Letter of Michel Seymour to Inroads November 29, 2000.

Jean Chrétien is once again telling everyone in Canada to sit back and relax. According to him, Quebeckers support C-20 and the sovereignist movement is in bad shape.

The bad performance of the Bloc in terms of seats is certainly appalling, but nothing allows Chrétien to draw such hasty conclusions. All the polls have suggested that 60% of Quebeckers were against C-20. The three parties in Quebec representating 99% of the population are against it. And more than 60% of the Quebec MPs in the House of Commons voted against it. Cut the pie anyway you like, a qualified majority of Quebeckers is against it. (So if Canadians were both coherent and ready to grant minimal self-determination to Quebeckers, they should abrogate this law.)

Moreover, Bill C-20 was not discussed very much during the elections. And now that the Bill has been turned into a law, it is part of the sovereignist strategy to downplay its importance. They still rightfully denounce it as a piece of crap, but since it is not legitimate, it won't prevent Quebeckers from exercizing their right to self-determination.

The Liberals can claim to have receive no more than 44% of votes in favour of their policies. Those Quebeckers who voted for the BQ and PC were clearly against C-20. Those who voted for the CA and the NDP cannot be interpreted as approving their attitude toward C-20. And if there had been a higher turn out of voters, the Liberal score could perhaps have been closer to 40%, which would have reflected more faithfully the amount of support for C-20 within Quebec.

As far as sovereignty is concerned, once again I am sorry to have to report that things aren't as good as they look for Canadians. The bad results are mainly due to three factors: the low turn out of voters (63%), the Quebec policy concerning municipal fusions, and the collapse of the Conservative vote.

The vast majority (perhaps all) of those who voted for the Bloc in 2000 voted YES to sovereignty in 1995, and most of those (perhaps all) who voted for the Liberals voted for the NO side. Now, a large number of those who voted Conservatives in 1997 also voted YES. And it must be granted that the Conservative vote went in part to the Liberals in 2000. But does that mean that some of those that voted YES in 1995 now voted for the Liberals in 2000? This is not a valid inference, I believe.

As a matter of fact, the Conservative vote appears to have been dispersed. It went to the CA, to the Liberals and to the Bloc. It is true that the Bloc has approximately the same amount of votes, but some sovereignists have decided not to vote, and it is more reasonable to suppose that the Bloc got a very small percentage of the Conservative vote. So it is reasonable to assume that only those Conservatives who voted No in 1995 went to the Liberals. Some of those who have remained Conservatives might have voted YES, and a very large number of those that now support the Alliance have voted YES. The CA supporters in Quebec certainly do not support their right wing policies, but they like their constitutional platform. So if you added up those figures (part of the PC and most of the Alliance to the BQ votes + those sovereignists who did not vote) you would get a figure that closely resembles the result of the 1995 referendum.

This does not mean of course that the PC and Alliance voters would now support sovereingty. As a matter of fact, all the polls suggest that they no longer support that option (41% of the population and sometimes more now support sovereingty). And it does not even mean that all of those who have now voted for the Bloc would necessarily vote for sovereingty. But it means that one could easily imagine circumstances that would enable sovereingnists to convince all these voters to change their minds and vote Yes once again. They voted Yes once, and so they could vote Yes twice. And as the new generations of voters are coming in and old voters goint out, sovereignty could be around the corner in less than five years.

After all, the PC and Alliance voters in Quebec are reasonable people who are trying to find once again a third option. It is very easy to understand that, after a referendum that was held only 5 years ago. Will the sovereingnists be able to get those voters back on track? Well, to answer that question, we must turn to Canadians. Are Canadians ready to consider a constitutional reform that would grant Quebec recognition as a nation, that would offer a particular status to the province of Quebec and that would formally recognize the principle of asymmetrical federalism ? If these offers were made to Quebeckers, the sovereignist movement would die out. But these offers won't be made to Quebeckers, as we all know. So there is still room for reasonable optimism concerning the sovereingnist option. And when Quebeckers are asked whether they would vote for independence, sovereingty with partnership or the status quo, 49% of the population favours the second option. And please do remember that even if the Canadian government is afraid about a question concerning a partnership option, the reference to partnership could occur in the preamble of the question.

Response from Michael Mendelson November 29 2000

Michel Seymour asks the central question of Canadian federalism today:

"Are Canadians ready to consider a constitutional reform that would grant
Quebec recognition as a nation, that
would offer a particular status to the province of Quebec and that would
formally recognize the principle of asymmetrical federalism ?"

The answer of this particular Canadian is 'yes.' Indeed, whenever I talk to
a social group I always make exactly this point. This is what I said in a
recent speech to a housing conference in BC, in the context of the need for
a national housing policy:

"This may not be too popular to say to an audience in BC, but I am not a
politician running for office so I can say whatever the heck I want -- if
we want to come to grips with the continued decentralization of Canada, we
need to find a way to accommodate the needs of Quebec. This incredible wave
of decentralization, which has made Canada the most decentralized industrial
country in the world, all stems from an attempt to placate nationalists in
Quebec by offering all provinces the same huge increase in powers while
diminishing the role of the government of Canada.

The only other realistic alternative is to recognize that Quebec is not the
same as the other provinces, that in some of our aspects Canada is a
tri-national country: composed in part of two nations - French and
English -- plus First Nations coming together to form this country. In my
view we all need to take a valium, grow up and just admit the obvious, so we
can go on from there. I see nothing wrong with a Canadian housing program
in all provinces except Quebec and Quebec running its own program: this has
been the situation for thirty-four years for the Quebec and Canada Pension
Plan and, so far as I know, it has not hurt a soul."

The reaction I get when I say things like this is usually pretty negative,
at least initially, but I do believe it gets people thinking. I would hope
that one day an English Canadian political party would have the courage to
campaign on this issue, knowing that it would at first get a difficult
reception, but hoping that over time it could persuade people - even in
Western Canada - that such a position is reasonable. However, having said
this I have to ask whether such a position would get any support in Quebec.
As I understand their platforms, and I may be misinterpreting somewhat, both
the NDP and the Conservatives are in favour of asymmetrical federalism.
Neither party did too well in Quebec, to ay the least. The NDP essentially
does not exist and the Tories are being reduced to a splinter group. I
cannot see support for recognition of Quebec can have any credibility, let
alone political viability, unless it is shown to have substantial appeal in
Quebec. So I would turn Michel's question around and ask:

Are Quebeckers ready to support a Canada-wide federalist party favouring a
constitutional reform that would grant Quebec recognition as a nation, that
would offer a particular status to the province of Quebec and that would
formally recognize the principle of asymmetrical federalism ?

Michael Mendelson

Reply from Michel Seymour November 30 2000

Dear Inroaders,

When I read letters like those of Michael Mendelson, I realize that it is worthwhile remaining within this discussion group.

I must admit that I did not know that the NDP and the PC were favourable to asymmetric federalism. If they are, they did not shout it very loud, to say the least. Why are they so silent on these issues ?

I knew that the NDP was favourable to a recognition of Quebec's right to self-determination, but they ultimately voted for C-20. It is true that Alexa McDonough initially thought this process was "crazy" (to use her exact words), but she ultimately had to swallow the hard pill.

In order to be perfectly clear, let me try to be more precise concerning the traditional demands of Quebec. I shall enumerate ten principles. These are not new. They have been repeatedly discussed in the last 40 years. I am sorry for those who read these things before. As I recall, I did write about this in a previous letter. I have also written extensively about this in the newspapers, in a book, and in articles like the one that was published in a recent issue of Nations and Nationalism. And of course, I have not been the only one in doing so.

I shall describe what it would mean for Canadians to accept a Quebec nation within the Canadian nation. I shall list what is often described as the main traditional demands of Quebeckers. All of these demands presuppose that there is a Quebec people.

What would it mean for Canada to recognize the existence of a Quebec people ?

1.- It would mean, first, accepting to recognize formally its existence in the Constitution. The aboriginal peoples are recognized in provisions 25 and 35 of the 1982 Constitution, and there is no reason why Canadians should resist amending the constitution in a way that would allow for a formal recognition of the Quebec people. This demand was formulated in the sixties In the report of the Laurendeau/Dunton Commission.
2.- Canadians would also have to accept that the principle of equality of status between the provinces cannot be applied to Quebec. If a national recognition is to mean anything, there should be a special status given to the province of Quebec within the federation. This is a very old demand. I think it was first formulated in the sixties by the provincial liberals.

3.- This would in turn entail an acceptance of a general principle of asymmetry in the distribution of powers. Some powers could be offered to the Quebec government without having to offer them to the nine other provinces. So Quebec could become more autonomous without weakening the federal government. In practice, there is already a certain asymmetry involved. Quebec is the only province that has its own income tax, its own civil code, its linguistic laws, its own pension plan and a certain control over immigration policies. The idea is now to accept such kind of asymmetry formally, as a matter of principle, and to increase it in order to meet Quebec's traditional demands. This was a recommendation of the Pepin Robarts Commission in the seventies.

4.- There should also be a formal recognition that the Quebec government has the responsibility to protect and promote the French language in Quebec, as long as it is done in harmony with the requirement to protect the individual rights of all Quebec citizens and the collective rights of the Anglophone community within Quebec (as well as those of the Aboriginal peoples). The linguistic laws of the Quebec government have constantly been under attack, and a formal recognition of Quebec's distinctly French society should, for that reason, be entrenched in the constitution. This was part of the distinct society clause in the Meech Lake Accord.

5.- The Quebec government should be the only government responsible for matters related to culture, telecommunications and internet on Quebec's territory. In other words, Quebec should be "sovereign" in matters related to culture. This was a demand of the late Robert Bourassa in the early seventies. It was then repeatedly requested by Lisa Frulla of the PLQ and then by all the ministers of culture within Quebec. There should be a recognition of the fact that there is a common public culture in Quebec which is very different from the common public culture in the rest of Canada. The multiculturalism policy of the federal government should be amended so that it becomes clear that the protection and promotion of the language and culture of immigrants has to go hand in hand with their linguistic and cultural integration into one of the two welcoming political communities (Quebec and ROC).

6.- There should also be a limitation in the federal government's spending power, which has constantly been a way to intrude in provincial jurisdictions such as education and health programs. Even if, according to the constitution of 1867, some of these jurisdictions entirely belong to the provinces, the federal government has always used its spending power in order to increase its presence in provincial affairs. And this abusive use of its spending power has been accepted by the supreme court. But it is very natural for a people to be able to conduct its own policies in matters related to education, health and social welfare, and this is why Quebeckers have always required that the federal government should not use its spending power in order to intervene into those jurisdictions. So there should be a formal opting out clause allowing for financial compensation on ANY new program implemented by the federal government in Quebec's jurisdictions. This is a very old request, mentioned in the Meech Lake Accord in a weaker version. It was also a recent request made by the Bouchard government during the negotiations that led to the "Accord" on Social Union. All the provinces apparently agreed initially to adopt this principle. But it was ultimately rejected. It appears that Canadians now only accept an opting out clause for federal spending on shared programs. But with its actual surpluses, the federal government can very easily respect this last "principle" and still spend as much as it wants in exclusive provincial jurisdictions. The solution is simply to create programs which are exclusively funded by the federal government. The only obligation of the federal government in this regard is to "consult" the provinces before. In the Accord on social union, the provinces have accepted for the first time that the federal government should be allowed to use its own spending power in exclusive provincial jurisdictions. Quebec was left alone, once again, as in 1971 and 1981.

7.- Quebec should have a veto over any modification to the constitution. This was also part of the Meech Lake Accord.

8.- A political recognition of Quebec as a nation must also go hand in hand with the recognition that Quebec has a special responsibility toward its national economy. Therefore, Quebec should be afforded all the powers related to unemployment insurance in addition to those of manpower training.
There is a consensus in Quebec on this issue. It has been there for at least thirty years.

9.- Quebec should have the power to appoint three of the nine judges in the supreme court. This was also part of the Meech Lake Accord. A true political recognition of the existence of a Quebec people should go hand in hand with an appropriate representation. By allowing appointments to be made by Quebec at the level of the Supreme court, Canada would be showing that it is taking very seriously the fair representation of Quebec within the Canadian Constitutional order.

10.- Quebec should be allowed to increase its presence on the international scene in its own jurisdictions. It makes no sense to be unable to have talks directly with Mexican President Zedillo, or to participate directly at Unesco meetings. In general, Quebec should be allowed to be participate in international forums on language and culture, and should be able to act as an autonomous economic region when Quebec companies are at stake.

These are ten principles that would have reflected the multinational character of Canada within federal institutions, as far as Quebec is concerned. To these I must now add, of course, that C-20 should be abrogated. (For arguments against C-20, see the political documents on my web site at the address at the end of this letter.)

These principles require more from Canadians than just those of the Meech Lake Accord. I was against Meech because it was a watered down version of the true historical demands of Quebec. But the above principles go to the heart of the matter.

In spite of this, it could be possible to implement them without difficulty. It would be business as usual for Canadians even if things would be much different for Quebeckers. It is important to stress that the daily lives of Canadians would not be modified by this constitutional change. But for Quebeckers, it would mean that Canada has become a welcoming country for the Quebec people.

Of course, this would not entirely remove the spectre of sovereignty, but the option would most probably be out of the political picture for the next three or four decades.

I believe that if any political party in Canada were to adopt such a political platform and was not afraid to go public on it, you would see immediately within Quebec a very strong support for it.

But we do not necessarily need the support of a federal party. All provinces could gather up immediately and engage into a process of ratification of these ten principles, just as they did for the Calgary Declaration. This would put sufficient pressure on any federal government, even the Liberals.

There used to be a time when it was said that nothing would please "separatists". Nothing would be enough. We call this the slippery slope argument. This thought was comforting. It was useful to think that way because it concealed the fundamental inability of Canadians to recognize the existence of a Quebec people. But Quebeckers would express a very strong endorsement (70% ?), and they would now have a strong attachment to Canada as a country.

I realize that the problems begin as soon as we begin to say that other changes have to be made in Canada. In order to do the same for the Aboriginal populations of Canada, the federal government should apply the main recommendations contained in the final report of the Royal Commission on aboriginal peoples. Canada would then not only be a de facto multination state. By applying these measures, it would truly become a de jure multination state. And there is no reason to think that a true multinational Canada is impossible.

But then there are also changes that have to be made in order to meet the worries of western provinces. And of course the federal institutions also have to be reformed. We need a new electoral system that would incorporate elements of proportional representation. We need a law on private funding for political parties (just like the one in Quebec) and a law on conflicts of interest (just like in Quebec). And the prime minister should not be the one who has all the powers for the nomination of supreme court judges, senators, etc.

Many will want all those changes to be incorporated in the constitution. And they will want to make those changes all at once because of the difficulties involved in applying the amending formula. So I guess that these people would want to say that we must first agree on modifications to the amending formula, and we seem to be back to square one. This is the Trudeau legacy.

So an increasing number of Quebeckers believe that a fast track is available. Quebec could become a sovereign country. This is not like entering a black hole. The complexity of the process would be concentrated in negotiations leading to the transfers of 17 (?) ministries from the federal government to the Quebec government. These changes would occur within a period of two or three years, and the matter would be settled by experts on both side. It would be like experiencing a surgical operations for Quebeckers and Canadians.

But Quebec nationalists are responsible people. They also propose partnership links (economical and political) to the ROC. The partnership offer is not like wanting to have our cake and eat it too. It is an offer which takes into consideration the needs of Canadians for unity. There are very interesting ideas that have been discussed concerning the way to improve upon the 1995 partnership offer. I don't have the time to go into this, but many sovereingnists are concerned in placing themselves into the shoes of Canadians. We came up with quite interesting solutions. Some of these are contained in a document that I produced for the Bloc Québécois and you can find it on my web site. After Quebec has become a country, there could be a strong economic union from coast to coast, with common institutions (a confederation ?) whose sole purposes would be to deal with the economic union. Once again, it would not be the end of the world for Canadians. Their federal and provincial governements would still be there, and the additional political structures could be kept to a minimum.

I am sorry for being so long. But everyone will agree that I have not made an abusing use of this discussion group lately.

Best wishes,

Michel Seymour

Response from Maurice Pinard December 1st 2000

Michel Seymour writes:"All the polls have suggested that 60% of Quebeckers were against C-20..."

That is not quite correct. Two CROP polls for the Center for Research and
Information on Canada, one of which just released yesterday, the other done
last year before the adoption of C-20, showed strong support in that order
of magnitude for that bill.

The results of the most recent poll (October 2000) are the following (with
the actual question, something important in assessing public opinion on this

"The federal government has adopted a bill to clarify the conditions under
which it would agree to negotiate after a YES vote in a future referendum on
sovereignty. These conditions include the requirement of a clear question
and a clear majority. Do you...
strongly agree...............31%
somewhat agree............29%....total agree........60%
somewhat disagree........13%
strongly disagree............17%....total disagree....30%

Let me add that a majority agreed in all major socio-demographic groups,
including francophones (58%) and even a majority among péquistes (51%) and
YES voters (53%).

The question asked by CROP in December 1999 was basically the same, except
that it presented the bill as a projected one. Briefly, the results were:
agreed, 33% + 25% = 58%; disagreed, 11% + 17% = 27%; dk/refuse, 15%.

Arguments are much stronger when they rest on actual facts. The discussion
can continue...

Reply from Michel Seymour December 6 2000


I'm sorry that I was unable to answer Maurice Pinard before. I was kept by numerous professional obligations.

Maurice Pinard suggests that I was wrong to claim that all the polls in Quebec reveal that Quebeckers are against C-20.

Indeed, I was perhaps not careful enough when I said this. I've seen approximately three polls during the last year or so that went in the sense that I have indicated, but the situation is perhaps more complex than that.

There has also been in the last years many polls in which Quebeckers said their preference for a very strong majority. It would indeed be much preferable to have a very strong majority in a referendum on sovereignty.But we do not live in an ideal world and this is why we adopt rules in trying to interpret the democratic principle. And the rule that is accepted by almost all political actors is absolute majority. Of course, the result has to be clearly an absolute majority. But it is still the only acceptable rule.

I am not saying that the process of sovereignty can be engaged solely on the basis of the satisfaction of the democratic principle. There are other principles that must be respected, but the rule of the absolute majority is the only one that we've got when trying to interpret the democratic principle.
Maurice Pinard does not challenge me when I say that 60% of the Quebec MPs in the House of Commons and the three political parties in Quebec's National Assembly representing 99% of the population of Quebec were all against C-20.He just challenges me when I say that all the polls reveal that 60% of Quebeckers are also against this Bill.

He mentions two polls, of one which was released on the day after my letter was sent to Inroads. So in effect, my claim was "falsified" only by using one poll, the one that was conducted immediately after the Bill was introduced in the House of Commons on December 1999. I am surprised that he would invoke such a poll as a "fact" confirming that the Bill received the approval of the population. The population could not at that time be fully aware of the content of the Bill.

I am also baffled by the wording of the question that was submitted in the last CROP poll that he mentions.

The question refers to a bill to "clarify the conditions under
which the federal government would agree to negotiate after a YES vote in a future referendum on sovereignty. These conditions include the requirement of a clear question and a clear majority."

This does not inform Quebeckers about the content of the Bill. It sounds more like a promo ad of the Bill.

The Bill stipulates that the House of Commons will determine whether the majority of the Yes votes will be sufficient enough. This suggests that the rule of the absolute majority no longer prevails and that House of Commons allows itself a discretionary power in order to determine whether the majority is high enough. This opens up the possibility of abusive interpretations of the result by the federal government. In any case, the question of clarity is, "clearly", a pretext for the imposition of a discretionary power on the part of the federal government.

The Bill also rejects any question that would refer to partnership. It suggests that there could not be any clear question involving a reference to partnership, no matter how well it is formulated. Once again, the clarity issue is a pretext, this time for intervening on the content of the question.

Furthermore, the House of Commons will intervene in the process while Quebec's national Assembly will be debating on the question, thus violating the principle of federalism. This has nothing to do with clarity and everything to do with the fact that the federal government is practicing "un fédéralisme dominateur".

Finally, even if there were a clear result on a clear question, negotiations would have to include the partition of Quebec. Once again, this has nothing to do with clarity, and everything to do with frightening the Quebec population. On this particular issue, the Bill does not even try to clarify the conditions under which the federal government would agree to negotiate after a YES vote." It goes far beyond this, since it imposes an agenda on the content of these negotiations.

So I would strongly recommend CROP to ask a question concerning what is involved in the different provisions contained in the Bill, and not a question containing words describing the Bill from the point of view of its promoters.

The federal government is claiming that C-20 is the most important piece of legislation that was adopted in its last mandate. But the Liberals refused to conduct a debate in Quebec and in the rest of Canada on this issue, while they accepted to engage into such debates for many other pieces of legislation. Furthermore, they imposed three gags during the debates in the House of Commons.

A scientific assessment of the "facts" should also require that we try to explain contradictory polls. And the most scientific polls would have been the ones that would have followed an extensive debate conducted by Stéphane Dion within Quebec. This did not happen, unfortunately.

Thus the Bill does not have the clear approval of Quebec's population. It has received a clear NO from Quebec's National Assembly. And it has received a clear NO from 60% of Quebec MPs in the House of Commons. These are the facts.

By imposing such a Bill, Canadians are doing more than having a say on the outcome of the process leading to sovereignty. They are imposing their conditions to Quebeckers. I understand that this is now becoming a habit in Canada. But it remains illegitimate as it was illegitimate in 1981.

Michel Seymour--

Response from Prof. Gareth Morley December 6, 2000

I have no insight into what proportion of Quebeckers approve of the Clarity Act. It does sound to me like the CROP question is a little biased in that it uses a summary of the Bill that the federal government would prefer. Still, this wouldn't matter very much to the results if the people of Quebec had strong feelings against the Bill.

What concerns me, though, is Professor Seymour's assumption that it is the views of Quebeckers alone that are important here. The Clarity Act is not binding in any way on the government or legislature of Quebec. It merely dictates what the federal government's response to a referendum would be (this is, of course, all-important since other countries would be unlikely to recognize a sovereign Quebec if the government of Canada refused to, and would be certain to do so if it did). The separatist movement embraced the Supreme Court of Canada's decision in the Secession Reference, but continues to assert that no one outside Quebec has any legitimate interest in the terms of secession.

The Clarity Act for the first time sets out what the Canadian government's response to a referendum would be. For the first time, Parliament has accepted that in some circumstances the government of Canada would recongnize Quebec's independence. Were it to do so (and given the Supreme Court of Canada's decision in the Secession Reference no internal legal challenge from hardline Canadian nationalists would likely be successful), the other nation states of the world would follow, and Quebec would obtain independence.

This is important, since it demonstrates that the independence of Quebec is a project that can be achieved through legal, democratic means. The incredibly-muddled Joe Clark objected that the Act was a "roadmap to secession" (even though his main objection seemed to be that it deprived the sovereigntist movement of the ability to obtain secession without a clear majority on a clear question).

However, Professor Seymour objects on different grounds:

1) On the "clear question" provisions, Professor Seymour objects that Parliament intervenes in the National Assembly's deliberations as to the nature of the question. Not true. The National Assembly can have any referendum it wants with any question it wants. The Bill simply gives notice that unless the Commons approves the question ahead of time, the Federal Government will not consider itself bound by the result.

This is the only fair way of proceeding. Professor Seymour objects that the CROP question, while not false, is biased in what it highlights in the Bill. Some (i.e., the Reform Party) argued that the Federal Parliament should determine the question. That would not be fair either. A question approved by the National Assembly and the House of Commons would have a legitimacy that a question written by one side would not.

While the House of Commons could reject any question, however reasonable, the Supreme Court of Canada held that this would be a violation of (unwritten) constitutional principle. In practical political terms, it is unlikely that the federal government of the day could be seen to reject any wording.

Professor Seymour objects to the Bill's provisions that for negotiations to ensue the wording not simply focus on a "mandate to negotiate without soliciting a direct expression of the will of the population ... on whether the province should cease to be part of Canada." (1980) or that envisages "other possibilities in addition to the secession of the province..., such as economic or political arragnements with Canada" (1995).

Again, these provisions are eminently reasonable. Democratic legitimacy for secession requires that secession be the focus of the referendum question. Quebeckers may prefer some "Third Way", but even if secession can be unilateral, surely partnership cannot. Why can't Quebec nationalists (including "federalists") understand that a new deal has to be acceptable to both sides?

Commentators have compared a "mandate to negotiate" referendum to a strike vote, which suggests that some may vote for secession, hoping that it will not happen but instead will give Quebec more bargaining power in the federation. But a union still has to ask its members to approve the unpleasant (a strike) in order to get the pleasant (a better collective agreement). A union can't just ask its members if they would like more money, and then call that a strike vote.

Professor Seymour claims that Bill C-20 requires that negotiations include the partition of Quebec. That is not true. S. 3(2) says "No Minister of the Crown shall propse 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." This language is straight out of the Secession Reference, which was hailed by the PQ government. It only requires that the borders of the seceding province be determined in the negotiations, not that the federal government take the position that they be different from the existing borders.

Reasonable people can argue about whether the Act should commit the government of Canada to begin secession negotiations if the "Yes" side wins a very narrow majority to a question approved ahead of time by the Commons. Instead, the Act provides that this be determined by resolution of the Commons. All the federalist parties other than the Liberals have committed to doing so. I doubt that it would be politically possible for the Commons not to approve secession negotiations after agreeing to the question and thereby legitimizing the process. But as Florida demonstrates, not all majorities are clear.

The part of the Clarity Act that may be objectionable is the statement that secession requires a constitutional amendment, presumably pursuant to Part IV of the Constitution Act. This is not true as a matter of international law (secession requires recognition by other states, which, as a matter of fact, would occur if the government of Canada approved it, regardless of whether some province refused). It also seems to me to be contrary to the spirit of the Secession Reference. I think Quebec has a good case that the clearly expresed will of the people of Quebec cannot be frustrated by the PEI legislature.

But the BQ/PQ/PLQ/PCs etc. don't make this reasonable point. Instead, they, like Professor Seymour, continue to insist that the secession of Quebec is no one else's business and that it can be initiated on the basis of a question written by a sovereigntist government without any federal input. A secessionist project launched in these circumstances would have zero international legitimacy, and the federal government would be right not to recognize it. Certainly it would not be accepted by the population of the ROC or the non-Francophone population of Quebec. If the sovereigntist movement were to try to implement independence anyway, it would create chaos. It would not therefore be surprising if, as the polls suggest, a large number of people who voted "Yes" in 1995 support the Bill.

Michel Seymour replies on December 9 2000

I wish to thank Gareth Morley for his comments on my previous letter. I’m grateful because it gives me an occasion to clarify some additional points.

Prof. Morley writes :

“What concerns me, though, is Professor Seymour's assumption that it is the views of Quebeckers alone that are important here... The separatist movement embraced the Supreme Court of Canada's decision in the Secession Reference, but continues to assert that no one outside Quebec has any legitimate interest in the terms of secession.”

I certainly do not want to suggest that Canada has nothing to say on the matter and that it should not intervene at all in the process. As it was repeatedly said by Daniel Turp of the Bloc Québécois in the House of Commons during the debates on C-20, the federal government is perfectly entitled to intervene at one point in the process. Stéphane Dion was even wrongly led to believe for that reason that the Bloc was agreeing up to a certain point with C-20. So it is false to suggest that sovereignists are indifferent to the role of Canada. On the contrary, they have always argued that negotiations would have to follow a Yes vote.

For sovereignists, the federal government can indeed assess whether an absolute majority of Yes votes is a clear majority.

An absolute majority could fail to be a clear majority if, for example, an unusual number of ballots were rejected, of if we were confronted to an extremely low participation rate, or if the absolute majority was obtained by answering an ambiguous question.

The words “clear majority” must be understood in the “qualitative sense”, to use the phrase of the Supreme Court, and not in a quantitative sense.

So it is one thing to say that the federal government will have to assess whether the majority is clearly an absolute majority. And it is quite another thing to suggest that the rules of the game should now be changed and that the absolute majority rule should no longer apply as an interpretation of the democratic principle.

The federal government is also perfectly entitled to evaluate whether the question is clear enough. However, it is one thing to argue for this fundamental right of the federal government, and it is quite another to decide that a particular kind of question will immediately be ruled out as unclear, no matter how well it is formulated. Nowhere can we find in the supreme court’s Secession Reference an indication to the effect that a reference to partnership would automatically lead to an unclear question.

And yet the federal government claims that it is following the supreme court’s advice by ruling out this possibility. In the name of clarity, the federal government is trying to force sovereignists into a hard line position, as if they wanted to ignore the reality of contemporary sovereign states which are at the same time engaged into different sorts of economic and political unions with their neighbors. The federal government wants to portray sovereignists as hard liners inspired by the traditional nation-state model of the 19th century. And yet from its inception, the sovereignist movement in Quebec was inspired by two fundamental ideas: sovereignty and association, or partnership.

It is one thing to say that the federal government has the right to intervene in determining whether the question is a clear one. But it is quite another thing to suggest that it is entitled to do so while the MNAs are debating the issue in the National Assembly. This violates the principle of federalism. Once again in the name of clarity, the federal government wants to intervene politically in order to influence the results.

The liberal MNAs will debate the issue against the sovereignists. Newspapers and all other medias will also not miss their chance to discuss extensively the wording of the question. There could be amendments made during the course of those debates. We are accustomed within Quebec to engage into strong democratic debates. So the federal government should wait before the end of the referendum process before making its own assessment.

It is true that the Bill “gives notice that unless the Commons approves the question ahead of time, the Federal Government will not consider itself bound by the result.” This is not done however in the name of clarity. For one must be aware of the fact that even if the question were clear, Liberal MNAs, journalists, political scientists, Alliance Quebec, etc. could all want to argue that it is not clear enough. If you add to that the federal parties, journalists from all over Canada, the premiers of the nine provinces and the federal government, Quebeckers could wrongly be led to think that the question must be unclear after all.

Of course, the Quebec government can still ask any question that it wants. But granting such a freedom is easy if this allows for an extraordinary power struggle to be played in an unequal battle. It is easy in this context for the federal government to pay lip service to “clarity”, but this conceals its intent to influence the result of the vote.

I agree that “a question approved by the National Assembly and the House of Commons would have a legitimacy that a question written by one side would not.” But we must not be completely naïve, especially since we know already that any question referring to partnership appears to be automatically unclear for federal leaders in Ottawa.

Of course, sovereignty must be the focus of the question, and of course partnership cannot be unilaterally decided. This is why the question must first and foremost refer to sovereingty, and refer secondarily (in a preamble?) to an offer of partnership. Imagine for instance a question like the following:

Granted that the Quebec government intends to make an offer of economic and political partnership to Canada after a YES vote; granted that any such partnership concluded between Quebec and Canada would be entrenched in the future constitution of Quebec; and granted that this new constitution of Quebec would need to be ratified by the population of Quebec after sovereignty; do you want Quebec to become a sovereign state ?
This is apparently unclear in the minds of the federalists who are now in Ottawa.

Prof. Morley asks: Why can't Quebec nationalists (including "federalists") understand that a new deal has to be acceptable to both sides?

I agree that a new deal must be acceptable to both sides. I’m sure that the vast majority of nationalists (federalists and sovereignists) agree. But the question must be put to the Canadian nationalists:

Why can't Canadian nationalists understand that an offer for a new deal can be part of the sovereignty project ?

Prof. Morley also argues that C-20 “only requires that the borders of the seceding province be determined in the negotiations, not that the federal government take the position that they be different from the existing borders.”

But the federal government has already repeatedly argued that Quebec secession was a partition of Canada, and that for that reason, there were no possible justifications for rejecting the partition of Quebec.

These arguments of the federal government are made in the name of clarity but they serve the purpose of frightening the Quebec population.

Of course, some technical negotiations will have to take place, concerning the seashore borders for instance. But should there be more substantial redrawings according to the Supreme court?

This issue is addressed in two passages of the Secession Reference, in paragraphs 96 and 139. The nine judges provide a long list of factors that must be addressed in the discussions. Among the topics for debate, the Court mentions borders, but specifies that this is a question that was raised before the nine judges. (par. 96) Unlike the other questions, which are mentioned as mandatory subjects of the negotiations, the question of borders is considered only as a request coming from a third party. It therefore cannot be concluded that the Court is asking that this issue be addressed in the negotiations.

However, the Court adds further on: "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." (par. 96) Is this an express recommendation that borders be discussed? The Court contends that it will be difficult to "separate" our national existence without changing Quebec's borders. It finds that the preservation of the present borders could not be assured without efforts being made in that direction. To conclude from this that the Court expressly recommends that the borders of a sovereign Quebec be negotiated is a logical leap that the federal government has attempted to make, but which has no basis in the Secession Reference.

I hope that I have made it abundantly clear that I accept the role of the federal government in the secession process. It is also true that the Supreme court has made an extremely useful contribution to the clarification of the issues. And it is true that this opens up for the possibility of a legal secession process. It is also true that “for the first time, the Parliament has accepted that in some circumstances the government of Canada would recognize Quebec's independence.” But in the course of doing this, the federal government has decided that it can change the rules by abandoning absolute majority, by trying to delegitimize partnership and by frightening Quebeckers with the possible partition of Quebec’s territory.

These are the things that I am denouncing.

Best wishes,

Michel Seymour