CD HOWE PAPER
Ratifying a Postreferendum Agreement on Quebec Sovereignty
by Peter Russell & Bruce Ryder

If the sovereigntists win another referendum in Quebec, the terms of Quebec’s accession to sovereignty should be negotiated and ratified under the existing rules for amending the Canadian Constitution, despite some sov-ereigntists’ objections that Quebec need not abide by the terms of the Constitution Act, 1982, which it has never ratified. Any other process, however, is likely to lead to more chaos and disruption than would otherwise occur.

A sovereignty agreement could include constitutional changes that fall into some or all of five categories: constitutional amendments terminating the authority of existing federal and provincial institutions over the territory and people of Quebec; constitutional and statutory amendments to make remaining federal institutions workable in the short term; provisions, constitutional or otherwise, for any new links established between Quebec 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, or treaties.

The Constitution’s amending formulas would require that many of these changes be ratified by Parliament and by the relevant provincial legislatures. This could be done by separating the components of the agreement and subjecting them either to a multitrack process of legislative ratification, or, Meech-style, by treating the agreement as a single package subject to the unanimity rule set out in the Constitution.

Moral and political legitimacy would demand that such changes also be ratified through a national referendum on substantial amendments. The changes should be deemed to have been accepted by the Canadian people if the referendum passes in each of Canada’s five regions, rather than in each individual province.

Finally, the separate consent of Aboriginal peoples in Quebec to any sovereignty agreement would be required by the spirit of the Constitution Act, 1982, by Canada’s fiduciary obligations to Aboriginal peoples, and by emerging norms of international law.

Press Release from CD HOWE - October 10, 1997

Negotiate, ratify any Quebec sovereignty agreement 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’s accession to sovereignty should be negotiated and ratified in a way that involves the least chaos and 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 Post referendum Agreement on Quebec Sovereignty, was written by Peter Russell, a political scientist at the University of Toronto, and Bruce Ryder, a law professor at Osgoode Hall Law School, York University.

The authors note that, while some Quebec sovereigntists might object even to trying to follow the constitutional route, there is now nearly complete consensus - likely soon backed by the Supreme Court of Canada - that Quebec cannot claim a right to unilateral secession under international law and that, in any event, there are a number of Aboriginal peoples in Quebec whose moral and legal right to self-determination is stronger than the Québécois can claim. Moreover, while Quebec has not ratified the Constitution Act, 1982, Quebec governments have 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 should be possible to arrive at a negotiated sovereignty agreement.

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

• constitutional amendments terminating the authority of existing federal and provincial institutions 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 Quebec 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, or treaties.

To meet the requirements of the Canadian Constitution’s amending formulas, Russell and Ryder say, many of these changes would have to be ratified by Parliament and the relevant provincial legislatures. This could be done by unpacking or separating the components of the 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 set out in the Constitution.

Russell and Ryder argue that, while only Alberta and British Columbia require a referendumon a constitutional amendment before its being presented to their provincial legislatures, moral and political legitimacy would demand that such changes also be ratified through a national referendumon substantial amendments. The changes should be deemed to have been accepted 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 Quebec to any sovereignty agreement would be required by the spirit of the Constitution Act, 1982, by Canada’s fiduciary obligations to Aboriginal peoples, and by emerging norms of international law. This would likely include the need to complete a trilateral treaty process with each Aboriginal 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 Ryder is a part - is called The Secession Papers, which, in the light of the results of the 1995 Quebec referendum, aims to assist Canadians to think about the unthinkable. Papers already published in this series are Coming to Terms with Plan B: Ten Principles Governing Secession,by Patrick J. Monahan and Michael J. Bryant with Nancy C. Coté; and Looking into the Abyss: The Need for a Plan C, by Alan C. Cairns. Complementing this effort is another series called The Canadian Union Papers, focusing on ways to enhance Canada’s political, economic, and social union. Papers already published in this series are: Securing the Canadian Economic Union: Legal and Constitutional Options for the Federal Government, by Robert Howse; Drawing on Our Inner Strength: Canada’s Economic Citizenship in an Era of Evolving Federalism, by Daniel Schwanen; Language Matters: Ensuring That the Sugar Not Dissolve in the Coffee, by John Richards; Time Out: Assessing Incremental Strategies for Enhancing the Canadian Political Union, by Roger Gibbins; and Citizen Engagement in Conflict Resolution: Lessons for Canada in International Experience, by Janice Gross Stein, David R. Cameron, and Richard Simeon, with Alan Alexandroff.

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

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Main Findings of the Commentary

• In the event of a yes vote in another sovereignty referendumin Quebec, the terms of Quebec’s accession to sovereignty should be negotiated and ratified in a way that involves the least chaos and disruption - that is, under the existing rules for amending the Canadian Constitution.
• While some Quebec sovereigntists might object even to trying to follow such a process, there is now nearly complete consensus - likely soon backed by the Supreme Court of Canada - that Quebec cannot claim a right to unilateral secession under international law and that, in any event, there are a number of Aboriginal peoples in Quebec whose moral and legal right to self-determination is stronger than the Québécois can claim. Moreover, while Quebec has not ratified the Constitution Act, 1982, Quebec governments have 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 good will and flexibility on all sides, it should be possible to arrive at a negotiated sovereignty agreement.
• A negotiated sovereignty agreement with Quebec could include constitutional changes that fall into some or all of five categories:
  • constitutional amendments terminating the authority of existing federal and provincial institutions over the territory and people of Quebec;
  • constitutional and statutory amendments to make remaining federal institutions workable in the short term;
  • provisions, constitutional or otherwise, for any new links established between Quebec 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, or treaties.
• To meet the requirements of the Canadian Constitution’s amending formulas, many of these changes would have to be ratified by Parliament and the relevant provincial legislatures. This could be done by unpacking or separating the components of the 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 set out in the Constitution.
• While only Alberta and British Columbia require a referendum 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 a national referendum on substantial amendments. The changes should be deemed to have been accepted by the Canadian people if the referendum passes in each of Canada’s five regions, rather than in each individual province.
• Finally, the separate consent of Aboriginal peoples in Quebec to any sovereignty agreement would be required by the spirit of the Constitution Act, 1982, by Canada’s fiduciary obligations to Aboriginal peoples, and by emerging norms of international law. This would likely include the need to complete a trilateral treaty process with each Aboriginal nation in Quebec.

Full text of the paper, (in .pdf format), or hard copies, may be obtained from the CD HOWE INSTITUTE