Before discussing how the Clarity Act and the Sherbrooke Declaration differ, here is some relevant history.
The Clarity Act (Bill C-20) was tabled for first reading in the House of Commons on December 13, 1999. It was passed by the House on March 15, 2000.
The NDP's Social Democratic Forum on Canada's Future had been launched in 1997 and its report adopted in 1999. The report was presented as a major rethink of the party's policy toward federalism and the constitution. The report argued that Canada must recognize Quebec's special status, recognize Quebecers as a people and accept asymmetrical federalism.
During the winter of 1999-2000 the Chrétien government's Clarity Act divided the NDP. The NDP caucus was initially caught off guard by the introduction of the bill and McDonough criticized the PM for not consulting with their "parliamentary allies." Finally, the caucus decided to support the bill in principle but to seek a number of amendments in order to defend the rights of Aboriginal peoples, to reduce the role of the Senate in the process, and to specify that a fifty percent plus one majority was sufficient
The NDP Federal Council vote on February 26, 2000 to say "that the Federal Council....ask our Federal Caucus to oppose Bill C-20 at Third Reading in the House of Commons." The Emergency Resolution carried by an overwhelming majority, following substantial discussion. Despite this, McDonough and most of the caucus supported the bill, with two members (Libby Davies and Svend Robinson), voting against it on third reading. McDonough and Bill Blaikie argued in the House of Commons that the Clarity Act recognized Quebec's right to self-determination in Canadian law. However, the role given to the federal government contradicts the notion of self-determination within Quebec. The caucus position was not only contrary to the notion of internal party democracy but it was arguably contrary to party policy.
In the House Bill Blaikie objected to the way the government had handled the Bill, and "the unmitigated, titanic, bloody arrogance of that man over there, the Minister of Intergovernmental Affairs who thinks he knows everything about this country and that the rest of us do not have anything to say."
Blaikie explained:
. . we were concerned about an aspect of the bill that left open the possibility of some abuse on the part of the federal government after a referendum in jacking up the numerical majority that might be needed. . . .". . . the NDP as a caucus will be supporting Bill C-20 at third reading.
This has not been easy. There are many in my party and elsewhere who feel that somehow Bill C-20 is an attack on or contrary to the principle of Quebec self-determination. Particularly within the New Democratic Party there are people who feel that somehow Bill C-20 is contrary to our traditional position of support for the self-determination of Quebec. If I thought that was so, I would not support Bill C-20 and neither would my colleagues behind me.
In our view not only does Bill C-20 recognize the right of Quebec to self-determination, it entrenches and recognizes in law the right of Quebec to self-determination. However, it says that this has to be achieved by virtue of a legitimate process that was outlined by the supreme court in its opinion. What this law attempted to do was to give legislative incarnation, if you like, to the supreme court's opinion. I believe that Bill C-20 meets that test. I do not think it is contrary to the principle of self-determination for Quebec.
After the vote Alexa McDonough wrote an explanation:
The decision to support this legislation on Third Reading was a difficult one. All Caucus members believe the priority is to work to renew federalism through a "Plan A" approach. Our Report of the Social Democrat Forum, approved in August by Convention, strengthened our commitment to that approach.When the Liberals introduced the Bill to Parliament, the Caucus agreed to support it on principle at Second Reading while we consulted widely with the Party and our labour partners. We sought and received thoughtful guidance from all sections of the Party and labour, including the recent federal Council motion. Several Caucus members were present during the Council to hear concerns about the Bill. All these views were seriously considered as we made our decision.
At the same time, Intergovernmental Affairs Critic Bill Blaikie worked in committee to try to introduce amendments to the proposed legislation. Two key amendments moved by the NDP explicitly recognize Aboriginal peoples as political actors who must be involved in any future secession bid. In the regrettable event that Bill C-20 might be required, these two amendments will guarantee the rights of Aboriginal peoples in this important constitutional negotiation. Unfortunately, we were unable to move our other amendments relating to the role of the Senate and the 50% + 1 majority.
In considering the final Bill with amendments, Caucus considered two key issues which emerged from the Supreme Court opinion: the right of self-determination for province of Quebec, and the right of the nation to play a role in negotiations surrounding any possible secession. We believe that this Bill, in spite of its shortcomings, does respond to those two issues, and we supported it at final reading.
I recognize that there will be some New Democrats who disagree with the position taken by the federal Caucus. There are some who feel that Bill C-20 is an attack on or contrary to our traditional position of support for the principle of self-determination for Quebec. Had the Caucus thought so, we would not have supported this Bill. In our view, not only does Bill C-20 recognize the right of Quebec to self-determination, it entrenches and recognizes in law the right of Quebec to self-determination.
The federal NDP Caucus is in full accord with Federal Council that Bill C-20 must not be allowed to distract from our shared goals of forcing this government to be accountable on the critical issue of health care, and of building a genuine alternative that makes it possible for us to work with progressive Quebecers towards a social democratic future for all Canadians.
As the party's Renewal Report admitted in 2001:
All parties must grapple with the complex issue of Quebec's unique place in the federation. From the perspective of Canadians living outside Quebec, the Party's positions on this issue are seen as ambiguous at best. Many of those who support the NDP from within Quebec have concluded that the Party has abandoned interest in the province.
During the leadership race in 2003, Jack Layton criticized the caucus support for the Clarity Act. The party has tried to advocate asymmetrical federalism, with varying degrees of enthusiasm, since the mid-1960s. This policy was explicitly reinforced by the Social Democratic Forum in 1999 and seemed to have Jack Layton's support.
During the last election campaign, Macleans published an interesting document:
http://www2.macleans.ca/2011/04/27/the-ndp-quebec-and-the-constitution/
Brian Topp contacted me and offered to clear all this up. Topp is a former NDP campaign director from earlier elections who has been less directly involved with the Layton campaign this year, but he told me he was speaking with the approval of the Layton campaign and for the record. After we spoke he sent me an email summary of his main points, which matches the substance of the notes I took during our phone conversation. Here is Topp's own summary of his points, with parenthetical additions by me to help make it all more comprehensible.
I believe this all leaves Layton with pretty serious questions left to answer before he will be worthy of anybody's trust on fundamental questions of constitutional stewardship. But I have to say that until the other national leaders get over their own games of peekaboo on the same questions, it's hard to be sure that Layton is the worst of the lot. In particular, the silence of Stephen Harper, who is still today the Prime Minister of Canada, speaks volumes.
Topp's summary of his remarks:
- The Quebec National Assembly has not ratified the 1982 amendments. This is an issue that will have to be addressed at some point. The time to address it is when we can be fairly sure we will succeed.
- A necessary precondition is a federal government francophone Quebecers see themselves in, working on priorities they support.
- In the 1998 reference case, the Supreme Court wrote the rulebook on any future referendum, should there be one, which hopefully there won't be. Both Mr. Bouchard and Mr. Chretien welcomed this ruling at the time.
- Issues about whether a future question is sufficiently "clear", should these issues ever end up in dispute, would presumably ultimately end up in front of the Court.
- Mr. Layton is not calling for repeal of the Clarity Act.
- Fewer BQ MPs in Parliament is good for Canada (including Quebec). Working to re-involve Francophone Quebecers in the governance of Canada is the kind of work Canadians hope an aspirant for PM will do. Acknowledging this issue as we are doing is respectful of the views of Francophone Quebecers, and is good nation-building.
- Michael Ignatieff said essentially the same thing in 2006.
- It's not surprising that in the last week of a campaign our opponents are mis-stating our views on these issues.