Canadian Court Rules Quebec Cannot Secede on Its Own
By ANTHONY DePALMA
Published: August 21, 1998
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.