SPECIAL REPORT

Battle Over Borders

Ottawa says it must protect minorities; critics say it is flirting with civil war

D’ARCY JENISH February 12 1996
SPECIAL REPORT

Battle Over Borders

Ottawa says it must protect minorities; critics say it is flirting with civil war

D’ARCY JENISH February 12 1996

Battle Over Borders

Ottawa says it must protect minorities; critics say it is flirting with civil war

SPECIAL REPORT

D’ARCY JENISH

For years, Quebec sovereigntists have argued that their province's march towards in dependence, following a Yes vote in a referendum, would be smooth and orderly. Que-

bec and Canada would calmly negotiate a division of national assets, settle Quebec’s share of the federal debt without acrimony and develop a mutually beneficial economic partnership allowing for the free flow of goods, services and people. And the province’s existing borders would remain unalterable. That rosy scenario has always been attacked by federalists—and last week Ottawa added its official weight to that position. According to leading constitutional experts, Canada would be obliged to protect the rights of anglophones and aboriginals opposed to separation, even if that meant negotiating Quebec’s borders and par-

titioning territory. “Quebec would have two options,” says Patrick Monahan, a professor at Osgoode Hall Law School in Toronto who has written widely on the issue. “It could impose its will through force, or sit down and talk. I don’t think force is a viable choice.”

Many constitutional lawyers in English Canada say that, morally and legally, the federal government could not simply turn its back on anglophones, allophones and aboriginals who vote overwhelmingly in favor of remaining within Canada.

That could lead to demands to partition Montreal, parts of western Quebec along the Ontario border, the Eastern Townships, and northern regions inhabited largely by the James Bay Cree and the Inuit. Sovereigntists, however, contend that a body of international law, based on decisions by various courts, tribunals and arbitration panels, supports their position that the province’s borders cannot be changed. But for many sovereigntists, the debate over borders is more emotional and symbolic than legal. “The language of partition is the language of civil war,” says Guy Laforest, a political scientist at Laval University in Quebec City. “Partition pushes Quebec into a corner. It says you either accept the status quo—or it’s partition and civil war.”

In the wake of a Yes vote, according to most experts, the Quebec government would likely attempt to negotiate the terms and conditions

of secession rather than declare independence quickly and unilaterally. Sovereigntist leaders would prepare a list of items they wanted to negotiate—and, in all likelihood, they would stipulate that their borders were not negotiable. But University of Toronto political scientist Peter Russell says that neither Quebec nor Canada could exclude certain issues at the outset of the negotiations. Hence, Canada could insist that the agenda include borders. Likewise, Quebec could put economic partnership on the table. “Lucien Bouchard can’t say

the whole possibility of partition must be off the table,” said Russell. “I don’t think that’s on.”

Since 1992, sovereigntists have based their arguments about the sanctity of Quebec’s borders mainly on a legal opinion prepared for Robert Bourassa’s Liberal government by five leading experts on international law. They concluded that the widely recognized principle of territorial integrity, under which states are entitled to maintain existing borders, would take precedence over the secessionist claims of aboriginals and other minorities within Quebec. But the experts also said that the same principle means Quebec’s francophone population does not have any internationally recognized right to leave the Canadian Confederation.

Sovereigntists rely as well on an internationally recognized principle known as uti possidetis juris, a Latin phrase meaning “that which you pos-

sess, you shall continue to possess.” According to Maurice Arbour, a professor of international law at Laval, the doctrine was developed early in the 19th century to minimize conflict and hostilities as Spain began granting independence to its former colonies in Central and

South America. Under this principle, which was also applied when African colonies gained independence from their imperial masters and during the dissolution of the Soviet Union, the borders immediately before independence were recognized as the borders of the newly autonomous states. “In my opinion,” says Arbour, “there is no doubt that the obligation to respect the existing provincial frontiers in the event of Quebec’s independence is a rule of international law.” But some English Canadian constitutional experts argue that this

principle would not be applicable to an independent Quebec, for several reasons. In a paper published in 1995 by the Toronto-based C. D. Howe Institute, Monahan noted that the concept of uti possidetis juris has usually been applied when neighboring colonies moved to nationhood, or a large state splintered into a number of small new nations. “One can see how these precedents might become relevant if the Canadian state were to dissolve into a number of successor states and border disputes arose between them,” he wrote. “A border dispute between Canada and a province that was attempting to secede would be an entirely different matter.”

If international law does not provide firm answers to questions about Quebec’s borders, history is even less helpful. In the 1763 treaty between England and France following the English conquest of New France in 1759-1760, Quebec’s territory was originally de-

fined as a rectangular swath of land covering part of the St.

Lawrence Valley. The British government enlarged the colony’s borders in 1774, then cut them back again in 1783 and 1791 as political circumstances changed in what was then British North America. At Confederation, Quebec’s territory was confined to lands draining into the St.

Lawrence. The federal government ceded land to the province in 1898 and again in 1912 to give Quebec its present land mass, which stretches north to the Hudson Strait.

Arguments about Quebec’s post-referendum borders based on history or international law would likely be swept aside by the political reality that some regions of the province had voted overwhelmingly against sovereignty. In last

October’s referendum, for example, some heavily anglophone ridings in Montreal and western Quebec voted No by margins of 10 to one or more. Similarly, the James Bay Cree held their own referendum before the Oct. 30 vote—and 96.3 per cent cast ballots against joining an independent Quebec. “Bouchard can give all kinds of speeches in the Quebec national assembly about not surrendering an inch of territory,” said Monahan. “He may not have a choice when 90

per cent of the people in a certain area say they don’t want to be part of an independent Quebec.”

The post-referendum scenarios become even murkier when political scientists and constitutional lawyers try to envision what would happen if negotiations hit an impasse, and Quebec unilaterally declared independence. At that point, they say, the government of Quebec would have to begin exercising control over its territory, perhaps in the face of opposition or resistance from its minorities. “Those groups are in some senses being invited to trade equal rights and citizenship within a broad Canadian federation for clearly minority rights and inferior status in an independent Quebec,” said University of Winnipeg political scientist Allen Mills. “Politicians can preach peace, harmony and brotherhood, but what goes on in the streets is something that politicians can’t control. This is a situation that, in

spite of Canada’s great commitment to peaceable solutions, might produce bloodshed.”

For some political analysts, a Yes vote would add another potential wild card— instability in English Canada—to an already volatile situation. Mills says that people in other parts of the country, especially western Canada, would inevitably begin to define and defend regional interests, which could lead to new separatist movements. “The West represents an impulsive element within Confederation,” says Mills. “It might decide to go it alone, particularly Alberta and British Columbia, if they sense the endgame is sufficiently out of control and if they believe they don’t really have much say in what’s going to happen.”

Other westerners believe that regional tensions within English Canada would inevitably escalate because Ontario would suddenly have almost 50 per cent of the country’s population. University of Calgary political scientist Roger Gibbins said that English Canada would have to devise a new institutional framework to offset that population imbalance before negotiations with Quebec could even begin. ‘We would have to come up with some way of handling the Ontario problem,” Gibbins added. “I don’t think English Canadians realize how integral Quebec is as a part of Canada. We assume that you can somehow pluck Quebec out and the rest of the country can rumble on more or less as it was before. I don’t think that’s possible.” In fact, Quebec sovereigntists could unleash a chain of events that makes it impossible to fulfil their dream of a peaceful and orderly march to independence.

DAN HAWALESHKA