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The Territorial Scope of an Independent Quebec Peter Radan Osgoode Hall Law Journal Article 2 Volume 41, Number 4 (Winter 2003) "You Can't Always Get What You Want": The Territorial Scope of an Independent Quebec Peter Radan Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Article Citation Information Radan, Peter. ""You Can't Always Get What You Want": The eT rritorial Scope of an Independent Quebec." Osgoode Hall Law Journal 41.4 (2003) : 629-663. http://digitalcommons.osgoode.yorku.ca/ohlj/vol41/iss4/2 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. "You Can't Always Get What You Want": The eT rritorial Scope of an Independent Quebec Abstract In Reference Re Secession of Quebec, the Court identified Quebec's borders as a critical issue in any secession negotiation. Canadian constitutional law requires changes to existing borders, particularly if the Aboriginal communities of Ungava maintain their opposition to becoming part of an independent Quebec, for three reasons. First, an independent Quebec has no right to territory gained in 1898 and 1912 because those territories were granted on the condition that Quebec remain in the federation. Second, the existence of constitutionally entrenched fiduciary obligations owed by the Crown to Quebec's Aboriginal peoples gives the latter a veto over a constitutional amendment that would transform provincial borders into international borders. Finally, the principle of federalism mandates that a constitutional amendment affecting the sovereignty of Aboriginal peoples, who comprise an effective third sovereign tier in Canada's federal structure, requires the consent of those Aboriginal peoples. This article is available in Osgoode Hall Law Journal: http://digitalcommons.osgoode.yorku.ca/ohlj/vol41/iss4/2 "YOU CAN'T ALWAYS GET WHAT YOU WANT": THE TERRITORIAL SCOPE OF AN INDEPENDENT QUEBEC© BY PETER RADAN* In Reference Re Secession of Quebec, the Court Dans son Rapport sur ta Secession du Qudbec, la identified Quebec's borders as a critical issue in any Cour qualifie la question des fronti~res du Qu6bec secession negotiation. Canadian constitutional law d'616ment critique pour toute nfgociation concernant requires changes to existing borders, particularly if the une s6cession. Le droit constitutionnel canadien impose Aboriginal communities of Ungava maintain their des changements aux fronti~res existantes, pour trois opposition to becoming part of an independent Quebec, raisons, particuli rement si les communaut6s for three reasons. First, an independent Quebec has no autochtones d'Ungava continuent s'opposer faire right to territory gained in 1898 and 1912 because those partie d'un Qu6bec ind6pendant. Premi6rement, un territories were granted on the condition that Quebec Qu6bec ind6pendant n'a pas droit aux territoires acquis remain in the federation. Second, the existence of en 1898 et en 1912, 6tant donn6 que ces territoires ont constitutionally entrenched fiduciary obligations owed by 6tc accord6s h la condition que le Qu(bec demeure dans the Crown to Quebec's Aboriginal peoples gives the la f6deration. Deuxi~mement, les obligations fiduciaires latter a veto over a constitutional amendment that would incorpor6es dans la constitution et accord6es par la transform provincial borders into international borders. Couronne aux peuples autochtones du Qufbec donnent Finally, the principle of federalism mandates that a A ces peuples un droit de veto sur tout amendement constitutional amendment affecting the sovereignty of constitutionnel qui transformerait des fronti6res Aboriginal peoples, who comprise an effective third provinciales en fronti~res internationales. Enfin, le sovereign tier in Canada's federal structure, requires the principe du f6d6ralisme exige qu'un amendement consent of those Aboriginal peoples. constitutionnel affectant la souverainet6 de peuple autochtone, peuple qui constitue un troisi~me 6chelon effectif de souverainet6 dans la structure f6d6rale du Canada, nfcessite le consentement de ces peuples. I. INTRODUCTION ................................................ 630 II. THE EMERGENCE OF THE DEBATE ABOUT QUEBEC'S POST- SECESSION BORDERS .......................................... 632 A. The Secession Reference ....................................... 633 B. The Clarity Act and Bill 99 ...................................... 635 III. HISTORY OF QUEBEC'S PRESENT NORTHERN BORDER ......... 637 A. The 1898 Quebec Border Legislation .............................. 639 B. The 1912 Quebec Border Legislation .............................. 641 2003, P. Radan. B.A., LL.B, Ph.D (Syd), Senior Lecturer in Law, Macquarie University. The author acknowledges the financial assistance provided to him pursuant to a Macquarie University New Staff Grant, which enabled research for this article to be undertaken at Queen's University, Kingston, Ontario and in libraries in Montreal during September and October 2000. The author acknowledges the assistance of Paul Joffe and Professor Kent McNeil for their valuable suggestions on earlier drafts of this article and the helpful comments of the anonymous reviewers of this article. OSGOODE HALL LAW JOURNAL [VOL. 4 1, NO. 4 IV. LEGAL ARGUMENTS AGAINST UNGAVA REMAINING PART OF AN INDEPENDENT QUEBEC ........................................ 642 A. The Purpose and Legal Basis of the Addition of Ungava to Quebec ...... 642 B. Canada'sFiduciary ObligationsOwed to Aboriginal Peoples ........... 644 1. The existence of a fiduciary obligation ........................ 644 a.Aboriginal and/or treaty rights in Ungava .................... 644 b. The fiduciary obligations of the Crown ...................... 649 2. The nature of the Crown's fiduciary obligations ................ 652 a. The scope of the fiduciary obligation as defined by jurisprudence 652 b. Fiduciary obligations and a constitutional amendment ......... 654 c.Application of fiduciary obligations to a secession amendment... 656 i. Are there existing Aboriginal or treaty rights? . 656 ii. Has there been aprimafacieinfringement of those rights? . 656 iii. Can the infringement be justified? . 658 C. The Nature of CanadianFederalism ............................... 659 V. CO NCLU SION .................................................. 662 I. INTRODUCTION It is an article of faith among the francophone secessionists of Quebec that an independent Quebec would have the same territory as the province of Quebec, which is guaranteed' to the province under Canadian constitutional law.2 However, many people in Quebec vigorously dispute this contention, including the Aboriginal communities in the Ungava region3 of northern Quebec.4 Ungava is part of the traditional homeland to a number of Quebec's Aboriginal peoples, such as the Cree and Inuit peoples. It also accounts for approximately two-thirds of Quebec's present Under the Constitution Act, 1871, (U.K.), 34 & 35 Vict., c. 28, s. 3 [Constitution Act, 1871] Quebec's territorial limits can only be altered with its consent. Under s. 43 of the ConstitutionAct, 1982, being Schedule B to the CanadaAct 1982 (U.K.), 1982, c. 11 [ConstitutionAct, 1982] any alteration of Quebec's borders with other provinces can only be achieved with the consent of its National Assembly. 2 The main pillar of support for this contention is the 1992 report of five international law experts commissioned by the government of Quebec: T. Franck et al., "L'int6grit6 territoriale du Quebec dans rhypoth~se de l'accession Ala souverainet" in Commission d'dtudedes questions affdrentes dilaccession du Qudbecti la souverainet6,LesAttributs d'un Qudbec souverain, Exposes et dtudes, vol. 1, 377, (Quebec: Biblioth~que nationale du Qu6bec, 1992). This report relied heavily on the principle ofutipossidetisjuris as applied to the breakup of Yugoslavia in the 1990s. For analysis of utipossidetissee Suzanne Lalonde, DeterminingBoundaries in a Conflicted World, The Role of Uti Possidetis(Montreal & Kingston: McGill- Queen's University Press, 2002) at 10; Peter Radan, The Breakup of Yugoslavia and InternationalLaw (London: Routledge, 2002) at 69 [Radan, Breakup of Yugoslavia]; Tomas Bartog, "Uti Possidetis. Quo Vadis?" (1997) 18 Austral. Y.B. Int'l L. 37. 3 Although there is uncertainty about the precise territorial scope of Ungava, for the purposes of this article it includes the areas of northern Quebec that were the subject of Quebec border legislation of 1898 and 1912. This legislation is discussed in more detail in Part 111, below. Grand Council of the Crees, Sovereign Injustice, Forcible Inclusion of the James Bay Crees and Cree Territory into a Sovereign Quebec (Nemaska: Grand Council of the Crees, 1995) at 171-217. 2003] TerritorialScope of an Independent Quebec territory. None of Ungava's Aboriginal communities have agreed to be part of an independent Quebec. Rather, they insist that they cannot be separated from Canada without their consent.5 These Aboriginal peoples have consistently asserted that they have a legal right to remain within Canada if and when Quebec becomes an independent state. The Cree have also suggested that another option for them in this event is independent statehood for the Aboriginal peoples.6 For an independent Quebec, the practical implications of the Aboriginal peoples either staying in Canada or seeking their own independence are the same: Quebec's independence would result in new borders and a reduction of Quebec's territorial scope.
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