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Draft Bill to give effect to the requirement for
clarity as set out in the opinion of the Supreme Court of Canada in the Quebec
Secession Reference
- Annotated with references to the most directly
relevant paragraphs in the Quebec Secession Reference opinion -
WHEREAS the Supreme Court of Canada has confirmed that there is no right,
under international law or under the Constitution of Canada, for the National
Assembly, legislature or government of Quebec to effect the secession of Quebec
from Canada unilaterally; (Paragraphs 104, 149, 154, 155)
WHEREAS any proposal relating to the break-up of a democratic state is a
matter of the utmost gravity and is of fundamental importance to all of its
citizens; (Paragraphs 1, 31, 96, 149)
WHEREAS the government of any province of Canada is entitled to consult its
population by referendum on any issue and is entitled to formulate the wording
of its referendum question; (Paragraph 87)
WHEREAS the Supreme Court of Canada has determined that the result of a
referendum on the secession of a province from Canada must be free of ambiguity
both in terms of the question asked and in terms of the support it achieves if
that result is to be taken as an expression of the democratic will that would
give rise to an obligation to enter into negotiations that might lead to
secession; (Paragraphs 87, 88)
WHEREAS the Supreme Court of Canada has stated that democracy means more than
simple majority rule, that a clear majority in favour of secession would be
required to create an obligation to negotiate secession, and that a qualitative
evaluation is required to determine whether a clear majority in favour of
secession exists in the circumstances; (Paragraphs 73, 74, 76, 77, 87, 88)
WHEREAS the Supreme Court of Canada has confirmed that, in Canada, the
secession of a province, to be lawful, would require an amendment to the
Constitution of Canada, that such amendment would perforce require negotiations
in relation to secession involving at least the governments of all of the
provinces and the Government of Canada, and that those negotiations would be
governed by the principles of federalism, democracy, constitutionalism and the
rule of law, and the protection of minorities; (Paragraphs 84, 88, 94, 151)
WHEREAS in light of the finding by the Supreme Court of Canada that it would
be for elected representatives to determine what constitutes a clear question
and what constitutes a clear majority in a referendum held in a province on
secession, the House of Commons, as the only political institution elected to
represent all Canadians, has an important role in identifying what constitutes a
clear question and a clear majority sufficient for the Government of Canada to
enter into negotiations in relation to the secession of a province from Canada;
(Paragraphs 100, 101, 153)
AND WHEREAS it is incumbent on the Government of Canada not to enter into
negotiations that might lead to the secession of a province from Canada, and
that could consequently entail the termination of citizenship and other rights
that Canadian citizens resident in the province enjoy as full participants in
Canada, unless the population of that province has clearly expressed its
democratic will that the province secede from Canada. (Paragraphs 83, 87, 151)
NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows:
1. (1)The House of Commons shall, within thirty days after the government of
a province tables in its legislative assembly or otherwise officially releases
the question that it intends to submit to its voters in a referendum relating to
the proposed secession of the province from Canada, consider the question and,
by resolution, set out its determination on whether the question is clear.
(Paragraphs 100, 153)
(2) Where the thirty days referred to in subsection (1) occur, in whole or in
part, during a general election of members to serve in the House of Commons, the
thirty days shall be extended by an additional forty days.
(3) In considering the clarity of a referendum question, the House of Commons
shall consider whether the question would result in a clear expression of the
will of the population of a province on whether the province should cease to be
part of Canada and become an independent state. (Paragraphs 83, 87, 153)
(4) For the purpose of subsection (3), a clear expression of the will of the
population that their province cease to be part of Canada could not result from
(a) a referendum question that merely focuses on a mandate to negotiate
without soliciting a direct expression of the will of the population of a
province on whether the province should cease to be part of Canada; or
(b) a referendum question that envisages other possibilities in addition to
the secession of the province from Canada, such as economic or political
arrangements with Canada, that obscure a direct expression of the will of the
population of the province on whether the province should cease to be part of
Canada. (Paragraphs 83, 87, 151)
(5) In considering the clarity of a referendum question, the House of Commons
shall take into account the views of all political parties represented in the
legislative assembly of the province whose government is proposing the
referendum on secession, any formal statements or resolutions by the government
or legislative assembly of any province or territory of Canada, any formal
statements or resolutions by the Senate, and any other views it considers to be
relevant. (Paragraphs 100, 153)
(6) The Government of Canada shall not enter into negotiations on the terms
on which a province might cease to be part of Canada if the House of Commons
determines, pursuant to this section, that a referendum question is not clear
and, for that reason, would not result in a clear expression of the will of the
population of that province on whether the province should cease to be part of
Canada. (Paragraphs 87, 88, 100, 153)
2. (1) Where the government of a province, following a referendum relating to
the proposed secession of the province from Canada, seeks to enter into
negotiations on the terms on which that province might cease to be part of
Canada, the House of Commons shall, except where it has determined pursuant to
section 1 that a referendum question is not clear, consider and, by resolution,
set out its determination on whether, in the circumstances, there has been a
clear expression of a will by a clear majority of the population of that
province that the province cease to be part of Canada. (Paragraphs 100, 101,
153)
(2) In considering whether there has been a clear expression of a will by a
clear majority of the population of a province that the province cease to be
part of Canada, the House of Commons shall take into account
(a) the size of the majority of valid votes cast in favour of the
secessionist option;
(b) the percentage of eligible voters voting in the referendum; and
(c) any other matters or circumstances it considers to be relevant.
(Paragraph 87)
(3) In considering whether there has been a clear expression of a will by a
clear majority of the population of a province that the province cease to be
part of Canada, the House of Commons shall take into account the views of all
political parties represented in the legislative assembly of the province whose
government proposed the referendum on secession, any formal statements or
resolutions by the government or legislative assembly of any province or
territory of Canada, any formal statements or resolutions by the Senate, and any
other views it considers to be relevant. (Paragraphs 56, 92, 100, 149, 153)
(4) The Government of Canada shall not enter into negotiations on the terms
on which a province might cease to be part of Canada unless the House of Commons
determines, pursuant to this section, that there has been a clear expression of
a will by a clear majority of the population of that province that the province
cease to be part of Canada. (Paragraphs 88, 100)
3. (1) It is recognized that there is no right under the Constitution of
Canada to effect the secession of a province from Canada unilaterally and that,
therefore, an amendment to the Constitution of Canada would be required for any
province to secede from Canada, which in turn would require negotiations
involving at least the governments of all of the provinces and the Government of
Canada. (Paragraphs 84, 91, 97, 149)
(2) No Minister of the Crown shall propose a constitutional amendment to
effect the secession of a province from Canada unless the Government of Canada
has addressed, in its negotiations, the terms of secession that are relevant in
the circumstances, including the division of assets and liabilities, any changes
to the borders of the province, the rights, interests and territorial claims of
the Aboriginal peoples of Canada, and the protection of minority rights.
(Paragraphs 90, 91, 92, 96, 139, 151)
Paragraphs Referred to in the Annotated Draft Bill
1. This Reference requires us to consider momentous questions that go to the
heart of our system of constitutional government. The observation we made more
than a decade ago in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721
(Manitoba Language Rights Reference), at p. 728, applies with equal force here:
as in that case, the present one "combines legal and constitutional
questions of the utmost subtlety and complexity with political questions of
great sensitivity". In our view, it is not possible to answer the questions
that have been put to us without a consideration of a number of underlying
principles. An exploration of the meaning and nature of these underlying
principles is not merely of academic interest. On the contrary, such an
exploration is of immense practical utility. Only once those underlying
principles have been examined and delineated may a considered response to the
questions we are required to answer emerge.
31. There is no doubt that the questions posed in this Reference raise
difficult issues and are susceptible to varying interpretations. However, rather
than refusing to answer at all, the Court is guided by the approach advocated by
the majority on the "conventions" issue in Reference re Resolution to
Amend the Constitution, [1981] 1 S.C.R. 753 (Patriation Reference), at pp.
875-76:
If the questions are thought to be ambiguous, this Court should not, in a
constitutional reference, be in a worse position than that of a witness in a
trial and feel compelled simply to answer yes or no. Should it find that a
question might be misleading, or should it simply avoid the risk of
misunderstanding, the Court is free either to interpret the question . . . or it
may qualify both the question and the answer. . . .
The Reference questions raise issues of fundamental public importance. It
cannot be said that the questions are too imprecise or ambiguous to permit a
proper legal answer. Nor can it be said that the Court has been provided with
insufficient information regarding the present context in which the questions
arise. Thus, the Court is duty bound in the circumstances to provide its
answers.
56. In a federal system of government such as ours, political power is shared
by two orders of government: the federal government on the one hand, and the
provinces on the other. Each is assigned respective spheres of jurisdiction by
the Constitution Act, 1867. See, e.g., Liquidators of the Maritime Bank of
Canada v. Receiver-General of New Brunswick, [1892] A.C. 437 (P.C.), at pp.
441-42. It is up to the courts "to control the limits of the respective
sovereignties": Northern Telecom Canada Ltd. v. Communication Workers of
Canada, [1983] 1 S.C.R. 733, at p. 741. In interpreting our Constitution, the
courts have always been concerned with the federalism principle, inherent in the
structure of our constitutional arrangements, which has from the beginning been
the lodestar by which the courts have been guided.
73. An understanding of the scope and importance of the principles of the
rule of law and constitutionalism is aided by acknowledging explicitly why a
constitution is entrenched beyond the reach of simple majority rule. There are
three overlapping reasons.
74. First, a constitution may provide an added safeguard for fundamental
human rights and individual freedoms which might otherwise be susceptible to
government interference. Although democratic government is generally solicitous
of those rights, there are occasions when the majority will be tempted to ignore
fundamental rights in order to accomplish collective goals more easily or
effectively. Constitutional entrenchment ensures that those rights will be given
due regard and protection. Second, a constitution may seek to ensure that
vulnerable minority groups are endowed with the institutions and rights
necessary to maintain and promote their identities against the assimilative
pressures of the majority. And third, a constitution may provide for a division
of political power that allocates political power amongst different levels of
government. That purpose would be defeated if one of those democratically
elected levels of government could usurp the powers of the other simply by
exercising its legislative power to allocate additional political power to
itself unilaterally.
76. Canadians have never accepted that ours is a system of simple majority
rule. Our principle of democracy, taken in conjunction with the other
constitutional principles discussed here, is richer. Constitutional government
is necessarily predicated on the idea that the political representatives of the
people of a province have the capacity and the power to commit the province to
be bound into the future by the constitutional rules being adopted. These rules
are "binding" not in the sense of frustrating the will of a majority
of a province, but as defining the majority which must be consulted in order to
alter the fundamental balances of political power (including the spheres of
autonomy guaranteed by the principle of federalism), individual rights, and
minority rights in our society. Of course, those constitutional rules are
themselves amenable to amendment, but only through a process of negotiation
which ensures that there is an opportunity for the constitutionally defined
rights of all the parties to be respected and reconciled.
77. In this way, our belief in democracy may be harmonized with our belief in
constitutionalism. Constitutional amendment often requires some form of
substantial consensus precisely because the content of the underlying principles
of our Constitution demand it. By requiring broad support in the form of an
"enhanced majority" to achieve constitutional change, the Constitution
ensures that minority interests must be addressed before proposed changes which
would affect them may be enacted.
83. Secession is the effort of a group or section of a state to withdraw
itself from the political and constitutional authority of that state, with a
view to achieving statehood for a new territorial unit on the international
plane. In a federal state, secession typically takes the form of a territorial
unit seeking to withdraw from the federation. Secession is a legal act as much
as a political one. By the terms of Question 1 of this Reference, we are asked
to rule on the legality of unilateral secession "[u]nder the Constitution
of Canada". This is an appropriate question, as the legality of unilateral
secession must be evaluated, at least in the first instance, from the
perspective of the domestic legal order of the state from which the unit seeks
to withdraw. As we shall see below, it is also argued that international law is
a relevant standard by which the legality of a purported act of secession may be
measured.
84. The secession of a province from Canada must be considered, in legal
terms, to require an amendment to the Constitution, which perforce requires
negotiation. The amendments necessary to achieve a secession could be radical
and extensive. Some commentators have suggested that secession could be a change
of such a magnitude that it could not be considered to be merely an amendment to
the Constitution. We are not persuaded by this contention. It is of course true
that the Constitution is silent as to the ability of a province to secede from
Confederation but, although the Constitution neither expressly authorizes nor
prohibits secession, an act of secession would purport to alter the governance
of Canadian territory in a manner which undoubtedly is inconsistent with our
current constitutional arrangements. The fact that those changes would be
profound, or that they would purport to have a significance with respect to
international law, does not negate their nature as amendments to the
Constitution of Canada.
87. Although the Constitution does not itself address the use of a referendum
procedure, and the results of a referendum have no direct role or legal effect
in our constitutional scheme, a referendum undoubtedly may provide a democratic
method of ascertaining the views of the electorate on important political
questions on a particular occasion. The democratic principle identified above
would demand that considerable weight be given to a clear expression by the
people of Quebec of their will to secede from Canada, even though a referendum,
in itself and without more, has no direct legal effect, and could not in itself
bring about unilateral secession. Our political institutions are premised on the
democratic principle, and so an expression of the democratic will of the people
of a province carries weight, in that it would confer legitimacy on the efforts
of the government of Quebec to initiate the Constitution's amendment process in
order to secede by constitutional means. In this context, we refer to a
"clear" majority as a qualitative evaluation. The referendum result,
if it is to be taken as an expression of the democratic will, must be free of
ambiguity both in terms of the question asked and in terms of the support it
achieves.
88. The federalism principle, in conjunction with the democratic principle,
dictates that the clear repudiation of the existing constitutional order and the
clear expression of the desire to pursue secession by the population of a
province would give rise to a reciprocal obligation on all parties to
Confederation to negotiate constitutional changes to respond to that desire. The
amendment of the Constitution begins with a political process undertaken
pursuant to the Constitution itself. In Canada, the initiative for
constitutional amendment is the responsibility of democratically elected
representatives of the participants in Confederation. Those representatives may,
of course, take their cue from a referendum, but in legal terms,
constitution-making in Canada, as in many countries, is undertaken by the
democratically elected representatives of the people. The corollary of a
legitimate attempt by one participant in Confederation to seek an amendment to
the Constitution is an obligation on all parties to come to the negotiating
table. The clear repudiation by the people of Quebec of the existing
constitutional order would confer legitimacy on demands for secession, and place
an obligation on the other provinces and the federal government to acknowledge
and respect that expression of democratic will by entering into negotiations and
conducting them in accordance with the underlying constitutional principles
already discussed.
90. The conduct of the parties in such negotiations would be governed by the
same constitutional principles which give rise to the duty to negotiate:
federalism, democracy, constitutionalism and the rule of law, and the protection
of minorities. Those principles lead us to reject two absolutist propositions.
One of those propositions is that there would be a legal obligation on the other
provinces and federal government to accede to the secession of a province,
subject only to negotiation of the logistical details of secession. This
proposition is attributed either to the supposed implications of the democratic
principle of the Constitution, or to the international law principle of
self-determination of peoples.
91. For both theoretical and practical reasons, we cannot accept this view.
We hold that Quebec could not purport to invoke a right of self-determination
such as to dictate the terms of a proposed secession to the other parties: that
would not be a negotiation at all. As well, it would be naive to expect that the
substantive goal of secession could readily be distinguished from the practical
details of secession. The devil would be in the details. The democracy
principle, as we have emphasized, cannot be invoked to trump the principles of
federalism and rule of law, the rights of individuals and minorities, or the
operation of democracy in the other provinces or in Canada as a whole. No
negotiations could be effective if their ultimate outcome, secession, is cast as
an absolute legal entitlement based upon an obligation to give effect to that
act of secession in the Constitution. Such a foregone conclusion would actually
undermine the obligation to negotiate and render it hollow.
92. However, we are equally unable to accept the reverse proposition, that a
clear expression of self-determination by the people of Quebec would impose no
obligations upon the other provinces or the federal government. The continued
existence and operation of the Canadian constitutional order cannot remain
indifferent to the clear expression of a clear majority of Quebecers that they
no longer wish to remain in Canada. This would amount to the assertion that
other constitutionally recognized principles necessarily trump the clearly
expressed democratic will of the people of Quebec. Such a proposition fails to
give sufficient weight to the underlying constitutional principles that must
inform the amendment process, including the principles of democracy and
federalism. The rights of other provinces and the federal government cannot deny
the right of the government of Quebec to pursue secession, should a clear
majority of the people of Quebec choose that goal, so long as in doing so,
Quebec respects the rights of others. Negotiations would be necessary to address
the interests of the federal government, of Quebec and the other provinces, and
other participants, as well as the rights of all Canadians both within and
outside Quebec.
94. In such circumstances, the conduct of the parties assumes primary
constitutional significance. The negotiation process must be conducted with an
eye to the constitutional principles we have outlined, which must inform the
actions of all the participants in the negotiation process.
96. No one can predict the course that such negotiations might take. The
possibility that they might not lead to an agreement amongst the parties must be
recognized. Negotiations following a referendum vote in favour of seeking
secession would inevitably address a wide range of issues, many of great import.
After 131 years of Confederation, there exists, inevitably, a high level of
integration in economic, political and social institutions across Canada. The
vision of those who brought about Confederation was to create a unified country,
not a loose alliance of autonomous provinces. Accordingly, while there are
regional economic interests, which sometimes coincide with provincial
boundaries, there are also national interests and enterprises (both public and
private) that would face potential dismemberment. There is a national economy
and a national debt. Arguments were raised before us regarding boundary issues.
There are linguistic and cultural minorities, including aboriginal peoples,
unevenly distributed across the country who look to the Constitution of Canada
for the protection of their rights. Of course, secession would give rise to many
issues of great complexity and difficulty. These would have to be resolved
within the overall framework of the rule of law, thereby assuring Canadians
resident in Quebec and elsewhere a measure of stability in what would likely be
a period of considerable upheaval and uncertainty. Nobody seriously suggests
that our national existence, seamless in so many aspects, could be effortlessly
separated along what are now the provincial boundaries of Quebec. As the
Attorney General of Saskatchewan put it in his oral submission:
A nation is built when the communities that comprise it make commitments to
it, when they forego choices and opportunities on behalf of a nation, . . . when
the communities that comprise it make compromises, when they offer each other
guarantees, when they make transfers and perhaps most pointedly, when they
receive from others the benefits of national solidarity. The threads of a
thousand acts of accommodation are the fabric of a nation.
97. In the circumstances, negotiations following such a referendum would
undoubtedly be difficult. While the negotiators would have to contemplate the
possibility of secession, there would be no absolute legal entitlement to it and
no assumption that an agreement reconciling all relevant rights and obligations
would actually be reached. It is foreseeable that even negotiations carried out
in conformity with the underlying constitutional principles could reach an
impasse. We need not speculate here as to what would then transpire. Under the
Constitution, secession requires that an amendment be negotiated.
100. The role of the Court in this Reference is limited to the identification
of the relevant aspects of the Constitution in their broadest sense. We have
interpreted the questions as relating to the constitutional framework within
which political decisions may ultimately be made. Within that framework, the
workings of the political process are complex and can only be resolved by means
of political judgments and evaluations. The Court has no supervisory role over
the political aspects of constitutional negotiations. Equally, the initial
impetus for negotiation, namely a clear majority on a clear question in favour
of secession, is subject only to political evaluation, and properly so. A right
and a corresponding duty to negotiate secession cannot be built on an alleged
expression of democratic will if the expression of democratic will is itself
fraught with ambiguities. Only the political actors would have the information
and expertise to make the appropriate judgment as to the point at which, and the
circumstances in which, those ambiguities are resolved one way or the other.
101. If the circumstances giving rise to the duty to negotiate were to arise,
the distinction between the strong defence of legitimate interests and the
taking of positions which, in fact, ignore the legitimate interests of others is
one that also defies legal analysis. The Court would not have access to all of
the information available to the political actors, and the methods appropriate
for the search for truth in a court of law are ill-suited to getting to the
bottom of constitutional negotiations. To the extent that the questions are
political in nature, it is not the role of the judiciary to interpose its own
views on the different negotiating positions of the parties, even were it
invited to do so. Rather, it is the obligation of the elected representatives to
give concrete form to the discharge of their constitutional obligations which
only they and their electors can ultimately assess. The reconciliation of the
various legitimate constitutional interests outlined above is necessarily
committed to the political rather than the judicial realm, precisely because
that reconciliation can only be achieved through the give and take of the
negotiation process. Having established the legal framework, it would be for the
democratically elected leadership of the various participants to resolve their
differences.
104. Accordingly, the secession of Quebec from Canada cannot be accomplished
by the National Assembly, the legislature or government of Quebec unilaterally,
that is to say, without principled negotiations, and be considered a lawful act.
Any attempt to effect the secession of a province from Canada must be undertaken
pursuant to the Constitution of Canada, or else violate the Canadian legal
order. However, the continued existence and operation of the Canadian
constitutional order cannot remain unaffected by the unambiguous expression of a
clear majority of Quebecers that they no longer wish to remain in Canada. The
primary means by which that expression is given effect is the constitutional
duty to negotiate in accordance with the constitutional principles that we have
described herein. In the event secession negotiations are initiated, our
Constitution, no less than our history, would call on the participants to work
to reconcile the rights, obligations and legitimate aspirations of all Canadians
within a framework that emphasizes constitutional responsibilities as much as it
does constitutional rights.
139. We would not wish to leave this aspect of our answer to Question 2
without acknowledging the importance of the submissions made to us respecting
the rights and concerns of aboriginal peoples in the event of a unilateral
secession, as well as the appropriate means of defining the boundaries of a
seceding Quebec with particular regard to the northern lands occupied largely by
aboriginal peoples. However, the concern of aboriginal peoples is precipitated
by the asserted right of Quebec to unilateral secession. In light of our finding
that there is no such right applicable to the population of Quebec, either under
the Constitution of Canada or at international law, but that on the contrary a
clear democratic expression of support for secession would lead under the
Constitution to negotiations in which aboriginal interests would be taken into
account, it becomes unnecessary to explore further the concerns of the
aboriginal peoples in this Reference.
149. The Reference requires us to consider whether Quebec has a right to
unilateral secession. Those who support the existence of such a right found
their case primarily on the principle of democracy. Democracy, however, means
more than simple majority rule. As reflected in our constitutional
jurisprudence, democracy exists in the larger context of other constitutional
values such as those already mentioned. In the 131 years since Confederation,
the people of the provinces and territories have created close ties of
interdependence (economically, socially, politically and culturally) based on
shared values that include federalism, democracy, constitutionalism and the rule
of law, and respect for minorities. A democratic decision of Quebecers in favour
of secession would put those relationships at risk. The Constitution vouchsafes
order and stability, and accordingly secession of a province "under the
Constitution" could not be achieved unilaterally, that is, without
principled negotiation with other participants in Confederation within the
existing constitutional framework.
151. Quebec could not, despite a clear referendum result, purport to invoke a
right of self-determination to dictate the terms of a proposed secession to the
other parties to the federation. The democratic vote, by however strong a
majority, would have no legal effect on its own and could not push aside the
principles of federalism and the rule of law, the rights of individuals and
minorities, or the operation of democracy in the other provinces or in Canada as
a whole. Democratic rights under the Constitution cannot be divorced from
constitutional obligations. Nor, however, can the reverse proposition be
accepted. The continued existence and operation of the Canadian constitutional
order could not be indifferent to a clear expression of a clear majority of
Quebecers that they no longer wish to remain in Canada. The other provinces and
the federal government would have no basis to deny the right of the government
of Quebec to pursue secession, should a clear majority of the people of Quebec
choose that goal, so long as in doing so, Quebec respects the rights of others.
The negotiations that followed such a vote would address the potential act of
secession as well as its possible terms should in fact secession proceed. There
would be no conclusions predetermined by law on any issue. Negotiations would
need to address the interests of the other provinces, the federal government,
Quebec and indeed the rights of all Canadians both within and outside Quebec,
and specifically the rights of minorities. No one suggests that it would be an
easy set of negotiations.
153. The task of the Court has been to clarify the legal framework within
which political decisions are to be taken "under the Constitution",
not to usurp the prerogatives of the political forces that operate within that
framework. The obligations we have identified are binding obligations under the
Constitution of Canada. However, it will be for the political actors to
determine what constitutes "a clear majority on a clear question" in
the circumstances under which a future referendum vote may be taken. Equally, in
the event of demonstrated majority support for Quebec secession, the content and
process of the negotiations will be for the political actors to settle. The
reconciliation of the various legitimate constitutional interests is necessarily
committed to the political rather than the judicial realm precisely because that
reconciliation can only be achieved through the give and take of political
negotiations. To the extent issues addressed in the course of negotiation are
political, the courts, appreciating their proper role in the constitutional
scheme, would have no supervisory role.
154. We have also considered whether a positive legal entitlement to
secession exists under international law in the factual circumstances
contemplated by Question 1, i.e., a clear democratic expression of support on a
clear question for Quebec secession. Some of those who supported an affirmative
answer to this question did so on the basis of the recognized right to
self-determination that belongs to all "peoples". Although much of the
Quebec population certainly shares many of the characteristics of a people, it
is not necessary to decide the "people" issue because, whatever may be
the correct determination of this issue in the context of Quebec, a right to
secession only arises under the principle of self-determination of peoples at
international law where "a people" is governed as part of a colonial
empire; where "a people" is subject to alien subjugation, domination
or exploitation; and possibly where "a people" is denied any
meaningful exercise of its right to self-determination within the state of which
it forms a part. In other circumstances, peoples are expected to achieve
self-determination within the framework of their existing state. A state whose
government represents the whole of the people or peoples resident within its
territory, on a basis of equality and without discrimination, and respects the
principles of self-determination in its internal arrangements, is entitled to
maintain its territorial integrity under international law and to have that
territorial integrity recognized by other states. Quebec does not meet the
threshold of a colonial people or an oppressed people, nor can it be suggested
that Quebecers have been denied meaningful access to government to pursue their
political, economic, cultural and social development. In the circumstances, the
National Assembly, the legislature or the government of Quebec do not enjoy a
right at international law to effect the secession of Quebec from Canada
unilaterally.
155. Although there is no right, under the Constitution or at international
law, to unilateral secession, that is secession without negotiation on the basis
just discussed, this does not rule out the possibility of an unconstitutional
declaration of secession leading to a de facto secession. The ultimate success
of such a secession would be dependent on recognition by the international
community, which is likely to consider the legality and legitimacy of secession
having regard to, amongst other facts, the conduct of Quebec and Canada, in
determining whether to grant or withhold recognition. Such recognition, even if
granted, would not, however, provide any retroactive justification for the act
of secession, either under the Constitution of Canada or at international law.
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