Sherbrooke Declaration vs. Clarity Act

Rebecca West wrote:

You know, Fidel, when you fling out crap at moderators - without attention to what's being posted - it just supports the shortcomings in the content of any dissention on your part.  Why do you bother?

I'll try harder next time.

Remember that 50% + 1 is a principle insisted on by staunch Quebec federalists as well. Like Tom Mulcair since long before he was in the NDP. Jean Charest for that matter.

The principled federalist answer to the colonialist concerns about what is a fair majority and what is a fair question is that is for Quebeckers to decide. In other words, many federalists think that 50% + 1 is not enough to seperate, and that they do not want the PQ to have a blank cheque for determining the question.... but those are questions to be settled in Quebec, and federalists are capable of taking care of themselves.

It is not for Canada to decide- which is what the Clarity Act is about. Not only that- but the Liberals butting in with the Clarity Act is not helpful to the federalist cause.

We will not be allowed to get away with any more with 'we do not advocate repealing the Clarity Act'.

I actually don't think we are doomed to pay a price in the ROC for saying that we choose the Sherbrooke Declaration when it inevitably comes to the one or the other choice. 

This can be navigated. But there is no question it will be a challenge.

Widespread naivete is not an auspicious start for meeting a steep challenge.

I would sure like to see someone take up these questions- even if only to say that they are processing and finding it daunting.

So far the only participation other than Unionist and I, with one exception, is people waving it away. [Who might at least have the decency to stay out of it.]

FWIW, I'm sure as hell not expecting widespread agreement with what has been suggested here.

Unionist wrote:

And thanks for the detailed background account, Wilf, most of which I had forgotten or never knew.

The most important differences between the Clarity Act (CA) and the Sherbrooke Declaration (SD) are what it adds, a far wider context:

• - The objective of allowing Quebec to embrace the Canadian constitutional framework.
• - A new vision of principled federalism.
• - Quebec nationalism can be a strength for Canada, not a threat.
• - Asymmetrical federalism.

But the question this thread focuses on is far narrower: does it contradict the Clarity Act? If so, why does the SD not call for repeal of the CA?

Let's remember that, when Ducasse and others wrote the SD in and before May 2005, six MPs who had all voted for the Clarity Act were still in the caucus: Bill Blaikie, Pat Martin, Alexa McDonough, Judy Wasylycia-Leis, Peter Stoffer, and Yvon Godin. He did not confront them, and they did not oppose the SD.

Many of us were immensely pleased when we first read the SD, and not a little surprised. It not only took us past the CA debate, it completed the reversal of a half-century of CCF centralism. I was a tremendous admirer of David Lewis, but not of his attitude to Quebec which dates back to the CCF supporting conscription in 1942. The SD was first adopted by the Quebec Section; would the federal party really endorse it? Yes, they did. By the time it was ratified at convention, there was no real opposition.

On the right of self-determination, the SD is clear: the people of Quebec have the right to decide their future, and exercising that right is a political process. Legally formalizing it is not useful or necessary.  The CA also recognizes that the will of the population of Quebec, on whether the province should cease to be part of Canada and become an independent state, will determine that question. It then talks of the terms on which independence would take place.

Neither the SD or the CA state that the National Assembly could enact a UDI (unilateral declaration of independence.) Both say that it is a question for a referendum. Therefore, asking whether a UDI would amount to a coup d'etat, entitling Canada to take action in the courts and ultimately enforce any decision, is a provocative question not addressed by the CA or contemplated by the SD. Would a UDI voted by a unanimous National Assembly be more entitled to respect than a governmental coup d'etat? No doubt, but why even raise this? It's a long time since I've seen a PQ member seriously suggest that the mere election of a PQ government should create a mandate for a UDI. And not even Stephane Dion threatens force.

The SD respects the Quebec Referendum Act, which says the Government may order that the electors be consulted by referendum, but does not say the outcome is binding on anyone, not even on the Government of Quebec. The SD goes further: it would "recognize" a majority decision (50%+1). The CA also implies this, implying that the Government of Canada will enter into negotiations on the terms of independence after a clear majority decision.

The CA says the House will decide, after the referendum, "whether, in the circumstances, there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada." That was what we all objected to: the CA was unclear as to what a clear majority is, but, like art, we'll know it when we see it. Paternalistic. Yet even the SD says "It would be to the Federal government to determine its own process in the Spirit of the Supreme Court ruling and under international law, in response to the results of the popular consultation in Quebec." The difference is, we won't change the rules after the game.

If Stephane Dion keeps saying the CA tried to make sure it cannot be a simple majority, and keeps asking "if 50%+1 is a clear majority, what is an unclear majority?" we reply "if you know what a clear majority is, Stephane, why did you not make the Clarity Act clear? Is it 60%? 67%? What?" (I also like to answer his question by saying "39.6%.")

Would an NDP government have recognized a yes vote in 1980 and/or 1995 as determining the wishes of the population? The SD does not comment on the wording of those questions, but says it would recognize a majority decision "in the event of a referendum on the political status of Quebec." The 1980 referendum was on this:

"The Government of Quebec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Quebec to acquire the exclusive power to make its laws, levy its taxes and establish relations abroad - in other words, sovereignty - and at the same time to maintain with Canada an economic association including a common currency; any change in political status resulting from these negotiations will only be implemented with popular approval through another referendum; on these terms, do you give the Government of Quebec the mandate to negotiate the proposed agreement between Quebec and Canada?"

The 1995 referendum was on this:

"Do you agree that Quebec should become sovereign after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Quebec and of the agreement signed on June 12, 1995?

That Bill required the Government of Quebec to propose to the rest of Canada a partnership treaty based on a "Tripartite Agreement" signed on 12 June 1995 between Parizeau, Bouchard and Dumont. This agreement outlined a series of proposals that the leaders agreed a sovereign Quebec would make to Canada to share power between the two countries, including in the areas of:

• customs union;
• free movement of goods;
• free movement of individuals;
• free movement of services;
• free movement of capital;
• monetary policy;
• labour mobility; and
• citizenship.

The Bill provided that negotiations on a partnership treaty could not extend past 30 October 1996 (one year after the 1995 referendum).

Did either of those questions purport to determine the future sovereign status of Quebec? The SD does not say.

I submit it is clear why the SD does not propose repealing the CA: repeal is not necessary, since the CA does not contradict the SD.

I don't think the CA is the problem. When other parties attack the NDP over the SD, they are more likely to get scary about asymmetrical federalism. Except perhaps Bob Rae, from whom I am sure I can find quotes supporting asymmetrical federalism.

KenS wrote:

I would sure like to see someone take up these questions- even if only to say that they are processing and finding it daunting.

So far the only participation other than Unionist and I, with one exception, is people waving it away. [Who might at least have the decency to stay out of it.]

FWIW, I'm sure as hell not expecting widespread agreement with what has been suggested here.

Sorry Ken, but I'm going to be "indecent" and put my oar in your private effing pond.

Thanks to Wilf, posters here can see something of the agonizing debates that the party has engaged in internally. Elected members must keep their constituents in mind as well as the fundamental questions of justice being considered on the national stage, a fact admitted by those involved in the real world of competing interests, left and right, uniion membership and electors at large, etc..

Arguing here that only a firm yeah or nay can satisfy the folks who have named themselves arbitrators, is to assume an Olympian presence and to turn this into some kind of morality play, which is the height of arrogance and egotistical nonsense.

Wilf Day wrote:

 

 

The most important differences between the Clarity Act (CA) and the Sherbrooke Declaration (SD) are what it adds, a far wider context:

• - The objective of allowing Quebec to embrace the Canadian constitutional framework.
• - A new vision of principled federalism.

I dont know how you can justify speaking in such generalities and treat the unqualified acceptance by the SD of 50% + 1 as if it is some add on or extension of the CA, rather than a single distinguising element. 

The Clarity Act hedges absolutely everything the federal government MIGHT possibly accept from Quebec about the question and rules of a referundum, if it feels so inclined.

The SD turns that on its head.

Wilf Day wrote:

But the question this thread focuses on is far narrower: does it contradict the Clarity Act? If so, why does the SD not call for repeal of the CA?

Let's remember that, when Ducasse and others wrote the SD in and before May 2005, six MPs who had all voted for the Clarity Act were still in the caucus: Bill Blaikie, Pat Martin, Alexa McDonough, Judy Wasylycia-Leis, Peter Stoffer, and Yvon Godin. He did not confront them, and they did not oppose the SD.

This misses the point. When Ducasse was tasked with what became the SD, there was no opposition from these MPs, nor was there going to be.

The 'grinding point' was the same as it had always been: the Clarity Act was widely popular, and there would be a political price- severe challenges at the very least to advocating its repeal.

Answer: go around it. Pay formal homage to some motherhood principles, but just ignore all the substantive parts. Propose a new understanding from the government of Canda as if the Clairity Act never happened.

Simple and elegant. Politicaly astute.

If it ever occured to me that we might anyway some day be forced to acknowledge that in practice we were directly contradicting the main operative principles of the Clarity Act.... I don't remember it ever occuring to me. And even if it had, there is no reason that I would have seen it as necessarily a serious political challenge.

When we get put on the hot seat for what we mean about the Clarity Act, the other parties do not have to say or clarify where they stand.

The Liberals cannot run away from it. So they have their answer- though they would probebly prefer this does not come back up.

The Conservatives have always stayed away from the Clarity Act because it is toxic in Quebec. They gave up on the Quebec project before the last election, but since there was nothing to gain by bringing the CA to the stage... they have continued to leave it alone.

But its all different now. They have given up on Quebec, dont need Quebec, AND they have everything to gain from watching us squirm. We can even lose on this both in Quebec and the ROC- whats not to love in putting the spotlight on us.

Its coming.

All this discussion of whether the SD really essentialy contradicts the Clarity Act is necessary for own purposes of clarification.

But dont be thinking the possible arguments there is not really a contradiction will make a bit of difference when we get attacked.

The common understanding of the Clarity Act- inculding that of the intelligentsia across party and ideological lines- is that it has absolutely nothing to do with the flowery language of high sounding general principles.

What the Clarity Act is about is very simple:

* Not only is simple majority not sufficient, we will not say what is sufficient, that is to be decided later. [We reserve the right to move the goalposts.]

* Quebec has to satisfy us that the question is clear enough. Period.

And it is widely popular in the ROC because it makes perfect sense to most people. 'Thats all just common sense isnt it?'

The Sherbrook Declaration went around the Clarity Act. Since we were no threat, nobody cared.

But that has changed.

Wilf Day wrote:

On the right of self-determination, the SD is clear: the people of Quebec have the right to decide their future, and exercising that right is a political process. Legally formalizing it is not useful or necessary.  The CA also recognizes that the will of the population of Quebec, on whether the province should cease to be part of Canada and become an independent state, will determine that question. It then talks of the terms on which independence would take place

Correct, the SD is clear about self-determination. And the unqualified affirmation of 50% + 1, and of Quebec to determine the referendum question without interference from the government of Canada, is what makes the Sherbrook Declaration clear.

The 'Clarity' Act does the opposite. It sets out a lot of flowery uplifting language that sounds similar enough to paying homage to the principles of self determinatio. But it reserves all the decisions about requisite majority and referendum question in the final instance to the government of Canada.

The CA does not for example merely give primacy to the courts- which is largely obvious; it says the government of Canada will decide.

For example, if the governemnt of Canada decides the question is not acceptable, it will not negotiate. Period.

And pray tell, how can the Clarity Act be affirming the right of self-determination and "Legally formalizing it is not useful or necessary" when the CA reserves to the government of Canada the final say???

There is something fundamentally wrong with that picture.

KenS wrote:

Do you disagree with this Wilf, that the common understanding has always been this:

What the Clarity Act is about is very simple:
* Not only is simple majority not sufficient, we will not say what is sufficient, that is to be decided later. [We reserve the right to move the goalposts.]

I don't find anyone talking about it, but if they did, it would probably be to justify a contention that "it should be more than 50%+1." Never that "We reserve the right to move the goalposts." I can't imagine anyone I would meet at the rink, or on the street, or in the pub, agreeing with that. It's an argument for us.

Unionist wrote:

UDI means secession [b]without the consent of Canada[/b]. It doesn't mean secession without the consent of the people of Québec.

Back to your chart: it said the CA states "there is no right, under international law or under the Constitution of Canada, for the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally" as saying that Quebec does not have the right of self-determination. Wrong. "The National Assembly, legislature or government of Quebec." Not "the people of Quebec." The National Assembly has no right to declare independence without a referendum. Clear?

It just seems that in Quebec, one has always had to be very careful in deciding who to believe when identifying the road to salvation. P.E.T. always held that the workers of Quebec wanted jobs, first, and endless discussion about their role in Canada, second. Isn't that still the case in the face of rising unemployment, the need for someone capable of correcting Steve's pre-occupation with the Alberta model? Isn't that a partial explanation of the May 2 results last year?

Who's the "we" when it comes to that kind of relevant consideration ? Only the war camp of the Cons can benefit from this kind of endless parsing of a party's attempts to survive and grow without support of the MSM to help explain its attempt to do the right thing. And you know how the forces of Pierre Karl Peladeau will explain it to Quebec's readers - no matter who wins this little demonstration of need for purity on the part of the party. There will be no such concern for niceties in Pierre's press.

If we can get the economics right, there will be no "serious trouble down the road in Quebec." But that, of course, is never touched upon in the dissection of chichen entrails in Neverland.

KenS wrote:

The real battle, and the pressing need, is to advance and defend the Sherborooke Declaration.... which is going to be enough of a challenge.

Exactly.

Unionist wrote:

Everyone knows what "no right to secede unilaterally" means. It means you need the consent of the mother ship. And that's where the Sherbrooke Declaration says "yes", and the Clarity Act says "no" - in remarkably clear terms.

The difference between the two is how the decision is recognized. The SD says we state in advance that 50%+1 will be recognized. The CA says vote first, threshold afterwards. Lewis Carroll would applaud. But seriously, that's futile posturing. I would love it if someone tried to say with a straight face that, if Quebec votes for sovereignty, they'll change their minds if we say "sorry, that wasn't the number." Rick Mercer would have a field day.

But there is no argument how a decision, once recognized, would be implemented. Both the CA and the SD, as well as both Dion and Bouchard, start from the Supreme Court decision:

Quote:

The federalism principle, in conjunction with the democratic principle, dictates that the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession by the population of a province would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire. The amendment of the Constitution begins with a political process undertaken pursuant to the Constitution itself. In Canada, the initiative for constitutional amendment is the responsibility of democratically elected representatives of the participants in Confederation. Those representatives may, of course, take their cue from a referendum, but in legal terms, constitution-making in Canada, as in many countries, is undertaken by the democratically elected representatives of the people. The corollary of a legitimate attempt by one participant in Confederation to seek an amendment to the Constitution is an obligation on all parties to come to the negotiating table. 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 and conducting them in accordance with the underlying constitutional principles already discussed. 

The continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. This would amount to the assertion that other constitutionally recognized principles necessarily trump the clearly expressed democratic will of the people of Quebec. Such a proposition fails to give sufficient weight to the underlying constitutional principles that must inform the amendment process, including the principles of democracy and federalism. The rights of other provinces and the federal government cannot deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others. Negotiations would be necessary to address the interests of the federal government, of Quebec and the other provinces, and other participants, as well as the rights of all Canadians both within and outside Quebec.

Question 1 does not ask how secession could be achieved in a constitutional manner, but addresses one form of secession only, namely unilateral secession. Although the applicability of various procedures to achieve lawful secession was raised in argument, each option would require us to assume the existence of facts that at this stage are unknown. In accordance with the usual rule of prudence in constitutional cases, we refrain from pronouncing on the applicability of any particular constitutional procedure to effect secession unless and until sufficiently clear facts exist to squarely raise an issue for judicial determination.

. . . 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.

The continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The other provinces and the federal government would have no basis to deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others.

The court added a caution:

Quote:

The task of the Court has been to clarify the legal framework within which political decisions are to be taken "under the Constitution", not to usurp the prerogatives of the political forces that operate within that framework. The obligations we have identified are binding obligations under the Constitution of Canada. However, it will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future referendum vote may be taken. Equally, in the event of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for the political actors to settle. The reconciliation of the various legitimate constitutional interests is necessarily committed to the political rather than the judicial realm precisely because that reconciliation can only be achieved through the give and take of political negotiations. To the extent issues addressed in the course of negotiation are political, the courts, appreciating their proper role in the constitutional scheme, would have no supervisory role.

http://scc.lexum.org/en/1998/1998scr2-217/1998scr2-217.html

So, does secession need the consent of the mother ship? The court has made it as clear as they could. Neither the Clarity Act nor the Sherbrooke Declaration really diverge from the court's conclusions.

George, have you ever thought about ascribing to the thought of that very youth you're seeking to protect. I'm not sure they share the same worries as you. They're especially not worried about the market economy, yet.

Go, Canada, go!

Wilf, you keep bringing up that everyone says that they agree with the Supreme Court desicion. Dion says the Clarity Act was informed by it. The NDP says the same about the SD. Bouchard says he agrees with it. You talk as if that establishes a common ground. It only means that everyone SAYS they are following the Court. Well of course.

Unionist wrote:

You're suggesting that the Clarity Act, by that formulation, allows "the people of Québec" (though not their elected government or National Assembly or legislature - not sure who drafted this shitty act as if legislature is something different) the right to effect secession unilaterally? That's just plain weird. And that's not the wording, the spirit, or the whole edifice upon which the Act is built.

Everyone knows what "no right to secede unilaterally" means. It means you need the consent of the mother ship. And that's where the Sherbrooke Declaration says "yes", and the Clarity Act says "no" - in remarkably clear terms.

I also made this point above. You act Wilf as if the CA has common ground because there is flowery language in it referring to the 'rights of the people of Quebec'. But none of that flowery language has anything enforcable. What is enforcable gives ALL power on the question of adequate majority and question wording to the federal government.

Unionist wrote:

I think I need a new chart. I'll try it this way. In what follows, "CA" means both the Clarity Act and the Supreme Court:

Quote:

[i]Who decides whether the question is clear?[/i]

CA: Canada. SD: Québec.

[i]Who decides whether the majority is sufficient?[/i]

CA: Canada. SD: Québec.

[i]Whose legislation determines whether the referendum is legitimate?[/i]

CA: Canada's (Clarity Act). SD: Québec's (Loi sur la consultation populaire).

[i]Who decides whether Québec can secede?[/i]

CA: Canada. SD: Québec and Québec alone.

Better than your last chart, which I already tried to comment on.

The SD clearly goes beyond the CA in many ways we don't need to summarize again.

But it doesn't say the CA should be repealed. Why?

Perhaps we should ask Pierre Ducasse, but here's my answer: The CA is in fact ambiguous.

It doesn't say Quebec has no right of self-determination. It is founded on the Supreme Court decision which says, in reality, it does. I quoted it earlier, but to quote the bottom line again: "other provinces and the federal government would have no basis to deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others."

It doesn't define a majority. The SD does.

It doesn't say what makes a referendum question clear and legitimate. It says that Parliament will decide, before the referendum. This role given to the federal parliament does potentially contradict the notion of self-determination within Quebec. Note that the SD also has some weasel words we've been pretending to ignore: "It would be to the Federal government to determine its own process in the Spirit of the Supreme Court ruling and under international law, in response to the results of the popular consultation in Quebec." What does that mean to you? To me, it is clear that implementation of a vote for sovereignty would require negotiations which the 1995 referendum question said would take up to a year. It hardly said Canada "has no right to interfere." Everyone knows that assets and debts would have to be divided, and a long list of other issues such as:

monetary policy;

labour mobility;

citizenship;

free movement of individuals;

free movement of services;

trade (customs union?) and free movement of goods;

free movement of capital?

In short: the SD starts from the CA, corrects its negative tone, corrects its mistakes, and adds all the missing positive dimensions. It does not call for its repeal which it does not say is necessary.

KenS wrote:

But what you minimize as "mistakes" [Dion and Chretien seemed pretty sure of what they were doing] and negative tones did require an answer and a de facto replacement.

Agreed. And I didn't mean accidental mistakes, of course; I meant major political mistakes.

Unionist wrote:

Yes - negotiations are required - but therein lies another key difference between the CA and the SD. In the CA, negotiations (which can only follow a [b]Canada-approved[/b] referendum - are a [b]precondition[/b] to secession. In the SD, [b]there are no preconditions to secession[/b]. Negotiations will obviously be necessary, but they can take place between sovereign states, as Canada does on similar lists of issues with the U.S. and others.

I think we've ironed out almost all the questions, so I'm tempted to leave this thread alone. But on this one issue, I disagree. On many of the issues listed above, the negotiations would, of necessity, take place before the proclamation of sovereignty, just as the 1995 referendum question said. But this is a question of mechanics, timing and stages of implementation, and has little relevance to the political stance of the NDP.

The Supreme Court decision, and hence the CA, are internally contradictory on this point. In the case of the Supreme Court decision, this was deliberate. They tried to avoid deciding a question not before them (as any court should). Their discussion suggested both that agreement might be a pre-condition and also that Canada would have no choice but to reach agreement. It's odd that no one here seems to have suggested that such issues might have to be sent to arbitration, but I think some of the academic discussion of the hypothetical process has made that suggestion. No, I'm not going to look it up.

MS: "What a hypothetical future NDP government might or might not do, or be free to do, should not be the criterion.

The Clarity Act is "egregiously offensive" to Quebec's right of self-determination and therefore its repeal is of the utmost necessity, quite apart from its symbolic significance and the message its repeal would send to Quebec."

All very true, MS.

But should we not be primarily concerned, at this point, about meeting the electoral "needs" of both Quebec and the ROC in trying to become that "hypothetical future NDP government?" Sort of first things first in an information climate of obfuscation, lies and distortion created and maintained by the owned media? Steve admitted to the presence of a "Quebec Nation" after New Democrats agonized and brought forth the Sherbrooke Declaration. Why are we engaged here in micro analysis of givens? How often does one have to don sackcloth smeared with ashes and "admit" that, of course, French Canada must defend its cultural existence?

But at the same time, recognize that those same folks are equally concerned, at the moment, about New Democrats pulling their economic irons out of the fire, partly through a unity that will allow for CANADA WIDE ECONOMIC policy to be enacted. Small may be beautiful, but at the moment, parochial is the pits.