|
Chretien | 1995
Referendum |
1998 Separation Ruling
| Nunavut |
Budget Surplus |
Reform Party |
Bloc
After the 2nd referendum in 1995 in Quebec, the Federal
government moved to put a reasonable process in place
for resolving nationalistic aspirations among the
provinces. The questions which had arisen during the
1995 Quebec referendum campaign were many and
complicated. Chretien had promised to put more clearly
defined process in place to address the process of
regional seperation movements.
In responce to Bouchard's announcement
that a third referendum would be held in Quebec once
conditions were ripe for a seperatist victory, Prime
Minister Jean Chretien decided to have the question of a
unilateral provincial decalaration of independance
refered to the Supreme Court of Canada. It was felt that
a decision from the court on the legality and process
concerning Provincial actions would serve to clarify the
question of seperation. Chretien and his cabinet
defined the questions which they felt needed to be
answered for submission to the Supreme Court for an
opinion. The final form of these issues were posed in 3
questions.
-
Under the
Constitution of Canada, can the National Assembly,
legislature or government of Quebec affect the
secession of Quebec from Canada unilaterally?
-
Does international
law give the National Assembly, legislature or
government of Quebec the right to affect the
secession of Quebec from Canada unilaterally? In
this regard, is there a right to self-determination
under international law that would give the National
Assembly, legislature or government of Quebec the
right to affect the secession of Quebec from Canada
unilaterally?
-
In the event of a
conflict between domestic and international law on
the right of the National Assembly, legislature or
government of Quebec to affect the secession of
Quebec from Canada unilaterally, which would take
precedence in Canada?
The resultant ruling
by the Supreme Court was rendered on August 20th, 1998.
The Supreme Court of Canada concluded that the National
Assembly, legislature or government of Quebec do not
have, either under Canadian law or international law,
the right to effect the secession of Quebec from Canada
unilaterally.
However, the court also emphasized that the rest of
Canada would have a political obligation to negotiate
Quebec's separation if a clear majority of that
province's population voted in favour of it.
Both the Quebec government and the
Canadian government stated that they were pleased with
the ruling and claimed victory for their interpretation
of the process. Chretien took the initiative when he
announced that the Federal government was taking the
action of drafting legislation which would serve to
define the terms and conditions which it intrepretated
would have to be adhered to in order to meet the
decision of the Supreme Court. This Bill was to known as
the Clarity Bill of Bill C - 20.
The bill was introuduced for first
reading on December 13th, 1999 and passed fianl reading
in the House of Commons on March 15th, 2000. It was
passed by the Senate and became law on June 29th, 2000.
Test of C - 20
An
Act 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
[Assented to 29th June, 2000]
Preamble
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;
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;
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;
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;
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;
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 an 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;
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;
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;
NOW, THEREFORE, Her Majesty, by and with the advice
and consent of the Senate and House of Commons of
Canada, enacts as follows:
House of Commons to consider question
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.
Extension of time
(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.
Considerations
(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.
Where no clear expression of will
(4) For the purpose of subsection (3), a clear
expression of the will of the population of a province
that the 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 that 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 that province on whether the province
should cease to be part of Canada.
Other views to be considered
(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, any formal
statements or resolutions by the representatives of the
Aboriginal peoples of Canada, especially those in the
province whose government is proposing the referendum on
secession, and any other views it considers to be
relevant.
No negotiations if question not clear
(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.
House of Commons to consider whether there is a clear
will to secede
2. (1) Where the government of a province, following a
referendum relating to the 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.
Factors for House of Commons to take into account
(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.
Other views to be considered
(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, any formal statements or resolutions by the
representatives of the Aboriginal peoples of Canada,
especially those in the province whose government
proposed the referendum on secession, and any other
views it considers to be relevant.
Constitutional amendments
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.
Limitation
(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.
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