As the April 7th provincial election in Quebec nears, a reminder of the fact that no province of Canada has a right to a Unilateral Declaration of Independence (UDI) is in order.
The following is an excerpt from Ch. 14, "French-Fried," in William D. Gairdner, The Trouble With Canada ... Still! (BPS Books, 2011)
Confederation Is a Co-op
Try to imagine that you and nine of your friends (together making up the ten provinces) have all seen a ten-room apartment building you wish to purchase. Together, you enter into an agreement to purchase it based on equal ownership. It’s a co-op. By written agreement, each of you has a share of a certain amount of living space, benefits, and costs, depending on the size of your family, but nothing prevents anyone from relocating within the building, and nothing prevents you as a group from agreeing to reshape the interior. But you all own the whole building equally.
One day, nine of you arrive home from work to find François, chain-saw in hand, attempting to cut his living quarters away from the building. He is angry. He says he wants to leave and “take what I own.” Imagine the justifiable and spontaneous outrage from the rest: “We all own this building together! You have no right to reconfigure the building without our permission. We all got into this deal together, and no one can change it without unanimous consent. Anyway, you owe us a lot of money. We subsidized you from the start. Even if we decide that we will let you out of this partnership, you will have to settle up with us for what you owe, and maybe even pay damages for devaluing our building, too.”
So there it is. A confederation of provinces is not like a condo building. It is like a co-op apartment building in which citizens can live in any of the spaces they want. In other words, all Canadian citizens, regardless of where they live for the moment, own Canada equally. The lines on the map for each province (like each apartment wall) are there for administrative and political convenience but do not confer ownership of geographic real assets on the citizens of any province. So if the Québecois, or any other group of citizens in any province attempt to saw off a province and cart it away, they are really trying to take what is owned in common away from all of us without permission. They are breaking their contract.
Based on this understanding, I suggest there are three large issues, each of them likely irresolvable on the basis of the democratic conceit, around which the dialogue must revolve. They are the issues of permission, partition, and duplication.
1. Permission -- Who Says You Can Leave?
Can a province just walk away from Confederation? Does any province have the legal right to leave? The answer is a flat “no.” Canada’s Supreme Court has declared as much. But then the court stumbled blindly into political territory when it said that if a clear question on separation had a "clear majority" in favour, Canada would have an obligation to negotiate. But that is not true. Absent real persecution, there is no right for a province to secede unilaterally, and any international court would agree. Why is this so? Legally speaking, if any province of Canada wishes to separate, it must get permission from other Canadians through consent of their Legislatures. Obviously, any such permission must be on terms and conditions that satisfy not only the province wishing to secede, but also all the others from whom it is attempting to secede. That’s a recipe for a massive fight.
But what if a province says, “To hell with your permission, I’m getting out!” and starts up the chain saw? Well, that’s what’s called a Unilateral Declaration of Independence. A UDI, a form of democratic “self-determination” gets a certain amount of sympathy from freedom-lovers around the world (let it be said: they often confuse democracy with liberty) who are eager to see oppressed people free themselves. But in declaring a UDI, a province would be appealing not to other Canadians, whom they would spite by such a tactic, but to the international community. After all, in the long run it’s the international community that confers sovereignty on a nation through official recognition. If no one recognizes your declaration of independence, you haven’t got a separate country. But let us pause here.
Arguably, far from being oppressed, Québec is one of the freest and wealthiest territories in the world – in part because it has also been massively subsidized by the rest of us for a very long time, enjoying a standard of living higher than if it had been left on its own. Much higher. More dangerous than any referendum on separation, however, is the decision criterion. Québec nationalists would insist that a simple majority of 51 percent plus one, is sufficient. But many experts argue that for a matter so serious, a special majority of two-thirds, or even 75 percent, ought to be required. Our Supreme Court has called for “a clear majority.” That is because the simple-majority basis would mean that one half of all the citizens of Quebec – more than three and a half million Canadian citizens! - who have paid taxes and sworn allegiance to Canada all their lives and who clearly prefer to live in their own ancestral homes as Canadian citizens, would be forced against their will to live in a separate country. What about their livelihoods, citizenship, passports, properties, investments, rights to Canadian services, and so on? They would scream for protection, and Ottawa would be morally and legally bound to help them. That means federal intervention and whatever force might be necessary to protect loyal Canadians would be used to enter any province that tried this. By now, the idea of a UDI ought to be looking awfully messy.
2. Partition—Or, What Came In, Goes Out
Well, here’s another problem. As I said, the lines on the map, like the partitions inside the building, are just there by common agreement for administrative and political convenience. The lines do not bestow a right of ownership on anyone. If on Monday you move to Québec, you cannot say on the first day there that you mow own part of Québec. Just as if, on Tuesday, should you move back to Ontario, you cannot then say you own part of Ontario and have surrendered whatever it was you owned of the province of Québec. Just try to imagine the “ownership” of each province switching around every time hundreds of thousands of Canadians decide to migrate internally each year. For who, other than the people as a whole could possibly own Canada? Their governments, right? But democratic governments represent the people. And governments come and go. So we are left with the people as owners of the whole. And make no mistake. The taxes you pay every year on Canada’s federal debt are not earmarked by province. You’re paying off debt for the whole nation. So even if Québec or any other province got nasty and tried to declare a UDI, the battle would quickly shift from lines on the map to arguments over what property could by law to be taken out of Confederation as real assets, and what debts must be paid to Canada.
In the case of Québec, this takes us straight into treaty law to find out what portions of the province were actually ceded or transferred to Québec; the real question, in other words, is not about separation, but about partition, a distinction we don’t hear much about. But our various governments know this distinction very well, and they consider the whole topic too volatile for our poor little heads. And the media, typically, are silent.
There are many books and articles on the subject of what actually belongs with Québec. You can Google-search them. What it boils down to is that Québec came into Confederation as a much smaller province than it is now. About two-thirds of that province—a vast cornucopia of future extractable wealth - used to be called Rupert’s Land, and it was ceded by Britain to Canada, then by Canada to Québec in two parcels in 1898 and 1912, to be administered by Quebec as a province of Canada - not by Québec as a separate nation. In effect, Rupert’s Land was given to Canada, then transferred to Québec under the Crown, in trusteeship. Strictly speaking, if Québec attempted to separate, that land would by rights transfer back to Britain. Now that’s bizarre. Such a result could be legally avoided only if Québec seceded peaceably as an independent monarchy, thus retaining those lands. That’s even more bizarre.
But the underlying argument over partition is that if Québec (or any other province) were granted the right to separate, it would be allowed to take out of Confederation only what was brought into it in 1867( or thereafter). When push comes to shove, as they say, the French-Canadian “people” (make no mistake, in the Québec case, this is not just a conflict over territory, but over culture and race) could only lay a bona-fide legal treaty claim to a strip of land running from west of Montreal, north about a hundred miles, then east to Labrador. Other “peoples” – including a lot of English people - were involved in settling the rest of Québec.
3. Duplication—What’s Good For The Goose Is Good For The Gander
In the extremely unlikely event that Québec were to succeed with the argument of self-determination, why should that same argument not be duplicated for the many enclaves of English-Canadians, and other non-French minorities within Quebec? Why should they not use the same self-determination arguments to separate from the newly-partitioned Québec? Separatists attempt to argue that these minority groups are not a “people,” or that in the case of the English, they already have their own “people” in the Rest of Canada. Now that’s a stretch. Just think of some densely populated enclaves within Québec such as West Montreal with its 300,000 (down from 400,000 in 1990) English-speaking people. They, too, will likely demand to be partitioned out of Québec as a Canadian enclave and will want protected travel corridors by land and water, and so on, just like West Berliners had in East Germany. Along with several other enclaves that would vote to stay in Canada, the new Québec nation would look like a piece of Swiss cheese. Having said this, if Canada ever decided to deal with the French fact it could indeed come up with a Cantonal system on the Swiss model, whereby enclaves or legitimate Cantons within what is now Québec territory would exist with ties either to a new Québec state, or with Canada.
And what about Canada’s Natives and Inuit? They are obviously a “people” in any sense of the term who, in addition to language and culture also have racial distinctiveness, which is not the case for all francophones. And ... Aboriginals in Quebec have already laid serious treaty claims to over 75 percent of the province of Québec. Some 15,000 Cree natives occupying most of northern Quebec have made it very clear that they want no part of any separation from Canada, and have publicly declared their intent to separate from Quebec if such an effort were to be successful. We can be certain that all native peoples currently under the jurisdiction of Ottawa and enjoying its considerable largesse (about $8 Billion per year spent by Ottawa alone on Canada’s aboriginals) will want to continue this way.