Communiqué - C.D. Howe Institute · C.D. Howe Institute / Institut C.D. Howe Communiqué / 3. ... processus constitutionnel, il devrait être possible de parvenir à une entente

C.D. Howe InstituteInstitut C.D. Howe Communiqué

Embargo: For release Thursday, October 9, 1997.

Negotiate, ratify any Quebec sovereigntyagreement under existing rules of

Canadian Constitution,says C.D. Howe Institute study

In the event of a “yes” vote in another sovereignty referendum in Quebec, the terms of Quebec’saccession to sovereignty should be negotiated and ratified in a way that involves the least chaosand disruption — that is, under the existing rules for amending the Canadian Constitution,says a C.D. Howe Institute Commentary released today.

The study, Ratifying a Postreferendum Agreement on Quebec Sovereignty, was written by PeterRussell, a political scientist at the University of Toronto, and Bruce Ryder, a law professor atOsgoode Hall Law School, York University.

The authors note that, while some Quebec sovereigntists might object even to trying tofollow the constitutional route, there is now nearly complete consensus — likely soon backedby the Supreme Court of Canada — that Quebec cannot claim a right to unilateral secessionunder international law and that, in any event, there are a number of Aboriginal peoples inQuebec whose moral and legal right to self-determination is stronger than the Québécois canclaim. Moreover, while Quebec has not ratified the Constitution Act, 1982, Quebec governmentshave already shown their willingness to use elements of the act when it suited their purposes.Finally, while the constitutional process would be difficult, it is better than the alternatives;with an awareness of the chaos that would result if the constitutional process fails, it shouldbe possible to arrive at a negotiated sovereignty agreement.

Russell and Ryder suggest that a negotiated sovereignty agreement with Quebec couldinclude constitutional changes that fall into some or all of five categories:

• constitutional amendments terminating the authority of existing federal and provincialinstitutions over the territory and people of Quebec;

• constitutional and statutory amendments to make remaining federal institutions work-able in the short term;

• provisions, constitutional or otherwise, for any new links established between Quebecand Canada;

• new treaties, or a commitment to negotiate them, among Aboriginal peoples, Quebec, andCanada; and

• nonconstitutional items to be implemented by legislation, executive orders, or treaties.

To meet the requirements of the Canadian Constitution’s amending formulas, Russell andRyder say, many of these changes would have to be ratified by Parliament and the relevantprovincial legislatures. This could be done by “unpacking” or separating the components ofthe agreement and subjecting them to a multitrack process of legislative ratification, or,Meech-style, by treating the agreement as a single package subject to the unanimity rule setout in the Constitution.

Russell and Ryder argue that, while only Alberta and British Columbia require a referen-dum on a constitutional amendment before its being presented to their provincial legislatures,moral and political legitimacy would demand that such changes also be ratified through anational referendum on substantial amendments. The changes should be deemed to have beenaccepted by the Canadian people if the referendum passes in each of Canada’s five regions,rather than in each individual province.

Finally, Russell and Ryder insist that the separate consent of Aboriginal peoples in Quebecto any sovereignty agreement would be required by the spirit of the Constitution Act, 1982, byCanada’s fiduciary obligations to Aboriginal peoples, and by emerging norms of internationallaw. This would likely include the need to complete a trilateral treaty process with eachAboriginal nation in Quebec.

This publication continues the C.D. Howe Institute’s postreferendum research agenda,which comprises two Commentary series. One series — of which the paper by Russell and Ryderis a part — is called “The Secession Papers,” which, in the light of the results of the 1995 Quebecreferendum, aims to assist Canadians to “think about the unthinkable.” Papers alreadypublished in this series are Coming to Terms with Plan B: Ten Principles Governing Secession, byPatrick J. Monahan and Michael J. Bryant with Nancy C. Coté; and Looking into the Abyss: TheNeed for a Plan C, by Alan C. Cairns.

Complementing this effort is another series called “The Canadian Union Papers,” focusingon ways to enhance Canada’s political, economic, and social union. Papers already publishedin this series are: Securing the Canadian Economic Union: Legal and Constitutional Options for theFederal Government, by Robert Howse; Drawing on Our Inner Strength: Canada’s EconomicCitizenship in an Era of Evolving Federalism, by Daniel Schwanen; Language Matters: EnsuringThat the Sugar Not Dissolve in the Coffee, by John Richards; Time Out: Assessing IncrementalStrategies for Enhancing the Canadian Political Union, by Roger Gibbins; and Citizen Engagementin Conflict Resolution: Lessons for Canada in International Experience, by Janice Gross Stein, DavidR. Cameron, and Richard Simeon, with Alan Alexandroff.

Both series are being published under the supervision of David Cameron, a politicalscientist at the University of Toronto.

* * * * *

The C.D. Howe Institute is Canada’s leading independent, nonpartisan, nonprofit economic policy researchinstitution. Its individual and corporate members are drawn from business, labor, agriculture, universities,and the professions.

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C.D. Howe Institute / Institut C.D. Howe Communiqué / 2

For further information, contact: Peter Russell (416) 923-4919 or (705) 756-1670Bruce Ryder (416) 736-5548 (Tuesday, Wednesday, Thursday) or

(514) 272-0400 (Monday and Friday)Susan Knapp (media relations), C.D. Howe Institute

phone: (416) 865-1904; fax: (416) 865-1866e-mail: [email protected]

Internet: http://www.cdhowe.org/eng/pr/new.html

Ratifying a Postreferendum Agreement on Quebec Sovereignty, C.D. Howe Institute Commentary 97, by PeterRussell and Bruce Ryder (C.D. Howe Institute, Toronto, October 1997). 28 pp.; $6.00 (prepaid, plus postage& handling and GST — please contact the Institute for details). ISBN 0-88806-416-0.

Copies are available from: Renouf Publishing Company Limited, 5369 Canotek Road, Ottawa, OntarioK1J 9J3 (stores: 711/2 Sparks Street, Ottawa, Ontario; 12 Adelaide Street West, Toronto, Ontario); ordirectly from the C.D. Howe Institute, 125 Adelaide Street East, Toronto, Ontario M5C 1L7. The full textof this publication will also be available on the Internet.


C.D. Howe InstituteInstitut C.D. Howe Communiqué

Embargo : à diffuser le jeudi 9 octobre 1997

Négociez et ratifiez toute entente de souverainetéavec le Québec dans le cadre des règlements

existants de la constitution canadienne,affirme une étude de l’Institut C.D. Howe

Si le « Oui » devait l’emporter lors d’un autre référendum québécois sur la souveraineté, ilfaudrait négocier les modalités d’un accès du Québec à la souveraineté et les ratifier d’unemanière qui entraînera le moins de bouleversement et de perturbation possibles — c’est-à-diredans le cadre des règles existantes afférentes aux modifications de la constitution canadienne,affirme un Commentaire de l’Institut C.D. Howe publié aujourd’hui.

L’étude, intitulée Ratifying a Postreferendum Agreement on Quebec Sovereignty (La ratificationd’une entente postréférendaire sur la souveraineté du Québec), est rédigée par Peter Russell, unpoliticologue à l’Université de Toronto, et Bruce Ryder, professeur de droit à l’Osgoode HallLaw School de l’Université York.

Les auteurs indiquent que même si certains souverainistes québécois s’opposent neserait-ce qu’à essayer de suivre la voie constitutionnelle, le consensus est presque entier — etil sera sans doute sous peu appuyé par la Cour suprême du Canada — que le Québec ne peutrevendiquer un droit à la sécession unilatérale en vertu du droit international, et que toutemanière, il existe plusieurs peuples autochtones au Québec dont le droit moral et légal àl’autodétermination est plus fort que celui des Québécois. Au demeurant, bien que le Québecn’ait pas ratifié la Loi constitutionnelle de 1982, les divers gouvernements du Québec ontmanifesté leur empressement à avoir recours à certains éléments de ladite loi lorsqu’elle leurconvenait. Finalement, même si le processus constitutionnel devait être ardu, il vaut mieux quetoute alternative; en gardant à l’esprit les perturbations qui s’ensuivraient en cas d’échec duprocessus constitutionnel, il devrait être possible de parvenir à une entente négociée sur lasouveraineté.

MM. Russell et Ryder proposent qu’une entente négociée sur la souveraineté avec leQuébec comporte des changements constitutionnels portant sur certaines ou toutes les cinqcatégories suivantes :

• des modifications constitutionnelles mettant fin à la compétence des établissementsfédéraux et provinciaux existants sur le territoire et le peuple québécois;

• des modifications constitutionnelles et législatives qui permettront aux institutionsfédérales restantes de fonctionner à court terme;

• des dispositions, constitutionnelles ou autres, afférentes à tout nouveau lien établi entrele Québec et le Canada;

• de nouveaux traités, ou un engagement de négociation envers ceux-ci, englobant lespeuples autochtones, le Québec et le Canada;

• des éléments d’ordre non constitutionnel à mettre en œuvre par le biais de mesureslégislatives, de décrets ou de traités.

Pour répondre aux exigences des procédures de modification de la constitution canadi-enne, les auteurs affirment que plusieurs des changements devront être ratifiés par le Parle-ment et les assemblées législatives pertinentes. On pourrait y parvenir en « dégroupant » ouen dissociant les éléments de l’entente et en les soumettant à un processus multivoie deratification législative, ou, à la manière de Meech, en traitant l’entente en bloc sujette à la règlede l’unanimité prévue par la Constitution.

MM. Russell et Ryder soutiennent que même s’il n’y a que l’Alberta et la Colombie-Bri-tannique qui prévoient la tenue d’un référendum sur une modification constitutionnelle avantsa soumission aux assemblées législatives provinciales, la légitimité morale et politique exigentque de telles modifications soient ratifiées par le biais d’un référendum à l’échelle nationale.Les modifications ne devraient être considérées comme acceptées par le population canadienneque si le référendum est appuyé dans chacune des cinq régions canadiennes, plutôt que danschaque province.

Finalement, les auteurs soulignent que l’esprit de la Loi constitutionnelle de 1982 dicte qu’ilfaut obtenir le consentement des peuples autochtones du Québec à toute entente de sou-veraineté, en vertu des obligations fiduciaires du Canada envers les peuples autochtones, etdes normes nouvelles du droit international. Ceci comporterait probablement un processus detraité trilatéral avec chaque nation autochtone du Québec.

Ce document poursuit le programme de recherche postréférendaire de l’InstitutC.D. Howe, qui englobe deux séries de Commentaires. L’une des séries, dont fait partie ledocument de MM. Russell et Ryder, est intitulée « Les cahiers de la sécession »; à la lumièredes résultats du référendum québécois de 1995, elle se veut d’aider les Canadiens à « concevoirl’inconcevable ». Parmi les documents déjà publiés dans cette série, figurent Coming to Termswith Plan B: Ten Principles Governing Secession, par Patrick J. Monahan et Michael J. Bryant avecla collaboration de Nancy C. Coté, et Looking into the Abyss: The Need for a Plan C, par Alan C.Cairns.

Parallèlement à cette série, en figure une autre intitulée « Les cahiers de l’union canadi-enne », qui porte sur les moyens d’améliorer l’union politique, sociale et économique duCanada. Parmi les documents déjà publiés, figurent les suivants : Securing the Canadian Eco-nomic Union: Legal and Constitutional Options for the Federal Government, par Robert Howse,Drawing on Our Inner Strength: Canada’s Economic Citizenship in an Era of Evolving Federalism, parDaniel Schwanen, Language Matters: Ensuring That the Sugar Not Dissolve in the Coffee par JohnRichards, Time Out: Assessing Incremental Strategies for Enhancing the Canadian Political Unionpar Roger Gibbins, et La participation des citoyens au règlement des conflits : les leçons de l’expérienceinternationale pour le Canada, par Janice Gross Stein, David R. Cameron et Richard Simeon, avecla collaboration d’Alan Alexandroff.


Les deux séries sont dirigées par David Cameron, un politicologue de l’Université deToronto.

* * * * *

L’Institut C.D. Howe est un organisme indépendant, non-partisan et à but non lucratif, qui joue un rôleprépondérant au Canada en matière de recherche sur la politique économique. Ses membres, individuels etsociétaires, proviennent du milieu des affaires, syndical, agricole, universitaire et professionnel.

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Renseignements : Peter Russell 416 923-4919 ou 705 756-1670Bruce Ryder 416 736-5548 (les mardi, mercredi et jeudi) ou

514 272-0400 (les lundi et vendredi)Susan Knapp (relations avec les médias), Institut C.D. Howe

téléphone : 416 865-1904; télécopieur : 416 865-1866courrier électronique : [email protected]

Internet : www.cdhowe.org/fr/pr/new.html

Ratifying a Postreferendum Agreement on Quebec Sovereignty, Commentaire no 97 de l’Institut C.D. Howe, parPeter Russell et Bruce Ryder, Toronto, Institut C.D. Howe, octobre 1997, 28 p., 6,00 $ (les commandes sontpayables d’avance, et doivent comprendre les frais d’envoi, ainsi que la TPS — prière de communiquer avecl’Institut à cet effet). ISBN 0-88806-416-0.

On peut se procurer des exemplaires de cet ouvrage auprès des : Éditions Renouf ltée, 5369, chemin Canotek,Ottawa ON K1J 9J3 (librairies : 711/2, rue Sparks, Ottawa ON, tél. 613 238-8985 et 12, rue Adelaide ouest,Toronto ON, tél. 416 363-3171), ou encore en s’adressant directement à l’Institut C. D. Howe, 125, rueAdelaide est, Toronto ON M5C 1L7.


The SecessionPapers

Ratifying aPostreferendum Agreement

on Quebec Sovereigntyby

Peter Russelland Bruce Ryder

If the sovereigntists win another referendum inQuebec, the terms of Quebec’s accession tosovereignty should be negotiated and ratifiedunder the existing rules for amending theCanadian Constitution, despite some sov-ereigntists’ objections that Quebec need notabide by the terms of the Constitution Act,1982, which it has never ratified. Any otherprocess, however, is likely to lead to more chaosand disruption than would otherwise occur.

A sovereignty agreement could includeconstitutional changes that fall into some or allof five categories: constitutional amendmentsterminating the authority of existing federal andprovincial institutions over the territory andpeople of Quebec; constitutional and statutoryamendments to make remaining federalinstitutions workable in the short term;provisions, constitutional or otherwise, for anynew links established between Quebec andCanada; new treaties, or a commitment tonegotiate them, among Aboriginal peoples,Quebec, and Canada; and nonconstitutionalitems to be implemented by legislation,executive orders, or treaties.

The Constitution’s amending formulaswould require that many of these changes beratified by Parliament and by the relevantprovincial legislatures. This could be done byseparating the components of the agreementand subjecting them either to a multitrackprocess of legislative ratification, or,Meech-style, by treating the agreement as asingle package subject to the unanimity ruleset out in the Constitution.

Moral and political legitimacy woulddemand that such changes also be ratifiedthrough a national referendum on substantialamendments. The changes should be deemedto have been accepted by the Canadianpeople if the referendum passes in each ofCanada’s five regions, rather than in eachindividual province.

Finally, the separate consent of Aboriginalpeoples in Quebec to any sovereigntyagreement would be required by the spirit ofthe Constitution Act, 1982, by Canada’sfiduciary obligations to Aboriginal peoples, andby emerging norms of international law.

Main Findings of the Commentary

• In the event of a “yes” vote in another sovereignty referendum in Quebec, the termsof Quebec’s accession to sovereignty should be negotiated and ratified in a waythat involves the least chaos and disruption — that is, under the existing rulesfor amending the Canadian Constitution.

• While some Quebec sovereigntists might object even to trying to follow such aprocess, there is now nearly complete consensus — likely soon backed by theSupreme Court of Canada — that Quebec cannot claim a right to unilateralsecession under international law and that, in any event, there are a number ofAboriginal peoples in Quebec whose moral and legal right to self-determination isstronger than the Québécois can claim. Moreover, while Quebec has not ratifiedthe Constitution Act, 1982, Quebec governments have already shown theirwillingness to use elements of the act when it suited their purposes. Finally, whilethe constitutional process would be difficult, it is better than the alternatives; withgood will and flexibility on all sides, it should be possible to arrive at a negotiatedsovereignty agreement.

• A negotiated sovereignty agreement with Quebec could include constitutionalchanges that fall into some or all of five categories:

• constitutional amendments terminating the authority of existing federal andprovincial institutions over the territory and people of Quebec;

• constitutional and statutory amendments to make remaining federal institu-tions workable in the short term;

• provisions, constitutional or otherwise, for any new links established betweenQuebec and Canada;

• new treaties, or a commitment to negotiate them, among Aboriginal peoples,Quebec, and Canada; and

• nonconstitutional items to be implemented by legislation, executive orders, ortreaties.

• To meet the requirements of the Canadian Constitution’s amending formulas,many of these changes would have to be ratified by Parliament and the relevantprovincial legislatures. This could be done by “unpacking” or separating thecomponents of the agreement and subjecting them to a multitrack process oflegislative ratification, or, Meech-style, by treating the agreement as a singlepackage subject to the unanimity rule set out in the Constitution.

• While only Alberta and British Columbia require a referendum on a constitutionalamendment before its being presented to their provincial legislatures, moral andpolitical legitimacy would demand that such changes also be ratified through anational referendum on substantial amendments. The changes should be deemedto have been accepted by the Canadian people if the referendum passes in eachof Canada’s five regions, rather than in each individual province.

• Finally, the separate consent of Aboriginal peoples in Quebec to any sovereigntyagreement would be required by the spirit of the Constitution Act, 1982, byCanada’s fiduciary obligations to Aboriginal peoples, and by emerging norms ofinternational law. This would likely include the need to complete a trilateral treatyprocess with each Aboriginal nation in Quebec.

If there is another sovereignty referendum inQuebec and the sovereigntists win, negotia-tions undoubtedly would follow between thegovernment of Quebec and authorities rep-

resenting other components of the Canadianfederation regarding the terms of Quebec’schange in constitutional status. Assuming suchnegotiations take place and are brought to asuccessful conclusion, the question of ratifica-tion then arises: How could the outcome ofthese negotiations be approved by the bodiesto which the negotiators are responsible, andbe given legal effect? The purpose of this Com-mentary is to outline a ratification process fora potential agreement on the terms of Quebec’saccession to sovereignty that would be consis-tent with the requirements of Canadian law.1

In the first section, we present our case forchoosing to implement sovereignty for Quebecthrough the instrument of the Canadian Con-stitution, despite the objections many sover-eigntists have expressed and would no doubtcontinue to express to such a course. We alsostress the importance of a “good faith” attitudefor all participants, and consider the alterna-tives to a constitutionally sanctioned process— the very undesirability of which, ironically,may help our case.

Next, we briefly outline some issues relatedto ratification that would need to be covered inthe agreement negotiations themselves for theprocess to work; the more all sides agree onprocess from the beginning, the better.

The third section outlines the componentsthat would likely be included in a sovereigntyagreement with Quebec and the constitutionaland other changes that would be required toimplement them. Although we advocate (andexpect) that these changes would be kept tothe minimum necessary in the short term,they are nevertheless extensive — not surpris-ingly, since the removal of a founding provincefrom the federation would affect almost everyaspect of Canadian government, law, and thejustice system, as well as relations with Abo-riginal peoples.

This exercise allows us, in the next section,to categorize these amendments in terms of

what process would be necessary to ratifythem. The Canadian Constitution offers fivedifferent amending formulas — which one ap-plies in which case depends on the content ofthe amendment.

Once this “unpacking” has made clearwhich legislatures’ approval would be constitu-tionally necessary to ratify various parts of asovereignty agreement, we look at the ratifica-tion process in the context of Canadian politi-cal realities, which would have to include notjust legislative sanction but popular consult-ation by referendum and treaty arrangementswith the Aboriginal peoples of Quebec.

Finally, we briefly discuss an extreme situ-ation in which the limits of constitutionalismmight be reached and strict adherence to therule of law might be unreasonable.

The ConstitutionalRoute to Sovereignty

The Case for aConstitutional Process

We hold the view that, if there is to be a radicalchange in Quebec’s constitutional status —including its becoming an independent state— such a change should be effected througha process that is consensual and retains legalcontinuity. Thus, we favor a process of ratifi-cation that is carried out under the existingrules for amending the Canadian Constitu-tion. This is not the only way Quebec couldachieve sovereignty, but it is the way thatinvolves the least chaos and disruption.

Many Canadians may regard this effort tospell out how Quebec’s sovereignty could beachieved under the Constitution as a contra-dictory, dangerous, or even treasonous exer-cise. In the words of one colleague, “it is liketelling the burglar who is about to break intoyour house how to unlock the door so that hewon’t smash any windows.”

On the other hand, Quebec sovereigntistsare apt to argue that requiring that the tran-sition to sovereignty be achieved through therules of the Canadian Constitution places themin a legal straitjacket. “It is like telling us,” they

C.D. Howe Institute Commentary / 3

might say, “how to unlock the door but givingus a key that just will not work.”

We hope this Commentary helps persuadeboth of these groups that, in the event of asovereigntist win in a Quebec referendum, itwould be in the interest of all parties involvedto try to reach a settlement through the exist-ing constitutional machinery.

As for Canadians who oppose thinkingabout the unthinkable, we join other recentC.D. Howe Institute Commentary authors inbelieving that the narrowness of the federal-ists’ win in the 1995 Quebec referendum dem-onstrates that we can no longer afford to takean ostrich-like approach to the possibility ofQuebec sovereignty.2 While we would like tosee Quebec’s constitutional aspirations accom-modated through federal restructuring, thismay not happen; a Plan B is clearly needed.Only those who are unwilling to support Can-ada’s recognition of Quebec sovereignty underany circumstances can oppose efforts to find aprocess that would reduce the economic andsocietal disruption that would follow a clearindication by Quebecers of their will to secede.On this point, we support the position takenby then-federal justice minister Allan Rock onannouncing his government’s decision to referquestions on Quebec secession to the Su-preme Court of Canada: “This country will notbe held together against the will of Quebecersclearly expressed.”3 Like Mr. Rock and mostCanadians, we hope that independence fromCanada will not become the clear preference ofmost Quebecers. But if it does, we believe itwould be best for everyone that this choice notbe blocked by force, and that a serious effortbe made to give effect to that choice through aprocess that observes the rule of law. Sucha process entails the least threat of economicdislocation, legal uncertainty, and communalviolence.

Sovereigntist Objections

Quebec sovereigntists tend to resist even morethan Canadian patriots the idea of achievingQuebec’s independence through the instru-ment of the Canadian Constitution. They ad-

vance at least three arguments to support thisview:

• that secession following a sovereigntist ref-erendum victory could be accomplishedunilaterally, and would be sanctioned byinternational law despite its violation ofCanadian constitutional law;

• that, since the government of Quebec didnot ratify the Constitution Act, 1982, itshould not be bound by the rules for amend-ing the Constitution set out in part V of thatact; and

• that any attempt to implement a sover-eignty agreement in accordance with theamending procedures would prove futile —the rigidity of the amending formulasmeans they would simply serve to keepQuebecers in a constitutional straitjacket.

Let us consider each of these objections inturn.

The Right of Self-Determination

The first point, that Quebecers as a peoplehave, under international law, a right of self-determination that takes precedence over theCanadian Constitution, is the nub of two of thequestions the federal government has referredto the Supreme Court of Canada (see Box 1).

We believe the Supreme Court will rejectthe view that international law gives Quebecthe right to secede unilaterally. One reason forthis conclusion is that the inhabitants of theprovince of Quebec as a whole are not a singlepeople, and therefore the province does notconstitute a self-determination unit for thepurposes of international law. Even for a singlepeople, the broadest interpretation of the in-ternational right of self-determination givesrise to a right of secession only in situationswhere the people in question suffer under analien or colonial regime or endure analogousforms of oppression, such as the widespreaddeprivation of civil rights. Since, clearly, theQuébécois people do not suffer political op-pression, there is nearly complete consensus

4 / C.D. Howe Institute Commentary

among legal commentators that neither theprovince of Quebec nor the Québécois peoplecan claim a right to unilateral secession as anelement of the right of self-determination as itis currently understood in international juris-prudence.4

In the face of this consensus, which theSupreme Court in all likelihood will confirm,sovereigntist commentators no longer rely, intheir public statements, on the internationalright of self-determination as the legal basisfor their political project. For example, the textand preamble of Quebec’s Bill 1 — introducedjust prior to the 1995 referendum to set outthe rationale for seeking sovereignty and theprocedures by which it would be obtained —contained no reference to the internationalright of self-determination.5 Thus, whensovereigntists say that international law willprovide the basis for their accession to sover-eignty, what they must mean is that, ulti-

mately, the new state would be recognized byother states if it can establish effective politicalcontrol of its territory.6 This political controlcould be accomplished either by constitutionalnegotiations and agreement or by winning ahigh-risk contest of political wills with the restof Canada and dissident minorities withinQuebec; our point is simply that the formerroute is to be preferred.

It must also be recognized that there are anumber of Aboriginal peoples within the prov-ince of Quebec whose right to self-determina-tion — in both moral and legal terms — is asstrong, if not stronger, as any that the Québé-cois people can claim.7 Therefore, a majorityvote of Quebecers cannot be regarded as hav-ing the legal or moral authority to seal theconstitutional destiny of Aboriginal peopleswhose homeland is partly or entirely in Que-bec.8 On the other hand, because Quebec isalso the principal homeland of French Cana-

Box 1: The Supreme Court of Canada Questions

On September 26, 1996, the federal governmentannounced that it would refer to the SupremeCourt of Canada three questions on whetherCanadian constitutional law or international lawsupported the Quebec government’s assertionthat the province has the right to secede unilat-erally from Canada. These questions, set out inOrder-in-Council 1996-1497, are as follows:

Whereas the Government of Quebec has expressedits view that the National Assembly or government ofthat province has the right to cause Quebec to secedefrom Canada unilaterally;

Whereas the Government of Quebec has expressedits view that this right to cause Quebec to secedeunilaterally may be acquired in a referendum;

Whereas many Quebecers and other Canadiansare uncertain about the constitutional and interna-tional situation in the event of a unilateral declara-tion of independence by the government of Quebec;

Whereas principles of self-determination, popularwill, democratic rights and fundamental freedoms,and the rule of law, have been raised in many con-texts in relation to the secession of Quebec fromCanada;

And whereas the Government of Canada sees fitto refer the matter to the Supreme Court of Canada;

Therefore, His Excellency the Governor Generalin Council, on the recommendation of the Ministerof Justice, pursuant to section 53 of the SupremeCourt Act, hereby submits to the Supreme Court ofCanada for hearing and consideration the followingquestions:

1. Under the Constitution of Canada, can the Na-tional Assembly, legislature or government ofQuebec effect the secession of Quebec fromCanada unilaterally?

2. Does international law give the National Assem-bly, legislature or government of Quebec theright to effect the secession of Quebec fromCanada unilaterally? In this regard, is there aright to self-determination under internationallaw that would give the National Assembly, leg-islature or government of Quebec the right toeffect the secession of Quebec from Canadaunilaterally?

3. In the event of a conflict between domestic andinternational law on the right of the NationalAssembly, legislature or government of Quebecto effect the secession of Quebec from Canadaunilaterally, which would take precedence inCanada?


dians, one of the founding peoples of the fed-eration, a clear expression by Quebecers oftheir desire for a fundamental change in Que-bec’s constitutional status would provide amoral imperative on the part of all the con-stituent parts of the Canadian federation toenter into constitutional negotiations withQuebec.

If we are wrong, and Canada’s highestcourt finds that Canada must recognize theright of the Quebec National Assembly or theQuebec government to effect the secession ofQuebec unilaterally, then there would be noneed to consider how the terms of secessionmight be ratified under the Constitution ofCanada. A secession agreement would take theform of an international agreement, and besubject to procedures in the two separatecountries for giving legal effect to internationaltreaties. But because such a result is unlikely,we think it is important for sovereigntists to bemore amenable to the possibility of achievingsovereignty pursuant to the Constitution.

The “Illegitimacy” of theConstitution Act, 1982

The second sovereigntist argument against re-quiring that the terms of sovereignty be ratifiedpursuant to the Constitution is a moral one,alleging the illegitimacy of the changes madeto the Constitution in 1982 — which includethe rules governing its amendment — becausethey were not approved by Quebec’s NationalAssembly.9 Although the Constitution Act,1982 is the only instance since Confederationwhere constitutional changes affecting Que-bec’s powers have been made without Que-bec’s consent, the Supreme Court of Canadain its 1982 opinion in the Quebec Veto Refer-ence found that there was, in fact, no consti-tutional convention requiring Quebec’s consentfor such changes.10

The reasons advanced by the Court insupport of this finding were not, however, veryconvincing. As the Court itself acknowledged,in the final analysis constitutional conven-tions are determined not in the legal but in thepolitical arena. The risk of proceeding with

constitutional changes affecting Quebec butnot approved by its elected provincial govern-menthas been widely acknowledged since 1982;removing this risk to national unity has beenthe principal rationale for attempting to makefurther constitutional changes that would re-store the legitimacy of the Constitution inQuebec.

Still, while all of this lends support to theillegitimacy charge, the fact remains that theConstitution Act, 1982 provides the only legallyauthorized way of formally amending the Con-stitution. Quebec governments, despite theirposition on the illegitimacy of the 1982 proc-ess, have nonetheless been willing to make useof provisions of the act when they deemed it intheir interest to do so — for example, Quebec’suse of the notwithstanding clause in the Char-ter of Rights and Freedoms, and its willingnessto explore the possibility of a bilateral agree-ment with Ottawa regarding denominationalschool rights. We submit that it would be inthe interests of the Quebec government, if itwins a sovereignty referendum, to endeavor toachieve its constitutional objectives throughthe lawful procedures for effecting constitu-tional change in Canada.

A Constitutional Straitjacket

This brings us to the third, and most practical,of the objections the Quebec government mighthave to complying with the Canadian consti-tutional amending rules: the danger of beingsubjected to a constitutional straitjacket. Mostof the popular and scholarly discussion on thissubject — on both the federalist and sovereign-tist sides — has emphasized how difficult itwould be to settle the terms of Quebec sover-eignty through the demanding Canadian con-stitutional amendment process. Indeed, therehas been a tendency on the part of thosefederalists who insist that Quebec comply withthe rule of law almost to flaunt the stringencyof the constitutional requirements. This is theepitome of “tough love” constitutionalism,which has little hope of persuading Quebecsovereigntists that it would be in their interest


to make a sincere effort to achieve their goalsthrough established constitutional procedures.

Our approach is not to deny the difficultyof the constitutional process, but to explorecarefully how it might apply to a Quebec sov-ereignty agreement — to see how it could workwith maximum flexibility. Recognizing the largenumber of obstacles to a legally ratified agree-ment, we also consider the circumstances un-der which it might be reasonable, for bothsides, not to insist on full compliance with therule of law.

The Need for Good Faith

The workability of constitutional amendmentprocedures depends on much more than therules themselves. The likelihood of actuallyforging an agreement depends just as much onthe moods and attitudes of the constitutionalnegotiators and on the political context inwhich their efforts take place. There would bevirtually no hope of persuading sovereigntistvictors in a Quebec referendum to enter intonegotiations governed by the existing Consti-tution if the Canadian government adopted aposture that, in effect, said to Quebec: “Youcan only have independence through Canada’sconstitutional process. You had better under-stand how long and difficult that process isbound to be, and you can’t count on our doinganything to make it any easier. And bear inmind that, if we cannot reach agreement withyou through this process, you will just have toforget about your sovereigntist plans.”

Nor would there be any point in the federalgovernment and the other partners in Confed-eration agreeing to negotiate with a Quebecgovernment that adopted a take-it-or-leave-itapproach — that said, in effect: “Negotiate theterms of the Quebec-Canada partnership wedesire or we will simply go ahead and unilat-erally declare Quebec’s independence fromCanada.” Without a commitment on both sidesto bargain in good faith — to making an honesteffort to come to mutually acceptable terms —there is really no point to constitutional bar-gaining, no matter how flexible or rigid theformal amending rules may be.

For bargaining in good faith to take placeunder the existing Constitution, both sidesmust have strong reasons to want the processto succeed. The incentive cannot be basedon shared constitutional objectives. Quite tothe contrary, as Alan Cairns so lucidly ar-gues, the constitutional objectives of the Que-bec and Canadian governments are likely to beas far apart as they have ever been after yetanother acrimonious referendum debate.11 Butboth governments — and all Canadians —would have one strong motive for bargainingin good faith under the Constitution: a desireto avoid the unattractive consequences of thealternatives to that process.

Alternatives to theConstitutional Process

What are the alternatives to a negotiated set-tlement under the Constitution? Essentially,they come down to a unilateral declaration ofindependence (UDI) by Quebec, followed bytwo possible responses.

One response — indeed, the one Quebecsovereigntists have been counting on — is forCanada to recognize an independent Quebecbefore there is any agreement on such vitalissues as the rights of Aboriginal peoples andother minorities within Quebec, land trans-portation connections between the Atlanticprovinces and the rest of Canada, apportion-ment of the debt, currency, citizenship, bor-ders, and trade relations. According to thisscenario, Canada would raise these and othermatters with Quebec after recognizing it as anindependent country. Negotiations would thenbe conducted not within the framework of theCanadian Constitution but on a nation-to-nation basis within the framework of interna-tional law.12

We can well understand why Quebec sov-ereigntists would welcome this outcome. Ex-cept for a political partnership with Canada, itwould give them nearly everything they seek,on a silver platter. But we cannot see how itcould be right or prudent for the governmentof Canada to concede so much to Quebec.Among other things, such a course of action


would mean abandoning Canada’s fiduciaryobligation to Aboriginal peoples in Quebec,leaving in limbo the Canadian citizenship rightsof Quebecers, and exposing taxpayers in therest of Canada to a significantly increasedburden of public debt. The government of Can-ada has neither the legal power nor the politi-cal mandate to make such concessions.

Ottawa’s silence during the 1995 referen-dum on what it might do if the sovereigntistswon may have encouraged sovereigntists tobelieve that it would accede to a Quebec UDIwithout any negotiations. Ottawa has sincemade it clear that it rejects the possibility ofunilateral secession, however, and it will likelyuse the outcome of the reference to the Su-preme Court of Canada to underline its new-found resolve on this issue. Thus, for Canadato recognize a sovereign Quebec based on aUDI without any real effort to negotiate theterms of secession is neither a desirable nor arealistic possibility.13

The remaining alternative is a unilateraldeclaration by Quebec that is not accepted byCanada. A challenge by the Canadian govern-ment to a Quebec UDI would plunge us all intoa situation in which two regimes, the one legaland constitutional, the other illegal and un-constitutional, confront each other, bothclaiming authority over the same territory andpeople, both with armed security forces attheir disposal, both with passionate support-ers. This surely is a recipe for disaster with thegravest consequences for economic stabilityand social peace. But we might very well endup in just such a mess if a negotiated agree-ment on the terms of Quebec sovereignty werenot reached and ratified. Unless we are con-vinced that is the only choice, it would be theheight of imprudence to plan to be in such asituation from the outset, or to fall into sucha situation simply through the lack of anyother plan. Our paper aims to show the viabil-ity of another plan.

Past rejection of more modest attempts toreach a constitutional accommodation withQuebec may well give rise to skepticism aboutthe possibility of reaching agreement on the

terms of Quebec’s accession to sovereignty. Weacknowledge the possibility that anger andhostility generated by an affirmative referen-dum vote might prompt some groups to seekto block the move to sovereignty, or to punishQuebec by inflating the costs it would have tobear. We believe, however, that the pressurestoward achieving a reasonable and rapid agree-ment would be more powerful. A postreferen-dum scenario likely would give rise to a morepromising context for agreement than we haveseen in previous rounds of constitutional ne-gotiations precisely because of the sense ofurgency and crisis it would engender.

The Limits ofConstitutionalism

Concerned though we are that, if Quebec wereto secede from Canada, it do so in a mannerthat does not lead to a disruptive break in legalcontinuity, we recognize that there are veryreal political limits to maintaining constitu-tionalism. Even a constitutional process thatis entered into in good faith by all concerned,operated with the maximum degree of flexibil-ity, and carried out over a reasonable period oftime might still fail to reach the degree ofconsensus required by the Constitution toachieve Quebec’s sovereignty. In such a situ-ation, there would be very little likelihood thata Quebec government that had won a referen-dum on sovereignty would accept defeat in theCanadian constitutional process and simplyabandon the sovereignty project.

At that point, Canada would be at a verydangerous impasse. There would be a strongpossibility that the government of Quebecmight proceed unilaterally — and, in our view,unconstitutionally — to declare Quebec a sov-ereign country no longer bound by the Consti-tution of Canada. We do not think that such adangerous situation could be avoided by suchmeans as insisting that Quebec agree never toattempt a UDI as a precondition to beginningsovereignty negotiations; such a demandwould require Quebec to discard a great dealof its bargaining strength. However much Ca-nadians outside Quebec may detest Quebec’s


“knife to the throat” tactics, no Quebec govern-ment elected with a sovereignty mandate andaccountable to a majority of “yes” voters fol-lowing a sovereignty referendum would agreeto abandon completely the possibility of a UDI.Insisting on the abandonment of the possibil-ity of unilateralism would simply invite a UDIsooner rather than later.

By the same token, Quebec sovereigntistscould not expect the federal government toagree to accept a Quebec UDI unconditionallyif the effort to negotiate and effect secession ina constitutional manner were to fail. Ottawamust retain its freedom to withhold recogni-tion of Quebec sovereignty if that sovereigntyhas been achieved unconstitutionally. It wouldbe unconscionable for the federal governmentor other negotiating bodies to agree in advancethat, no matter what issues have led to abreakdown in negotiations or in what circum-stances there has been a failure to ratify anegotiated agreement, it would recognize Que-bec as an independent country. Such an agree-ment would require the government of Canadato abandon its legal and political responsibili-ties and to concede far too much of its bargain-ing power.

Participants in sovereignty negotiationsmight be expected to agree in advance on whatthey would do if negotiations succeeded, noton what they might do if negotiations or rati-fication failed. Neither side would forswear, asa precondition of entering into such a process,acting directly to secure its own vital interestsif the process failed.

Yet the dire nature of what might happenif a constitutional sovereignty process failed,though fearful to contemplate, may providethe very discipline needed to induce accommo-dation and compromise.

There is a scenario in which it would bereasonable to recognize Quebec’s sovereigntyoutside of a constitutional process: If a nego-tiated agreement had been reached and popu-larly supported by majorities in all parts ofCanada but still lacked formal ratification byall of Canada’s legislative assemblies, it might,in some circumstances, make sense for the

federal government to go ahead and recognizeQuebec’s sovereignty — on terms that had awide basis of support across the country —rather than let strict adherence to the letter ofthe law trump all other principles. We discussthis possibility toward the end of this Commen-tary, in the section on the ratification process.

Ratification Issuesin the Negotiations

In the past, efforts at major constitutionalchange in Canada have failed to take intoaccount how proposals agreed to by the nego-tiators would be ratified. This lack of sufficientattention to the ratification process was evi-dent in both the Meech Lake and Charlotte-town rounds. In both cases, the negotiationstage was a success; the negotiators reachedunanimous agreement. Yet both efforts at con-stitutional renewal failed because the agree-ments did not survive the ratification process.Any future negotiations contemplating majorchanges to Canada’s Constitution should avoidthis mistake.

The negotiating stage of the constitutionalamendment process is not governed by rulesset out in the Constitution. The only constitu-tional provision pertaining to the process ofnegotiating amendments is a requirement thatthe prime minister invite “representatives ofthe aboriginal peoples of Canada to participatein the discussions” of a first ministers’ confer-ence before any amendment is made to sec-tions of the Constitution that expressly referto Aboriginal peoples.14 Aside from this impor-tant legal commitment, all other features of thenegotiating process are matters of politicaljudgment.

Canada has a strong tradition of using“executive federalism” — meetings of first min-isters and other senior ministers and officialsfrom both levels of government — as the basicmeans of negotiating and drafting proposalsfor constitutional change. In the “multilateralprocess” that led to the Charlottetown Accord,territorial ministers and representatives of Abo-riginal organizations participated along withfederal and provincial ministers. For negotia-


tions on a matter as fundamental as removinga province from the federation or significantlyaltering its status, the negotiating process isbound to be at least as broad and complex asthe Charlottetown process.

In an earlier Commentary, Patrick Mona-han and Michael Bryant set out a multilateralstructure and process for negotiating a post-referendum agreement.15 Although we do not,in this paper, address the negotiating processper se, we consider it crucial to decide on someratification issues at the negotiating stage. Wehave identified three such issues for consid-eration below.

The Referendum Process

First and foremost, negotiators should agreein advance as to whether or not ratifying ref-erendums are to be held in some or all of thejurisdictions. If they are, further importantquestions are: What would the question be?What would constitute a “yes” result, commit-ting the parties to proceed with formal legisla-tive ratification? Some analysts of the Char-lottetown process have argued that the nego-tiators might have arrived at a somewhat dif-ferent accord had they agreed from the startthat the product of their negotiations wasgoing to be subjected to a referendum process.

A Single Package?

The second issue relates to the package ofproposals on which the negotiators have agreed.As we will show, some elements of a sover-eignty agreement would not require any kindof constitutional amendment, while otherswould be subject to constitutional amendmentrules more flexible than the unanimity rule,and a few items might require ratification byall the provincial legislatures and the federalParliament. Therefore, the possibility of break-ing the package up for the ratification stage,rather than treating the agreement as a seam-less whole, is a vital issue that must be con-sidered in the negotiation phase. The positionand expectations of the negotiators regardingthis point might well affect bargaining on vari-

ous parts of the package. Our analysis in thenext section of the likely ingredients of a sov-ereignty agreement will probe the possibility ofa multitrack ratification process.

The Timetable

The third ratification process issue that needsto be addressed in the negotiation phase is thetimetable. A fatal mistake in the Meech Lakeround was the negotiators’ failure to committo a timely ratification schedule. If a referen-dum is to be part of the process, all partieswould need to reach agreement on the timingof both the referendum and the subsequentlegislative process. Given that some legisla-tures require committee hearings on any con-stitutional proposals brought before them, thetimetable would have to accommodate these.Aboriginal participants might well have theirown ratification processes, which would alsohave to be fitted into the ratification timetable.

Likely Components of aSovereignty Agreement

The Canadian Constitution does not containan explicit clause setting out the rules forremoving a province from the federation. Thisis not unusual for a constitution; most states— federal or unitary — make no provision intheir founding documents for the secession ofa part of the state.

The absence of an explicit secession clausedoes not mean, however, that the general rulesgoverning constitutional amendments cannotbe applied to the secession of a province or toany other change in a province’s constitutionalstatus. Part V of the Constitution Act, 1982 setsout amending procedures for different catego-ries of amendment, which together cover allconceivable changes to the Constitution.Thus, we take the view, shared by other con-stitutional scholars, that the existing proce-dures for amending the Constitution could beused to effect the secession of a province.16

Where we depart from others who have writtenon this subject is in viewing a sovereigntyagreement as having a number of components,


as well as in questioning the assumption thatevery part of the agreement would necessarilybe subject to a single ratification rule andprocess.

The MinimumChanges Necessary

To make our case, we must try to predict whatthe components of a sovereignty agreementwith Quebec would be. One key assumption isthat the changes to the Constitution at thisstage would be the minimum necessary toremove Quebec from, or alter its relationshipwith, Canada. We know that there would begreat pressure to rework the Constitution fora Canada without Quebec. The dominance ofOntario, which would have nearly half theseats in the House of Commons, and the needto replace or abolish the Senate are just two ofthe issues that would give rise to calls for animmediate revamping of the Constitutionshould Quebec become sovereign.

These rebalancing issues would not, how-ever, be of direct relevance to the governmentof Quebec; they are matters for negotiationamong the governments that would remainsubject to the Constitution. Keeping these re-balancing issues separate from the sovereigntyissues in the process of negotiation would bea difficult task, but an essential one. Other-wise, as Monahan and Bryant have argued, theperiod of uncertainty following the referendumcould be far lengthier and costlier than it needbe.17 In the end, we believe Cairns’ argumentsfor a temporary structure as close as possibleto the status quo would carry the day, and thatthe Constitution of a Canada without Quebecwould be reconstructed, without Quebec’s par-ticipation, after the sovereignty process wascomplete.18 Thus, our analysis describes onlythose changes necessary to facilitate an or-derly transition to Quebec sovereignty.

Five Categories of Change

These amendments would fall into five catego-ries, as follows:

1. constitutional amendments terminating theauthority of existing federal and provincialinstitutions over the territory and people ofQuebec;

2. constitutional and statutory amendmentsto make remaining federal institutionsworkable in the short term;

3. provisions, constitutional or otherwise, forany new links established between Quebecand Canada;

4. new treaties, or a commitment to negotiatethem, among Aboriginal peoples, Quebec,and Canada; and

5. nonconstitutional items to be implementedby legislation, executive orders, or treaties.

Removing Quebec from ExistingConstitutional Arrangements

The first step would be the simple but majorone of removing Quebec from the applicationof the current Canadian Constitution and ter-minating the authority of existing federal andprovincial institutions over the territoryand people of Quebec. Amendments would beneeded to define the territory of Quebec and todeclare it no longer subject to the CanadianConstitution. Existing constitutional provisionsreferring to the executive, legislative, and judi-cial branches of the government of Quebec —that is, the lieutenant governor, the NationalAssembly, and the courts of Quebec — wouldhave to be repealed.

It might seem at first that this step couldbe accomplished with a long list of amend-ments removing every reference to Quebecfrom the Canadian Constitution. However,such an approach would be merely cosmetic,unnecessary, and in some instances wouldamount to a meddlesome attempt to rewritehistory. Consider, for example, section 5 of theConstitution Act, 1867, which provides that“Canada shall be divided into four provinces,named Ontario, Quebec, Nova Scotia, and NewBrunswick.” Simply deleting Quebec from thisprovision would leave the text describing aCanada of three provinces that never existed.


Of course, references to the other six provincesand the three territories created since 1867could be added at the same time as Quebec isdeleted, but it is hard to see what the point ofsuch an exercise in modernization might be.The Constitution is composed of many histori-cal layers; those who have drafted its consti-tutional documents over the past 130 yearshave generally chosen to add new layers of textrather than to rewrite earlier historical reali-ties. If the Constitution Act, 1867 has survivedthis long with its image of a Canada of fourprovinces nestled snugly under Britain’s colo-nial wing, we see no reason some of its provi-sions could not be left intact to remind us thata sovereign Quebec was once a province, too.

Redefining Federal Institutions

With Quebec excised from the constitutionaldefinition of Canada, we would need a packageof amendments ensuring that the remainingconstitutional provisions and federal institu-tions were legitimate and workable in the shortterm. Thus, for example, the constitutionalprovisions setting out Quebec’s representationin the House of Commons and the Senatewould need amending, and legislation wouldhave to be passed removing the current guar-antee that three Quebec judges sit on theSupreme Court of Canada.

Establishing New Links

It is possible that a third group of amendmentsof a more positive nature would also form partof the sovereignty package — namely, newprovisions in the Constitution dealing withrelationships between a sovereign Quebec andCanada. These links could include mattersranging from special citizenship or mobilityprovisions, to a trade dispute mechanism pend-ing Quebec’s admission to the North AmericanFree Trade Agreement, to the full politicalassociation desired by the present leadershipof the Parti Québécois.

We take no position on which, if any, ofthese links should be agreed to and givenconstitutional expression. We are concerned

only with considering how any such constitu-tional changes agreed to in negotiations wouldbe ratified.

Concluding Treaties

One kind of constitutional change that wouldbe necessary in the event of Quebec’s acces-sion to sovereignty does not involve amend-ments in the ordinary sense: the conclusion oftreaties with Aboriginal peoples. Section 35(1)of the Constitution Act, 1982 recognizes andaffirms the treaty rights of Canada’s Aboriginalpeoples. Section 35(3) specifically providesthat these treaty rights include “rights thatnow exist by way of land claims agreements ormay be so acquired.”

Much of northern Quebec is covered by theJames Bay and Northern Quebec Agreement(1975) and the Northeastern Quebec Agree-ment (1978), comprehensive agreements en-tered into by Quebec, Canada, and the Cree,Inuit, and Naskapi peoples. These agreementsinclude terms stating that they cannot bechanged without the agreement of the signa-tories. Since the provisions of these treatiesare constitutionally protected by section 35(1),it follows that, as long as section 35 remainsin force in its present form, changes necessi-tated by Quebec sovereignty would have to benegotiated and agreed to by all parties, andprovision would have to be made to entrenchthe contents of the new treaties in the consti-tutions of Quebec and Canada. The same wouldbe true of any new comprehensive agreementswith Aboriginal peoples in Quebec included inthe sovereignty settlement.

The northern Quebec treaties could belegally altered without the consent of the Abo-riginal signatories only if section 35 itself wereamended to remove the treaties from theirexisting constitutional protection. This may belegally possible, since the amending formulasin the ConstitutionAct, 1982 give no formal roleto Aboriginal peoples. But the notion that Abo-riginal peoples ought to have a veto overamendments that would affect their rights hasbecome a basic political principle, and perhapseven a constitutional convention.19 Amending


section 35 without Aboriginal consent, to en-able the abrogation of treaty rights withoutAboriginal consent, would constitute an obvi-ous and flagrant violation of fundamentalmoral and political principles. It would violateboth the Crown’s fiduciary obligations embod-ied in Canadian domestic law, as well as emerg-ing international norms. Indeed, in the face ofsuch an oppressive exercise of state power, thecourts might superimpose the Crown’s fiduci-ary obligations on the operation of the amend-ing formulas, thus making it impossible toalter fundamentally the constitutional statusof Aboriginal peoples without their consent.

We therefore conclude that, while there isroom to debate whether or not it is legallypossible to remove by constitutional amend-ment the current legal requirement of Aborigi-nal consent to any changes to the northernQuebec treaties, Canadian governments wouldnot consider pursuing such a morally objec-tionable course. Thus, we assume that changesto existing treaties and new treaties with Abo-riginal peoples in Quebec would have to benegotiated and their terms agreed to by allsignatories. As we discuss further below, ar-rangements would have to be made to com-plete this lengthy negotiation process afterQuebec had acceded to sovereignty over muchof its territory.

Nonconstitutional Items

Finally, some elements of a sovereignty agree-ment would not require any form of constitu-tional expression. These include some of themost important and contentious issues likelyto emerge in the negotiations. Consider, forinstance, matters such as the apportionmentof Canada’s national debt; arrangements re-garding the potential use of the Canadiandollar as the currency of a sovereign Quebec;the right of Quebecers to maintain Canadiancitizenship and Canadian passports; or thestatus of Hydro-Québec’s contract for hydro-electric power from Churchill Falls. These cru-cial components of a sovereignty agreementmight be given legal effect through acts ofParliament, or executive orders, or interna-

tional treaties between the new Canada and asovereign Quebec. A large number of thesenonconstitutional items would be included inany negotiated agreement on the terms ofQuebec’s sovereignty.

Summary

We anticipate that a negotiated settlementwith Quebec following a sovereigntist referen-dum win could include elements that, from aconstitutional perspective, fall into some or allof the five categories discussed above. Withthese categories in mind, we proceed in thenext section to consider the degree of legisla-tive approval necessary to enact into law theconstitutional elements of the package (poten-tially, the first four categories above). We willthen be in a position to consider the appropri-ate process for ratifying a sovereignty agree-ment under the Constitution of Canada.

The Applicable ConstitutionalAmending Procedures

The Constitution Act, 1982 includes fiveamending formulas; which of them applies inany given situation depends on the part of theConstitution to be amended. The transforma-tion of Quebec’s status from province to sov-ereign nation would have an impact on a widerange of constitutional matters falling underthe rubric of several different amending for-mulas; indeed, all five formulas potentiallywould be implicated. In this section, we en-deavor to further “unpack” the likely compo-nents of a sovereignty agreement, outlinedabove, in terms of the specific changes thatwould be needed to various sections of theConstitution, and then group them accordingto the amending formulas that would need tobe applied to implement them.

Seeking Flexibilityin Ratification

Given a sovereignty package of proposed con-stitutional amendments that fall under several


different amending formulas, two possiblepaths to ratification present themselves. Thefirst would be to put the entire package ofconstitutional amendments forward for ratifi-cation together, in which case the cumulativerequirements of the applicable amending for-mulas would have to be followed. Since Que-bec’s accession to sovereignty would affectseveral matters subject to the unanimity pro-cedure, the entire package would have to beratified by both houses of Parliament and allof the provincial legislatures. This was theprocedure that governments attempted to fol-low with respect to the Meech Lake Accord andthat they appeared prepared to follow had theCharlottetown Accord been approved in thenational referendum.

The second approach would be to break upthe package of constitutional amendments ac-cording to the applicable amending formulasand to pursue their ratification on separatetracks. This approach would offer the obviousadvantage of greater flexibility, since thosematters requiring unanimity could be dealtwith separately, while the rest of the packagecould be subjected to the more forgiving re-quirements of the other amending formulas.Even though — as we conclude in the nextsection — there would be great pressure tosubject all substantial or controversial amend-ments to a single ratification process, if thepossibility of pursuing a multitrack ratifica-tion process is to be considered at all, which webelieve it should, the “unpacking” exercise wepursue below is a necessary one.

One could argue that flexibility would beenhanced by drafting amendments that wouldremove Quebec from Canada with a few broadlegal strokes. The unanimity amending for-mula could then be circumvented, some mightargue, by avoiding explicit reference to any ofthe matters listed in section 41 of the Consti-tution Act, 1982 that require unanimity to beamended.

Yet, whatever the wording of the amend-ments, there is no doubt that Quebec sover-eignty would have a dramatic impact on thesesection 41 matters. For example, the office of

the lieutenant governor of Quebec would ceaseto exist in its current form in an independentQuebec; all 75 Quebec seats in the House ofCommons would have to be removed; andconstitutional protection of language rightsmight be modified or eliminated.

José Woehrling has argued that, as long asan amendment says nothing on its face aboutthese subjects, it would not be “in relation to”section 41 matters, and therefore unanimousapproval would not be required to implementit.20 Woehrling’s position appears to be that anamendment is “in relation to” a matter such asthe office of the lieutenant governor of Quebeconly if its purpose or object is to alter thatmatter. In his view, indirect effects on section41 matters do not trigger the unanimity re-quirement; thus, since the abolition of theoffice of the lieutenant governor would be anindirect consequence, rather than the object,of secession amendments, the unanimity rulewould not apply.

We share the spirit of Woehrling’s attemptto interpret section 41 narrowly and thus in-troduce greater flexibility into the amendingprocedures. However, we cannot agree thateven amendments with drastic effects on sec-tion 41 matters are not “in relation to” thosematters. In our view, not just the purposes butthe effects of a proposed amendment mustdetermine which amending formula applies toit. Otherwise, as Monahan has argued, theform in which an amendment is pursued wouldtriumph over its substance.21 The strong de-gree of constitutional protection afforded tosection 41 matters should not be so easilycircumvented. In our view, the unanimity pro-cedure should be applicable whenever a pro-posed amendment would have a substantial ormaterial impact on a matter listed in sec-tion 41.22 Several of the amendments thatwould be necessary to implement a sovereigntyagreement with Quebec certainly qualify. Thus,we are of the view that the strictures of theunanimity rule cannot be avoided with respectto at least some aspects of such an agreement.


The “7/50” Procedure

Most amendments necessary to accomplishQuebec’s orderly secession would fall withinthe section 38 general (“7/50”) amending for-mula, which applies to all amendments inrelation to matters not specifically allocated toone of the other four formulas. Secession issuch a matter. Amendments under the section38 formula require the passage of resolutionsby both houses of Parliament and the legisla-tures of at least seven of the provinces consti-tuting together at least 50 percent of Canada’spopulation.

The Constitutional Amendments Act, whichcame into force in February 1996, superim-posed five regional vetoes on the operation ofthe “7/50” amending formula.23 The combinedeffect of the Constitution and the legislation isthat a proposed ”7/50” amendment must havethe support of the federal Parliament, BritishColumbia, Ontario, Quebec, at least two of theprairie provinces comprising 50 percent oftheir combined population — that is, at cur-rent population levels, Alberta and at least oneof Manitoba and Saskatchewan24 — and atleast two of the Atlantic provinces comprising50 percent of their combined population.25

Under this arrangement, the consenting prov-inces would represent at least 92 percent ofCanada’s population.26

Defining and Removing Quebec

Foremost among the amendments that couldbe made pursuant to the “7/50” formulawould certainly be defining the territory ofQuebec and then removing it from the author-ity of the Constitution. Defining the territoryof the new sovereign state of Quebec would,however, be among the most contentious is-sues to be negotiated following a sovereigntistreferendum win.

Quebec’s current boundaries are definedby a variety of legal sources. Section 6 of theConstitution Act, 1867 defined the province ofQuebec by reference to the pre-existingboundaries of Lower Canada, thus incorporat-ing by reference the boundary between Lower

and Upper Canada set out in a 1791 order-in-council and the boundary between NewBrunswick and Lower Canada set out in 1851British legislation.27 The Ontario-Quebecboundary was clarified by British legislationpassed in 1889.28 The northern boundary ofthe province of Quebec was extended twice byfederal legislation, in 1898 and 1912.29 Fi-nally, the Quebec-Labrador boundary was es-tablished by a 1927 Privy Council decision.30

As long as Quebec remains a province ofCanada, it can claim the protection of sec-tion 3 of the Constitution Act, 1871, whichprovides that its boundaries can be alteredonly with its consent. This does not mean,however, as some sovereigntists have asserted,that a sovereign Quebec would have a right tomaintain its existing borders. The act refersto the alteration of the boundaries of provinceswithin Canada; it has nothing to say about theremoval of a province from Confederation.

Following a sovereigntist referendum vic-tory, the borders of a sovereign Quebec wouldbe an issue for negotiation. Quebec’s existingborders would be challenged on two fronts: byAboriginal peoples, and by regions with feder-alist majorities in the referendum vote, espe-cially those contiguous to the Ontario border.

At least some of Quebec’s Aboriginal peo-ples would almost certainly insist on remain-ing part of Canada.31 As we argued above,existing legal norms and moral principles dic-tate that new treaties among Quebec, Canada,and the Aboriginal nations of Quebec wouldhave to be concluded. These treaties would in-clude land-claim settlements and perhaps alsoself-government agreements following the pat-tern set by recently concluded agreements inBritish Columbia and the Yukon. They couldthus have an impact on both the definition ofQuebec’s territory and the nature and scopeof Quebec’s jurisdiction over its territory.

It might take many years for Canada, asovereign Quebec, and the Aboriginal nationsto conclude such a round of treaty making; asa result, it is impossible to predict in advancethe scope of the territory over which Quebecwould be able to assert sovereignty. If treaty


negotiations were still ongoing after all othermatters relating to the transition to sover-eignty had been negotiated and ratified, in-terim arrangements could be made; this issueis discussed in more detail in the next section.

In addition to Aboriginal peoples, otherlocal federalist majorities unwilling to join thesovereigntist project would place a great dealof pressure on Canada not to cede territory theyinhabit. Since the claims of non-Aboriginalfederalist partitionists are not grounded inexisting domestic and international law theway those of Aboriginal nations are, Canadawould not be under the same legal and moralobligation to advance this issue in negotia-tions. However, federalist regional majorities’claims that they have the right to remain inCanada follow much the same logic as thesovereigntists’ claim that they have the rightto secede, so this issue should not be ruled outof the negotiating agenda. The suggestion ofMonahan and Bryant that the issue be re-solved by cascading referendums is worthy ofconsideration.32 From a practical perspective,however, we have grave doubts as to whetherthe issue of federalist partition is capable ofyielding compromises acceptable to bothsovereigntists and federalists. If Canada wereto insist on protecting the territorial claims offederalist minorities, it would very likely re-quire the use of force and lead to communalviolence. In our view, the Canadian negotiatingteam would be wise to respond to the concernsof Quebec’s federalist regions by pressing forprotection of language rights and dual citizen-ship rights in Quebec’s constitution, ratherthan insisting on the partitionist approach.

Other “7/50” Amendments

Other constitutional changes that would likelybe necessary for a legal secession could beenacted pursuant to the “7/50” rule, including:

• terminating the federal Parliament’s author-ity to pass laws in relation to Quebec;

• terminating the application of the Charterof Rights and Freedoms in Quebec;

• terminating the authority of the SupremeCourt of Canada and the Federal Court ofCanada in relation to disputes arising inQuebec, as well as the jurisdiction of allcourts in Quebec constituted pursuant tothe Canadian Constitution;

• removing Quebec’s seats from the Sen-ate33 (section 22 of the Constitution Act,1867 would have to be amended to reducethe number of regional divisions in theSenate from four to three, to delete thereferences to Quebec, and to remove the24 Quebec senators; section 23(6), whichdeals with the qualifications of Quebecsenators, would also need to be repealed);

• amending section 108 of the ConstitutionAct, 1867, which provides that certainkinds of federal property situated in theprovince (such as canals and post offices)belong to Canada, in order to transfer own-ership of these properties to a sovereignQuebec in return for appropriate compen-sation; and

• establishing new links between Canadaand Quebec of the kind discussed in cate-gory 3 of the previous section.

The “Unanimity” Procedure

Following our interpretation of section 41, dis-cussed above, unanimity would be required toauthorize three kinds of changes that Que-bec’s accession to sovereignty would provoke.

The first of these changes are those re-quired by the fact that a sovereign Quebecpresumably would no longer be a monarchy.34

In such circumstances, the office of the lieu-tenant governor would cease to exist, andunanimous consent would be required for thechanges to the various provisions of the Con-stitution Act, 1867 that set out the status andpowers of that office.35

The second kind of changes are those re-quired to remove Quebec’s seats from theHouse of Commons. While changes to themakeup of the House can ordinarily be madeby the federal government alone, pursuant to


the unilateral formula in section 44 of theConstitution Act, 1982, an exception to thisrule is made to protect guarantees of provincialrepresentation from unilateral reduction. Pur-suant to the “Senate floor” provision of theConstitution Act, 1867 (section 51(a)), Quebecis guaranteed at least 24 members in theHouse of Commons. Since the “Senate floor”principle is a matter subject to the unanimityformula, it follows, in our view, that the re-moval of Quebec’s seats from the House couldbe accomplished only by unanimous consent.36

Finally, unanimous consent would be nec-essary to sanction the fact that the followinglanguage rights would no longer apply in Que-bec or to Quebecers:37

• the right to use English or French in Par-liament and federal courts, as set out insection 133 of the Constitution Act, 1867and sections 16–19 of the Charter;

• the right to use English or French in fed-eral government offices, as set out in sec-tion 20 of the Charter; and

• the right of Quebec anglophones to edu-cate their children in English, as set out insection 23 of the Charter.

These are the only aspects of a sovereigntyagreement that would require unanimous ap-proval. It is true that the composition of theSupreme Court of Canada would have to bechanged by removing the guarantee of threeQuebec judges. But even though the Court’scomposition is a matter subject to the unanim-ity formula,38 this change would not require aconstitutional amendment because, oddlyenough, that composition has never been setout anywhere in the Constitution.39

The “Bilateral”Amending Procedure

The section 43 amending formula gives Parlia-ment and the Quebec National Assembly thepower to amend provisions of the Constitutionthat apply to some but not all of the provincesif the amendments have legal effect only in

Quebec. In the event of Quebec sovereignty,only a few provisions of the Constitution couldbe altered or repealed pursuant to the section43 bilateral procedure — namely:

• an amendment specifying that subsections93(1) to (4) of the Constitution Act, 1867 inrelation to denominational school rightsno longer apply in Quebec;40

• the repeal of section 98 of the ConstitutionAct, 1867, which provides that Quebecjudges will be appointed from the bar ofQuebec;

• the repeal of the portions of section 133 ofthe Constitution Act, 1867 relating to theuse of English or French in the judicial andlegislative branches of the Quebec govern-ment; and

• the repeal of section 59 of the ConstitutionAct, 1982, relating to minority languageeducation rights in Quebec.

The “FederalUnilateral” Procedure

Section 44 enables Parliament unilaterally toamend provisions of the Constitution relatingto aspects of the legislative or executivebranches of the federal government not ofdirect concern to the provinces. A few minoramendments of this type would relate to Que-bec sovereignty:

• Consequential amendments to sections26–28 of the Constitution Act, 1867 wouldbe required after the removal of Quebecsenators to reflect the fact that there wouldbe three, rather than four, regional divi-sions, and that the maximum number ofsenators would be reduced by 24; and

• the portions of section 40 of the Constitu-tion Act, 1867 that relate to Quebec’s elec-toral districts would need to be repealed,along with related provisions in existingfederal statutes, such as the ElectoralBoundaries Readjustment Act.41


While it would not amount to an amend-ment to the Constitution, the federal govern-ment could pass legislation without theconsent of the provinces to amend the Su-preme Court Act to reflect Quebec’s departure,deleting the guarantee in section 6 that threejudges be appointed from Quebec.42 Eventu-ally, the composition of the Court would haveto be redefined to better reflect the realities ofCanada without Quebec. In the interim, aCourt reduced by the loss of its Quebec mem-bers could nevertheless operate without fur-ther changes to the law: any five judges of theSupreme Court can “constitute a quorum” and“may lawfully hold the Court.”43

The “ProvincialUnilateral” Procedure

Section 45 enables a province unilaterally toalter provisions of the Canadian Constitutionthat form part of the “constitution of the prov-ince” — that is, provisions that relate to mattersinternal to the province and its institutionsand are not of concern to the federation as awhole. Thus, except for provisions relating tothe office of the lieutenant governor, describedabove, Quebec could unilaterally repeal theprovisions of the Constitution Act, 1867 estab-lishing the legislature of Quebec. It could, forexample:

• repeal sections 72–79 of the act in relationto the legislative council of Quebec;

• repeal section 80 of the act constituting thelegislature of Quebec; and

• amend sections 83–87 of the act to deletereferences to Quebec and its legislature.

Most of these provisions are of no practicalsignificance in any case, as they have longbeen superseded by Quebec legislation. But toeliminate any possibility of confusion aboutthe constitutional status of the Quebec legis-lature, it would be wise to repeal those provi-sions as part of the sovereignty agreement.

Summary

In order to comply with the legal requirementsof the Constitution Act, 1982, the componentsof a sovereignty agreement would have to beratified by the relevant legislatures to meet therequirements of the five amending formulasdescribed above. This could be done by sepa-rating the components of the agreement andsubjecting them to a multitrack process oflegislative ratification, or by treating the agree-ment as a single package subject to the una-nimity rule — as was attempted in the case ofthe failed Meech Lake Accord. The legal re-quirements of the 1982 act, however, are notthe only elements of a legally sound and politi-cally legitimate ratification process; in particu-lar, both the emerging convention of a nationalreferendum on substantial amendments andthe federal government’s legal obligations toAboriginal peoples add further layers to theprocedures that would have to be followed. Inthe next section, we expand our view beyondthe legal requirements of the Constitution Act,1982 and the federal Constitutional Amend-ments Act to come up with a more completedescription of the process for ratifying a sover-eignty agreement.

The Ratification Process

Let us be clear that the ratification processdiscussed here would, in effect, be the thirdstage of the larger process through which Que-bec sovereignty might be effected pursuant tothe Canadian Constitution. Stage one wouldbe a win for the “yes” side in a sovereigntyreferendum. Stage two would be agreement onthe terms of Quebec’s accession to sovereigntyreached through negotiations between Quebecand the rest of Canada. Accomplishing boththese earlier stages would require agreementon a number of contentious procedural points,including the nature of the referendum ques-tion and the size of the majority needed for asovereigntist win, and the participants, agenda,and organization of the negotiating process.This Commentary does not deal with these


issues, but we have written it on the assump-tion that these matters could be dealt withsuccessfully.44

The process for ratifying and giving legaleffect to an agreement on the terms of Que-bec’s accession to sovereignty would havethree distinct steps. The first would involvepopular consultation through a Canada-widereferendum — a political imperative for a mat-ter as important as the terms of Quebec’saccession to sovereignty. In the second step,following a successful referendum, the variouslegislatures would take action to approve andgive legal expression to the elements of theagreement. Both of these steps should be un-dertaken as quickly as possible following com-pletion of the negotiation stage.

The third element of ratification would bethe completion of treaty-like agreements withthe Aboriginal peoples, which, though agreedto in principle in the negotiations, might takemuch longer to complete than the first twostages.

The Referendum Stage

The Case for a Referendum

A Canada-wide referendum is not a legallyrequired part of the constitutional amendmentprocess; at the moment, only Alberta and Brit-ish Columbia legally require a referendum asa condition precedent to submitting a consti-tutional amendment to the legislature.45 Nev-ertheless, to have political legitimacy, anagreement on Quebec sovereignty would needto be ratified by a referendum not only inQuebec but in all parts of Canada.

For a sovereign Quebec to have solid demo-cratic foundations, its people would have tohave the opportunity to pass judgment on theterms that their government has been able tonegotiate with the rest of Canada for Quebec’saccession to sovereignty. These terms mightdiverge on important points from what washoped for — and perhaps even promised — bysovereigntist leaders in their successful refer-endum campaign. The 1980 Quebec referen-dum question, in which the government of

Quebec asked for a mandate to negotiate asovereignty-association agreement with Can-ada, contained a clear commitment to submitsuch an agreement for approval by the citizensof Quebec in a second referendum. The ab-sence of such a commitment by the Quebecgovernment in the 1995 referendum meantthat Quebecers were being asked to vote forQuebec sovereignty on conditions set out inBill 1 that were quite beyond the Quebec gov-ernment’s power to deliver (for example, con-tinuation of Canadian citizenship andcurrency). To have established Quebec’s sov-ereignty on the basis of a majority “yes” votein that referendum without securing the prom-ised conditions would not have been in accordwith democratic principle.46 The terms of anegotiated agreement following a sovereigntistvictory in a Quebec referendum are bound tobe a compromise, falling short of the mostoptimistic expectations of sovereigntist lead-ers. If Quebec sovereignty is to be based on thewill of Quebecers, its actual terms should beapproved directly by them.

An equally compelling case can be madefor consulting the Canadian people on theterms of a negotiated agreement on Quebecsovereignty. Here, we part company withMonahan and Bryant, who insist that, whileQuebec would have to have a second referen-dum on the terms of sovereignty, no referen-dum on these terms would need be held in therest of Canada other than in Alberta and Brit-ish Columbia, where provincial statutes re-quire them.47 Not only would referendums inthose provinces place political pressure ongovernments in other provinces to consulttheir own populations, but larger considera-tions of constitutional politics would also bearon the matter. At this stage in the democrati-zation of Canada’s constitutional politics,changes of the magnitude involved in the re-moval of Quebec from the federation and theterms on which that would be done wouldrequire the approval of Canadians in all partsof the country.

In his book on the use of referendums inCanada, Patrick Boyer writes:


Certainly major constitutional amendmentsshould be submitted for ratification by areferendum, and it seems clear followingthe experience of October 26, 1992, theyhenceforth will be.48

We think most Canadians would agree withBoyer on this point. Submitting proposals formajor constitutional amendments to the peo-ple is at least an emergent, if not yet crystal-lized, constitutional convention in Canada.Monahan and Bryant take the position thatthe democratic requirements of Canada’s con-stitutional process would be satisfied for Ca-nadians outside Quebec simply by their beingwell represented on the negotiating team. Weargue, however, that the legitimacy of the ne-gotiating process — Canadians’ willingness toagree to terms that inevitably would be workedout by a small number of leaders and experts,sometimes operating in closed sessions —would be greatly enhanced if Canadians wereassured that the product of the negotiationwould be submitted to them for their approval.

To appreciate the need for a Canada-widereferendum, consider what would be at stakein an agreement on Quebec sovereignty. In alllikelihood, Canadians would be asked to voteon the agreement in its entirety — that is, onboth its nonconstitutional components and itsproposed constitutional amendments. We donot see how the agreement could be broken upfor purposes of popular ratification. Its keyterms would embody a set of interlockingagreements that would have to stand or fall asa whole. Some components — such as theapportioning of the public debt, citizenshipissues, currency arrangements, trade relations,the issue of a land bridge to connect AtlanticCanada to the rest of the country, and a reso-lution of the Churchill Falls issue — eventhough they may not have been dealt withthrough formal amendments to the Constitu-tion, would be of great importance to all Cana-dians. On the constitutional side, even if astrategy of minimal changes to existing consti-tutional structures were pursued, as we andCairns advocate, major constitutional deci-sions would nonetheless be at issue. Indeed,

it would be unwise to foist even this minimalistapproach — whereby Canada minus Quebecwould operate for some years under a federalsystem dominated by Ontario — on Canadianswithout a broad base of popular support. More-over, the barest minimum of constitutionalchanges necessary to implement Quebec’s sov-ereignty would, as we have discussed, includeitems of major significance such as the links,or the absence of them, between a sovereignQuebec and Canada, the principles and pro-cedures that would apply to Aboriginal peo-ples, the treatment of linguistic minorities,and changes, if any, to Quebec’s borders.

What Counts as a “Yes”?

What level and distribution of popular ap-proval for a negotiated agreement should beregarded as sufficient to go ahead with itsformal legislative ratification? In the 1992 ref-erendum on the Charlottetown Accord, theonly precedent for a Canada-wide constitu-tional referendum, no official position was takenon this question — although there seems tohave been a widespread expectation that a“yes” win would have required majorities inevery province. Of course, the question be-came academic when the accord failed to wineven a national majority.49

There is an obvious logic to requiring ma-jority approval in every province if some com-ponents of the agreement are subject to theunanimity constitutional amending rule. Still,we think a unanimity referendum rule createstoo high a threshold for the federal government(at least) to commit itself to completing theformal ratification process and, in certain cir-cumstances, which we discuss later, recogniz-ing Quebec’s sovereignty on the basis of theagreed-on terms. On the other hand, we areapprehensive about defining the threshold forsuch an undertaking simply as a majority“yes” in both Quebec and Canada outsideQuebec. Such a double majority rule would nodoubt appeal to Quebec, but it would riskgoing ahead with an agreement that mighthave strong support in central Canada but


that had been roundly rejected in other re-gions. Provincial governments, particularly inwestern and Atlantic Canada, would be un-likely to accept a process based on such atwo-nations concept of the Canadian bodypolitic.

The federal government, too, would find itdifficult to endorse a rule so out of phase withits own 1996 Constitutional Amendments Act(which, it should be noted, implicitly allowsprovinces to give their consent either throughtheir legislatures or in province-wide referen-dums).50 In the event of Quebec sovereignty,we believe that a five-region referendum rulebased on that act would have a good chance ofbeing accepted by the rest of Canada.

The problem with a five-region referendumrule, of course, is that Quebec might regard itas a straitjacket. Indeed, sovereigntists likelywould object to their project’s having to garnerthe approval of a majority of Canadian votersoutside Quebec in the first place. Nevertheless,if they are to avoid the risks associated withan unlawful and unconstitutional course ofaction, sovereigntists would be wise to respectthe principles of democratic constitutionalismthat Canadians now deem essential.

We doubt the requirements of Canadianconstitutionalism could be made any lighter;indeed, some premiers might object even to afive-region rule, which, after all, would committhem to proceeding with legislative ratificationof an agreement that might be rejected by amajority of voters in their province. Difficult asit might be for the sovereigntists to accept afive-region referendum rule, we still think theywould find it prudent to do so

• if they are convinced that Canada wouldwithhold recognition of a sovereign Quebecif Quebec were to refuse to effect sover-eignty through a lawful process; and

• if Quebec were to retain the option of pro-ceeding unilaterally should the constitu-tional process fail.

The Approval ofAboriginal Peoples

While a “yes” under the five-region referendumrule would be a sufficient mandate for Ottawaand the provinces to proceed with formal rati-fication of a negotiated sovereignty agreement,those components of the agreement that per-tained directly to Aboriginal peoples would, weargue, require their separate approval.51 Abo-riginal peoples constitute such a tiny fractionof the electorate that their consent to changesin their constitutional rights could possibly besaid to have been given through approval ofthe agreement by majorities in five regions ofCanada. Full implementation of the principlesagreed to with respect to the position of Abo-riginal peoples in a sovereign Quebec wouldrequire a trinational treaty process, but withproper safeguards this process need not becompleted before recognition of Quebec’s sov-ereignty. We discuss this more fully below.

The LegislativeRatification Stage

Once the requirements of the five-region refer-endum test had been met and the process ofAboriginal approval of provisions relevant tothem was at least under way, the legislativeratification of a sovereignty agreement shouldnot prove difficult. By that time, the agreementwould have been approved by majorities inprovinces representing at least 92 percent ofCanada’s population (at most, two Atlanticprovinces and either Manitoba or Saskatche-wan might have voted against the agreement).This means that legislative approval of thenonconstitutional components of the negoti-ated agreement, and most of its constitutionalaspects, would be able to proceed smoothly.The nonconstitutional matters would requirelegislation simply by the federal Parliamentand the Quebec National Assembly, while mostof the important constitutional items would besubject to the “7/50” rule. Governments in theseven (or more) provinces whose electorateswould have approved the agreement should


have no difficulty moving ahead quickly withratification in their legislatures.

The Unanimity Components

What about those few constitutional aspectsof a secession agreement that would fall undersection 41, the unanimity clause in the amend-ing formula? If, in two or three provinces,majorities had voted against the agreement ina Canada-wide referendum, it is likely that thepremiers of those provinces would still be com-mitted to submitting to their legislative assem-blies — and supporting — resolutions to adoptthe constitutional components of the agree-ment. Except in Alberta and British Columbia,referendums are only consultative, not bind-ing on governments.52 And if majorities in allregions of the country were in favor of theagreement, it is doubtful that the majorityopposed in any dissenting province would bevery high. After the vast majority of Canadiansboth inside and outside Quebec had endorsedan agreement produced by a lengthy and stress-ful negotiating process, and with the knowl-edge that failure to ratify could plunge thecountry into chaos and confusion, it shouldnot be difficult for premiers of dissenting prov-inces to summon up the political courage tosteer the constitutional resolutions throughtheir legislative assemblies.

A Multitrack Process

If this solution were to fail, it might be possibleto break up the constitutional components ofthe agreement according to the differentamending formulas that would apply to them,and then have each group of components votedon separately in the various legislatures. Someanalysts have argued that such a multitrackratification process should have been followedin the Meech Lake round, which failed whenthe Manitoba and Newfoundland legislaturesdid not pass the necessary resolutions — eventhough only one of the accord’s five compo-nents, a change to constitutional amendingformulas, required unanimous provincial sup-

port. To avoid a similar fate, the few constitu-tional elements of the sovereignty agreementthat would be subject to the unanimity rulecould be put before the legislatures in a sepa-rate resolution from the rest of the agreement.

This possibility would make it easier torapidly ratify most of the negotiated agree-ment; indeed, our “unpacking” of the variouslikely components of a sovereignty agreementwas intended to facilitate discussion of thispossibility. Yet we are not convinced that thiswould be the best way to deal with the poten-tial straitjacket of unanimity.

To begin with, one could argue stronglythat an agreement negotiated and voted on asa total package should be treated the same wayby legislatures seeking to ratify it. The consti-tutional elements that required unanimousapproval, though few in number, would not beinsignificant parts of the agreement. To enactonly a part of the agreement might well be tobreach the understandings on which it wasreached — unless, at the negotiating stage,there had been an agreement to do so — andsome premiers might balk at participating innegotiations on that basis. We also note thatamendments affecting the constitutional useof the English and French languages, a matterrequiring unanimity, might well embody anagreement on the reciprocal treatment of lin-guistic minorities that was a critical part of thedeal. Meanwhile, amendments to eliminate themonarchy in Quebec and to remove Quebec’smembers from the House of Commons, thoughless contentious, would still need to be put intolegal effect to enable the new machinery ofgovernment to operate in Canada and a sover-eign Quebec.

The Maastricht Approach

A more plausible and attractive approachwould be to proceed as the European Union(EU) did when the Maastricht Treaty, approvedby 11 of its 12 members, was rejected by asmall majority of Danish voters in a referen-dum. Though subject legally to a unanimityrule, the EU agreed to go ahead with imple-


menting the treaty while a special “opt-outclause” to accommodate Denmark was negoti-ated. Danes subsequently approved the treaty,with this change incorporated, in another ref-erendum.53 A similar approach might work inCanada, too, if one of the smaller provincesrefused to ratify a sovereignty agreement be-cause of a discrete, negotiable provision deal-ing with, say, the continuing entrenchment ofminority language rights in the Canadian Con-stitution as part of a reciprocal agreement withQuebec. In such a case, the dissenting prov-ince might be accommodated through an opt-ing-out arrangement.

Bending the Rules:An Extreme Case

The possibility exists — though we think it isquite remote — that none of these approacheswould work, and that the required legislativeapproval would not be forthcoming in one ormore provinces whose electorates had rejectedthe agreement. Should this happen, we believeit would be reasonable for the federal govern-ment to press ahead with implementing theagreement and to recognize Quebec’s sover-eignty even though the constitutional require-ments for amending the Constitution had notbeen fully met.

Bear in mind the setting in which thisextralegal action would be taking place:

• after months of negotiations, an agreementcovering all aspects of Quebec’s accessionto sovereignty would have been reachedthrough a process representing all compo-nents of the federation;

• the agreement would have been approvedin a referendum by an overall majority ofCanadians and by majorities in provinceswith 92 percent of the population;

• an effort would have been made to modifythe agreement to satisfy dissenting prov-inces; and

• the consequences of not going aheadwould almost certainly prolong and deepena crisis that was already causing serious

economic damage, paralyzing government,and traumatizing Canadians inside andoutside Quebec.

At this point, under these conditions, to insiston full compliance with the constitutionalamendment rules would be to turn the rule oflaw into a foolish fetish and the unanimity ruleinto a tyranny. In such circumstances, wehope that the governments of Canada, Que-bec, and the other provinces that had sup-ported the agreement would have the goodsense to recognize Quebec’s accession to sov-ereignty on the basis of the negotiated agree-ment. As Peter Hogg has argued, such a defacto secession:

is an important safeguard for Quebecagainst the possibility of Canada not fulfill-ing its obligation to provide constitutionalforce to a negotiated secession agreement.The possibility of a de facto secessionwould also act as a deterrent to any provin-cial government that might be inclined towithhold its assent to a negotiated seces-sion agreement, making it less likely thatthe crisis would develop in the first place.54

The Aboriginal Treaty Stage

A crucial part of the negotiated sovereigntyagreement would be the principles and proce-dures concerning Aboriginal peoples in Quebec.Aboriginal organizations would participate inthese negotiations and, as we have discussed,their acceptance of this part of the agreementat the very least is required not only by thespirit of section 35.1 of the Constitution Act,1982, but also by Canada’s fiduciary obliga-tion to Aboriginal peoples under Canadian law,and by emerging norms of international law.55

We think the approach most likely to beagreed to would involve a treaty processwhereby the rights and status of each Aborigi-nal nation with some or all of its homeland inQuebec would be defined through three-waytreaties among Canada, Quebec, and the rele-vant Aboriginal nation.56 A nation-to-nationtreaty approach is at the core of the structuralrelationship that Aboriginal peoples wish to


have with Canadian and Quebec authorities.57

This approach is also embodied in the compre-hensive agreements signed by Canada, Quebec,and the Cree, Naskapi, and Inuit of NorthernQuebec in the 1970s, and in the “Comprehen-sive Offer” the Quebec government made to theAtikamekw and Montagnais nations in 1994.58

A genuine treaty-making process that hasintegrity and legitimacy cannot be carried outovernight. Working out and establishing treatyarrangements with Aboriginal nations in Que-bec that have not yet negotiated land andself-government agreements and renovatingthe agreements of those that have done sowould take years, not months, to complete. Itwould be unreasonable to expect a Quebecgovernment that had won a referendum topostpone accession to sovereignty and recog-nition of its independence indefinitely until thetreaty process had been completed with all ofQuebec’s Aboriginal peoples, if all other aspectsof secession had been agreed to. Similarly, asa matter of principle, Aboriginal peoples couldnot reasonably be expected to accept Quebecsovereignty if it were attained in a form funda-mentally inconsistent with their wishes,whether expressed in referendums or other-wise.

Instead, we suggest that Canada couldrecognize Quebec independence before thetreaty-making phase was complete in a man-ner consistent with its fiduciary and constitu-tional obligations to Aboriginal peoples andwithout giving Quebecers’ moral claim to self-determination priority over the similar claimsof Aboriginal peoples. In such a situation, thefully sovereign powers of the new Quebec statewould not extend over Aboriginal peoples andlands while the treaty-negotiating process wasstill under way. The existing situation, wheresovereignty is shared among three orders ofconstitutional government, would remain inplace. Canada, or some agreed-on interna-tional guarantor, could be granted responsibil-ity for safeguarding Aboriginal rights duringthe treaty-making period. It is possible thatone or more Aboriginal peoples might agree toa treaty with Quebec and Canada only on

condition that a permanent condominium —a tripartite sharing of sovereignty — attach totheir lands. In return, Quebec would likelyinsist that revenues from hydro-electric instal-lations and other resource developments ontreaty lands be guaranteed — without such adeal, the economic viability of an independentQuebec would be seriously compromised.

No doubt the qualified accession to sover-eignty outlined above would not go down wellwith many Quebec sovereigntists. On the fed-eral side, too, devotees of realpolitik likely wouldbe willing to have Canada renege on its legaland moral obligations to Aboriginal peoples ifthat seemed the easiest way to conclude anagreement on Quebec sovereignty.59 Nonethe-less, we believe that Canada and Quebecshould try to do better than this. Our approachholds out the possibility of securing the vitalinterests of the majority of both Quebecers andCanadians without sacrificing the rights ofAboriginal peoples or building a new relation-ship between Canada and Quebec by reimpos-ing imperial control over native peoples.

Conclusion

We would prefer to see the aspirations of Que-becers accommodated within the Canadianfederation. But after two failed attempts toachieve a post–1982 constitutional reconcili-ation with Quebec, the prospects of achievingformal constitutional change in the near fu-ture are not good.

Given the general rejection of the constitu-tional status quo in Quebec and the fact that,since fall 1995, polls have indicated that closeto half of Quebec voters favor sovereignty, itwould be foolhardy not to prepare to deal withthe consequences of a possible “yes” win in afuture sovereignty referendum. Should thathappen, we are convinced that an attemptought to be made to resolve the issue of Que-bec’s accession to sovereignty through the Ca-nadian Constitution. In this Commentary, wehave suggested a strategy to make that processas flexible as possible while keeping it as justand as fair as possible for all Canadians.


Granted, the process would be neither simplenor easy — although we do not think it wouldbe as daunting as, say, the strictness of theunanimity formula initially might suggest.

The democratic imperative of aCanada-widereferendum is a prerequisite to invoking theamending formulas for constitutional changesas great as those that Quebec sovereigntywould require. The results of that referendumwould play a greater role in determiningwhether formal legislative ratification of a sov-ereignty agreement moved ahead than wouldthe views of individual provincial governments.The major challenge posed by the ratificationprocess we have outlined would thus be tofashion, and then to sell, a complicated sover-eignty agreement to majorities of voters in thefive regions of the country spelled out in theConstitutional Amendments Act. We are confi-dent that an affirmative referendum vote onsuch an agreement would generate sufficientmomentum to ensure Quebec’s accession tosovereignty on the agreed-upon terms.

We do not claim that a constitutional proc-ess is the only way Quebec could effect sover-eignty following a “yes” win in a referendum.There are other paths by which Quebec couldbecome sovereign and other ways of negotiat-ing the terms of its sovereignty, and a pointmight be reached where the effort to complywith constitutional requirements no longermade sense. But the advantages to all sides inmaintaining legal continuity and following con-stitutional processes — minimizing the risk ofviolence and economic dislocation, and maxi-mizing the consensual nature of the sover-eignty agreement — are such that it would befoolish not to try to make the transition toQuebec sovereignty through the disciplines ofconstitutionalism. Only if these disciplinesfailed would it make sense to step outside theprocess, and even then Canadians, includingQuebecers, would be better off for having usedthe constitutional process to regulate theirbehavior to that point.

It is simplistic to argue that, because theCanadian Constitution has proven incapableof accommodating Quebec’s aspirations in therecent past, the amending formulas wouldpose an insurmountable obstacle to the ratifi-cation of a sovereignty agreement. This argu-ment fails to take into account the distinctpolitical and economic conditions — and thusthe unique bargaining dynamics — that wouldbe created by a “yes” win in a sovereigntyreferendum. We think the process would havea better chance of working because of the crisisenvironment in which it would take place; un-like Meech Lake and Charlottetown, this crisiswould be real, not just a threat. The conse-quences of failure would be obvious to all,giving the proceedings a tighter discipline. Be-

C.D. Howe Institute Commentary© is a peri-odic analysis of, and commentary on, currentpublic policy issues.

Alan C. Cairns, the author of this issue, isLaw Foundation of Saskatchewan Professor,College of Law, University of Saskatchewan.The text was copy edited by Elizabeth d’Anjouand prepared for publication by Barry A. Norris.

As with all Institute publications, the viewsexpressed here are those of the author, anddo not necessarily reflect the opinions of theInstitute’s members or Board of Directors.

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fore rejecting the approach we have outlined,critics — Quebecers and non-Quebecers alike— should consider carefully the alternatives,

and ask whether either side would really bebetter off if it did not even try to reach agree-ment through a constitutional process.

Notes

We would like to thank Mark Oulton for his researchassistance, and Ken Boessenkool, Alan Brousseau,Alan Cairns, David Cameron, Jamie Cameron, PeterHogg, John Richards, Richard Simeon, and Brian Slat-tery for their helpful comments on an earlier draft ofthis Commentary.

1 We prefer the phrase “accession to sovereignty” over“secession” to describe the process of constitutionalchange likely to follow a “yes” vote. “Secession” sug-gests a clean exit — the cutting of all political ties withCanada. But a “yes” vote in a sovereignty referendumcould lead to the creation of new federal or confederalarrangements (“sovereignty association”) betweenQuebec and Canada. When we do use the term “seces-sion,” we are referring to the removal of Quebec fromexisting constitutional arrangements, understandingthat new forms of political association between Quebecand Canada are possible.

2 See Patrick J. Monahan and Michael J. Bryant (withNancy C. Coté), Coming to Terms with Plan B: TenPrinciples Governing Secession, C.D. Howe InstituteCommentary 83 (Toronto: C.D. Howe Institute, June1996), pp. 3–4; and Alan C. Cairns, Looking into theAbyss: The Need for a Plan C, C.D. Howe InstituteCommentary 96 (Toronto: C.D. Howe Institute, Sep-tember 1997).

3 Canada, Parliament, House of Commons, Debates,September 26, 1996, p. 4707.

4 The arguments and literature are reviewed in NeilFinkelstein, George Vegh, and Camille Joly, “Does Que-bec Have a Right to Secede at International Law?”Canadian Bar Review 74 (1995): 225; Thomas Francket al., “L’intégrité territoriale du Québec dans l’hy-pothèse de l’accession à la souveraineté,” in Commis-sion d’étude des questions afférentes à l’accession duQuébec à la souveraineté, Projet de Rapport (annexe)(Quebec, 1992), pp. 382–383; Grand Council of theCrees, Sovereign Injustice: Forcible Inclusion of theJames Bay Crees and Cree Territory into a SovereignQuebec (Nemaska, Que., 1995), pp. 103–118; SharonWilliams, International Legal Effects of Secession byQuebec (North York, Ont.: York University, Centre forPublic Law and Public Policy, 1992), pp. 13–22. Seealso James Crawford, “State Practice and InternationalLaw in Relation to Unilateral Secession” (report filedwith the factum of the Attorney General of Canada inthe Supreme Court reference, February 19, 1997).

A contrary view can be found in Daniel Turp, “Que-bec’s Democratic Right to Self-Determination: A Criti-cal and Legal Reflection,” in Stanley H. Hartt et al.,Tangled Web: Legal Aspects of Deconfederation, The

Canada Round 15 (Toronto: C.D. Howe Institute, 1992),pp. 99–124.

5 Bill 1, An Act Respecting the Future of Quebec, 1stSession, 35th Leg., Quebec, 1995.

6 For example, in the Bertrand case, the Attorney Generalof Quebec’s legal submissions stated:

[l]e processus d’accession du Québec à la sou-veraineté relève essentiellement d’une dé-marche démocratique fondamentale qui trouvesa sanction dans le droit international public.

Motion to dismiss (April 12, 1996), Bertrand v. Bégin,Quebec 200-05-002117-955 (Sup. Ct.).

7 See Grand Council of the Crees, Sovereign Injustice;S. James Anaya, Richard Falk, and Donat Pharand,Canada’s Fiduciary Obligation to Aboriginal Peoples inthe Context of Accession to Sovereignty by Quebec,Vol. 1: International Dimensions (Ottawa: Canada Com-munications Group, 1995); Renée Dupuis and KentMcNeil, Canada’s Fiduciary Obligation to AboriginalPeoples in the Context of Accession to Sovereignty byQuebec, Vol. 2: Domestic Dimensions (Ottawa: CanadaCommunications Group, 1995); and Canada, RoyalCommission on Aboriginal Peoples, Report, Volume 2(1)(Ottawa: Canada Communications Group, 1996),pp. 93–106.

8 See Mary Ellen Turpel, “Does the Road to QuebecSovereignty Run through Aboriginal Territory?” inDaniel Drache and Roberto Perin, eds., Negotiating witha Sovereign Quebec (Toronto: Lorimer, 1992), pp.93–106; and Kent McNeil, “Aboriginal Nations andQuebec’s Boundaries: Canada Couldn’t Give What ItDidn’t Have,” in Drache and Perin eds., Negotiating witha Sovereign Quebec, pp. 107–123.

For a discussion of the Aboriginal peoples of Quebecand their homelands, see Ovide Mercredi and MaryEllen Turpel, In the Rapids: Navigating the Future ofFirst Nations (Toronto: Viking, 1994), pp. 165–185.

9 See Guy Laforest, Trudeau and the End of a CanadianDream (Montreal; Kingston, Ont.: McGill-Queen’s Uni-versity Press , 1995), for a thorough explication of thereasons the Constitution Act, 1982 lacks legitimacy inQuebec.

10 Re Objection by Quebec to a Resolution to Amend theConstitution, [1982] 2 S.C.R. 793. After the federalgovernment decided to proceed with patriation, theQuebec government asked the Supreme Court of Can-ada to rule on whether the conventional requirementof a substantial degree of provincial consent to amend-ments affecting provincial powers had to include Que-bec. The Court, in this reference, answered no.


11 Cairns, Looking into the Abyss.

12 For an argument in favor of such an approach by anon-Quebec Canadian scholar, see Denis Stairs, Can-ada and Quebec after Québécois Secession: “Realist”Reflections on an International Relationship (Halifax,NS: Dalhousie University, Centre for Foreign PolicyStudies, 1996).

13 See also the arguments on this point in Monahan andBryant, Coming to Terms with Plan B, pp. 21–25.

14 See s. 35.1, Constitution Act, 1982.

15 Monahan and Bryant, Coming to Terms with Plan B,pp. 31–33.

16 For example, Peter Hogg, Constitutional Law of Canada,4th ed. (Toronto: Carswell, 1996), p. 125.


18 Cairns, Looking into the Abyss.

19 See Canada, Royal Commission on Aboriginal Peoples,Report, vol. 5, p. 130.

20 José Woehrling, “Les aspects juridiques d’une éven-tuelle sécession du Québec,” Canadian Bar Review(74): 293. Woehrling’s conclusion finds support in twoinfluential textbooks: Hogg, Constitutional Law of Can-ada, p. 125; and Henri Brun and G. Tremblay, Droitconstitutionnel, 2d ed. (Cowansville, Que.: Yvon Blais,1990), p. 236.

21 Patrick Monahan, “The Law and Politics of QuébecSecession,” Osgoode Hall Law Journal 33 (1, 1995): 9.

22 A similar test is proposed by James Ross Hurley, whostates that, to determine whether section 41 applies toa proposed amendment, “one would have to begin byasking whether [it] would materially alter or affect anymatter subject to the unanimity procedure.” SeeAmending Canada’s Constitution: History, Processes,Problems and Prospects (Ottawa: Canada Communica-tions Group, 1996), p. 81.

23 S.C. 1996, c. 1.

24 Alberta has a de facto veto since it has more than halfthe population of the prairie provinces.

25 The Atlantic provinces’ veto could be invoked by anytwo of the three most populous provinces (New Bruns-wick, Nova Scotia, and Newfoundland). In addition,pursuant to an executive agreement negotiated by thepremiers of Prince Edward Island, Nova Scotia, andNew Brunswick — an agreement with moral if not legalforce — the Atlantic veto could be exercised by PrinceEdward Island with the support of either New Bruns-wick or Nova Scotia. The premiers agreed that PrinceEdward Island would receive the automatic veto sup-port of both New Brunswick and Nova Scotia if it firstobtains the agreement of either of those governments.See “PEI wins share in veto plan for constitutionalchanges,” Globe and Mail (Toronto), January 4, 1996.

26 According to the 1991 census, the combined popula-tion of the relevant provinces would be at least

25.8 million (92 percent of the total national populationof 28.1 million), as follows: Ontario, 10.47 million;Quebec, 7.08 million; British Columbia, 3.38 million;Alberta, 2.6 million; one of Manitoba or Saskatchewan,at least 1.00 million; and two of New Brunswick, NovaScotia, or Newfoundland, at least 1.33 million.

27 See Norman L. Nicholson, The Boundaries of the Cana-dian Confederation (Toronto: Macmillan, 1979), pp. 33,93, for a description of the 1791 and 1851 enactments,respectively.

28 Canada (Ontario Boundary) Act, 1889, 52 & 53 Vict.,c. 28 (U.K.).

29 See An Act respecting the North-Western, Northern andNorth-Eastern Boundaries of the Province of Quebec,S.C. 1898 (61 Vict.), c. 3; The Quebec BoundariesExtension Act, 1912, S.C. 1912 (2 Geo. V), c. 45.

30 Re Labrador Boundary, [1927] 2 D.L.R. 401.

31 The Cree, Inuit, and Montagnais likely would rejectQuebec sovereignty decisively in a future referendum,as they did in three separate ballots held immediatelyprior to the official 1995 referendum — by 96 percent,95 percent, and 99 percent, respectively. See Alan C.Cairns, “The Legacy of the Referendum: Who Are WeNow?” Constitutional Forum 7 (winter/spring 1996,nos. 2 and 3): 36.

32 See the discussion of the process followed in determin-ing the borders of the Swiss canton of Jura in Monahanand Bryant, Coming to Terms with Plan B, pp. 16-17,36-37.

33 Section 42(1)(c) of the Constitution Act, 1982 providesthat the “7/50" formula applies to an amendment inrelation to ”the number of members by which a prov-ince is entitled to be represented in the Senate."

34 Section 41(a) of the Constitution Act, 1982 requiresunanimous approval of amendments in relation to “theoffice of the Queen, the Governor General and theLieutenant Governor of a province.”

35 See sections 63 (power to appoint Cabinet members),65 (continuation of executive powers), 71 (definition ofthe Quebec legislature), 82 (the power to summon theQuebec legislature), and 90 (powers of reservation anddisallowance) of the Constitution Act, 1867.

36 Section 41(b) of the Constitution Act, 1982 requiresunanimous approval of amendments in relation to:

the right of a province to a number of membersin the House of Commons not less than thenumber of Senators by which the province isentitled to be represented at the time this Partcomes into force.

37 Section 41(c) of the Constitution Act, 1982 requiresunanimous approval of amendments to provisions inrelation to “the use of the English or the French lan-guage” in all of the provinces. We agree with Monahan(“The Law and Politics of Quebec Secession,” pp. 11–13)that an amendment that has the effect of canceling the


application of these provisions in Quebec qualifies forthe purposes of section 41(c).

38 See section 41(d) of the Constitution Act, 1982.

39 Instead, an amendment to the Supreme Court Act,R.S.C. 1985, c. S-26, deleting the guarantee of threeQuebec judges, could be passed through the ordinarylegislative process. See Hogg, Constitutional Law ofCanada, pp. 70–71, 80; Woehrling, “Les aspect ju-ridiques d’une éventuelle sécession du Québec,” p. 311,n. 38.For arguments to the contrary, see Monahan, “The Lawand Politics of Quebec Secession,” pp. 14–15; andRobert A. Young, The Secession of Quebec and theFuture of Canada (Kingston, Ont.; Montreal: McGill-Queen’s University Press, 1995), p. 248.

40 An amendment to this effect will likely soon be passedin any case. A resolution introduced in the House ofCommons by Stéphane Dion, Minister of Intergovern-mental Affairs, on April 22, 1997, would, if ratified byParliament and the National Assembly, end the appli-cation of subsections 93(1) to (4) in Quebec. See Can-ada, Parliament, House of Commons, Debates, April 22,1997, p. 10029.

41 R.S.C. 1985, c. E-3.

42 R.S.C. 1985, c. S-26.

43 Section 25 of the Supreme Court Act, R.S.C. 1985, c.S-26.

44 One way of doing so has been put forward in Monahanand Bryant, Coming to Terms with Plan B.

45 In British Columbia, the relevant legislation is theConstitutional Amendment Approval Act, R.S.B.C.1996, c. 67, s. 1 (obligation to hold referendum prior tointroduction of motion to ratify constitutional amend-ment in the legislature) and the Referendum Act,R.S.B.C. 1996, c. 400, ss. 4 and 5 (preference of morethan 50 percent of validly cast ballots is binding on thegovernment that initiated the referendum). In Alberta,it is the Constitutional Referendum Act, S.A. 1992,c. 22.25, s. 2(1) (obligation to hold referendum prior toholding ratification vote in legislature) and s. 4(1) (pref-erence of majority of validly cast ballots binding on thegovernment that initiated the referendum).

An Ontario legislative committee has recommendedadopting requirements similar to those in British Co-lumbia and Alberta, and the government is consideringintroducing a bill to implement the committee’s propos-als in the fall of 1997. See Ontario, Legislative Assem-bly, Standing Committee on the Legislative Assembly,Final Report on Referenda, 1st Session, 36th Leg. (June1997), pp. 6–9; and James Rusk, “Tax referendumsproposed in Ontario,” Globe and Mail (Toronto), July 4,1997, p. A3.

At least four other jurisdictions have legislation thatpermits and facilitates, but does not require, the hold-ing of a referendum on matters of public interest. Seethe Referendum and Plebiscite Act, S.S. 1990-91, c. R-8.01, s. 3(1); the Election Act, R.S.N., c. E-3; Loi sur la

consultation populaire, R.S.Q., c. C-64.1; the Referen-dum Act, S.C. 1992, c. 30, s. 3(1).

46 For an elaboration of this argument, see Peter W. Hogg,“The Effect of a Referendum on Quebec Sovereignty,”Canada Watch 4 (August 1996, nos. 5 & 6): 89.


48 Patrick Boyer, Direct Democracy in Canada: The Historyand Future of Referendums (Toronto: Dundurn Press,1992), p. 254.

49 The accord garnered majority support in just fourprovinces. See Peter H. Russell, Constitutional Odys-sey: Can Canadians Become a Sovereign People? 2nded. (Toronto: University of Toronto Press, 1993), ch. 11.

50 The act provides that federal ratification of an amend-ment to which the act applies will not proceed “unlessthe amendment has first been consented to by a ma-jority of the provinces” (Constitutional Amendments Act,S.C.1996, c.1, s.1(1)). In the absence of a definition ofprovincial consent, we submit that either legislativeratification or popular assent through a referendumwould suffice.

51 Section 35.1 of the Constitution Act, 1982 supports theparticipation of representatives of Aboriginal peoples inthe negotiation of constitutional amendments relateddirectly to them. We do not rule out the possibility thatthese representatives might choose to be guided by thewishes of their peoples as expressed through referen-dums; how they seek to determine and express theirposition is their affair. Our point is that, in addition toa five-region “yes” vote on a negotiated agreement as awhole, Aboriginal approval of the provisions affectingtheir rights would also be required.

52 The five-region referendum rule would require majorityapproval in these provinces in any case, since BritishColumbia is a region all its own and, as noted, Albertahas more than 50 percent of the population of theprairie provinces.

53 See J. Monar et al., The Maastricht Treaty on EuropeanUnion: Legal Complexity and Political Dynamic (Brus-sels: European Interuniversity Press, 1993).

54 Peter W. Hogg, “Principles Governing the Secession ofQuebec” (paper presented at the conference on “Law,Democracy and Self-Determination,” Canadian Bar As-sociation, May 22–23, 1997), p. 10.

55 For a full elaboration of these points, see Grand Councilof the Crees, Sovereign Injustice; Anaya, Falk, andPharand, Canada’s Fiduciary Obligation, vol. 1; andDupuis and McNeil, Canada’s Fiduciary Obligation,vol. 2.

56 These are the Abenaki, Algonquin, Atikamekw, Cree,Huron, Mikmaq, Mohawk, Montagnais, Naskapi, andMalicite, and the Inuit of Ungava.

57 See Grand Council of the Crees, Sovereign Injustice,ch. 8; and Canada, Royal Commission on AboriginalPeoples, Report, vol. 2, ch. 2.


58 See Canada, Task Force to Review ComprehensiveClaims Policy, Living Treaties: Lasting Agreements(Ottawa: Department of Indian Affairs and NorthernDevelopment, 1985), ch. 1; and Quebec, Summary ofthe Comprehensive Offer of the Quebec Government to

the Atikamekw and Montagnais Nations (Quebec City:Government of Quebec, December 1994).

59 Robert Young suggests that there will be strong pres-sures in this direction; see The Secession of Quebec andthe Future of Canada, pp. 226–227.


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