Preliminary statement of Quebec Premier Lucien Bouchard, on the day following the rendering of the Opinion of the Supreme Court of Canada on the federal government's Reference on Secession

Preliminary statement of Quebec Premier Lucien Bouchard, on the day following the rendering of the Opinion of the Supreme Court of Canada on the federal government's Reference on Secession

Lucien Bouchard

August 21, 1998

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Translated in 2007 by Mathieu Gauthier-Pilote from Déclaration liminaire du premier ministre du Québec, M. Lucien Bouchard, au lendemain de l’Avis de la Cour suprême du Canada sur le renvoi du gouvernement fédéral.

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Québec, Friday August 21, 1998

Lucien Bouchard, Premier of Québec from 1996 to 2001

There was yesterday an important political event of which we are not yet over measuring the effects.

Indeed, the federal government, with a hardly concealed determination to frighten Quebecers, unilaterally asked nine judges of its own Supreme Court, nine people whose federalist faith is not in doubt, to voice their opinion¹ on the Canadian federalist argumentation.

The Quebec government, as it was its responsibility, refused to take part in this episode of the federal political strategy and firmly reiterated that only Quebecers have the right to choose their future, as also claim all parties represented in the National Assembly.

So yesterday, the issue was the attempt by the Canadian government to have its own Court and its own judges validate the central elements of its Plan B, its anti-sovereignist offencive.

The opposite occurred: the Court demonstrated that the argumentation of Ottawa does not survive analysis and struck at the very heart of the traditional federalist discourse.

All in all, the federalists have for the past two years asserted that sovereignty is a legal problem which concerns the courts and the law. The federal judges contradicted them. After having answered, in a perfectly foreseeable and foreseen way, to the narrow questions asked by the federal government, the Court affirmed, from the beginning to the end of its opinion, the political character of the events that would legitimately follow from a [winning] Quebec referendum on sovereignty.

You will allow me to retake one by one the federalist myths which yesterday were buried by the federal judges.

First myth: for decades, a certain number of federalists have affirmed that the sovereignist project is not legitimate.

The judges of the Supreme Court affirmed the opposite, and I quote them: "A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize". End of the quotation.

They go even further declaring, I am still quoting them: "the other provinces and the federal government would have no basis to deny the right of the government of Quebec to pursue secession (...)". End of quotation.

The federal judges thus supported what the sovereignists have been saying for 30 years: a winning referendum will not only have a democratic legitimacy, but Canada will have the obligation to recognize this legitimacy and will not be able to deny the right of Quebec to seek to achieve sovereignty.

Second myth: In 1980 and 1995, the federalists claimed that if Quebecers said Yes, Canada would refuse to negotiate with the government of Quebec. One remembers that Mr. Pierre Trudeau, in 1980, compared the will of Quebec to negotiate to that of a Third World country which Ottawa would not have to account for. In 1995, still, the federal tenors ridiculed the outstretched hand of the sovereignists for a negotiation after a Yes vote.

On October 12, 1995, Mr. Jean Chrétien declared what follows: "there is a myth which must be killed, he said, to the effect that there is somebody in Canada who is authorized to negotiate" with Quebec. The current leader of the Liberal Party of Quebec also had some unhappy declarations on this subject.

Yesterday, the federal judges, unanimously, put an end to what has constituted the most fallacious argument of the federalist camp. The federal judges affirm and repeat that after a Yes vote, Canada will have the obligation to negotiate with Quebec. They even make it a constitutional obligation.

Allow me to quote a passage which reads as follows: "The clear repudiation by the people of Quebec of the existing constitutional order would confer legitimacy on demands for secession, and place an obligation on the other provinces and the federal government to acknowledge and respect that expression of democratic will by entering into negotiations (...)". End of quotation.

The federal judges therefore give credit to what the sovereignists have been saying for the past 30 years: that after a Yes vote, there will be negotiations. During the last referendum, we repeated it in all media. It was our conviction. Today, it is a certainty, the more so since the representatives of the federal government acknowledged, yesterday, that they are going to conform to the order which they received from their own Court.

In 1995, we played fair and true, we worked out our position of negotiation - the offer of partnership. We created a committee of orientation and monitoring of the negotiations. If I remember correctly, we had even designated a chief negotiator².

The No side, on its part, wanted to cause fear among Quebecers. The next time, the women and men of Quebec will be able to vote Yes with the certainty that negotiations will take place and that everything will be done in favour of an orderly transition toward sovereignty, in the respect of the rights of each one of our citizens, as we always said.

This element of common sense from now on confers, and I am deeply convinced of it, a considerable advantage to the sovereignist project and constitutes one of the winning conditions of which I have been speaking of for a few years.

Third myth: The nature of the negotiations. Certain federalists claimed that, if negotiations ended up taking place after Yes vote, they would take place, not on sovereignty, but on a renewal of federalism.

Yesterday, their Court closed this avenue with a double lock. The Court stipulated, and I quote, that "The negotiations (...) would address the potential act of secession as well as its possible terms should in fact secession proceed". The federal judges mention several elements that will have to be considered during these negotiations.

They recall, as we so often did ourselves, that Quebec and its neighbours share and I quote: "a national economy and a national debt". End of quotation. They also underline that the interests of Canada and the provinces will have to be considered in these negotiations. We always said it and we think that the economic interest of Canada, the provinces, of the economy and the debt, must lead us to agree on a partnership which will preserve the common economic area between the two Sovereign states.

The Court speaks about the necessary protection of the rights of minorities and says that it is necessary to take into account the interests of the aboriginals. It is also our position and this is why we have, in the bill on the future of Quebec, taken the following engagement: "the new constitution (of a sovereign Quebec) will guarantee to the anglophone community the safeguarding of its identity and its institutions. It will also recognize the aboriginal nations the right to govern themselves on lands they own and to participate in the development of Quebec; moreover, the existing constitutional rights of the aboriginal nations will be recognized". End of quotation.

Quebec always was at the avant-garde, in Canada, of the recognition of the rights of the Aboriginals, in particular since the resolution presented by Rene Lévesque in 1984 which recognized, for the first time in Canada, the existence of the aboriginal nations of Quebec.

In short, on the nature of the negotiations which will follow a Yes vote, the Court imposes the federalists obligations which the sovereignists had given themselves a long time ago.

Fourth myth: According to federalists, after Yes vote, in the event of dead end in the negotiations, Quebecers are prisoners of Canada, they cannot leave.

I would first like to say that we do not have any doubt that after Yes vote, the political and economic situation will oblige Quebec and Canada, not only to negotiate, but also to get along quickly on sovereignty and the conditions of an economic partnership.

However, it is necessary to address the theoretical question of what would occur in the event of dead end in the negotiations. On this, the Supreme Court does not dare to give precise instructions but, where it deals with this possibility, in no case does it evoke the hypothesis that Quebecers should resign themselves to remain in Canada and to give up their democratic decision. On the contrary, the Court evokes only one possibility, one where, in order to break the dead end, Quebec unilaterally declares its sovereignty and call upon international recognition.

Indeed, the Court writes that the behaviour of Quebec and Canada during the negotiation will be, and I quote: "evaluated in an indirect manner on the international scene". And the Court is categorical when it adds that, still quoting: "a Quebec that had negotiated in conformity with constitutional principles and values in the face of unreasonable intransigence on the part of other participants at the federal or provincial level would be more likely to be recognized (...)".

The Court even writes plainly, as we say it ourselves since the Bélanger-Campeau Commission, and I quote: "It is true that international law may well, depending on the circumstances, adapt to recognize a political and/or factual reality, regardless of the legality of the steps leading to its creation". The Court still insists, and I always quote, "It may be that a unilateral secession by Quebec would eventually be accorded legal status by Canada and other states (...)".

Therefore, the sovereignists and the Bélanger-Campeau Commission say the truth: in the event of a dead end in the negotiations, "it is true" that international law can recognize the decision of Quebec. In fact, the Court sends a signal to the international community, by indicating that after Yes vote, if Canada and the provinces were to be intransigent with Quebec, the recognition of Quebec would be facilitated. Thus, the Court has just given us one additional conditions of success in the negotiations.

The fifth and last federalist myth which was buried yesterday relates to the wording of the question and the majority. Since the last referendum, several federalists affirmed that the federal government should be implicated in the drafting and the adopting of the question or the setting of a new threshold for the majority.

Yesterday, the Court has in no way called into question the right of the National Assembly to decide, alone, of the wording of the question and the threshold of the majority. The Quebec consensus on this point is as clear as it is unshakeable. The Plan B has in fact had the effect of consolidating the agreement between the Quebec political parties on these points, as reiterated yesterday the leaders of the two opposition parties in the National Assembly.

The Court limits itself to indicating that the political authorities will make a political assessment on the clearness of the question. It is what the elected officials do everyday on all questions.

Our position on this is known: the question of 1995 was clear to the point that 94 % of Quebecers, a participation record, went to vote on this capital stake; the question was clear to the point that the Prime Minister of Canada, in a speech to the nation, informed the voters that the referendum vote meant "to remain Canadian or no longer be Canadian, remain or leave, here is the stake of the referendum".

As for the majority, the Court judges tell us that it must be clear. But it describes this clearness by using the word "qualitative" rather than the word "quantitative". I quote the judges when they write that "we refer to a "clear" majority as a qualitative evaluation". They therefore do not call into question the quantity of votes necessary to declare a victory for the Yes. The judges know the precedents of Canadian history, in particular that of Newfoundland, which entered Canada with a majority of 52 %. Any declaration, legal or political, affirming that a result of 50 % + 1 would not be sufficient would put in question the validity of the vote of Newfoundland.

The reality is that the federalists learned yesterday from the Supreme Court that the clear, reasonable and logical steps suggested to Quebecers by the sovereignists are legitimate and that they will have to negotiate their realization on the day following a winning referendum.

The Court thus shakes the basis of the federalist strategy, saps their arguments of fear and the refusal to negotiate.

All to itself, the obligation of Canada to negotiate with Quebec dissipates the uncertainty which weighted on the mind of many Quebecers because of the federalists' refusal to negotiate. These Quebecers are reassured today: their Yes will force Canada to negotiate.

More and more women and men of Quebec will conclude from this that the time has come to decide, once and for all, to put an end to our insoluble quarrels with Canada, to build the country of Quebec, and to negotiate, with our neighbours, a relation of equal to equal that will be mutually beneficial.

Thank you.

Notes

• 1. Reference re Secession of Quebec, 1998 CanLII 793 (S.C.C.), Canadian Legal Information Institute (fr)
• 2. Premier of Quebec Jacques Parizeau had appointed Lucien Bouchard chief negotiator.