ABORIGINAL PEOPLES AND THE
1995 QUEBEC REFERENDUM:
A SURVEY OF THE ISSUES
Political and Social Affairs Division
Peoples in Quebec
The Province of Quebecs Current Boundaries
James Bay and Northern Quebec Agreement
AND POST-REFERENDUM DEBATES
The Crees of Quebec
2. Inuit of
3. Other Aboriginal
B. Quebec Government
C. Federal Government
ISSUES IN INTERNATIONAL
History and Evolution of the Concept in International Law
United Nations Documents and Self-Determination
Current International Norms and Aboriginal Peoples
CONSTITUTIONAL AND TREATY RESPONSIBILITIES
1995 QUEBEC REFERENDUM:
A SURVEY OF THE ISSUES
In the debate surrounding
the October 1995 Quebec referendum and in subsequent discussions on the
future of the province, aboriginal issues have had a significant profile.
Most prominent among these has been the conflict over northern Quebec,
the traditional territory of the Crees and Inuit. Questions about rights
to self-determination, the status of traditional aboriginal territories
in the event of Quebecs secession, and the obligations of Canada
to aboriginal peoples in Quebec continue to play a role in the ongoing
This paper surveys the issues
and reviews the positions of different parties during and following the
referendum. Many of the issues involve complex legal and political questions.
To provide a better understanding of them, the paper examines concepts
in international and domestic law that underlie the debate.
The paper begins with some
background on aboriginal peoples in Quebec and the James Bay and Northern
Quebec Agreement. It then sketches positions taken during the referendum
and in the post-referendum period. The paper goes on to explore aspects
of international and domestic law and practice. This study is intended
to be descriptive and explanatory. While it presents the views of various
commentators, the paper does not attempt to analyze the merits of their
arguments or draw conclusions on them.
Peoples in Quebec
The aboriginal population
of Quebec is approximately 62,000.(1)
Aboriginal groups include the Inuit, and ten Indian nations: the Crees,
Mikmaq, Malecite, Algonquin, Huron, Montagnais, Abenaki, Atikamekw,
Naskapi, and Mohawk. Fifteen Inuit and nine Cree communities are located
in northern Quebec.
Lands exclusively dedicated
to aboriginal peoples cover 14,770 square kilometres of the province.
About 95% of this land has been set aside under the James Bay and Northern
Quebec Agreement and the Northeastern Quebec Agreement, while the remaining
5% is allocated as reserves and settlements.(2)
The Province of Quebecs Current Boundaries
have been altered several times since Confederation in 1867.(3)
In 1870, Canada purchased Ruperts Land, which was inhabited by Inuit,
Cree, Montagnais, Naskapi, Atikamekw and Algonquin, from the Hudsons
Bay Company. Over the next few decades, Canada transferred portions of
this territory to Quebec. In 1898, Quebecs northern boundary was
set along the eastern shore of James Bay to the mouth of the Eastmain
River, north along the river, then due east to the Hamilton River and
down the river to the western boundary of Labrador. In 1912, the vast
territory bounded by the Eastmain River, the Labrador coast, and Hudson
and Ungava Bays was transferred to Quebec, extending the northern boundary
to its present location. Cree, Montagnais, Naskapi and Inuit inhabited
these lands. The Quebec Boundaries Extension Act of 1912 included
several provisions relating to the aboriginal peoples of the territory:
that the province would recognize the rights of Indians to the same extent
as the government of Canada had recognized such rights and that the province
should obtain surrenders to the territory in the same matter as the federal
government had done elsewhere. The Act also stipulated that the trusteeship
of Indians in the territory and management of lands reserved for their
use would remain with the Government of Canada.
Indian and Inuit lands in
Quebec were not covered by treaty or surrender, although some aboriginal
groups were granted title over small allotments of land.
James Bay and Northern Quebec Agreement
In the spring of 1971, the
Quebec government announced plans to proceed with the construction of
the James Bay hydroelectric project. The lands in question were part of
the area that had been transferred under the 1912 Boundaries Extension
Act and had not yet been ceded by aboriginal peoples who lived in
the territory. In 1972, the Cree and Inuit instituted legal proceedings
against the Quebec government to obtain an injunction against the development.
In the fall of 1973, Justice Albert Malouf issued an interim injunction
halting the James Bay project. The injunction was later overturned by
the Quebec Court of Appeal. Before an appeal to the Supreme Court was
heard, the federal and Quebec governments, the Grand Council of the Crees
(of Quebec), and the Northern Quebec Inuit Association reached an out-of-court
settlement.(4) The James Bay
and Northern Quebec Agreement (JBNQA) was signed on 11 November 1975.
The agreement and a series
of federal and provincial implementing statutes are detailed and complex.
Under the JBNQA the Crees and Inuit were granted a number of rights and
benefits, including financial compensation of $232.5 million over 21 years,
in exchange for surrendering their rights to land. The agreement also
provided for the establishment of administrative structures and special
programs for the Crees and Inuit, granting them a degree of self-government.
In 1976, parties to the JBNQA and the Naskapi Indians of Quebec signed
the Northeastern Quebec Agreement, which extended the benefits of the
JBNQA to the Naskapi.
AND POST-REFERENDUM DEBATES
Following the election
of the Parti Québécois in the fall of 1994, the Quebec government initiated
steps toward secession. A draft bill calling for a unilateral declaration
of independence was made public in December 1994, followed by the introduction
of an Act respecting the future of Quebec (Bill 1) in the National
Assembly on 7 September 1995.(5) The bill affirmed that a new Quebec constitution
would recognize the existing constitutional rights of aboriginal nations,
in a manner "consistent with the territorial integrity of Quebec."
The bill clearly stated that Quebec would retain its boundaries as they
currently exist within Canada. It also provided that under the new constitution,
the right of aboriginal nations to self-government on the lands over which
they have full ownership and their right to participate in the development
of Quebec would be recognized.
In the lead-up to the referendum,
aboriginal groups reacted in opposition to this position. In particular,
the Crees argued that they had a right to maintain their territory in
Canada. The Crees and the Quebec government dominated the debate on this
issue, along with academic commentators. Since the referendum, the Crees
and the Quebec government have continued to conflict on this matter, and
the status of aboriginal territory has also become a prominent part of
federal-provincial rhetoric on the terms of a possible secession.
A. Aboriginal Perspectives
The Crees of Quebec
The Grand Council of the
Crees (of Quebec), under leadership of Grand Chief Matthew Coon Come,
have been the most outspoken aboriginal group. The Crees have asserted
for many years that they are a people, with a right to self-determination
recognized under international law. They argue that no annexation of them
or their territory to an independent Quebec should take place without
their consent, and that if Quebec has the right to leave Canada then the
Cree people have the right to choose to keep their territory in Canada.
Cree arguments generally do not claim the right to secede from Canada;
rather, the Crees see themselves as a people bound to Canada by treaty
(the JBNQA), and as citizens of Canada.(6)
The Crees have stated that
a unilateral declaration of independence by Quebec would be a violation
of fundamental principles of human rights, democracy and consent. If secession
were to proceed, the Crees argue they would seek protection through the
Canadian courts as well as asserting Cree jurisdiction over its people
In the period leading up
to the referendum, the Crees were active at both the domestic and international
levels. A Cree Commission held 14 hearings in 10 different communities
during August and September 1995. Its report, "The Voice of a Nation
on Self-Determination," affirmed Cree opposition to secession without
their consent, and restated their commitment to maintain a relationship
with the federal government.
In October 1995, the Crees
released a study, Sovereign Injustice, which cited a variety of
Canadian and international sources to support their case.(7)
The book updates a study completed in 1991 and submitted to the United
Nations Commission on Human Rights at its forty-eighth session in February
1992. Sovereign Injustice emphasizes that aboriginal peoples have
a right to self-determination, including a right to stay in Canada. It
argues that the forcible inclusion of the Crees in any future Quebec state
would lack validity and legitimacy from the viewpoint of international,
Canadian, and aboriginal law and practice. Such an action, the Crees assert,
would also seriously detract from Quebecs claims that it is resorting
to fair or democratic process to achieve its goals.
The study also argues that
there is no rule under Canadian or international law that would ensure
the present boundaries of Quebec would become those of a sovereign Quebec
The paper notes that portions
of Quebec annexed to the province in 1898 and 1912 constitute in large
part the traditional territories of the James Bay Cree and other aboriginal
peoples, which were added to the province without their consent. It concludes
that the James Bay and Northern Quebec Agreement provides for permanent
federal obligations that could not be unilaterally undertaken by Quebec.
To highlight their opposition
to Quebec secession, the Crees held a separate referendum on 24 October
1995. Cree voters were asked: "Do you consent, as a people, that
the Government of Quebec separate the James Bay Crees and Cree traditional
territory from Canada in the event of a Yes vote in the Quebec referendum?"
The Crees voted 96.3% to stay with Canada. Of 6,380 eligible voters, 77%
participated in the Cree referendum.
Cree concerns over secession
continue in the post-referendum period. In late January 1996, Coon-Come
urged the prime minister to make a formal declaration in the House of
Commons supporting the Cree decision to remain in Canada if Quebec secedes.
The Crees again asserted that the JBNQA is a treaty that binds the federal
government to protect Cree interests in the event of a unilateral declaration
of independence by Quebec.(8)
The Crees also appeared during Senate Committee hearings on Bill C-110
(An Act respecting constitutional amendments). They opposed the bill,
arguing that reforms should not be made at the expense of the Crees and
other aboriginal peoples.(9) In their view, Bill C-110 could constrain the
federal government from tabling constitutional initiatives to protect
the rights of aboriginal peoples in the context of Quebec secession. The
Crees proposed an amendment in the event that the Senate supported the
bill, a non-derogation clause to ensure that the Act would not constrain
the powers of Parliament to propose or to authorize an amendment to the
constitution in order to: a) recognize, affirm or protect the aboriginal
peoples and their aboriginal and treaty rights or other rights and freedoms,
or b) preserve and protect the national unity and territorial integrity
of Canada. The Crees also called for their inclusion in federal unity
2. Inuit of Northern
The Inuit of Northern
Quebec also raised significant concerns over the future of their territory.
Like the Crees, they assert the right to self-determination, and the choice
to remain in the Canadian federation. The Inuit held a separate referendum,
on 29 October 1995. Inuit voters were asked the question: "Do you
agree that Quebec should become sovereign?" With about 75% of eligible
voters casting ballots, 96% voted against Quebecs becoming sovereign.
This result was similar to the outcome of the vote carried out by the
Inuit parallel to the 1980 Quebec referendum, in which 94% had voted "no."
Inuit continue to argue
that they have rights to remain Canadian citizens and keep northern Quebec
within Canada, which are supported by section 35 of the Constitution
Act, 1982 and the JBNQA. For reasons similar to the Crees, the
Inuit opposed Bill C-110. They recommended that the proposal be reconsidered,
and if not, supported the adoption of an amendment identical to that put
forward by the Crees.
3. Other Aboriginal
Leaders of other aboriginal
peoples in Quebec have also expressed their opposition to taking aboriginal
land out of Canada. In early October 1995, First Nations Chiefs, in a
statement entitled "Reaffirmation of Aboriginal Peoples of Quebec
and Labradors Right to Co-Exist in Peace and Friendship," articulated
their resistance to the forcible inclusion of aboriginal people in a new,
independent state, arguing that it would be contrary to international
Contrary to usual practice,
many aboriginal peoples exercised their right to vote, the exception being
Mohawks of Kahnasetake, Kahnawake, and Akwesasne. Elsewhere, Indians registered
a strong federalist voice.(11)
Published referendum results show that more than 95% of aboriginal peoples
who participated in the referendum voted "no."
During the final week of
the referendum campaign, Quebec chiefs, along with Assembly of First Nations
Grand Chief Ovide Mercredi, made it clear that they expect to participate
in any discussions on Canadas future.
The Parti Québécois position,
as expressed in its sovereignty bill, is that Quebec would retain its
current boundaries in the event of secession. In September 1995, Quebec
MNA David Cliche, then spokesperson on native affairs, argued before the
Cree Commission on sovereignty that the provinces borders could
not be altered. He told the Commission that Quebec does not require Cree
consent to separate from Canada, and that Cree consent would be necessary
only if changes were made to the James Bay Agreement. Otherwise, a separate
Quebec would simply assume Canadas responsibilities in the agreement.(12)
During the referendum debate,
Lucien Bouchard and Jacques Parizeau rejected claims that aboriginal peoples
have the same right to self-determination as Quebeckers. They asserted
that under international law Quebec has the right to maintain its current
borders after secession. Once Quebec was recognized as an independent
state, aboriginal peoples would simply be transferred to its jurisdiction.
Since the referendum, the
Quebec government has maintained its position that, in the event of secession,
the provinces territory could not be partitioned.
During the referendum debate,
the federal government made few comments on aboriginal issues. In May
1994, however, Minister of Indian Affairs Ron Irwin stated his view that
aboriginal peoples have the right to stay in Canada with their territories
if the province of Quebec were to secede. In October 1995, Irwin told
a meeting of First Nations chiefs in Ottawa that the federal government
would protect Quebec aboriginal peoples and their territories if the province
voted to separate, and repeated his position that Quebec aboriginal peoples
have the right to stay with Canada.(13)
The federal government entered
more forcefully into the debate in early 1966. Commenting on a federal
strategy in the event of a Quebec vote to separate, both Intergovernmental
Affairs Minister Stéphane Dion and the Prime Minister suggested that regions
of Quebec may be entitled to remain with Canada.(14) Minister Irwin has also questioned
Quebecs right to the territory covered by the James Bay Agreement.(15)
IN INTERNATIONAL LAW
The arguments put forth
by the different parties raise questions about rights to self-determination,
the conditions for secession, and rights to territory that are based in
international law. This section discusses the concepts of self-determination,
secession, and territorial integrity; both broadly and as applied to aboriginal
peoples. Given the complexity of the issues and the evolving nature of
international law, it is evident that different interpretations can be
of secession and the Cree both present arguments based on a right to self-determination.
While the principle of self-determination has evolved at the international
level, it lacks a precise definition in international law; governments
and legal scholars take many different positions on the issue. The development
of the concept shows a continuing conflict between the principle of having
peoples freely determine their political status and the principle of territorial
integrity of states.
History and Evolution of the Concept in International Law
During the latter stages
of World War I, the principle of self-determination began to emerge as
an element of international law. In the 14 points he put forward as part
of United States approach to peace process in 1918, American President
Woodrow Wilson advocated a moderate version of self-determination, intended
to apply to the peoples of Europe, particularly those formerly ruled by
the Ottoman Empire. A more radical version of self-determination, articulated
by Lenin prior to the Bolshevik Revolution, advocated self-determination
as a means for the liberation of all peoples subject to a colonial order.(16)
Wilsons more restrictive
view of self-determination took prominence at this time. The Covenant
of the League of Nations did not clarify the principle of self-determination,
but the League made it clear that no positive international right to secession
existed.(17) While the international community failed
to adopt the right of self-determination to protect "peoples"
within existing states it did embrace the principle of "minority
rights." A "minority group" within a segment of a state
would receive the support of the international community if its rights
to self-determination, short of secession, were being infringed.(18)
In the period during and
after World War II, an ethos of nationalism and anti-colonialism began
to spread. There continued to be a split in the international community,
however, between those who challenged the colonial order, and countries
that remained committed to retaining their colonies.
United Nations Documents and Self-Determination
Following the creation of
the United Nations, the process of clarifying and interpreting the concept
of self-determination began. At its inception, the U.N. Charter clearly
did not include any general right of self-determination; it characterized
self-determination as a principle, rather than a right. Article 1(2) stated
one of the U.N.s guiding principles: "To develop friendly relations
among nations based on respect for the principle of equal rights and self-determination
The pressures of decolonization
movements gradually led to a broader interpretation of a right to self-determination.
In 1960, in a significant move, the United Nations adopted the Declaration
on the Granting of Independence to Colonial Peoples.(19)
The Declaration provided in Article 2 that "(a)ll peoples have the
right to self-determination; by virtue of that right they freely determine
their political status and freely pursue their economic, social and cultural
development." While this document is essential political in nature
and is of questionable legal authority, it has provided the groundwork
for what may be called the new U.N. law of self-determination. As international
law scholar Richard Falk has noted:
The thinking expressed
in Resolution 1514 remains important in understanding the most recent
post-colonial phases of struggle with respect to the application of
the right of self-determination, although it does not attempt to clarify
the specific legal content of the right, nor does it identify the circumstances
of its application and their limits.(20)
In 1966, the General Assembly
of the United Nations adopted the final text of the two International
Covenants on Human Rights. The texts of the International Covenant on
Economic, Social and Cultural Rights and of the International Covenant
on Civil and Political Rights and the Optional Protocol to the International
Covenant on Civil and Political Rights recognize that all peoples have
the right to self-determination.
Again, no definition of
the right to self-determination was provided in the documents. Comments
formulated during the drafting of these documents suggest that the right
of secession was not meant to be embraced by this provision, which is
the position held by most international legal authors. The few who have
attempted to prove otherwise put forward the argument that, in spite of
existing ambiguity, both Covenants were adopted unanimously, stating a
universal principle of the right to self-determination that could not
exclude a right to secede. They further view their position as supported
by the language of the Covenant, which grants a right of self-determination
to "all peoples" and not just to colonies or other non-self-governing
Efforts to reconcile conflicting
opinions over the principle or right of self-determination culminated
in a new U.N. resolution in 1970. The influential Declaration Concerning
Friendly Relations Among States(21) reasserted the principle of
the equality of the rights of peoples and their right to self-determination
established in the U.N. Charter:
By virtue of the principle
of equal rights and self-determination of peoples enshrined in the Charter
of the United Nations, all peoples have the right freely to determine,
without external interference, their political status and to pursue
their economic, social and cultural development, and every State has
the duty to respect this right in accordance with the provisions of
Nothing in the foregoing
paragraphs shall be construed as authorizing or encouraging any action
which would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent States conducting
themselves in compliance with the principle of equal rights and self-determination
of peoples as described above and thus possessed of a government representing
the whole people belonging to the territory without distinction as to
race, creed or colour.
The Declaration seems to
indicate that respect for the territorial integrity of a state should
be given precedence over the exercise of self-determination. Thus, it
would preclude secession. It has been suggested, however, that the Declaration
reasserts the principle of territorial integrity but in a more conditional
form, indicating a "potential receptivity to and loopholes for self-determination
claims that are not strictly reconcilable with the primacy previously
accorded unconditionally to territorial integrity and political unity."(22)
A broad view of the right
encompasses both "external" self-determination, through which
a people freely determines its status within the international community
and liberates itself from alien rule, and "internal" self-determination,
through which a people chooses the desired system of government and the
nature of the regime. Thus, external self-determination includes the classic
sense of the right -- that of secession and the formation of a new state.
It may also include integration into an existing state or association
with another state. Internal self-determination involves a people determining
their own destiny within the boundaries of an existing state.
As is evident from the preceding
discussion, self-determination is an ambiguous concept without a clear
definition. As a result, the status of the right in international law
is subject to varying interpretations. Richard Falk argues that the right
has matured along three paths; morality, politics, and law; with international
law lagging behind moral advocacy and political practice.(23)
He notes that international law literature supports two opposite tendencies:
the first limits self-determination by insisting on the unconditional
territorial unity of states; the second, reformulated legal approach "acknowledges
the unsettled character and scope of the right but takes note of the degree
to which diplomatic recognition and admission to the United Nations have
been granted to entities formerly encompassed by the Soviet Union and
some legal debate continues over the status of self-determination as a
legal right versus a political principle, in Falks opinion it has
become generally accepted as a norm of international law.
The international law documents
discussed above refer to the self-determination of "peoples."
There is, however, no generally accepted definition of this term in international
law; as a result, its meaning varies and remains contentious. Elements
that have been identified include a common language, history, culture,
race or ethnicity, way of life and territory. The notion of peoples also
includes a subjective element -- a present consciousness of group identity
and a will to protect that identity.(25)
Secession, as understood
in international law, refers to the creation of a state without the consent
of the former state to which the breakaway entity was joined.(26)
As scholars in international law have pointed out, secessionist self-determination
is an issue separate from a general right of self-determination.(27)
International law supports
secession or independence for "peoples" or "territories"
only in exceptional situations.(28)
While international law does support the right of self-determination of
all peoples, it has generally limited the right to secede to special conditions
of decolonization in the third world. Although most international lawyers
agree that the U.N. Charter does not encompass the right of secession,
various justifications for secession have been offered.(29)
the principle that supports the inviolability of the territory of state,
is recognized in Article (4) of the U.N. Charter.
In the case of secession
for colonized or subjugated peoples, international practice has followed
the principle of uti possidetis, by which a colonized area becomes
independent using the state boundaries established for the colony. It
was first applied to the Spanish colonies in Latin America, and has since
been adopted in other areas. This rule intended to maximize continuity
and stability, to limit ethnic claims, and to minimize conflict. However,
some authors have noted that uti possidetis is not a mandatory
principle under international law, and that its application has been variable.(30)
Current International Norms and Aboriginal Peoples
dealing specifically with indigenous peoples is a fairly recent development.
The 1989 ILO Convention 169 Concerning Indigenous and Tribal Peoples is
contemporary international laws most concrete statement of indigenous
peoples rights.(31) The Convention recognizes the limits that
have been placed on the rights of indigenous peoples, and their aspirations
to control their own institutions, way of life and economic development
and to maintain their identities, languages and religions. It urges governments
to promote indigenous cultural integrity, to safeguard land and resource
rights, and to consult the peoples concerned and establish means by which
they can participate in representative institutions and develop their
The Convention does not
specifically address the issue of self-determination. Article 1(3) states:
"the use of the term peoples in this Convention shall
not be construed as having any application as regards the right which
may attach to the term under international law." This provision was
included to meet the concerns of countries, in particular Canada, that
the Convention not be interpreted as supporting the right of indigenous
peoples to complete self-determination in international law.(32)
In 1982, the U.N. Working
Group on Indigenous Populations was established.(33)
The group has met nearly every year since that time in an effort to develop
the Draft Declaration on the Rights of Indigenous Peoples. The central
debate has been the formulation of the right of self-determination, with
aboriginal peoples advocating the explicit inclusion of the right in an
unrestricted form, and state representatives arguing against such a full
legal recognition. The 1993 Draft Declaration contains the wording: "Indigenous
peoples have the right of self-determination. By virtue of that right
they freely pursue their economic, social and cultural development."
The draft does not contain a definition of "indigenous peoples."
This text has been supported by the Grand Council of the Crees (of Quebec)
and the Inuit Circumpolar Conference. Some indigenous organizations have
criticized the draft text for not going far enough, while governments
generally argue that it goes too far.(34)
Erica-Irene Daes, Chair of the Working Group on Indigenous Populations,
has emphasized that indigenous peoples generally do not aspire to separate
statehood, and has described self-determination for indigenous peoples
as autonomy or internal self-government, within existing states.(35)
Reflected in disputes over
indigenous self-determination are different approaches to what constitutes
a "people" for the purposes of self-determination. Indigenous
peoples have sought a broad application of the term. Some commentators
view indigenous peoples as minorities within nations and as such would
deny them various rights, including self-determination.(36) Others have argued that indigenous peoples
are unquestionably "peoples" in every social, cultural, and
ethnological meaning of this term, as evidenced by their distinct languages,
laws, traditions and histories.(37)
The question of the rights
of indigenous peoples under international law remains controversial. James
Anaya has suggested that, while several states have resisted the express
use of the term "self-determination" in association with indigenous
peoples, there is a widely held international consensus that indigenous
peoples are entitled to continue as distinct groups, in control of their
The preceding sections discussed
concepts of self-determination, secession and territorial integrity. Both
supporters of Quebec secession and aboriginal peoples have asserted rights
to self-determination. The claims of Quebec and aboriginal peoples in
the province are sometimes described as competing, or comparable; it is
argued that if Quebec has a right to self-determination, aboriginal peoples
have an equal or similar claim.(39) Cree claims to self-determination also conflict
with Quebecs claim to territorial integrity in the event of secession.
With respect to Quebec,
a right to self-determination has been supported by a number of commentators.
For example, Daniel Turp has made a case for the existence of a Quebec
people, with, as a corollary, the right to self-determination.(40)
The draft report of the Quebec National Assemblys Committee
on Sovereignty defined a Quebec people based on residency, noting the
awareness of a distinct national collectivity composed of anyone domiciled
in Quebec.(41) Others have
argued that Quebecs right is not certain, and question whether a
single Quebec people can be defined for the purposes of self-determination.(42)
With regard to indigenous
peoples in northern Quebec, Cree and Inuit have asserted to provincial
and federal governments, in international forums, and at the U.N. that
they are "peoples" entitled to self-determination. A number
of authors have supported their claims to status as peoples, pointing
to the unique cultures, histories, political organization and senses of
identity of the indigenous groups.(43)
A variety of opinions also
exist on whether any right to self-determination would entail a right
to secession. In 1992, a report by a Committee of five international law
experts commissioned by the Quebec National Assembly stated that the indigenous
peoples of Quebec did not have a right to secession, but neither did Quebec.(44)
A recent article by N. Finklestein, G. Vegh and C. Joly concludes that
Quebec does not have a right to secede at international law.(45)
As for the Crees claim to self-determination, this is not framed
as an argument for secession, but rather for a choice of political status.(46)
The five-expert report recognized
that, whatever the legal right may be, Quebec secession might occur as
a matter of fact. In such a case, the authors applied the principle of
uti possidetis to conclude that the proper boundaries would be
the existing boundaries of the province. Others have argued that uti
possidetis cannot be accepted as an established norm of international
law in the context of the breakup of federal states,(47)
and that the five experts erred in applying the principle to the Quebec
situation.(48) It has also been asserted
that international law does not clarify the legitimacy of Quebec sovereignty
or the territorial integrity of an independent Quebec. Rather, these are
dependent on the recognition of the international community.(49)
These differing views contribute
to the conflicting claims we see today. The Quebec government asserts
that it does have a right to secede, and to keep the provinces territory
intact. The Cree and other aboriginal groups assert their right to self-determination,
which involves the claim to maintain their territory as part of Canada.
Recent debates have centred on this issue, asking: if Canada is divisible,
is not Quebec divisible also?(50) As evident from the preceding review, arguments
in support of each position can be made.
AND TREATY RESPONSIBILITIES
In addition to issues of
international law, the referendum also prompted discussions on Canadas
constitutional and treaty responsibilities in the context of Quebec sovereignty.
Debate often focuses on the James Bay and Northern Quebec Agreement.
Section 91(24) of the Constitution
Act, 1867 gives the federal government jurisdiction over Indians and
lands reserved for Indians. Under section 35 of the Constitution Act,
1982, the existing aboriginal and treaty rights of the aboriginal
peoples of Canada are recognized and affirmed. Section 35.1 commits the
government of Canada and the provinces to the principle that, before any
amendments are made to section 35, section 25 (which protects aboriginal
rights from abrogation or derogation by the Charter), or section 91(24)
of the Constitution Act, 1867, a constitutional conference related
to the proposed amendment would be convened, with the participation of
Canadian courts have established
that there is a fiduciary relationship between the federal Crown and the
aboriginal peoples of Canada.(51)
As a result of the special fiduciary responsibility created by history,
treaties and legislation, the government has a responsibility to protect
the interests of aboriginal peoples.(52)
In the context of negotiations
on sovereignty, Reneé Dupuis and Kent McNeil argue that obligations created
by federal jurisdiction would require the federal government to defend
the interests of aboriginal peoples with respect to lands reserved for
them. The federal government would also be responsible for ensuring respect
for aboriginal and treaty rights, including the rights created by the
James Bay and Northern Quebec Agreement. These authors suggest that in
a preliminary, non-constitutional process, neither Quebec nor the federal
government would have a legal obligation to ensure that aboriginal peoples
played a direct role in negotiations. Any constitutional amendments resulting
from such negotiations would, however, likely require the federal and
provincial governments to convene a constitutional conference with aboriginal
representation, because of the guarantee of participation in section 35.1
of the constitution.(53)
The impact of amendments on aboriginal and treaty rights may also give
rise to federal fiduciary obligations to ensure aboriginal participation
in any constitutional discussions.(54)
Allen Buchanan also argues
that the James Bay Agreement was made within the Canadian federal order,
which includes a mandate for the federal government to protect the basic
interests of aboriginal peoples. He suggests that the validity of the
agreement is conditional on the existence of the federal obligations and
the constitutional framework for fulfilling them, and concludes that the
federal government could make renegotiation of the status of aboriginal
peoples in Quebec a condition of completion of secession.(55)
Among the most important
conditions is the clarification of the status of native peoples and
the protection of their interests, including their interests in self-determination.
Since it cannot be prejudged that the adequate protection of these interests
will not require significant jurisdictional powers over territory
or even adjustments in the border between Canada and Quebec if the native
peoples choose to remain under Canadian jurisdiction, the native question
and the territoriality issue are inextricably linked.(56)
In the context of a unilateral
declaration of independence, Dupuis and McNeil assert that fiduciary obligations
would require Canada to maintain its relationship with aboriginal peoples
in Quebec for as long as necessary to protect their interests.(57)
They conclude that Canadas obligations would require the federal
government to consult with aboriginal peoples both inside and outside
Quebec in the event of a unilateral declaration of independence.
José Woehrling has written
that, in the case of a unilateral declaration, a peaceful secession, without
loss of territory, would require an accord between aboriginal peoples
in Quebec and the Quebec government. He suggests that in such circumstances
Quebec ought to include the rights of aboriginal peoples in a future constitution
and conclude an accord with Canada guaranteeing aboriginal peoples the
enjoyment of their rights.(58)
An examination of
the principles and norms of international and domestic law relating to
aboriginal issues demonstrates the complexity of the debate. With the
uncertain political future of Quebec, and the unsettled nature of aboriginal
claims, these issues will continue to be significant. Given the evolving
nature of international law and the conflicting interests of the parties,
aboriginal concerns will be important in future discussions of secession.
(1) Population figures vary according to sources.
In the 1991 census, 137,615 people in Quebec reported having aboriginal
origins, whether as their only ancestry or in combination with other origins.
Of these, 56,925 reported that they identified with an aboriginal group
and/or were registered Indians. However, this group did not include several
reserves that did not participate in the census or were incompletely enumerated.
B. Morse, "Comparative Assessment of Indigenous Peoples in Quebec,
Canada and Abroad," A Report Prepared for la Commission d`étude sur
toute offre dun nouveau partenariat de nature constitutionelle et
la Commission détude des questions afférentes à laccession
du Québec à la souveraineté, March 1992, p.46.
See T. Morantz, "Aboriginal Land Claims in Quebec," in K. Coates,
ed. Aboriginal Land Claims in Canada, Copp Clark Pitman, Toronto,
1992, p. 102-104.
Three corporations, Hydro-Québec, the James Bay Development Corporation,
and the James Bay Energy Corporation, were also parties to the agreement.
An Act Respecting the Future of Québec (Bill 1), Quebec National
Assembly, First Session, 35th Legislature, tabled by Premier Jacques Parizeau
on 7 September 1995.
Grand Council of the Crees (of Quebec), "A Message Regarding the
Rights of Crees and Other Aboriginal Peoples in Canada," October
Grand Council of the Crees (of Quebec), Sovereign Injustice: Forcible
Inclusion of the James Bay Crees and Cree Territory into a Sovereign Quebec,
Grand Council of the Crees, Nemaska, 1995.
"Crees: Dont Abandon Us," Gazette (Montreal), 1
Grand Council of the Crees, "Presentation Concerning Bill C-110 (An
Act Respecting Constitutional Amendments), Senate of Canada, 24 January
"First Nations Say No to PQ," Windspeaker, November 1995.
"Les autochtones sont des adversaires acharnés de la souveraineté,"
Le Droit, 9 November 1995.
"Cree Wave Red Flag at Separatists," Ottawa Citizen,
22 September 1995.
"Irwin Guarantees Protection for Aboriginals," Ottawa Citizen,
28 October 1995.
"Quebec Divisible, Chrétien says," Globe and Mail (Toronto),
30 January 1996.
"Native Land not Quebecs, Irwin Says," Globe and Mail
(Toronto), 14 February 1996.
Richard Falk, "The Relevance of the Right of Self-Determination of
Peoples under International Law to Canadas Fiduciary Obligations
to the Aboriginal Peoples of Quebec in the Context of Quebecs Possible
Accession to Sovereignty," in S.J. Anaya, R. Falk and D. Pharand,
Canadas Fiduciary Obligation to Aboriginal Peoples in the Context
of Accession to Sovereignty by Quebec, Volume 1: International Dimensions,
Royal Commission on Aboriginal Peoples, Ottawa, 1995, p. 44.
Distinction should be made between legal principles and political practices.
While a right to secession was not provided for in international law,
secession might occur in practice.
M. M. Kampelman, "Secession and the Right of Self-Determination,"
Washington Quarterly, Vol. 16, 1993, p. 6.
G.A. Resolution 1514(XV).
Falk (1995), p. 48.
G.A. Resolution 2625(XXV).
Falk (1995), p. 51.
(23) Ibid., p. 47.
Ibid., p. 53.
Y. Dinsten, "Collective Human Rights of Peoples and Minorities,"
International and Comparative Law Quarterly, Vol. 25, 1976, p.
S. Williams, International Legal Effects of Secession by Quebec,
York University Centre for Public Law and Public Policy, North York, Ontario,
1992, p. 2.
L. Bucheit, Secession: The Legitimacy of Self-Determination, Yale
University Press, New Haven, 1978, p. 127.
D. Sanders, "If Quebec Secedes from Canada Can the Cree Secede from
Quebec?," UBC Law Review, Vol. 29, No. 1, 1995, p. 157.
See, for example, Allen Buchanan, "Self-Determination and the Right
to Secede," Journal of International Affairs, Vol. 45, 1992,
I. Brownlie notes that the principle is not mandatory and that states
are free to adopt other principles, Principles of Public International
Law, Clarendon Press, Oxford, 1990, p. 135. Sanders (1995) p. 157
argues that uti possidetis cannot be accepted as an established
norm of international law in the context of the breakup of federal states,
and that its application has not been successful in a number of circumstances.
Regarding the international communitys treatment of the pre-existing
boundaries internal to Yugoslavia, Falk (1995) p. 69, suggests that the
firmness of the boundaries is not fixed by law and that their outcome
is shaped by an assessment of the context.
International Labour Organization Convention (No. 169) Concerning Indigenous
and Tribal Peoples in Independent Countries, 27 June 1989 (entered
into force 5 September 1990). This was a revision of Convention 107, Concerning
the Protection and Integration of Indigenous and other Tribal and Semi-Tribal
Populations in Independent Countries, adopted in 1969 (title). The
change from "populations" to "peoples" was a subject
of much debate, and signified an evolution not only in the ILO, but more
broadly at the international level. R. Dupuis, "Lavenir du
Québec et les peuples autochtones," Choix, Vol. 1, No. 10,
1995, p. 26.
Canada has not ratified the Convention because of several specific issues,
as well as a general concern over the meaning of the term "peoples."
For a discussion of the groups progress, see D. Sanders, "The
U.N. Working Group on Indigenous Populations," Human Rights Quarterly
Vol. 11, 1989, p. 406-433.
Canada has been engaged in deliberations on the Draft Declaration. It
has expressed concern about the use of the term "peoples" at
the international level and resisted an unqualified use of the term "self-determination"
in association with indigenous peoples.
D. Sanders, "Developments at the United Nations: 1994," Canadian
Native Law Reporter, Vol. 4, 1994, p. 13.
P. Thornberry, "Self-Determination, Minorities, Human Rights: A Review
of International Instruments," International and Comparative Law
Quarterly, Vol. 38, 1980, p. 868-869.
Erica-Irene Daes, "Some Considerations on the Right of Indigenous
Peoples to Self-Determination," Unpublished Paper, 1993, p. 7.
S. J. Anaya, "Canadas Fiduciary Obligation toward Indigenous
Peoples in Quebec under International Law in General," in S.J. Anaya,
R. Falk and D. Pharand, Canadas Fiduciary Obligation to Aboriginal
Peoples in the Context of Accession to Sovereignty by Quebec, Volume 1:
International Dimensions, Royal Commission on Aboriginal Peoples,
Ottawa, 1995, p. 31.
Daniel Turp makes the argument that Quebecois and native nations have
a similar claim under international law to self-determination and democratic
secession, D. Turp, "Quebecs Democratic Right to Self-Determination,"
in S. Hartt, A. deMestral, J. McCallum, V. Loungnarath, D. Morton and
D. Turp, Tangled Web: Legal Aspects of Deconfederation, C.D. Howe
Institute, 1992. Reg Whitaker outlines the different nature of the claims,
contrasting moral and political aspects, "Quebec Versus Aboriginal
Rights to Self-Determination" Canada Watch, No. 3, March/April
1995, p. 87-89. He argues that the aboriginal people have much stronger
moral claims than the Québécois, but the latter have greater economic
and political power and capacity to assume sovereign status.
D. Turp (1992), p. 11.
Committee to Examine Matters Relating to the Accession of Quebec to Sovereignty,
Draft Report, Quebec, Bibliothèque nationale du Québec, 1992, p. 10.
Sovereign Injustice, p. 17-32, discusses the issue of whether "Quebec
peoples" are a distinct peoples for the purposes of self-determination.
Sanders (1995) argues that the Cree and Inuit have a strong case for separate
political rights, p. 144-145. See also B. Miller, "Quebecs
Accession to Sovereignty and its Impact on First Nations," University
of New Brunswick Law Journal, Vol. 43, 1994, p. 261-166; and G. Alfred,
"Lavenir des relations entre les Autochtones and le Québec,"
Choix/IRPP, Vol. 1, No. 10, June 1995, p. 4-19. Michael Bryant,
"Aboriginal Self-Determination: The Status of Canadian Aboriginal
Peoples at International Law," University of Saskatchewan Law
Review, Vol. 56, No. 2, 1992, p. 285-296, discusses whether aboriginal
peoples in Canada meet criteria for self-determination.
R. Higgins, A. Pellet, M. Shaw, C. Tomuschat and T. Franck, "Lintégrité
territoriale du Québec dans lhypothèse de laccession du Québec
à la souveraineté" in Commission détude des questions afférentes
à laccession du Québec à la souveraineté: Projet de Rapport (Annexe),
Québec, The Commission, 1992.
N. Finkelstein, G. Vegh and C. Joly, "Does Quebec Have a Right to
Secede at International Law?", The Canadian Bar Review, Vol. 74,
No. 2 (1995), p. 223-260.
As Allen Buchanan notes, exercising the right of self-determination need
not always involve secession if other degrees and forms of self-determination
are available. "Self-Determination and the Right to Secede,"
Journal of International Affairs, Vol. 45, Winter 1992, p. 351.
Sanders (1995), p. 157.
Finklestein et al. (1995) p. 260; Falk (1995), p. 68.
See, for example, J-P. Venne, "Le Québec et le Droit International,"
Policy Options, April 1995, p. 32-34.
See, for example, P. Monahan, "If Canada Is Divisible, So Is Quebec,"
Globe and Mail (Toronto), 1 February 1996.
R. v. Sparrow, [ 1990] 1 S.C.R. 1075 at 1108.
A variety of sources for these obligations are identified in R. Dupuis
and K. McNeil, Canadas Fiduciary Obligations to Aboriginal Peoples
in the Context of Accession to Sovereignty by Quebec, Volume 2,
Domestic Dimensions, Royal Commission on Aboriginal Peoples, Ottawa,
1995, p. 6.
On this issue, see also N. Finklestein and G. Vegh, The Separation
of Quebec and the Constitution of Canada, York University Centre for
Public Law and Public Policy, North York, Ontario, 1992.
Dupuis and McNeil (1995), p. 63.
Allen Buchanan, "Quebec Secession and Native Territorial Rights,"
The Network, Vol. 2, No.3, 1992, p. 3.
Ibid., p. 4.
Dupuis and McNeil (1995), p. 67.
J. Woehrling, "Les aspects juridiques dune éventuelle sécession
du Québec," The Canadian Bar Review, Vol. 74, No. 2 (1995),
p. 328. As noted previously, the 1995 Quebec bill on sovereignty affirmed
that the rights of aboriginal peoples would be guaranteed in a new Quebec