Madam Speaker, I mention this simply because Reform Party members in interventions in the House on October 17, 1994 and May 13, 1996, as reported in Hansard , repeated my constitutional positions as their own but without adding the political limitation that I had applied.
Let me state what is clear on reading the bill. It is a very modest law. It is facultative in legal terms, not coercive. It reflects the obvious political fact of life that any breakaway from an existing multinational or constitutionally plural state, unless it is to be determined by force majeure, by force of arms as in many cases it has been, must be consensual. This is a position reflected in the United Nations General Assembly declaration on friendly relations and co-operation among states of 1970. It is even reflected in terms in the famous UN General Assembly resolution of 1960 on independence for colonial peoples.
Therefore the emphasis is on consensus. This is what this law says. In the words of the popular tango, it takes two to tango. If you are going to break away you cannot do it unilaterally. You have to get consensus. The federal government says if you wish to have a referendum on secession and you wish it to be taken positively in its result by the federal government, if you want the federal government to negotiate in good faith in response to it, then you must be able to demonstrate that it is a proposal that has been arrived at in its result by what we may call constitutional due process, fair and open means which genuinely reflect Quebec public opinion. I think this law states that, no more and no less.
I find it difficult to see how any good constitutionalist could object to this prescription because it goes to the foundations of the open society upon which Canada is based.
I would cite what is I think the most remarkable feature of this law. It is not like the Stalin constitution of 1936, which said that any state may secede from the Soviet Union. Everybody knew that the cynical Mr. Vyshinsky had written it and he did not mean a word of it, and neither did Stalin. It stated for the first time in a democratic society that one part had the right to break away, provided it achieved an expression of opinion which conformed to the due process of law, with proper consultation on a representative basis.
The federal government in this bill does not stipulate a particular content, of whatever nature, for any future Quebec referendum question. It does not even try to impose a particular majority. These are questions which, following Kelsen and the pure theory of law, a good jurist would say are metalegal in character. In more popular terms, one might say it was like King Canute trying to legislate the impossible.
The European Union, in a cognate situation trying to establish ground rules for recognition of new states, wisely limits itself to what it calls the normal standards of international practice and the political realities of each case.
The rest of the present bill goes on to list elements that would be relevant in any post-referendum federal-provincial negotiations on a possible secession. These correspond to classical international law prescriptions for state sucession and would be determined at any such ensuing negotiations.
What we have here is a continuance of that opening to participatory democracy which began when Prime Minister Trudeau opted not to use his constitutional choices to bar a referendum but to enter into the political debate in the political arenas. This is the situation. If these conditions, conformably to what the supreme court has laid down and established in the federal law, are met then it would be possible to obtain that genuine nationwide consensus that is a necessary precondition to effectuation of any political secession.
The positive thing is that the Government of Canada has taken the forward step of saying “Yes, we would regret anybody going, but if they go let us be sure that there was a clear question, honestly expressed and honestly presented and accepted by a fair majority of the population concerned”. That is an opening to democracy. It is not coercion. It is facultative in its nature.
There are several conditions. If a result were to be obtained in which those conditions were met, I think I could persuade my colleagues in my part of the country to accept it in good faith.
It is an invitation to members of the opposition to meet the spirit of the law. It is not a coercive law; it is a facultative law. It opens the way to constitutional due process, to a measured approach in good faith to effectuation of popular will when that is determined.