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August 21, 1998

Canadian Court Rules Quebec Cannot Secede on Its Own

A simple vote in Quebec is not enough to allow the French-speaking province to legally separate from the rest of Canada, the country's Supreme Court said yesterday in a landmark opinion widely seen as fortifying the federal Government's efforts to keep the United States' closest ally from breaking up.

However, the unanimous opinion by the nine justices of Canada's highest court does not go so far as to declare Canada indivisible. If a clear majority of the people in Quebec want to secede, the justices said, the rest of Canada would be obliged to negotiate the terms of secession as though it were an amendment to the constitution.

But the nine justices, three of them from Quebec, including chief Justice Antonio Lamer, made it clear that separation would be difficult, painful and costly.

"The devil would be in the details," the justices wrote.

The Supreme Court also found that there is no right to unilateral secession in international law except for colonies and oppressed people, which it said does not apply to Quebec. If the province tried to secede outside Canada's constitutional framework, the court warned, the international community would likely reject the action as illegitimate.

This is believed to be the first time a democratic country has ever tested in advance the legal terms of its own dissolution. The Canadian court's ruling is expected to have an impact on other countries struggling with similar issues of self-determination.

"I do not believe this finding will encourage those who look for more self-determination to continue a solely legal administrative solution," said Wolfgang F. Danspeckgruber, director of the Liechtenstein Program on Self-determination at Princeton University. He said the judgment in Canada will be seen in places like Kosovo, Serbia's rebellious province, and East Timor, where there is a movement to break away from Indonesia, as proof that "if you really want to do it, it may be necessary to do it in a much more radical way" than the law permits.

The federal Government of Canada asked the court for an advisory opinion on several aspects of Quebec separation in September 1996, hoping that the result might discourage Quebecers from voting for it.

Quebec refused to participate in the case, and was represented by a court-appointed lawyer.

In Quebec, separatist leaders were angered by the court's opinion and said the will of the Quebec people, the vast majority of whom speak French, could not be overruled by any legal judgment.

Jacques Brassard, Quebec's Intergovernmental Affairs Minister, claimed the court's recognition of Quebec's right to secede as a clear victory and dismissed the rest of the opinion. "The people of Quebec have always had, have now and will continue to have the inalienable right to decide democratically and without interference their own future," he said.

Experts expect the separatists to use resentment against the court to whip up support for a provincial election that could take place late this year or early next year. They have promised to hold a new referendum -- the third -- on independence after the election.

The rest of the country welcomed the historic legal opinion. "When the next referendum rolls around, they'll trot out this rule of law and hammer the soft sovereignty vote on the head with it," said David Schneiderman, executive director of the Center for Constitutional Studies at the University of Alberta in Edmonton.

Politicians in Western Canada have long pressed the federal Government to clarify the rules for separation and demanded that the rest of Canada be involved in any decision about Quebec's future.

Preston Manning, a westerner who leads the Parliamentary opposition, said the court's opinion steps up the pressure on Prime Minister Jean Chretien. "The ball is in the Prime Minister's court, and we're calling on him to start negotiating a new Federal provincial partnership which includes the province of Quebec," he said.

In delivering its opinion on what it called "momentous questions that go to the heart of our system of constitutional government," the high court made it clear that Quebec cannot, on its own, legally separate. But the justices did not close the door entirely on another referendum about Quebec's possible independence.

"A clear majority vote in Quebec on a clear question in favor of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize," the Supreme Court's judgment said.

The justices said such a vote in favor of secession would have to be treated as an initiative by Quebec for a change in Canada's Constitution, and the other provinces would have to enter into negotiations about the terms of separation.

But the underlying message, which the federal Government had sought when it asked the court to take up the question, was that separation under any circumstances would be far more costly than separatist leaders have led voters to believe.

"Negotiations following such a referendum would undoubtedly be difficult. While negotiators would have to contemplate the possibility of secession, there would be no absolute 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," the opinion said.

Questioning the legality of Quebec's 30-year fight for independence was a risky strategy for the federal Government because any backlash against it in Quebec could make the separatist government of Premier Lucien Bouchard even more popular.

But federal officials, shaken by the near victory of the separatists in the October 1995 referendum on separation, had decided that it was far more risky to just sit back and do nothing.

Since the separatist movement began in Quebec in the 1960's, the sentiment for breaking up Canada appeared to gain momentum. In the first referendum on independence, in May 1980, the separatists gained 40 percent of the votes cast in Quebec, the only province where the referendum was held.

In the October 1995 referendum, Quebec's vote in favor of separation had increased to just over 49 percent.

Federal officials claim that separatists who have controlled the Quebec government for most of the last 20 years misled voters into thinking that separation would be quick and relatively easy. According to published reports, separatist leaders planned to declare independence and gain recognition of the new country from France and the United States within days after the 1995 referendum if they had won, despite promises of a period of negotiation with the rest of Canada.

American officials have said it is unlikely that the United States would have recognized an independent Quebec that seceded without the consent of the rest of Canada.

The Ottawa Government decided in 1996 to join a suit filed by a federalist in Quebec asking the Supreme Court for an opinion on the constitutional legality of a unilateral Quebec secession.

Such opinions are called references, and while not legally binding, they are important because of the moral and legal authority of the court. The Supreme Court has issued 74 references since 1892.

The court limited its opinion strictly to the questions asked by the federal Government and did not touch several other sensitive issues. For example, it left up to politicians to decide whether "a clear majority" meant 51 percent of votes cast or some more rigorous standard.

The court also avoided the question of whether a Quebec that decides to leave Canada could then be partitioned because northern Indian tribes, like the Cree, have said firmly that they want to remain in Canada.

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