Supporters carry boxes of signatures to submit for a separation referendum to Elections Alberta in Edmonton on May 4.JASON FRANSON/The Canadian Press
George Anderson was the federal deputy minister of Intergovernmental Affairs from 1996 to 2002.
In 1978, while doing comparative research on referendums in anticipation of a Quebec referendum on sovereignty association, I went to Norway, which had held a referendum in 1972 on whether to join the European Community. I remember the great political scientist Henry Valen then saying to me, “You’re going to have a referendum. I wouldn’t advise it. I’ve never seen anything so destructive of family and social relationships and political community.” Norwegians voted “No” in 1972 and again in 1994.
Now, 31 years after Quebec’s last referendum on independence, Canada faces the prospect of a return to this most destructive kind of politics.
In February, Alberta Premier Danielle Smith announced that the province would pose nine questions in a referendum this October. With some, she is seeking public support for reducing important federal powers.
She has turned Quebec humorist Yvon Deschamp’s old joke about “an independent Quebec in a united Canada” into a policy: “A sovereign Alberta within a united Canada.”
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Even that is not enough for Alberta’s separatists, who’ve been petitioning for a referendum on independence, pure and simple. However, their plans were derailed by a judge who found the Crown had failed in its duty to consult the province’s Indigenous people on a referendum on independence. Ms. Smith scrambled to recover and last week announced that she would add to the October referendum her own long question in which voters will choose between wanting to remain in Canada and wanting a referendum on independence. A referendum on a whether to have a referendum may be a global first.
In October, Quebeckers will also vote, in their case in a general election where the poll-leading Parti Québécois is promising that a new referendum on Quebec independence will be a top priority should it win a mandate. So voters in the two provinces could launch us on the road to referendums on provincial secession.
Polls indicate little likelihood that either Albertans or Quebeckers would vote by a clear majority in favour of secession if a referendum on independence were ever held. It’s tempting to wait for the storm to blow over. But public opinion can swing wildly, especially in response to a galvanizing incident. Support for the “yes” side in Quebec in 1995 rose dramatically when premier Jacques Parizeau announced that the very popular Lucien Bouchard would be the province’s “lead negotiator.”
After the razor-thin victory for the “no” in Quebec’s 1995 referendum, the federal government, determined to bring some order to secessionist politics, referred the issue of Quebec’s possible secession to the Supreme Court. The judges unanimously found that there is no right in Canadian or international law for a province to secede unilaterally.
However, they argued that if a clear majority of a provincial population voted for independence on a clear question, the federal government, the province seeking secession, and the other provinces would have a “reciprocal duty” to engage in “principled negotiations.”
Parliament followed with the Clarity Act, which requires a clear question and a clear majority, as judged by the House of Commons, if the federal government were to enter negotiations.
The court’s judgment and the Clarity Act have provided a principled and democratic framework for judging the question and judging the majority. What has been relatively neglected has been consideration of how negotiations around secession would be organized.
In 1995, a few worrying polls led some Liberal ministers to consider what a victory for the “yes” in Quebec’s referendum might mean for the federal government. Prime Minister Jean Chrétien was from Quebec, as were many Liberal MPs. Could a Prime Minister from Quebec effectively lead a federal government dealing with the consequences of a “yes” in Quebec’s referendum? How should the government organize if it faced a real crisis? Fortunately, the “yes” side lost, but this issue would return if ever a referendum created an obligation to negotiate the possible secession of a province.
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While the Supreme Court envisaged the federal government and all the provincial governments having a role in the negotiations, it did not drill down into how things might work, especially at the federal level.
It indicated negotiations would need “to address the interests of the other provinces, the federal government and Quebec, and indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of minorities. The negotiation process would require the reconciliation of various rights and obligations between two legitimate majorities, namely, the majority of the population of Quebec, and that of Canada as a whole.”
One reading of the court’s view might be that the federal government would lead negotiations. But could it? Negotiations would divide the interests of the province seeking to secede from those of the rest of the country. The federal government represents the whole country so I believe it could not negotiate the break-up of Canada on behalf of nine provinces against one province.
Logically, the province seeking to secede would negotiate with representatives of the “rest of Canada.” The court indicated that negotiations would include all the provincial governments, but what about some kind of federal role? I suggest the logical approach would be for the members of Parliament from the rest of Canada, including those in the Opposition, to elect a “chief negotiator” and negotiating team that would be accountable to them. This rest of Canada “federal” team would then co-ordinate with the nine provinces in negotiations with the province seeking secession.
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Of course, the nine provinces would have their own interests and may not accept leadership by a “chief negotiator.”
As if this would not be messy enough, there is the additional complication of the role of Indigenous people in the negotiations. The Inuit and Cree of northern Quebec overwhelmingly voted “no” in Quebec’s 1995 referendum. In their own referendums, the Cree voted 96 per cent and the Inuit of Nunavik voted 96 per cent to remain in Canada, demonstrating their opposition to secession.
Recently, First Nations in Alberta successfully challenged the province’s process that could lead to a referendum question on independence. The treaty and aboriginal rights of Indigenous peoples would be central in any negotiations about secession, especially given the Supreme Court’s position that there would be “no conclusions predetermined by law on any issue” and its references to aboriginal rights and boundaries.
Alberta separatists rally outside the offices of Elections Alberta in Edmonton on May 4 before turning in a petition to trigger a referendum on separating from the rest of Canada.Todd Korol/Reuters
Thus, Indigenous groups, especially from the province trying to secede, would seek a place in negotiations.
The federal government would still have important responsibilities during negotiations. It would carry on with the regular government of the whole country. It would want to preserve its legitimacy especially should secession fail, after which there would be a need to restore a sense of a shared country. Thus, the federal cabinet should continue to include ministers from all provinces, including from the province that had voted to secede.
Similarly, all existing MPs and senators, including those from the province seeking secession, should continue in their functions (though separatist MPs might choose to withdraw), including passing legislation. The federal government would also have a duty to facilitate “principled” negotiations. (Exceptionally, it might be a negotiating party on Indigenous rights, given its legal responsibilities because of treaties.) It could help with arrangements for the various negotiating teams, including the provincial team seeking secession. It would need to provide to all parties information relevant to the negotiations, for example, on federal assets and liabilities.
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All through the process, the federal government should monitor developments, given its responsibilities for the whole country. It should follow public opinion as well as the progress of negotiations. If negotiators agreed on the terms of secession, the federal government would have the responsibility to promote the needed constitutional amendment and the many transitional measures involving assets, new commercial arrangements, and so on.
However, negotiations could reach an impasse. Or there could be strong evidence that public support for independence in the province that had voted for independence had dropped dramatically. In these cases, given its responsibility for the whole country, a strong case could be made that federal government could legitimately halt negotiations with a view to clarifying the situation through a federal referendum or an election in the province seeking to secede. Depending on the results, that could end the process or lead to a resumption of negotiations.
Clearly, the negotiation process would be extremely difficult. The double structure at the federal level of a “chief negotiator” with a team accountable to MPs from the rest of Canada alongside a continuing Prime Minister and federal government accountable to all MPs would be very challenging and create tensions. Such an arrangement has no precedent in any country, but it has a compelling logic. Thus the province seeking to secede could find itself facing the daunting prospect of negotiating with a “rest of Canada” federal team, nine provincial governments and potentially one or more Indigenous groups.
Such negotiations could be painful and long. It took more than three years from the Brexit vote in the United Kingdom for intense negotiations finally to conclude the Brexit Withdrawal Agreement. The parties then entered yet more negotiations during an 11-month transition period, when they settled the terms of their future relationship. It has been estimated that investment in the U.K. declined by about 12 per cent after the Brexit vote.
Of course, the core substantive issues involved in breaking up the country would themselves be daunting. Negotiations with a seceding province would have to deal with the sharing of assets and liabilities, citizenship and mobility, transit across territory and potentially minority rights. The scores of treaties and agreements we have with the United States give a sense of the number of questions that would need to be addressed. Perhaps no issue would be more difficult than that of Indigenous rights, which could question the territorial integrity of a province seeking to secede. The legal position of the Indigenous population is very strong.
The substantive issues and the forbidding process of secession combine to demonstrate the folly of attempting such a break. The tragedy of secessionist politics is that it plays to identity issues and simplistic solutions. The British experience shows there are no simple solutions and that proceeding with the breakup of a deep relationship – if at all – should not be undertaken on the basis of a narrow majority. There is now a clear majority in the U.K. of “buyer’s regret.”
After more than 50 years of advocating independence, the Parti Québécois has never presented a realistic analysis and proposal for the how and what of independence. The separatist movement in Alberta has not even begun to reflect on the tough issues. Canada, which is one of the world’s most admired democracies, deserves better than the destructive dead-end politics of secessionism.