, in relation to Aboriginal peoples, it would appear that the Qu?bec government is determined to apply a totally unacceptable double standard. In view of Qu?bec's position on the matter of territorial integrity, it would be exceedingly difficult for Aboriginal peoples to secede from an independent Qu?bec after Qu?bec gains international recognition (should such recognition occur). Currently, the federal government has a fiduciary obligation of a constitutional nature to assist Aboriginal peoples to remain in Canada should Qu?bec attempt to unilaterally secede from Canada. However, the same obligation of the Canadian government would not likely be evident after Qu?bec is internationally recognized as an independent state. v) Qu?bec referendum to take place without prior knowledge or approval of terms and conditions of Constitution of an independent Qu?bec. From a democratic viewpoint, it is most serious that Quebecers are being asked to vote on a unilateral declaration of independence by Qu?bec in the absence of knowing or approving the terms and conditions of a proposed constitution and other fundamental arrangements for a new Qu?bec state. {1403} A principal purpose of a constitution is to establish the political and other institutions that will have authority and govern the state concerned. A second essential purpose is to provide for the necessary checks and balances on executive and legislative powers, through independent judicial authority and possibly an entrenched Charter of Rights. This PQ approach can be especially perilous for Aboriginal peoples, as well as linguistic minorities in Qu?bec. The latter parties concerned are each vulnerable in their own way to the excessive exercise of powers and rights of a secessionist government in a new Qu?bec state. vi) Certain constitutional rights and obligations to be irretrievably lost. If Aboriginal peoples refuse to negotiate their status and rights within a secessionist Qu?bec, it would appear that the PQ government may simply include some of the existing constitutional rights of Aboriginal peoples in a new Qu?bec constitution. {1404} Such action cannot compensate for the fact that the PQ government is choosing to deny Aboriginal peoples their right to self- determination in the context of Qu?bec secession. Furthermore, it appears that not all {1405} existing constitutional rights and obligations in favour of Aboriginal peoples would be included in a new Qu?bec constitution. {1406} Also, those rights and obligations that might be included would likely entail explicit modifications {1407} and have different legal consequences {1408} in a new Qu?bec constitution. Therefore, should Qu?bec accede to independence, the constitutional position of Aboriginal peoples would inevitably be modified unilaterally {1409} by the PQ government. This is true regardless of whether the PQ government claims that Aboriginal peoples would maintain the same constitutional rights as they currently possess under Canada's Constitution. vii) Treaty rights of Aboriginal peoples unilaterally modified and not accorded same constitutional guarantees. Even if an independent Qu?bec were willing to assume all obligations under the James Bay and Northern Quebec Agreement, {1410}the unilateral change of JBNQA from a treaty with two government parties (Canada and Qu?bec) to a treaty {1411} with one government party (an independent Qu?bec) would fundamentally alter the nature of the treaty. Such unilateral change by a secessionist Qu?bec would violate the principle of Aboriginal consent. {1412} viii) Future of treaties and treaty-making concerning Aboriginal peoples uncertain in an independent Quebec. According to the 1994 policy program of the Parti Qu?b?cois, existing treaties of Aboriginal nations will be respected until replaced by new "agreements" between the government of Qu?bec and the Aboriginal nations. {1413} The PQ party policy program makes no reference to treaty-making by Aboriginal peoples or to an independent Qu?bec government entering into treaties with them. Any erosion of Aboriginal peoples' treaty- making powers could serve to undermine their status and the nation-to-nation relationship with non-Aboriginal governments. Although the Parti Qu?b?cois may believe otherwise, treaties and treaty-making continue to be essential to Aboriginal peoples. Also, as the Hon. A.C. Hamilton (former Associate Chief Justice of the Court of Queen's Bench in Manitoba) concludes: "Treaties [with Aboriginal peoples] can, in my opinion, be a strong influence for good in Canada...A treaty that is well and carefully drawn can recognize that the Aboriginal party does in fact have Aboriginal rights. It can, at the same time, provide the certainty the various parties desire." {1414} ix) Rights of Aboriginal peoples who are outside an independent Qu?bec may be jeopardized or lost. There are a number of different situations in which Aboriginal peoples outside the province of Qu?bec currently have unresolved claims within the province. These and other claims are presently administered by the Canadian government through land claims policies. Presently, should claims agreements be reached in regard to lands within a given province, the federal government substantially contributes to the financial compensation that is usually involved. In the event that Qu?bec would become an internationally-recognized independent state, the Canadian government would obviously not have the same constitutional authority to act. Also, the government of Canada may not be willing to contribute monies toward the resolution of land claims in an independent Qu?bec by Aboriginal peoples outside Qu?bec. In addition, it is unclear what recourses, if any, such peoples would have to satisfy their claims within a new Qu?bec state, or whether any available recourses would be effective from an Aboriginal viewpoint. All of these factors are likely to make satisfactory recognition of land and resource rights, as well as resolution of related disputes, exceedingly difficult to attain. Further, the existing offshore rights of Inuit under the Nunavut land claims agreement (Northwest Territories) are likely to be modified. Based on principles of international law, {1415} a secessionist Qu?bec is intending to claim its share of jurisdiction and rights in the offshore around northern Qu?bec. {1416} x) Historic fiduciary relationship with federal Crown to be unilaterally severed and permanently lost. An important aspect of the federal fiduciary relationship is to safeguard the rights and interests of Aboriginal peoples against the competing claims, laws and policies of provincial or local governments. Even if an independent Qu?bec government were to assume a fiduciary relationship with the Aboriginal peoples concerned, {1417} the consequences of such an arrangement would be substantially different in the context of an independent Qu?bec. xi) Lack of Qu?bec government support for emerging international standards pertaining to indigenous peoples. To date, there are no indications that a Qu?bec government would be in favour of emerging international standards relating to indigenous peoples. The PQ policy program makes no reference to the international standard-setting processes that have produced the Indigenous and Tribal Peoples Convention, 1989 (No. 169) {1418} or the draft United Nations Declaration on the Rights of Indigenous Peoples. Moreover, formal representations from legal counsel within the Qu?bec government indicate that the government opposes the draft U.N. Declaration as being contrary to the standards employed by Qu?bec in its dealings with Aboriginal peoples. {1419} Such lack of support for these relevant international norms by the Qu?bec government is wholly unacceptable to Aboriginal peoples. Representatives of the James Bay Crees and numerous other Aboriginal peoples in Qu?bec have spent the past ten years attending annual sessions of the United Nations Working Group on Indigenous Populations in Geneva. Direct input has been provided by indigenous representatives through oral and written presentations, so that an adequate U.N. Declaration on the Rights of Indigenous Peoples could be achieved. xii) Lack of participation of Aboriginal peoples in Qu?bec's political institutions. {1420} Throughout Canada's history, Aboriginal peoples in Qu?bec have been denied for the most part the right of internal self-determination. {1421} Further, in regard to Qu?bec's political institutions, no Aboriginal person has ever been elected to the National Assembly. {1422} In addition, there are few Aboriginal people employed within the civil service of Qu?bec. Consequently, in relation to Aboriginal peoples, it cannot be said that there exists "democratic governance" {1423} in Qu?bec. {1424} If, at the federal level, there are Aboriginal people who are Senators and Members of Parliament ? as well as a Canadian Ambassador of Circumpolar Affairs and a Minister ? why are similar opportunities not accessible to Aboriginal peoples within Qu?bec's political institutions? Aside from self-government issues, these serious problems cannot be redressed by an independent Qu?bec, simply by creating special seats in the National Assembly for Aboriginal peoples to be elected. {1425} Most Aboriginal peoples in Qu?bec are unfamiliar with the French language, though many individuals are already bilingual (Aboriginal language and English). Therefore, election to the National Assembly could prove to be virtually meaningless if the individuals concerned could not function in French. {1426} Language problems for many Aboriginal peoples are likely to become acute in an independent Qu?bec, since the bilingual operations and services of the federal government would be permanently eliminated. Also, legislative debates and government publications, communications and services would generally be in French. {1427} xiii) Increased pressures for resource development in Aboriginal territories. Resource development in the traditional territories of Aboriginal peoples, without their consent, has been a major and enduring source of conflict with the Qu?bec government. {1428} With the advent of an independent Qu?bec, the pressures for resource development are likely to increase. This eventuality would in turn exert increased pressures on the Aboriginal nations affected. As compared to the current situation in Canada involving two levels of government, {1429} there may well be even less means to safeguard the territorial rights and interests of the Aboriginal peoples concerned. xiv) Differences in safeguards in a federal system as compared to a unitary state. In relation to the protection of Aboriginal peoples' status and rights, there are a number of critical differences worth highlighting between the Canadian federation and an independent Qu?bec state. Since the potential differences and impacts are of a diverse and far-reaching nature, they are briefly described under the following sub-heading. 12.1 Canadian Federation versus a Unitary Qu?bec State ? Essential Differences There appear to be critical differences between the safeguards available to Aboriginal peoples and their fundamental status, rights and interests in the Canadian federation, as compared to a unitary Qu?bec state. These include: i) Constitutional amendments to Aboriginal provisions. Presently, within the Canadian federation, the existing amending formulas involving the federal Parliament and the provincial legislatures {1430} make it difficult for constitutional amendments to be made to provisions pertaining to Aboriginal peoples without their consent. Moreover, it can be strongly argued that a constitutional convention exists not to amend Aboriginal provisions in Canada's Constitution in the absence of approval of the Aboriginal peoples affected. {1431} In addition, unilateral alteration of constitutional rights and obligations in favour of Aboriginal peoples would likely constitute a most serious violation of the Crown's fiduciary responsibilities. In contrast, in a unitary state such as an independent Qu?bec, the same constitutional checks and balances would not be available. {1431} For example, the approval of other provincial legislatures and the federal Parliament would no longer be required to amend the constitution of a new Qu?bec state. At times, the PQ government in Qu?bec has publicly suggested that a new Qu?bec constitution for an independent Qu?bec could require the consent of Aboriginal peoples for future amendments of Aboriginal provisions. {1432} However, no formal and concrete proposal has ever been tabled by the government, so that the scope, feasibility and adequacy of any proposed procedure could be properly examined. ii) Maintaining a balance in constitutional values, powers and rights. It is insufficient for Aboriginal peoples to simply have safeguards to amendment of provisions that directly refer to them. Aboriginal peoples can be profoundly affected by what other amendments are included in a nation's constitution. If a balance of constitutional values, powers, and rights are not maintained between all governments and peoples, the position of Aboriginal peoples can be seriously eroded. It is for this reason that Aboriginal peoples insisted that they participate directly in the constitutional negotiations leading up to the Meech Lake Constitutional Accord {1434} in 1987 and in the Charlottetown Accord {1435} in 1992. In the case of a unitary Qu?bec state, it would be much more difficult to maintain such a constitutional balance. Unlike the situation in the Canadian federation where the amending formulas require the approval from a number of provincial legislatures and a federal Parliament, a unitary state can generally adopt any constitutional amendments it chooses. {1436} This would give an independent Qu?bec extensive and ongoing opportunities, at its discretion, to shift the weight of constitutional powers in its favour. This shift may be accomplished without necessarily amending constitutional provisions expressly pertaining to Aboriginal peoples. iii) Judicial system in an independent Qu?bec could have less checks and balances from an Aboriginal perspective. Unless special measures are implemented, there may be less checks and balances within the judicial system of a unitary state than within a federation. In some countries, ordinary legislation is deemed by the courts to have amended the constitution of the unitary state. {1437} Also, in a federation, there are more counterbalancing interests through diverse governments and peoples in the various provinces and territories. While the Supreme Court of Canada, as the highest court within the Canadian federation, is composed of judges from different regions across Canada, the equivalent court in a separate Qu?bec state would come only from Qu?bec. {1438} In an independent Qu?bec, government appointments of judges could easily favour state interests to the detriment of Aboriginal peoples. {1439} This could have far-reaching consequences for the judicial interpretation of the constitutional and other fundamental rights of Aboriginal peoples. To date, there have been no concrete indications that adequate measures would be introduced to ensure that Qu?bec judges appointed by a new Qu?bec state would be made through procedures that safeguarded the rights and interests of Aboriginal peoples. It is important to note that Qu?bec has always regarded with utmost importance the appointment of judges to the Supreme Court of Canada. Moreover, within the Canadian federation, three of the nine judges on the Supreme Court are statutorily guaranteed to be lawyers with civil law training and members of the Bar of Qu?bec. {1440} Similarly, Aboriginal peoples, as the most vulnerable peoples in Canada or Qu?bec, would be deeply concerned about potential shortcomings in regard to judicial appointments in an independent Qu?bec. {1441} Future arrangements pertaining to the judiciary in a separate Qu?bec are extremely important, since even the decisions emanating to date from Qu?bec courts have hardly been reassuring for Aboriginal peoples in the province. {1442} iv) Law of aboriginal title may be altered by Qu?bec civil law and new context of an independent Qu?bec state. At present, the law of aboriginal title is determined to a significant degree {1443}by federal common law. {1444} Should Qu?bec become a unitary state, it is most unclear how Qu?bec courts would interpret aboriginal title in the future or what increased influence Qu?bec's civil law system will have on aboriginal land and resource rights. Such unilateral infusion of Qu?bec civil law could effect unforeseen and far-ranging changes on aboriginal and treaty rights, and render the interpretation of these rights uncertain in the future. In addition, a whole new range of arguments might be available against Aboriginal peoples to the effect that any of their constitutional guarantees must be interpreted in the context of the new Qu?bec constitution. In interpreting Aboriginal constitutional provisions, courts in an independent Qu?bec may well find it necessary to take into account the legal and political exigencies of the new secessionist state. {1445} v) Less sensitivity for and awareness of Aboriginal peoples' conditions by majority population in Qu?bec. As recent polls have shown, francophone Quebecers show significantly less sensitivity to and awareness of Aboriginal peoples' conditions than the minority anglophones within the province. {1446} This situation would likely entail greater consequences in an independent Qu?bec (since public opinion in the rest of Canada would become less significant). Should the majority population of a new Qu?bec state continue to be unsupportive of Aboriginal peoples' concerns, then there would generally be little impetus for the Qu?bec government to act in the interests of Aboriginal peoples in its policies and decisions. vi) Access by Aboriginal peoples to programs and services reduced to one level of government. In an independent Qu?bec, Aboriginal peoples would permanently lose access to federal programs and services, and other assistance. This would leave Aboriginal peoples dependent on a single level of government (i.e. Qu?bec) and render them more vulnerable to the policies and competing demands of a new Qu?bec state. Also, in view of the significantly increased burdens that are anticipated if an independent Qu?bec assumes its portion of the national debt, {1447} it can be expected that there would be a decreased capacity on the part of a new Qu?bec state to maintain Aboriginal programs and services. {1448} Presently, within the Canadian federation, Aboriginal peoples in Qu?bec have access to two levels of government for their essential needs. This situation provides Aboriginal peoples with more flexibility in improving critical community services and providing for their own development. Under the James Bay and Northern Quebec Agreement, funding for Cree and Inuit programs and services are generally guaranteed from two levels of government. {1449} This federal-provincial arrangement under the JBNQA treaty provides greater assurance that, when one government fails to provide adequate programs or funding, there may be access to another level of government for such basic purposes. vii) Less diversity and less counter-balancing interests in an independent Qu?bec state. As compared to the Canadian federation, an independent Qu?bec state is likely to have less diversity and less counter-balancing interests in that the state government would be serving a francophone majority with only one official language in Qu?bec. Such a situation may provide less security to Aboriginal peoples and generate a political and social context where there would be less protections for their rights and interests. Although it is not possible to accurately gauge in advance the nature and extent of the impacts emanating from these fundamental changes that would accompany the establishment of an independent Qu?bec, {1450} the adverse effects could prove to be significant. In view of the complexity of the above issues, it would be most imprudent for the James Bay Crees or other Aboriginal peoples in Qu?bec to rely on the assurances of the PQ government that any existing constitutional or legal problems can be worked out later. If the principle of equal rights and self-determination of peoples is currently being denied to Aboriginal peoples by the PQ government, on what basis would future negotiations possibly take place? Should no agreement be reached on fundamental questions, would a PQ government again resort to the threat or use of force against Aboriginal peoples, as it did in the language debate in 1977? {1451} Moreover, based on the record of the PQ government, even formal commitments of a fundamental nature have not been honoured in the past. {1452} As already described in this Study, {1453} the PQ government tabled in 1985 the National Assembly resolution on aboriginal rights before negotiations on its contents were completed. {1454} This unilateral action was taken against the express wishes of the Aboriginal nations in Qu?bec. No regard whatsoever was given to the official commitment of PQ Premier Ren? L?vesque, at that time, that no resolution would be tabled without the consent of the Aboriginal nations in Qu?bec. In addition, the 1994 version of the Parti Qu?b?cois programme restates a commitment made for a number of years that a PQ government would not insist upon extinguishment of the rights of Aboriginal peoples when entering into agreements with them: "Le gouvernement du Parti Qu?b?cois donnera priorit? ? la conclusion d'ententes dont les grandes lignes ont ?t? d?crites pr?c?demment, qui d?fineront les pouvoirs de chacun des gouvernements. Ces ententes seront conclues sans extinction des droits autochtones..." {1455} [Emphasis added.] Yet, despite this longstanding commitment, {1456} the PQ government has never relinquished its own colonial policy of demanding surrender and extinguishment of rights of Aboriginal peoples in order to reach agreement on land and resource matters. {1457} Also, extinguishment arguments are being erroneously invoked with a view to denying Crees and Inuit their right to self-determination in the context of the Qu?bec secession debate. For example, Premier Parizeau invokes the purported "surrender" clause {1458} in the James Bay and Northern Quebec Agreement, in order to deny Aboriginal peoples in Qu?bec their right to self- determination and to conclude that the borders of a seceding Qu?bec remain safe. {1459} Parizeau's special advisor on Aboriginal affairs, D. Cliche takes the same line of argument. {1460} However, when determining the international right of Aboriginal peoples to self-determination, Bloc Qu?b?cois legal advisor D. Turp (Universit? de Montr?al) indicates that arguments based on "surrender and extinguishment" clauses in land claims agreements are not convincing or an obstacle under international law: "This argument based on territorial rights as established by domestic public law is, however, hardly convincing insofar as the right to self-determination is claimed under international law, which does not necessarily take domestic law into account if such law is an obstacle to the exercise of a people's right to self- determination." {1461} [Emphasis added.] Further, M. Lebel (Universit? du Qu?bec ? Montr?al) describes the double standard of the PQ government as follows: "Deux poids, deux mesures. Certains peuples pourraient pleinement exercer leur droit ? l'autod?termination, d'autres pas. Cette distinction est bien difficile ? admettre au niveau de l'?thique et d'une conception g?n?reuse du droit international. Mais la realpolitik a ses r?gles...Et pour ajouter l'injure ? l'insulte, on dira que les droits ancestraux des Cris ont ?t? ?teints par leur signature de la Convention de la Baie-James." {1462} [Emphasis added.] ["Double standards. Certain peoples could exercise fully their right to self- determination, others not. This distinction is very difficult to admit from an ethical level or from a generous conception of international law. But realpolitik has its rules...And to add insult to injury, one will say that the aboriginal rights of the Crees have been extinguished by their signature of the James Bay Agreement." [Unofficial English translation, emphasis added.]] Also, P. Joffe & M.E. Turpel conclude: "...there is no justification for governments in Canada to invoke "surrender and extinguishment" clauses relating to land claims agreements or other treaties for the purposes of denying Aboriginal peoples in Qu?bec equal recognition of their right to self-determination in the context of Qu?bec secession. Such arguments are wholly erroneous, are an abuse of the treaty- making process, and demonstrate a lack of respect for the solemn commitments made between Aboriginal peoples and non-Aboriginal governments." {1463} [Emphasis added.] As Grand Chief Matthew Coon Come states on the issue of self-determination and "extinguishment": "An act of secession by Quebec would constitute a sufficient violation of the Crees' fundamental rights for us to invoke an external right of self-determination, and give the Crees, at the very least, the choice to remain in Canada. As for the purported extinguishment of Cree rights, legal experts note that the concept, like discovery, is increasingly being rejected as racist against Aboriginal peoples and incompatible with modern concepts of human rights. {1464} In any case it must be noted that extinguishments of Cree rights, if they occured at all, {1465} did so in a federalist context in which our rights to remain in Canada are enshrined." {1466} [Emphasis added.] Footnotes {1376} See, for example, J. Woehrling, "L'?volution et le r?am?nagement des rapports entre le Qu?bec et le Canada anglais" in J.-Y. Morin & J. Woehrling, Demain, le Qu?bec...[:] Choix politiques et constitutionnels d'un pays en devenir, note 19, 1662, supra, at 137, where the author recognizes that numerous issues of a fundamental nature may arise concerning Aboriginal peoples in the event of Qu?bec secession. He consequently proposes a joint Canada-Qu?bec mechanism to address future litigation involving Aboriginal peoples. {1377} Committee to Examine Matters Relating to the Accession of Qu?bec to Sovereignty, Draft Report, note 8, 1662, supra, at 67. See also M. Masse, "Pour la libert? [:] Avec un NON", Le Devoir, September 24, 1995, at A11, where the author foresees a secessionist government in Qu?bec having to limit existing freedoms in order to avoid conflicts and the possible disintegration of its power. {1378} See generally R. Donner, The Regulation of Nationality in International Law, note 419, 1662, supra; J. Chan, The Right to Nationality as a Human Right [:] The Current Trend Towards Recognition, (1991) 12 Human Rights L.J. 1; F. de Castro, La nationalit?, la double nationalit? et la supranationalit?, (1961) 102 Receuil des cours 515. In relation to the particular situation of Qu?bec sovereignty, see C. Emanuelli, "L'accession du Qu?bec ? la souverainet? et la nationalit?" in Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, Les Attributs d'un Qu?bec souverain (Qu?bec: Biblioth?que nationale du Qu?bec, 1992), Expos?s et ?tudes, vol. 1, 61. Generally, it is important not "to confuse [as was done by the EC Arbitration Commission in Yugoslavia] an individual's right to choose his or her nationality with the collective right of self-determination": see H. Hannum, Rethinking Self-Determination, note 133, 1662, supra, at 54. {1379} An Act respecting the future of Qu?bec, s. 13. {1380} Although the Bloc Qu?b?cois has been relatively quiet on this question, it should be mentioned that the BQ's legal advisor, Daniel Turp, has advised as recently as 1992 that "the right of option should be limited to certain categories of citizens" and that "it would be neither in Qu?bec's nor Canada's interests to grant a right of option to all citizens of Qu?b?c, since this would entail the existence of a large Canadian population within another sovereign State." These quotes are taken from Committee to Examine Matters Relating to the Accession of Qu?bec to Sovereignty, Draft Report, note 8, 1662, supra, which summarizes the opinion of Turp found in D. Turp, La citoyennet? et l'?tat-Nation: Le?ons ? tirer de l'exp?rience de la CEE, (Ottawa: January 20, 1992) (text presented as part of a symposium on citizenship).Although the Bloc Qu?b?cois has been relatively quiet on this question, it should be mentioned that the BQ's legal advisor, Daniel Turp, has advised as recently as 1992 that "the right of option should be limited to certain categories of citizens" and that "it would be neither in Qu?bec's nor Canada's interests to grant a right of option to all citizens of Qu?b?c, since this would entail the existence of a large Canadian population within another sovereign State." These quotes are taken from Committee to Examine Matters Relating to the Accession of Qu?bec to Sovereignty, Draft Report, note 8, 1662, supra, which summarizes the opinion of Turp found in D. Turp, La citoyennet? et l'?tat-Nation: Le?ons ? tirer de l'exp?rience de la CEE, (Ottawa: January 20, 1992) (text presented as part of a symposium on citizenship). {1381} Committee to Examine Matters Relating to the Accession of Qu?bec to Sovereignty, Draft Report, note 8, 1662, supra, at 11, in referring to expert testimony heard, provides: "Assuming Canada follows the usual practice of States in such matters, it would withdraw its nationality from persons established in Qu?bec. Canadian citizens established in Qu?bec would therefore lose their status unless they left Qu?bec within a reasonable time and settled in Canada." {1382} Testimony of C. Emannuelli (Universit? d'Ottawa) in Assembl?e nationale, Journal des d?bats, Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, January 21, 1992, at CEAS-504. The unlikelihood of Quebecers being accorded a right to retain their Canadian citizenship is also discussed in L. Gagnon, "Le passport canadien", La Presse, September 19, 1995, at B3. {1383} J. Woehrling, "L'?volution et le r?am?nagement des rapports entre le Qu?bec et le Canada anglais" in J.-Y. Morin & J. Woehrling, Demain, le Qu?bec...[:] Choix politiques et constitutionnels d'un pays en devenir, note 19, 1662, supra, at 115, where the author states that retaining Canadian and Qu?bec nationality would create numerous practical difficulties and would not correspond to the theory of state sovereignty. {1384} Id. Unofficial English translation: "[I]t is...difficult to imagine the case where the totality ? or a very large majority ? of citizens of a State would hold equally the nationality of another State." {1385} However, see A. McIntosh, "There's nothing simple about citizenship issue", The Gazette, Montreal, April 2, 1995, at A5, where it reported that not all commentators are of the view that Canada would revoke citizenship of people in Qu?bec or that it could be easily done from a legal viewpoint. {1386} S. Hartt, Divided Loyalties: Dual Citizenship and Reconstituting the Economic Union (Toronto: C.D. Howe Institute, March 1995). {1387} In revoking Canadian citizenship in the context of Qu?bec secession, the Canadian government would, of course, have to ensure that persons in Qu?bec were not rendered stateless. See the U.N. Convention on the Reduction of Statelessness, (1961) 989 U.N.T.S. 175. Opened for signature in New York on August 30, 1961 and entered into force on December 13, 1975. Adhered to by Canada since July 17, 1978 and in force in Canada since October 15, 1978. {1388} For a proposal of common citizenship between Canada and a future sovereign Qu?bec (along the lines of that in the European Community), see D. Turp, "Citoyennet? qu?b?coise, citoyennet? canadienne et citoyennet? commune selon le mod?le de l'Union europ?enne", in W. Kaplan, (ed.), Belonging: The Meaning and Future of Canadian Citizenship, note 39, supra, 164. {1389} Universal Declaration of Human Rights, U.N.G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), adopted by the U.N. General Assembly on December 10, 1948, art. 15: "1. Everyone has the right to a nationality. [new para.] 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality." See also International Convention on the Elimination of Racial Discrimination, 660 U.N.T.S. 195, (1966) 5 I.L.M. 352, adopted by U.N. General Assembly on December 21, 1965, opened for signature on March 7, 1966, and entered into force on January 4, 1969, art. 5(d)(iii), where the "right to nationality" is referred to as a civil right. {1390} Convention on the Rights of the Child, U.N.G.A. Res. 25 (XLIV), U.N. Doc. A/G.A. Res. 44/25. Reprinted in (1989) 28 I.L.M. 1457. Signed at New York, November 20, 1989, opened for signature on January 26, 1990, entered into force on September 2, 1990. Art. 8: "1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. [new para.] 2. When a child is deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to speedily re-establishing his or her identity." {1391} See, for example, R. Donner, The Regulation of Nationality in International Law, note 419, 1662, supra, at 263: "...the nationality of the successor State extends automatically to the nationals of the predecessor State who remain resident in the ceded or newly independent territory. The nationality of the predecessor State is lost simultaneously. This is the rule of international law." See also I. Brownlie, Principles of Public International Law, note 203, 1662, supra, at 661: "...evidence is overwhelmingly in support of the view that the population follows the change of sovereignty in matters of nationality." However, at 268, Donner, supra, refers to art. 6 of the Vienna Convention on Succession of States in Respect to Treaties, U.N. Doc. A/CONF. 80/31 (1978), 72 A.J.I.L. 971 (1978). Adopted on August 22, 1978 by the U.N. Conference on the Succession of States in Respect of Treaties, opened for signature at Vienna on August 23, 1978, not yet in force. Canada is not a signatory. Art. 6 provides: "The present articles apply only to the effects of a succession of States occurring in conformity with international law and, in particular, the principles of international law embodied in the Charter of the United Nations." [Emphasis added.] The author indicates that this article in the 1978 Convention "may have a bearing on the law relating to nationality and State succession" and "render many of the former modes of State succession, such as forcible annexation...irrelevant in modern practice." {1392} See D. Johnston, "First Nations and Canadian Citizenship" in W. Kaplan, (ed.), Belonging: The Meaning and Future of Canadian Citizenship, note 39, supra, 349. {1393} Also, Aboriginal nations in Qu?bec possess territories that cannot forcibly be taken out of Canada. {1394} This dual political reality is recognized in the draft U.N. Declaration of the Rights of Indigenous Peoples, art. 32: "Indigenous peoples have the collective right to determine their own citizenship in accordance with their customs and traditions. Indigenous citizenship does not impair the right of indigenous individuals to obtain citizenship of the States in which they live..." See also art. 5: "Every indigenous individual has the right to a nationality."; and art. 9: "Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No disadvantage of any kind may arise from the exercise of such a right." {1395} Not all indigenous peoples recognize or choose to accept for themselves the citizenship of the state in which they live. Moreover, where state citizenship is accepted (to varying degrees) by indigenous peoples, it is generally acknowledged by state governments and the peoples concerned that the overall relationship between indigenous peoples and the state is collective in nature. Nationality or citizenship questions are only one important dimension of a broader context. {1396} See, for example, D. Johnston, "First Nations and Canadian Citizenship" in W. Kaplan, (ed.), Belonging: The Meaning and Future of Canadian Citizenship, note 39, supra, at 364: "...First Nations identity and autonomy will not be sacrificed for participation in Canadian citizenship." {1397} See, for example, I. Brownlie, Principles of Public International Law, note 203, 1662, supra, at 673: "Several members of the International Law Commission have pointed out that rules concerning succession must conform with any existing principles of jus cogens [i.e. peremptory norms of international law, from no derogation is permitted]. Points about jus cogens are made with particular reference to the principle of self-determination..." {1398} So-called "dual citizenship" could mean that Aboriginal peoples would be citizens of both Canada and Qu?bec, in addition to being citizens of their own respective Aboriginal nation. Such a situation could be exceedingly complex and not easy to define. {1399} See, for example, A. McIntosh, "There's nothing simple about citizenship issue", The Gazette, Montreal, April 2, 1995, at A5, where various authorities are cited to the effect that "Ottawa could amend a slew of laws to make its coveted social benefits available only to Canadian citizens who are also residents." {1400} For example, the Algonquins, Crees, Inuit, Mikmaq, Mohawks, Montagnais (Innu), in Qu?bec all have traditional territories that transcend the boundaries of the current province of Qu?bec. {1401} This point is also raised in J. Woehrling, "L'?volution et le r?am?nagement des rapports entre le Qu?bec et le Canada anglais" in J.-Y. Morin & J. Woehrling, Demain, le Qu?bec...[:] Choix politiques et constitutionnels d'un pays en devenir, note 19, 1662, supra, at 137. Woehrling proposes a tripartite agreement between Qu?bec, Canada and Aboriginal peoples to ensure freedom of movement of Aboriginal peoples across the new border. Such an agreement would raise a host of issues, as has the Jay Treaty of 1794 (concerning the U.S.-Canadian border). In regard to the Jay Treaty, see R. Savard, "Un projet d'?tat indien ind?pendant ? la fin du XVIIIe si?cle et le trait? de Jay", (1994) 24 Recherches am?rindiennes au Qu?bec 57. {1402} See, generally, the draft Act respecting the future of Qu?bec, which purports to empower the National Assembly to proclaim a UDI after making a formal offer of economic and political partnership to Canada. {1403} This point is discussed under sub-heading 9.4 supra. {1404} Such action is recommended in J. Woehrling, "Souverainet?: la loi doit ?tre adopt?e par r?f?rendum en premier", La Presse, February 24, 1995, at B3. On the other hand, see G. Laforest, "L'?thique de la s?cession", Le Devoir, March 10, 1995, at A10, where it is said that Aboriginal peoples could not rely on clauses in the Constitution Act, 1982, since Qu?bec did not consent to it. However, it should be pointed out that in 1982 the PQ government (former Premier L?vesque) indicated that it was not opposed to such constitutional recognition of aboriginal and treaty rights in regard to Aboriginal peoples. {1405} There is a perception that, for the most part, the constitution for an independent Qu?bec state need only include the same text as in s. 35 of the Constitution Act, 1982, namely recognition and affirmation of existing aboriginal and treaty rights. See, for example, A. ?mond, "Un Qu?bec fiduciaire de ses Indiens", Le Devoir, January 20, 1995, at A11. Section 8 of the draft Act respecting the future of Qu?bec provides that "the existing constitutional rights of the aboriginal nations shall be recognized in the constitution". However, the same section stipulates that the right to self-government will be recognized "on lands over which they have full ownership". In contrast, the James Bay Crees and other Aboriginal peoples assert their respective right to self-government as an inherent right protected by s. 35 of the Constitution Act, 1982. This right is not limited to lands fully owned, but rather extends over their traditional or historical territories. {1406} Serious omissions would include the provisions pertaining to Aboriginal peoples in the Royal Proclamation of 1763 and the terms and conditions attached to the Rupert's Land and North-Western Territory Order, 1870. The fact that the full import of these provisions have yet to be determined by Canadian courts could not justify their exclusion from any new Qu?bec constitution. It would be difficult to provide for equivalent provisions in the context of an independent Qu?bec, since there exists a wide divergence of opinion between the Qu?bec government and Aboriginal peoples as to the meaning of these provisions. Any new constitutional text would have to be negotiated with the Aboriginal peoples concerned and not determined unilaterally. {1407} For example, s. 25 of the Constitution Act, 1982 provides that the guarantees in the Canadian Charter of Rights and Freedoms cannot abrogate or derogate from the aboriginal, treaty and other rights and freedoms of Aboriginal peoples, including those rights and freedoms in the Royal Proclamation of 1763. As indicated in the previous footnote, unilateral modification (if not total exclusion) of the Royal Proclamation is most likely in the context of Qu?bec secession and a new Qu?bec constitution. {1408} For example, s. 91(24) of the Constitution Act, 1867 would have different legal impacts, should an independent Qu?bec government unilaterally assume the same legislative authority as currently exercised by the government of Canada. A key purpose of s. 91(24) was to enable the central government to have authority in relation to Aboriginal peoples and lands reserved for them, so as to safeguard their rights and interests against the competing claims, laws and policies of provincial or local governments. The consequences of s. 91(24) would be entirely different if a provincial government were to assume such powers in the context of an independent Qu?bec. {1409} To date, Aboriginal peoples participate in constitutional negotiations with federal and provincial First Ministers on a nation-to-nation basis. Under s. 8 of the draft Act respecting the future of Qu?bec, Aboriginal representatives will be invited by a "constituent commission to take part in the proceedings devoted to defining their rights". This constitutes a most significant derogation from the existing nation-to-nation relationship and existing status of Aboriginal peoples. As s. 6 of the draft Act makes clear, the constituent commission "shall be composed of a majority of non-Parliamentarians, and shall include Quebecers of various origins and from different backgrounds." In such a context, Aboriginal peoples will be relegated to a minority voice. See G. Laforest, "L'?thique de la s?cession", Le Devoir, March 10, 1995, at A10, where it is suggested that the status of Aboriginal peoples in a sovereign Qu?bec should without a doubt only be established with their consent. However, see D. Turp, L'Avant-projet de loi sur la souverainet? du Qu?bec [:] Texte annot? (Cowansville, Qu?bec: Les ?ditions Yvon Blais, 1995), at 183 (Annex 16), where D. Turp & A. Vahlas have already prepared a proposed draft Constitution for an independent Qu?bec. This draft would unilaterally include constitutional provisions relating to Aboriginal "nations". Also, no effort whatsoever is made to include any equivalent to the Crown's existing constitutional obligations, such as those in the Royal Proclamation of 1763 or in the Rupert's Land and North-Western Territory Order, 1870. {1410} It is worth noting that in court cases involving the James Bay and Northern Quebec Agreement, the Qu?bec government and its Crown corporations (e.g. Hydro-Quebec) have repeatedly taken the position that JBNQA does not constitute a "treaty". {1411} See discussion under sub-heading 8.3 supra. {1412} In effecting any modifications to the terms and conditions of the James Bay and Northern Quebec Agreement, the consent of the Aboriginal parties is expressly required in every chapter of this treaty. {1413} Parti Qu?b?cois, Programme du Parti Qu?b?cois [:] Des id?es pour mon pays (Montr?al: Parti Qu?b?cois, 1994), at 21: "Le gouvernement du Qu?bec respectera les trait?s existantes et les acquis des nations autochtones jusqu'? ce qu'ils soient remplac?s par de nouvelles ententes entre le gouvernement du Qu?bec et les nations autochtones." {1414} A.C. Hamilton, Canada and Aboriginal Peoples [:] A New Partnership (Ottawa: Minister of Public Works and Government Services, 1995), at 117. {1415} See, for example, J. Charney, "The Maritime Boundaries of Qu?bec" in Commission d'?tude des questions aff?rentes ? l'accession du Qu?bec ? la souverainet?, Les Attributs d'un Qu?bec souverain (Qu?bec: Biblioth?que nationale du Qu?bec, 1992), Expos?s et ?tudes, vol. 1, 493. {1416} In the PQ government's draft Act respecting the future of Qu?bec, s. 10 provides in part: "[Qu?bec] shall exercise its jurisdiction...over the areas adjacent to its coast, in accordance with the rules of international law." [Emphasis added.] {1417} This issue is discussed in A. ?mond, "Un Qu?bec fiduciaire de ses Indiens", Le Devoir, January 20, 1995, at A11. {1418} Indigenous and Tribal Peoples Convention, 1989 (No. 169), done at Geneva, June 27, 1989. Opened for signature June 27, 1989; entered into force Sept. 5, 1991. Reprint in (1990) 28 Int'l Legal Mat'ls 1384. To date, Argentina, Bolivia, Columbia, Costa Rica, Mexico and Norway have ratified the Convention. {1419} See, generally, C. Cantin, "Droits des autochtones et exploitation des ressources" in Proceedings of the 1993 Conference of the Canadian Council on International Law, Aboriginal Rights and International Law (Ottawa: Canadian Council on International Law, 1992) 89. {1420} In regard to the right to participate in government, see H. Steiner, Political Participation as a Human Right, (1988) 1 Harv. Human Rts. Y.B. 77; G. Fox, The Right to Political Participation in International Law, (1992) 17 Yale L.J. Int'l L. 539. See also M.E. Turpel, Indigenous Peoples' Rights of Political Participation and Self-Determination: Recent International Legal Developments and the Continuing Struggle for Recognition, 25 Cornell Int'l L. J. 579. {1421} The same point could be made about numerous regions in Canada (especially in regard to self-government). Some local and regional powers government powers were negotiated by Crees and Inuit under the James Bay and Northern Qu?bec Agreement. However, it is the position of the Grand Council of the Crees that the Agreement was negotiated and agreed to under unacceptable conditions of duress. For a similar conclusion, see the Case Study on the James Bay and Northern Quebec Agreement included in P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 3, at 612-634, 638-639. For a discussion of the denial of Cree self-determination under the JBNQA, see 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 103 et seq. See also Grand Council of the Crees v. Government of Canada et al., decision of the International Water Tribunal, Amsterdam, February 20, 1992 (on file with the Grand Council of the Crees), para. 1: "...The jury recognizes the James Bay and Northern Quebec Agreement, but it doubts whether such a contract adequately reflects the aspirations of the Crees to self-determination and control over resources." [Emphasis added.] This decision is reproduced in Second International Water Tribunal, Dams (Utrecht, The Netherlands: International Books, 1994) (Casebook), at 294 et seq. Generally, in regard to Aboriginal peoples' lack of self-determination in the Canada's justice system, see J.-C. Coutu, "De Solon ? Ovide Mercredi ? ou ? Sommes-nous si ?loign?s les uns des autres?" in H.P. Glenn & M. Ouellette, (eds.), Culture, Justice and Law\ La culture, la justice et le droit 1992, note 39, supra, 227. {1422} For a proposal to create specific electoral ridings in Qu?bec that would be "majoritarily" (but not exclusively) Aboriginal, see J.-J. Simard, "La question autochtone: quelques prol?gom?nes", L'Action nationale, vol. LXXXII, June 1992, no. 6, 709, at 732. See also Re Electoral Boundaries Commission Act, ss. 14, 20 (Sask.), (1991) 81 D.L.R. (4th) 16 (S.C.C.) at 36: "Factors like geography, community history, community interests and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic." {1423} In relation to the requirements of "democratic governance", see T. Franck, The Emerging Right to Democratic Governance, (1992) 86 Am. J. Int'l L. 46. At 59, Franck states: "...perhaps a secession option may reemerge as an international legal entitlement. That aspect of self-determination, however, is far less clear at present than the entitlement to democratic participation in governance." {1424} See also J. Klabbers & R. Lefeber, "Lost Between Self-Determination and Uti Possedetis" in C. Br?lmann, R. Lefeber, M. Zieck, (eds.), Peoples and Minorities in International Law, note 46, supra, at 44: "[T]o preserve a people's own lifestyle, in particular if such a people constitutes a numerical minority, it may be necessary to grant special protection, e.g. by an autonomy arrangement or a biased federal state structure"; and H. Hannum, Autonomy, Sovereignty, and Self-Determination [:] The Accommodation of Conflicting Rights (Philadelphia: Univ. of Penn. Press, 1990) at 471: "one person, one vote may not be sufficient". It is also important to note that the 1970 U.N. Declaration on Friendly Relations requires independent states to be "possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour." As indicated in E.-I. Daes, Some Considerations on the Right of Indigenous Peoples to Self-Determination, note 22, 1662, supra, at 8: "...this part of the Declaration makes it clear that distinct peoples and the individuals that comprise them have the right to share power and be included in running the State." [Emphasis added.] {1425} This possibility is raised in Committee to Examine Matters Relating to the Accession of Qu?bec to Sovereignty, Draft Report, note 8, 1662, supra, at 51: "...there would be the question of special representation of minorities and aboriginal peoples in the National Assembly or an upper house of the Parliament of Qu?bec." See also G. Leblanc, "Le ch?teau-fort du pouvoir am?rindien", La Presse, April 10, 1995, at B5, where it is indicated that 6 out of the 57 members of the legislative assembly in Manitoba are Aboriginal people. In addition, the Lieutenant-Governor of Manitoba is a Metis (Yvon Dumont). Leblance reports that, in Manitoba, there are 34,200 Indians on reserves; 31,960 off-reserve Indians; 33,230 Metis; and 465 Inuit (mainly around Winnipeg and Churchill). {1426} Some separatists appear to lack tolerance on the question of the use of Aboriginal languages in the legislature (even when statements are immediately translated by the same person): see "Bloc MP objects to use of Inuit language in Commons", The Gazette, Montreal, June 13, 1995, at A8. {1427} It is not the purposes of the present submission to determine the full nature and scope of the potential impacts on Aboriginal peoples of living in an independent state, whose sole official language is French. However, a comprehensive assessment of this important aspect should be undertaken. In the Charter of the French Language, R.S.Q., c. C-11, s. 95, provides that Cree, Inuit and Naskapi individuals in Qu?bec, as well as their entities created under their respective land claims agreements, have a right to use their own Aboriginal languages within the territories envisaged by these agreements. Moreover, within their territories, such persons and bodies are to a significant degree exempt from the application of this Act. In regard to other Aboriginal peoples in Qu?bec, the Act merely states in s. 87: "Nothing in this act prevents the use of an Amerindic language in providing instructions to the Amerinds." In interacting with non-Aboriginal society in a sovereign Qu?bec, Aboriginal peoples are likely to find themselves in an increasingly difficult position should they be unable to function in the French language. Section 96 of the Charter of the French Language makes it imperative for the use of French to be introduced into the administration of Cree, Inuit and Naskapi bodies, "both to communicate in French with the rest of Qu?bec and with those persons under their administration who are [not persons qualified to benefit under the land claims agreements concerned] and to provide their services in French to those persons." Following a discretionary interim period of exemption and consultation, (s. 96), Cree, Inuit and Naskapi entities involved in civil administration will receive communications from the Qu?bec government solely in French (s. 16) and will be required by law to use French in their internal written communications (s. 17). In Parti Qu?b?cois, Programme du Parti Qu?b?cois [:] Des id?es pour mon pays (Montr?al: Parti Qu?b?cois, 1994), the chapter on immigration, citizenship and integration provides at 162: "Le souverainet? du Qu?bec va, sans contredit, renforcer le statut de la langue fran?aise, dont la maitrise deviendra de plus en plus essentielle ? toute participation r?elle et ?quitable ? la vie de la soci?t? d'acceuil." Unofficial English translation: "The sovereignty of Qu?bec will, without question, strengthen the status of the French language, the mastery of which will become more and more essential for any real and equitable participation in the life of the host society." See also W. Johnson, A Canadian Myth: Quebec, Between Canada and the Illusion of Utopia (Montreal/Toronto: Robert Davies Publishing, 1994), at 382: "After sovereignty has been achieved, the PQ proposes to ensure that life will be increasingly difficult in Quebec for those who do not master' French." {1428} In regard to the James Bay Crees, conflicts have centred to a large degree on hydroelectric development and clear-cutting in forestry. {1429} For example, the existence of both a federal and provincial environmental and social impact assessment process under the James Bay and Northern Quebec Agreement proved to be critical in preventing the Qu?bec government from proceeding unilaterally with the building of roads and other infrastructure connected to the proposed Great Whale hydroelectric project. Had there been no federal process and resulting litigation initiated by the James Bay Crees, the Qu?bec government would have proceeded with their declared plans to divide the hydro project into two separate projects. See G. Hamilton, "Hydro splitting plan to speed approval: Cree", The Gazette, Montreal, January 31, 1992, at A5. {1430} In relation to the Aboriginal provisions in Canada's Constitution, see the general amending formula in s. 38 of the Constitution Act, 1982 that requires the approval of the federal Parliament and at least two-thirds of the provincial legislatures representing at least 50% of the population. {1431} See P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, at 250-253; and N. Finkelstein & G. Vegh, The Separation of Quebec and the Constitution of Canada (North York, Ontario: York University Centre for Public Law and Public Policy, 1992) at 29. {1432} See, for example, R. Platiel, "Rights of natives protected if Quebec separates, experts say", Globe and Mail, September 20, 1995, at A5, where K. McNeil (York University) provides: "The amendment of the Quebec constitution would be up to whatever amending formula Quebec adopts. So the aboriginal peoples in Quebec would lose the protections that they now have under the amending provisions of the Canadian Constitution." {1433} See also H. Brun, "L'int?grit? territoriale d'un Qu?bec souverain" in A.-G. Gagnon et F. Rocher, (ed.), R?pliques aux d?tracteurs de la souverainet? du Qu?bec, note 210, supra, at 79, where the author proposes that the constitution of a sovereign Qu?bec guarantee that no amendments to the constitutional rights of Aboriginal peoples be permitted without their consent. {1434} Direct Aboriginal participation was not provided for in relation to negotiation of the Meech Lake Accord and, it was for this reason, that an Aboriginal legislator (Elijah Harper) in Manitoba blocked the legislative approval of the Accord. {1435} In regard to the negotiations leading up to the Charlottetown Accord, Aboriginal peoples participated directly and extensively in the process. See, generally, M.E. Turpel, "The Charlottetown Discord and Aboriginal Peoples' Struggle for Fundamental Political Change" in K. McRoberts & P. Monahan, (eds.), The Charlottetown Accord, the Referendum and the Future of Canada (Toronto: Univ. of Toronto Press, 1993) 117; A. Bissonnette, Analyse posthume d'un accord mis ? mort, (1993) 23 Recherches am?rindiennes au Qu?bec 80. {1436} In the case of a unitary Qu?bec state, provision of Aboriginal participation alone in any constitutional amendment process would not be sufficient. Such participation could not prevent a unitary Qu?bec state from adopting most constitutional amendments and there would be no other provincial governments or federal government to act as a counterbalance to Qu?bec's proposed amendments. {1437} While it is possible for the courts in a unitary state to declare legislation constitutionally invalid, this is not always the case. For example, see P. Hogg, Constitutional Law of Canada, note 245, 1662, supra, vol. 1, at 5-23: "...in the United Kingdom and New Zealand the courts do not have this power [to declare legislation invalid]. Setting aside the case where the Parliament has failed to follow the correct procedure (or manner and form) of legislation, any law enacted by the United Kingdom or New Zealand Parliament will be held valid in the courts, even if it amends the constitution." [Emphasis added.] {1438} For much of Canada's history, the Supreme Court of Canada has been made up of judges that demonstrated little sensitivity to Aboriginal peoples' values, perspectives and systems of law. In recent years, Supreme Court judges have shown more insight and understanding from an Aboriginal perspective. In the absence of adequate checks and balances, a unitary state could provide even greater latitude to a state government to act in its own self-interest in appointing judges to its courts. {1439} The issue of establishing a high court of unquestionable objectivity, in regard to aboriginal issues in a separate Qu?bec, is raised in A. ?mond, "Un Qu?bec fiduciaire de ses Indiens", Le Devoir, January 20, 1995, at A11. However, the author's suggestion of referring such matters to the judicial committee of the Privy Council in the United Kingdom could be problematic. {1440} See P. Hogg, Constitutional Law of Canada, note 245, 1662, supra, vol. 1, at 8-5: "The Supreme Court of Canada originally comprised six judges, and the Court's statute stipulated that at least two of them had to come from Quebec...Since 1949 a pattern of regional representation has been maintained under which three judges come from Quebec (the statutory requirement), three from Ontario..., two from the Western provinces and one from the Atlantic provinces. The Chief Justiceship has usually alternated between French-speaking and English-speaking incumbents." {1441} Generally, in regard to judicial independence in Canada, see G. P?pin, La jurisprudence relative ? l'ind?pendance judiciaire au Canada, depuis l'arr?t Valente, (1995) 55 Revue du Barreau 313. {1442} See, for example, P. Dionne, Les postulats de la Commission Dorion et le titre aborig?ne au Qu?bec: vingt ans apr?s, (1991) 51 R. du B. 127, where the author describes the wide-ranging and often narrow interpretations of Aboriginal peoples' rights in the Royal Proclamation of 1763 by Qu?bec courts. {1443} It is important to emphasize that Canadian law is not the source of the inherent rights and status of Aboriginal peoples: see, for example, G. Alfred, "L'avenir des relations entre les Autochtones et le Qu?bec" in Choix [:] s?rie Qu?bec-Canada, Les peuples autochtones et l'avenir du Qu?bec (Montreal: Institute for Research on Public Policy, June 1995), vol. 1, no. 10, 4 at 10. See also P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 2, at 441: "Common law concepts have for the most part failed to fully take into account the implications of Aboriginal sovereignty..." It is important to emphasize that Canadian law is not the source of the inherent rights and status of Aboriginal peoples: see, for example, G. Alfred, "L'avenir des relations entre les Autochtones et le Qu?bec" in Choix [:] s?rie Qu?bec-Canada, Les peuples autochtones et l'avenir du Qu?bec (Montreal: Institute for Research on Public Policy, June 1995), vol. 1, no. 10, 4 at 10. See also P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 2, at 441: "Common law concepts have for the most part failed to fully take into account the implications of Aboriginal sovereignty..." {1444} Roberts v. Canada, [1989] 1 S.C.R. 322. {1445} See, for example, P. Hogg, Constitutional Law of Canada, note 245, 1662, supra, vol. 1, at 5-26: "There can be no doubt that judicial review permits, indeed requires, non-elected judges to make decisions of great political significance." Hogg adds in note 101 (same page): "...the element of political choice in a judicial decision is reduced to a very narrow compass by the substantive constraints of the language of the constitutional text and decided cases...A much wider choice of outcomes and reasoning is open to politicians." With respect, throughout Canada's history, cases concerning Aboriginal peoples' status and rights have too often appeared to be politically motivated at least to some significant degree. {1446} B. Bisson, "Francophones et anglophones ont des vues oppos?s sur les autochtones", La Presse, March 11, 1994, at A1, where a March 1994 SOM poll found that 52% of francophones (as compared to 26% of anglophones) in Qu?bec were under the erroneous perception that the quality of life on Indian reserves as better than that of non-Aboriginal people in Qu?bec. Moreover, 77% of francophones (as compared to 28% of anglophones) believed that federal programs for Aboriginal peoples should be diminished, or even abolished. In A. Dubuc, "Un sondage g?nant", La Presse (editorial), March 12, 1994, at B2, and in "Festering Resentments", The Gazette (editorial), Montreal, March 13, 1994, at B2, existing conflicts and media intolerance in the province were said to contribute to such imbalanced views among francophones. However, Dubuc adds: "Mais les tensions et les exc?s m?diatiques ne suffisent pas ? expliquer ces pr?jug?s impardonnables...Ce genre d'ignorance n'est pas acceptable." Unofficial English translation: "But the tensions and media excesses are sufficient to explain these unpardonable biases...This kind of ignorance is unacceptable." In regard to racism on francophone radio talk shows, see "Racism poisons the airwaves", The Gazette (editorial), April 24, 1994, at B2, where it is reported that one radio broadcaster "suggested a good way to settle disputes with Mohawks might be to arm French Canadians with a few rifles and send them to Kahnawake [Mohawk territory]." Access by Aboriginal peoples to a balanced and fair media is essential. In this regard, see D. Gomien, "Pluralism and Minority Access to Media" in A. Rosas & J. Helgesen, (eds.), The Strength of Diversity: Human Rights and Pluralist Democracy (Dordrecht: Martinus Nijhoff Publishers, 1992) 49 at 69: "In evaluating a state's dedication to the democratic principles embodied by freedom of expression, an examination of that state's guarantees of access to media for both minority groups as such and for minority ideas provides one valuable gauge of pluralism." See also draft U.N. Declaration on the Rights of Indigenous Peoples, art. 17: "...States shall take effective measures to ensure that State-owned media duly reflect indigenous cultural diversity." {1447} See, for example, A. Dubuc, "La souverainet? ? l'ombre de la dette", La Presse (editorial), February 4, 1995, at B2, where it is indicated that the debt would pose such considerable problems that it alone constitutes a sufficient argument for rejecting Qu?bec separation. On the seriousness of debt-related issues, see P. Monahan, Cooler Heads Shall Prevail: Assessing the Costs and Consequences of Quebec Separation, note 114, 1662, supra, at 22-24, 26. However, see F. Tremblay, "Un Qu?bec souverain refusera d'?tre ?touff? par le partage de la dette", Le Devoir, February 7, 1995, at A1, where Jean Campeau, Minister of Finance for the PQ government has indicated that Qu?bec is not prepared to assume any portion of the national debt that would be inequitable or would affect economic development in an independent Qu?bec. {1448} See also K. Valaskakis & A. Fournier, Le pi?ge de l'ind?pendance [:] Le Qu?bec sera-t-il affaibli par la souverainet??, note 299,1662, supra, at 32, where the authors suggest that, following separation, the cost of public services may increase significantly. In regard to the various problems envisaged in an independent Qu?bec taking over federal services, see A. Riga, "The bureaucratic nightmare", The Gazette, Montreal, April 15, 1995, at B2. {1449} JBNQA, s. 2.12: "Federal and provincial programs and funding, and the obligations of the Federal and Provincial Governments, shall continue to apply to the James Bay Crees and the Inuit..." {1450} It is also difficult to assess the future situation with any certainty, since the PQ government has not provided suffient indication of what the constitutional and other arrangements would be in an independent Qu?bec. See discussion under sub-heading 9.4 supra. {1451} The use of riot police in 1977 against Inuit who demonstrated in their northern communities against the imposition of Qu?bec's proposed language legislation is described under sub-heading 4.2 supra. {1452} For example, in regard to JBNQA, most of the social and economic obligations of the government under chapter 28 of the 1975 treaty have yet to be fulfilled. {1453} See text accompanying note 336, 1454 supra. {1454} The resolution is officially entitled Motion for the recognition of aboriginal rights in Qu?bec and was adopted by the National Assembly in March 1985. {1455} Parti Qu?b?cois, Programme du Parti Qu?b?cois [:] Des id?es pour mon pays (Montr?al: Parti Qu?b?cois, 1994) at 21: "The government of the Parti Qu?b?cois will give priority to the conclusion of agreements, the broad lines of which have been previously described, which will define the powers of each of the governments. These agreements will be concluded without extinguishment of aboriginal rights..." [Emphasis added.] {1456} For an analysis of this Parti Qu?b?cois commitment concerning "extinguishment", see P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 2, at 409 et seq. {1457} Most recently, the government is insisting on the renunciation of aboriginal rights by the Montagnais and Attikamekw in exchange for various forms of compensation. See M. Venne, "Des terres, des pouvoirs et des droits pour les Attikamekw and les Montagnais", Le Devoir, October 29-30, 1994, at A1. {1458} Section 2.1 of JBNQA provides: "In consideration of the rights and benefits herein set forth in favour of the James Bay Crees and the Inuit of Quebec, the James Bay Crees and the Inuit hereby cede, release, surrender and convey all their Native claims, rights, titles and interests, whatever they may be, in and to land in the Territory and in Quebec, and Quebec and Canada accept such surrender." {1459} J. Parizeau, "Fronti?res d'un Qu?bec souverain: la situation est on ne peut plus claire'", La Presse, May 25, 1994, at B3; see also M. Fontaine, "Parizeau ne pr?voit pas obstacle ? la reconnaissance internationale du Qu?bec", La Presse, January 24, 1991, at B {1460} D. Cliche, "Quebec's existing borders will remain", Ottawa Citizen, June 5, 1994, at A9. {1461} D. Turp, "Quebec's Democratic Right to Self-Determination" in S. Hartt et al., (ed.), Tangled Web: Legal Aspects of Deconfederation, (Toronto: Renouf Publishing Co. Ltd./C.D. Howe Institute, 1992) 99, at 119-120. {1462} M. Lebel, "Une langue de bois qui dessert son peuple", Le Devoir, December 8, 1994, at A11. {1463} P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, at 190-191. {1464} See, for example, R. Penner, "Power, the Law, and Constitution-Making" in British Columbia: Delgamuukw v. The Queen (Montreal: Institute for Research on Public Policy, 1992) at 242-252. {1465} The Grand Council of the Crees takes the firm position that the so-called "surrender and extinguishment" clauses were imposed upon the Crees through the James Bay and Northern Quebec Agreement under conditions of duress. {1466} Grand Chief Matthew Coon Come, The status and rights of the James Bay Crees in the context of Quebec secession from Canada, Speaking Notes, Centre for Strategic and International Studies, Washington, September 19, 1994, (on file with the Grand Council of the Crees) at 8-9.