CLAR Committee Meeting

LEGISLATIVE COMMITTEE ON BILL C-20, AN ACT TO GIVE EFFECT TO THE REQUIREMENT FOR CLARITY AS SET OUT IN THE OPINION OF THE SUPREME COURT OF CANADA IN THE QUEBEC SECESSION REFERENCE

COMITÉ LÉGISLATIF CHARGÉ D'ÉTUDIER LE PROJET DE LOI C-20, LOI DONNANT EFFET À L'EXIGENCE DE CLARTÉ FORMULÉE PAR LA COUR SUPRÊME DU CANADA DANS SON AVIS SUR LE RENVOI SUR LA SÉCESSION DU QUÉBEC

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, February 23, 2000

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[Translation]

The Chair (Mr. Peter Milliken (Kingston and the Islands, Lib.)): Order please. I see we have a quorum, so I guess we can get started.

Ladies and gentlemen, we welcome this afternoon witnesses representing the Grand Council of the Crees.

[English]

It's a pleasure to welcome today Dr. Ted Moses, the grand chief; Mr. Paul Joffe, legal counsel; and Mr. Paul Gull, who as I recall is also appearing as a chief along with Chief Moses.

Welcome to the committee, gentlemen. We're very pleased that you could take the time to come here to give evidence before us today. Our practice is to have a 10-minute presentation by you, followed by 35 minutes of questions from the members. We hope the 10-minute period is reasonable for you. I'll give a signal if you're running over time, and that will be that.

So thank you. I presume Chief Moses will be leading off.

Grand Chief Ted Moses (Chairman, Grand Council of the Crees (Eeyou Istchee)): Meegwetch.

[Witness speaks in Cree].

Good afternoon, everyone. Merci. On behalf of the Grand Council of the Crees, I would like to thank you for this opportunity to appear before this House of Commons Legislative Committee on Bill C-20. We would also like to express our appreciation to Mr. Bill Blaikie for ensuring that we would be allowed to address this committee.

The Grand Council of the Crees has a long history of active involvement in regard to the Quebec secession issue. Over the years, we have contributed substantially to academic and legal scholarship. We have participated internationally in human rights standard-setting forums in which matters of self-determination and secession have been discussed. We also were an intervener in the Quebec secession reference to Canada's highest court.

Before the October 1995 Quebec referendum, we held a public consultation process in our communities on the secession question. Prior to Quebec's referendum, we held our own referendum in which over 96% of our people voted to stay in Canada. This result we then took to the people of Quebec and Canada and, as we later verified in a public opinion poll, our vote influenced public opinion in Quebec in favour of staying in Canada.

In regard to the Clarity Act, we have prepared an extensive brief to substantiate our positions and most serious concerns. Our brief addresses the relevant issues that we believe are critical and urgent. The matters that we raise affect all Canadians, as well as the future of Canada itself.

In our brief, we elaborate upon the following: that the James Bay Crees and other aboriginal peoples constitute “political actors” within the meaning of the terms as used by the Supreme Court; that we have a right to full and equal participation in the secession process; that the Clarity Act must affirm the fiduciary obligations of the Government of Canada and Parliament in regard to aboriginal peoples; that our rights and concerns, as well as the related issues concerning a seceding Quebec's boundaries, must be reproduced in the bill with the same emphasis that the Supreme Court bestowed in its judgment.

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To address these key aspects, we have proposed specific amendments to the Clarity Act so that it can be converted into a fair, just, and balanced law. In addition, we have prepared a brief on Bill 99, so that the far-reaching injustices of Quebec's actions may be better understood and publicized.

Quebec's Bill 99 is purportedly an attempt to counter federal efforts to give effect to the judgment of the Supreme Court. However, Bill 99 demonstrates a total disrespect for the court's decision in the Quebec secession reference. In addition, the bill illegally and illegitimately seeks to ensure that the James Bay Crees and other aboriginal peoples in Quebec will never determine the future of our respective peoples and territories should Quebec attempt to secede.

Bill 99 violates the principles of democracy, federalism, the rule of law, and protection of aboriginal and treaty rights. It runs roughshod over our human right to self-determination. It seeks to consolidate absolute power in Quebec's political institutions. Ultimately, its illegitimacy even exceeds its rampant illegality.

The Quebec government is ignoring at its peril one of the key conditions that the Supreme Court of Canada laid down in the Quebec secession reference. The court ruled that a right to pursue secession may possibly be acquired “so long as in doing so, Québec respects the rights of others”.

As our participation in Canada and internationally makes clear, we take the issue of Quebec secession extremely seriously. We realize that the destiny of present and future generations of Crees and the future of our traditional territory are at stake. The James Bay Cree people have lived in, occupied, and governed Eeyou Istchee for thousands of years, and we continue to do so. We have a long history and profound connection with our territory. These are historical facts of huge significance. No non-aboriginal people or government in Canada can make these claims. Therefore, it is with utter disbelief that we examined the Clarity Act and discovered that we are not assured our rightful role in any future secession process. That is something that we cannot and will not ever accept.

Our treaty, the James Bay and Northern Quebec Agreement, was approved by the governments and legislatures of both Canada and Quebec. According to this treaty, all parties agreed to a permanent federal arrangement in Eeyou Istchee and other vast regions of northern Quebec. No change to this federal context can be made without Cree consent. The federal government cannot circumvent our role as a full and equal party to this treaty by excluding our participation in the secession process under the Clarity Act.

The Minister of Intergovernmental Affairs has informed this committee that the federal government does not intend to expressly include us as political actors in the Clarity Act. He erroneously stated that we are not “constitutional actors”. He also incorrectly declared that we do not participate in constitutional amendment procedures. Neither of these criteria was ever specified by the Supreme Court.

In any event, section 35.1 of the Constitution Act, 1982, requires our direct involvement in regard to proposed constitutional amendments that relate to our rights. Moreover, the four first ministers conferences on aboriginal rights in the 1980s and the Charlottetown constitutional negotiations in 1992 confirmed this established practice in Canada. In addition, when we amend our treaty, the James Bay and Northern Quebec Agreement—which we have done on numerous occasions—we are clearly amending constitutional rights. We always participate in this amendment process as full and equal political actors.

Currently, the James Bay Cree people are being confronted by one of the most colonial actions any people can ever experience. A government in Quebec claims it can transfer us like a herd of cattle into a new country. The federal government, our so-called fiduciary, is effectively collaborating in this ruthless process. If the Quebec government succeeds in its grand plan, I will lose my country, I will lose my constitution, and I will lose my lands. All of these have never been defined according to Quebec's geographical boundaries.

In this urgent context, it is irresponsible for any minister of the crown to proclaim that we are not constitutional actors. With the illegitimate and illegal threats that we face from Quebec, the federal government must not seek to weaken us, to tie our hands by excluding expressed aboriginal participation from the Clarity Act.

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The minister's remarks are an absurdity. They distort reality and common sense. They are not the words of a government that takes its fiduciary responsibility seriously. Equally importantly, they defy the judgment of Canada's highest court.

The Clarity Act has no right to strip away the emphasis that the Supreme Court placed on aboriginal peoples. The court specifically highlighted our rights and concerns in the context of responding to the question of self-determination. It declared that the boundaries of a seceding Quebec would have to be defined “with particular regard to [our] northern lands”. Where is this judicial emphasis reflected in the Clarity Act? Neither the federal government nor the minister has any constitutional authority to alter the court's prescriptions in a manner that is prejudicial to us.

It would appear that the minister would rather see Canada drown than be saved by a bunch of Indians. This is an incredible state of affairs. It is also the ultimate form of discrimination—to reject assistance from someone that you consider inferior.

The federal and Quebec governments are of a single mind. They both are afraid to empower aboriginal peoples with rights and powers that we already inherently have. What harm would come to Canada if our constitutional rights are unequivocally affirmed so that we may defend ourselves and this country against secession?

During the Quebec secession reference, the Attorney General of Canada pleaded with the Supreme Court, urging the justices not to elaborate upon the rights of aboriginal peoples in this reference. The government repeatedly assured the court that it would honour its constitutional and fiduciary obligations to aboriginal peoples in the secession context. Yet the Clarity Act is inappropriately silent on this matter. In the Quebec secession reference, the court states that the legal framework for secession negotiations “emphasizes constitutional responsibilities as much as it does constitutional rights”. For the federal government to entrench fundamental imbalances in the Clarity Act, it is an abdication of the government's fiduciary responsibilities. It is also a betrayal of the Supreme Court's trust.

This renunciation of fiduciary duty is not limited to the secession context. The James Bay Crees are currently facing aggressive anti-Cree actions by Canada and Quebec in other areas. For example, in our forestry litigation, which seeks to ensure proper environmental practices in our territory, the two governments are working together to recuse Mr. Justice Croteau. They feel he is biased for ruling strongly in favour of Cree treaty rights. The federal government is also repudiating its fiduciary responsibility respecting the James Bay people and our constitutional rights. This is an ominous preview of the federal position. The government is determined to marginalize and weaken us, regardless of how these actions effect all Canadians or the future of the country.

The Grand Council of the Crees strongly supports fair and balanced rules to govern any secession process. Quebec's Bill 99 is the best evidence to date that such rules are essential. These rules must fully respect the judgment of the Supreme Court of Canada in the Quebec secession reference. However, through federal strategies of omission, exclusion, and disempowerment in the Clarity Act, we are being made more vulnerable in the secession context.

What has been missing to date is an unequivocal emphasis on respect for the human rights of all peoples in Canada. Issues of self-determination and secession clearly require a human rights approach and analysis. In addressing these human rights issues there is a universally recognized obligation to ensure fairness, equality, and justice for all.

Therefore, honourable members, we respectfully insist that the Clarity Act be comprehensively amended in the manner that we have indicated in our brief.

Meegwetch. Thank you very much.

The Chair: Thank you for that presentation, Dr. Moses, and thank you for staying very close to the time.

Ms. Meredith, you have first question.

Ms. Val Meredith (South Surrey—White Rock—Langley, Ref.): Thank you, Mr. Chair, and thank you, Dr. Moses.

I found your comments very interesting. In a presentation by Chief Phil Fontaine and in the one by you, I heard about the public consultation that you did within your own communities prior to the 1995 referendum. You said 96% of your people voted to stay in Canada.

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I guess that begs a question: If there is a referendum placed before the people of Quebec as to whether or not Quebec should secede from Canada, should another referendum be posed before the Cree as to whether or not they would want to stay in Canada? Should the bar of measuring what kind of acceptance there is be the same in both of those referenda?

Grand Chief Ted Moses: As far as we're concerned, the position of our people has not changed. As a matter of fact, I've been up in the Cree communities in the last several months, and no one has come up to me to say they have changed their position from the last time there was a Cree referendum. Should it become necessary, should our people feel it is of necessity that we confirm the Cree position, then I think we definitely would, by all means. But I can assure you that the numbers would not change and that the position of our people would not change.

Ms. Val Meredith: You don't feel that the bar being set at any level would affect.... Obviously you have almost a unanimous decision by your people that they want to stay within Canada, so I would assume you're not too worried about whether there is a different bar set for Quebec separating, as opposed to your being allowed to separate from the new country.

Grand Chief Ted Moses: The results that I have mentioned obviously are factual. They're the results of the Cree referendum. But should there be another referendum in the future, then obviously there has to be equality for everyone. I think people have the full right of participation in this debate, and I just want to make it clear that it's not the Crees who provoke the argument. We are not secessionists, so we can go on record as having said that. We advocate the right of self-determination as a human right. That's something that all peoples have a right to.

Ms. Val Meredith: The other issue you raised this afternoon is the issue of consultation. You feel the Clarity Act has missed the boat as far as recognizing that the aboriginal peoples need to be brought into the consultation process is concerned. Am I clear in that understanding?

Grand Chief Ted Moses: Oh, yes, definitely. The way we read the Clarity Act, our interpretation of it is that it intentionally omits and excludes the full participation of aboriginal peoples, particularly in the province in which secession would be proposed. It totally ignores that we are political actors.

We are one of the political actors. In its judgment, the Supreme Court of Canada refers to the fact that it's the political actors who will determine the question and what the clear majority would be. Definitely we are. That's our position. We were interveners, so certainly the justices of the Supreme Court came to that conclusion.

So the bill clearly and intentionally omits aboriginal people as political actors, but there is no question that we are constitutional actors. We participated in amendment processes for the Constitution. As I said, every time we amend the James Bay and Northern Quebec Agreement, we are acting in our capacity as constitutional actors. Therefore, we are exercising our constitutional right to consent to whatever amendment it is that involves the Government of Canada and, to some extent, the Government of Quebec.

So the role of aboriginal peoples is excluded, and the Government of Canada certainly hasn't respected its constitutional responsibility towards the constitutional rights of aboriginal peoples, as well as its position as a trustee that has the fiduciary responsibility over aboriginal peoples and aboriginal lands.

• 1550

Ms. Val Meredith: Thank you.

[Translation]

The Chair: Mr. Guimond.

Mr. Michel Guimond (Beauport—Montmorency—Côte-de- Beaupré—Ile-d'Orléans, BQ): Thank you, Mr. Chairman.

Thank you very much, Grand Chief Moses, for your presentation. Before I ask you a question which deals specifically with Bill C-20 and Bill 99 of the Quebec National Assembly, I'd like to know how you feel about the progress that has been made on implementing the recommendations of Erasmus-Dussault report. Are you satisfied with the progress thus far of the negotiations on the issue of self- government within Canada?

[English]

Grand Chief Ted Moses: I will have to say that I was pleased. I am satisfied with the content and the conclusions of the report of the Royal Commission on Aboriginal Peoples. I think we have to make that very clear.

Now, up to date, we're not satisfied. As a matter of fact, we're very dissatisfied with the progress and the rate of progress regarding implementing the recommendations and conclusions of the Royal Commission on Aboriginal Peoples.

Just to give you one practical example, there is the whole question of extinguishment, which the royal commission has condemned as a practice that violates human rights of the aboriginal peoples. That has now been confirmed by two committees before the United Nations that are calling upon Canada to eliminate that practice of extinguishing rights. To this date, there is no evidence that Canada is doing anything about it.

There have been some attempts in other areas, where the government is at least looking at them. However, there is a shortfall in terms of the conclusions and the recommendations of the Royal Commission on Aboriginal Peoples. In general, we are very disappointed and very dissatisfied with the progress of putting into effect and implementing those recommendations of the royal commission.

[Translation]

Mr. Michel Guimond: In her article printed in Le Devoir on Tuesday January 19, journalist Manon Corneiller compared some of the provisions of Bill C-20 which is now before the committee with those of Bill 99 which was tabled in the National Assembly. We also have a brief regarding Bill 99 which you submitted to the Quebec National Assembly. According to this journalist's analysis - and perhaps this is her personal opinion - at least the Quebec legislation contains a reference to the aboriginal issue. You seem to be somewhat less critical of Bill 99 tabled in the National Assembly because earlier, you had some rather harsh things to say about Bill C-20. You did not go so far as to call for it to be scrapped outright, but you were fairly critical of its provisions. I'm interesting in hearing your views on the proposed legislation.

[English]

Grand Chief Ted Moses: Thank you.

As you probably heard, we're not very ecstatic about the clarity bill either. Because we feel we don't see ourselves in the clarity bill, we are therefore attempting to make certain proposals.

Bill 99 obviously, in the opinion of most people, is a retaliatory response to the clarity bill, which is an attempt to try to reflect the decisions of the Supreme Court of Canada. In our opinion, the clarity bill fails to do that. It doesn't meet the objective stated by the Supreme Court; neither does it create fairness or balance. It is not an accurate reflection of what the Supreme Court has decided. Therefore, we are drawing to the attention of members of the committee certain of those aspects where we are being intentionally left out as full participants, as full political actors.

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In the case of Bill 99—to cut out all the preliminaries—we must say that it's a piece of legislation that should be scrapped, because it purports to deny the aboriginal peoples, including the Crees of Quebec, our status as peoples. It attempts to lump us into the recognition of Quebec people, of one people in Quebec. It's a violation of our rights. It seeks to deny us the right to hold our own referendum in that respect. Also, it denies that we share any sovereignty in Quebec and says that we are just like anybody else, without any distinct language, culture, or territory that we occupy.

Bill 99, as we've said, is a bill that provides a single, fictitious Quebec “people”. In that sense, it denies the human rights of the aboriginal peoples as well as those of the Crees. From where we sit, when we look at the bill we see little or no valid legislative purpose, other than for Quebec to bestow certain powers upon itself that far exceed the legal framework the Supreme Court of Canada has established in the secession reference case.

The Chair: Mr. Blaikie.

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Thank you, Mr. Chairman.

First of all, I'll begin by saying I have very little to question Dr. Moses on by way of this agreement, because I agree very much with what he has had to say about Bill C-20, particularly the way in which it is an affront to aboriginal people. Certainly, as committee members will know, we have argued strenuously that in those clauses where the government should consult in determining whether there has been a clear question or a clear majority, aboriginal people should be added to that list of those who should be consulted.

Also, in the final subclause in the bill where the negotiations on a secession bid are referred to, we have also put forward the position to the committee that this particular subclause should contain a reference to the need and the right of aboriginal people to be at the table and to be part of the negotiations, not just to have their interests taken into account by somebody else. Although at least in that subclause.... I guess when you're dealing with this government you have to be thankful for small mercies, because at least you get mentioned. On the political actor thing, you don't even get mentioned. I guess you're supposed to be “and anybody else they feel like talking to”. As the bill is now drafted, that's where the aboriginal people come in.

We're very hopeful that government members and others may see the wisdom and the rightness of including aboriginal people in those clauses so that this injustice can be overcome and so that the bill, which may still be imperfect in other ways, could at least have that particular inadequacy redressed.

So I would just urge you to say, more by way of trying to persuade members on the government side.... This is one way of trying to put a bill subject to a great deal of criticism beyond a certain kind of criticism, a very devastating kind of criticism, I think, when it comes out of this committee unamended and is still open to the very kind of charges, the very deserved kinds of charges, that you've made against it now.

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Grand Chief Ted Moses: Thank you for your comments, Mr. Blaikie.

We certainly have come here to point this out to the committee members and to do whatever is reasonably possible to ensure that we become full political actors, consistent with the decision of the Supreme Court, in determining certain questions related to succession. The 1898 and 1912 acts of Canada and Quebec to extend the boundaries of Quebec certainly omitted and excluded us, so this time around it is not our intention to not be part of the process and to not participate fully. Let's all admit that we're here permanently to stay, that we've been here for thousands and thousands of years.

As I sit here and look in the direction of the chairman, I can't help but look at the picture up above you. If I'm not mistaken, it's a picture of the Fathers of Confederation. I see a few vacant chairs there: I think those were meant for the political actors who were forgotten at that time.

Mr. Bill Blaikie: We're still trying to fill those seats.

Grand Chief Ted Moses: Thank you.

[Translation]

The Chair: Mr. Bachand.

Mr. André Bachand (Richmond—Arthabaska, PC): If your presence here today can serve once again to reassure us that you will be included in the picture when the next large painting is hung after Confederation is renewed, then I think that's a good thing.

I haven't had time to read through your paper fully or to analyze in depth the amendment you are proposing. However, it is my understanding that the amendments that you are putting forward today, although more detailed, are substantially similar to those suggested by Mr. Phil Fontaine when he appeared before our committee yesterday.

You've made it clear that you wish to be, as the Supreme Court put it, a full political actor in this process. I fear, however, that contrary to the spirit of the Supreme Court decision, neither you nor the provinces will be able to achieve this status with the amendments that you have proposed. In my humble opinion, even before the negotiations get under way, you are assigning to 156 federal Members of Parliament the task of deciding on a clear question and a clear majority, as well as the task of either giving the go ahead or not to a negotiation process in which you would, quite naturally, participate.

Would it not have been more legitimate, in keeping with the principles of federalism and democracy that are supposed to guide the federal government and the provinces as well as aboriginal peoples, to grant you the same decision-making authority, instead of merely agreeing to take your demands into account? Shouldn't you be given legitimate clout and treated as an equal partner of the federal government?

[English]

Grand Chief Ted Moses: Thank you for your question.

I'm aware that my colleague Phil Fontaine, National Chief of the Assembly of First Nations, appeared here yesterday. As a matter of fact, we were in communication prior to his coming here. We talk to each other.

I know that he has proposed five amendments. We are proposing nine amendments for this committee. They're not amendments that we have a desire to make for the purposes of making amendments. We feel that these are proposed changes to the clarity bill where some key elements in the bill were left out and deserved a certain flagging. As well, they are creating a balance in the bill.

Without going into much detail, the Supreme Court referred to the need for “principled negotiations”, and therefore we have reflected that in our proposed amendments. There is also the change on aboriginal peoples as participants and political actors; we make a proposal by an amendment in the preamble paragraphs. There's also the consequences of this regarding constitutional principles and values, which we felt were left out, and therefore we have made a proposal.

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Mr. André Bachand: We have a chair who is quite professional, and he's going to cut me after five minutes.

My argument is as a word of caution. We are the fifth party and we don't have in the meantime a lot of power, but it's a word of caution to you because for the first time you're going to let the House of Commons decide if you're going to enter a negotiation or not. One hundred and sixty members will decide for you if the question is clear, if the majority is clear. I think for us the first nations people, the provinces, and the federal government, should be treated equally. Imagine that—

The Chair: You're right that you are going to invoke the chair. The witness needs to give an answer to a question but not to a speech. You are going to run over before you finish.

Mr. André Bachand: I was trying to practise my second mother tongue.

Grand Chief Ted Moses: Thank you. As you can see, I am practising my second language—I don't know if I can call it my mother tongue. To try to respond to that question, I think I recognize that Parliament and the House of Commons have a responsibility and a role as one of the political actors, just as much as Quebec does. What we're saying here is that the political actors must also include the aboriginal peoples.

The Supreme Court of Canada, in its decision, did not make it exclusively the jurisdiction or the decision of the Parliament or the Government of Canada to determine the clear majority and the clear question. Therefore we have to be part of the process and we must be full participants.

The Chair: Monsieur Cotler, s'il vous plaît.

Mr. Irwin Cotler (Mount Royal, Lib.): I'd like to welcome you, Dr. Moses, and your representatives here to this meeting.

I want to refer to what may be a point of clarification, if I may, because you refer in your brief to the statement of the Minister of Intergovernmental Affairs that sought expressly to exclude you as political actors in the clarity bill. My sense is, and this also flows from discussions with the minister....

First of all, let me begin by saying that I think you are correct—and I think the minister would agree you are correct—that you are political actors, as subsection 35(1) of the Constitutional Act of 1982 points out. As you put it, you are recognized there expressly as political actors in respect of constitutional amendments that would affect your rights and treaties.

I think it was not the minister's intention to exclude you as political actors. My understanding is that the minister was referring to the Supreme Court judgment where reference to political actors is suggested in the form of elected public governments in general, or the reference in the Supreme Court, in paragraph 56, to the two orders of government. But I think, in terms of your general statement, that subsection 35(1) of the Constitution Act supports that you are political actors.

Grand Chief Ted Moses: As I read the judgment, it uses the terms “elected representatives”, just to clarify that. In that respect, even though we may not be publicly elected in the sense that it's the Canadian public or the Quebec public, I am publicly elected by my own people. We have general elections every so many years among the people who are eligible. So I am an elected representative, and that qualifies me to be a political actor or a constitutional actor, however you want to label it.

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Mr. Irwin Cotler: I think the reference the minister was intending had to do with paragraph 56 of the Supreme Court judgment, which has a more limited configuration in terms of political actors because it organizes federalism around two orders of government, federal and provincial. I know your views are distinguishable in that regard. I think, as you put it, the Supreme Court judgment dealt with the question of aboriginal interest in the context of self-determination in its judgment, but it was a rather limited reference.

I think that limited reference, which as you know I spoke of elsewhere, may well have resulted from the character of the advocacy before the court. I think part of the problem that faces us is that within the context of this specific Supreme Court secession reference, that particular characterization by the court is somewhat more limited than some of us might have wished.

Grand Chief Ted Moses: I think there are two parts to your question. I'll try to answer them quickly and concisely.

If that is the case, and if that's what the minister really implied, then fine, put us in, make the amendment, and make sure that we are political actors as well as constitutional actors. That's what we are proposing.

In terms of the second part of the question, I seem to recall that the Government of Canada, or the Attorney General of Canada, pleaded before the judges in the Supreme Court and told them not to dwell too much on the question of aboriginal peoples. And the Attorney General gave guarantees to the judges that the rights of the aboriginal peoples would be protected as part of the constitutional rights of the aboriginal peoples.

The Chair: Do you have another question?

Mr. Irwin Cotler: I gather that in your brief before the Quebec National Assembly on Bill 1999 you placed great emphasis, supported by references, on the fact that democracy cannot be limited to simple majority rule. I think you know that before this committee there is concern when someone suggests that there must be something more than 50% plus one, and that this is claimed to be undemocratic.

Can you offer us some comment on why you think a simple majority of 50% plus one is inappropriate, or what principles must be taken into account in terms of making a determination of what a clear majority would be?

Grand Chief Ted Moses: Yes, I think the 50% plus one is probably about the lowest common denominator you can establish in order to get your point across.

Secondly, although that may be a practice in certain countries, or in certain instances, internationally it's not an established or common practice in terms of the model that's being being used internationally in determining the results of people who want to secede. As far as we know, most of the 50% plus one originates from countries that were colonialistic at one point in time and they wanted to get out of colonialism. Therefore the 50% plus one was then considered to be the determining factor that gets the country out of that situation.

The Chair: Mr. Hill.

Mr. Grant Hill (Macleod, Ref.): Thanks, Mr. Chair.

My welcome as well to Dr. Moses.

One thing I've puzzled about is that the Crees in northern Quebec had their own referendum, had their own vote, and then chose not to participate in the Quebec referendum. That's a significant number of lost votes. Could you tell me how many lost votes, ballpark?

Grand Chief Ted Moses: I think there is a correction to be made here. We had our own referendum, which was the result of 96.3% of the Cree vote. The Crees did encourage people to exercise their democratic right to vote in such cases. And a lot of Crees voted. As a matter of fact, if it weren't for the gerrymandering that happens in elections or referendums in northern Quebec, evidence would prove that there was a clear, substantial majority of the votes that we can attribute to the Cree and Inuit vote. The Inuit are not here, and I don't speak for them, but I know they had their own referendum. That vote had a very important role to play in keeping the country together.

Mr. Grant Hill: So the information I had that the Crees did not participate in the Quebec referendum was inaccurate? They were encouraged to and they did actually get out?

Grand Chief Ted Moses: Yes.

Mr. Grant Hill: I've asked this question to as many witnesses as I could: specifically, if Canada is divisible—and that's the principle we have accepted—do you accept the principle that Quebec is divisible?

Grand Chief Ted Moses: If a state is divisible, then how could an administrative unit of a state not be divisible? How can an administrative unit have more superior rights than the state itself?

Mr. Grant Hill: In terms of the mechanism of that happening in the event of a vote to secede, we believe—and this is the official opposition's position—that a vote of 50% plus one to leave Canada should also be followed by a vote of 50% plus one for those in the province who want to stay, so that there's an actual structured mechanism to have that happen. Is this something that would receive your support?

Grand Chief Ted Moses: Maybe for the principle of equality, yes. But in the situation where you are asking people to make a decision on something that would be irreversible, on something that would be permanent, on something that they would be deciding for future generations that don't have the ability or the capacity at that moment in time to decide, then I would have to say no.

Mr. Grant Hill: Do you have any idea for me as to where the native boundary would be if the northern natives decided to stay in Canada? Do you have a way whereby you could do that nightmare scenario without causing all kinds of problems?

Grand Chief Ted Moses: Without any hesitation, we can point to the traditional territory that has been occupied by the Crees and of course, if you go further north, our cousins to the north, the Inuit. But it would be well within the boundaries of the 1898 and all of the 1912 territory—a good part of the 1898 and all of the 1912 territory, which is roughly two-thirds of the province of Quebec in the case of the Cree.

In other areas, I think you would have to look at it from a different angle. I won't make a comment on that because I'm not as familiar with other aboriginal peoples' traditional territory.

Mr. Grant Hill: Thank you very much.

The Chair: Ms. Redman.

Mrs. Karen Redman (Kitchener Centre, Lib.): Thank you, Mr. Chair.

Dr. Moses, in the 1995 referendum, if the result had been different—if the yes side had been the prevailing side, and given that the aboriginal referendum was 96.3% for staying in Canada—what exactly would the Grand Council of the Crees have done in that instance?

Grand Chief Ted Moses: Certainly we would have called on the Government of Canada to invoke, as a trustee, their constitutional responsibility toward the constitutional rights of the Crees, because you would clearly have a situation where one group of people is being forcibly removed from their territories without their consent and into something new. Obviously that is a violation of fundamental human rights; it's a violation that goes against the Charter of the United Nations. Canada is a member of the United Nations, and therefore Canada would have to uphold and respect human rights, and the human rights of the Crees or the aboriginal peoples.

• 1615

Mrs. Karen Redman: The Canadian government would not have recognized the 1995 PQ referendum, because it was such a fuzzy question and such a fuzzy majority. The essence of the clarity bill is to create a context of clarity and qualitative variance within that question and whether or not the majority is clear.

I'm wondering if you would comment on the need for those kinds of aspects to be part of any kind of question that's posed in a referendum.

Grand Chief Ted Moses: I think the quality of the question is also very important to us, because it's a question of your asking people to make a decision on a particular question. If I recall, in the last two referendums the questions were never very clear. Certainly the first one was not clear. People had all kinds of notions on what the question meant and what the results of the response to those questions would be.

It was the same in the recent referendum. Given the technology we have today, it was very surprising to me that people were not aware or did not understand the question. So the quality of the question is very important, as well as how many questions you ask the people.

It's also important for us to ask how many times are you going to keep asking the same questions? In 1980, if it was very clear and it was made clear that the will of the people was not there to support the government that was pursuing secession, why wait another 10 years or 15 years until 1995 to basically try to go for the same objective—maybe formulate a question with slightly different words, but people still don't understand it?

How many times will you question the integrity and the wisdom of the people? Are you waiting for some point when someone might sleep in and not be part of the process, and therefore the numbers might change? I don't know.

The Chair: Thank you very much, Chief Moses. We appreciate the time you've taken to come today. Unfortunately, the time has expired.

Mr. Turp has something to say.

[Translation]

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): You always treat us with respect by speaking our language. Chief Moses. On behalf of the Bloc Québécois and indeed, on behalf of all committee members, I would like to thank you in your own language: [Editor's Note: Member speaks in Cree] I just wanted to thank you in Cree for your presentation. I apologize for my pronunciation.

[English]

Grand Chief Ted Moses: I'll ask you to repeat it again after.

The Chair: That's the trick.

Grand Chief Ted Moses: I have three or four translations in Cree that can help me.

The Chair: Thank you very much.

Grand Chief Ted Moses: Merci.

The Chair: I have just a quick question for the committee. Is there agreement to sit through the vote? What are your instructions?

Some hon. members: Agreed.

Mr. Grant Hill: Just return to orders of the day—

The Chair: Yes. As long as we're all here. It nets it out.

If that's agreed, let's continue.

Mr. Michel Guimond: Hold on.

[Translation]

Mr. Daniel Turp: Mr. Chairman, are you not interested in upholding a tradition, namely that members be allowed to leave when votes of this nature are held? Unless we're running short on time, I think we should continue to uphold this tradition.

The Chair: It's up to the committee to decide whether or not to continue sitting. I always ask if it is the wish of the committee to continue or not.

• 1620

Mr. Daniel Turp: If I understand correctly, this vote will take 15 minutes, just like all of the other votes we have attended in recent days. Am I not right, Mr. Alcock, about the 15 minutes?

[English]

Mr. Reg Alcock (Winnipeg South, Lib.): I'd be happy to stay.

The Chair: I'll suspend the sitting for a moment.

• 1625

• 1626

[Translation]

The Chair: Mr. Guimond, on a point of order.

Mr. Michel Guimond: I'd like to state clearly for the record that the Bloc Québécois has agreed to hear the testimony of the Right Honourable Joe Clark, despite the fact that the government has imposed its agenda on us and called us for a vote in the House. We agreed in the spirit of cooperation to hear from the Right Honourable Mr. Clark.

The Chair: All committee members have given their agreement and I greatly appreciate their cooperation.

Our next witness is the Right Honourable Joe Clark, the Leader of the Progressive Conservative Party of Canada.

[English]

Mr. Clark, it's a pleasure to welcome you to the committee. We thank you for taking the time out of what I know is a busy schedule to come before us and make a presentation to the committee.

As you know, our rules require that you have 10 minutes for your remarks, followed by 35 minutes of questions from the members. The floor is yours, sir.

Right Hon. Joe Clark (Leader, Progressive Conservative Party of Canada): Thank you very much, Mr. Chairman and members of the committee. I appreciate your courtesy in hearing me.

I'm here as a Canadian federalist. My interest is in how we build a stronger Canada, not how we break it up, and I do not like the emphasis of this bill on secession. For the first time in history, Parliament would make it legal to break up Canada. I think it is a mistake to focus on secession, when there is so much more to be gained by emphasizing what Canadians can do together.

The debate today is not about the strategic merits of plan A or plan B; it is about a specific bill: Bill C-20. The bill is supposed to ensure that any vote to secede from Canada would reflect a considered judgment on a clear question—no trick, no diversions. That is the kind of question everyone should want. It is the only way sovereignists would have a real mandate. It is also the best guarantee that the rest of the country would negotiate seriously.

Will this bill add that kind of certainty? On the contrary, it is both inflammatory in its method, by seeking to intrude on provincial jurisdiction, and extremely vague in its detail. It will not provide the security Canadians seek. It divides federalists in Quebec, and whenever that happens, sovereignty gains. Its passage would materially weaken the ability of the Government of Canada and the Canadian federation to deal with a secessionist referendum and build the kind of positive Canada in which Quebeckers would choose to belong.

Let us remember how we got into this situation. Despite the federal government's assurances, Canada nearly lost the referendum of 1995. No one can claim that the voters in Quebec were indifferent. Au contraire, voter turnout was overwhelming, at 93.5%. Mr. Chrétien's government would prefer to blame the nature of the question. Mr. Claude Ryan's view, however, is that many federalists voted yes out of frustration, because of the absence of proposals for renewal.

• 1630

This bill, in my view, is the Chrétien government's response to its failure in 1995. It is a classic case of a general fighting the last war. If Mr. Ryan is right and the real problem was the absence of federalist proposals, this bill is exactly the wrong way to prepare for the future.

In any event, the pertinent question about Quebec is not what happened yesterday but what are current attitudes? What might happen tomorrow? Is the federalist Alain Dubuc, writing in La Presse, correct about fundamental changes in that province? Is the sovereignist Jean-François Lisée correct that a referendum on sovereignty cannot succeed? Is Claude Ryan correct in saying that most Quebeckers prefer a renewed Canada?

As members here have noted, the so-called clarity bill is not clear at all. It does not define a clear majority, or how a clear majority would be determined. It says nothing of borders, or how they would be determined. It says nothing of the amending formula that would be required for secession. It is not clear on the fiduciary responsibility of Parliament respecting the aboriginal peoples or the rights of those peoples. It's not clear on the role of provinces in judging a question, the role of the Senate, or indeed the role of the public. Nor is it clear about whether representatives of a seceding province would sit on both sides of the table during a negotiation. These are not trivial questions.

The aboriginal people cannot be moved out of federal jurisdiction without their consent. This bill says only that this issue would have to be addressed in negotiations. Well, what does that mean for Parliament's solemn fiduciary responsibility and for the rights of aboriginals, as set out and guaranteed in section 25 and section 35 of the charter?

Again, what happens if a province simply ignores this bill, runs a referendum, and secures a clear majority on a clear question that has not been approved by the House of Commons? Do we take them to court? Do we pretend that nothing has happened? The bill is silent on that issue, as it is silent on so much that matters.

This bill claims—and I use its words—to give effect to the Supreme Court opinion. That is simply not true.

[Translation]

The bill differs materially from the Court on two critical questions. First, the advisory opinion of the Court, in paragraph 153 says:

... it will be for the political actors to determine what constitutes “a clear majority on a clear question”...

That is “political actors”, in the plural. The bill is far narrower. It confers a determining status on one group of political actors, the Members of the House of Commons, and confers an inferior status on the provinces, territories, and the Senate, whose views would only be taken into account, and on aboriginals.

Second, the Court finds a duty to address any legitimate initiative by each participant in the federation. Bill C-20 is far narrower than the Court opinion. It obliges the House of Commons by law to follow a timetable and a process respecting only “a referendum relating to the proposed secession of the province from Canada”.

There is no similar obligation or timetable respecting a referendum to renew or improve Canada. In both cases, the Court is inclusive, while the government is narrow.

[English]

The rigidity of this bill, in my view, limits dangerously the capacity of a future prime minister to protect our country against secession. It ties the hands of Canada and takes away the flexibility upon which Macdonald, Laurier, Mackenzie King and other prime ministers relied to keep this country together.

For the sake of argument, assume it is 2011 or 2015 and something goes wrong in the international community that has serious implications for Quebec or, for that matter, British Columbia. Assume that a charismatic leader arises in either province and takes advantage of those circumstances to win a clear majority on a clear question about secession.

• 1635

Without Bill C-20, the Government of Canada could consult, delay, negotiate, hold its own national referendum, and employ all the other instruments of ingenuity and ambiguity by which previous governments in previous crises have kept this country together. With Bill C-20, that flexibility is gone.

There is a specific law of Parliament that spells out a fixed timetable and a clear process towards secession. Among other things, that is a gift to a secessionist province. All they have to do is start the negotiations in good faith. They would go to the international community after negotiations failed and they would demand recognition on the basis that they had followed the law of Canada, they had followed Bill C-20.

[Translation]

Is there an alternative to this bill that would accomplish its presumed purposes? Is there a way to respect the interest of all Canadians in having a voice in the future of our country, and respecting the right of a seceding province to decide its own question and rules? The answer is: there are several alternatives.

One was proposed by a former Clerk of the Privy Council, Gordon Robertson, who has suggested what he called “contingency legislation” which would ensure that the authority of the Government of Canada continues after a secession referendum, until it is deliberately changed. That could establish a consultative committee including premiers and aboriginal leaders. While the legislation would be debated before a referendum, it need only be proclaimed after a “yes” vote.

Another approach would be for a prime minister to make it clear that he or she would convene an emergency session of the full Parliament, or the First Minister and Aboriginal leaders, or both, to reflect a consensus on whether a question, or a majority, would be a reasonable basis for a negotiation.

No Prime Minister needs a law to do that.

[English]

Those alternatives, of course, would not guarantee that a seceding province would accept the judgment of others. Neither does Bill C-20. They would not spell out the details in advance. Neither does Bill C-20. They would not prevent an attempt at a unilateral declaration of independence. Neither does Bill C-20. These alternatives, however, would also not give a seceding province the authority of Canadian law when it ended negotiations and sought international recognition, as Bill C-20 would clearly do.

A final point: The government itself is unclear about the clarity bill. In Toronto on January 25, the minister said the question of the majority should not be decided now, in what he called a quiet Canada like today, but should wait until what he called a crisis situation, when members of Parliament would assess it under the circumstances.

Well, sir, the very logic and justification of clarity is to set out the rules in advance so everyone knows where they stand well before a crisis situation. If the minister says the question of what constitutes a majority will not be known in advance, that it will be decided at the time, in the crisis situation, sir, that sabotages clarity. That confirms the suspicion that the rules will be subjective, written at the time, designed to discredit whatever a referendum decides.

Jean Charest, who will lead the fight for the federalists in Quebec and who opposes this bill, used to refer to questions like these as a black hole in which there are no clear answers. He's right. No doubt it would be comforting to have clarity, but to pretend that Parliament can provide that kind of security is simply to offer false hope.

A better use of this committee's time would be to take what Mr. Ryan calls this period of calm to consider modern ways to renew the federation. To make this bill law would add to the uncertainty that the government claims to seek to reduce. It would add to the cause of those who would break up Canada.

• 1640

I would welcome the opportunity to discuss the proposal with you.

The Chair: Mr. Hill.

Mr. Grant Hill: Thank you, Mr. Chair. I appreciate the testimony from the witness.

We've talked to a number of politicians from the past, men who actually participated with you in the previous campaigns: Gil Rémillard, Ed Broadbent, Bob Rae. In those days, they all accepted the strategy that to talk about the realities of secession was an error, that it might provoke. In this day and age they have changed their minds for various reasons. All three of them in fact accept this way of moving.

I'd like to know what you say to those individuals who were your compatriots in those old battles, who say those days were a mistake. They said that to us here.

Mr. Joe Clark: I can't comment on whether they said it was a mistake or what their view was.

Mr. Bill Blaikie: They said they made a mistake in the past, but they've changed their minds.

Mr. Joe Clark: I wouldn't comment on that, but I certainly respect the position they have taken today. There are people of great good conscience and great experience who hold to the view that it is time for a so-called plan B. I don't hold to that view because I think what it means is that we are not holding out the prospect of change, which is the only way we can win people to the support of Canada. I don't think you threaten people into being part of a country. I think you have to give them reasons to see that their future is better here.

I am quite persuaded and quite impressed by the argument of Mr. Ryan the other day. Had there been more effort prior to 1995 in putting forward proposals that might make Quebeckers think there was room for them in Canada, the referendum result may have been different. I am very much on the side of trying to encourage changes that I think, Dr. Hill, need not be divisive between your province and my province and Quebec. I think we can find much more common ground if we look for it, but to put aside the finding of common ground, to emphasize the harsh consequences of secession, will prove to be counterproductive.

Mr. Grant Hill: We agree on the positive mechanisms of keeping this country together. You did say that for the first time in history, a Parliament is recognizing that Canada could be broken up. In my view, that is exactly what the Supreme Court said. They recognized that there was a possibility and they looked for a mechanism to put a framework around that. Do you think this bill follows the Supreme Court reference accurately?

Mr. Joe Clark: First of all, I remind you that the former Chief Justice Lamer, shortly after he went into retirement, made it very clear that there is a difference between an opinion and a judgment. He said there is absolutely no obligation on the part of Parliament to follow the opinion of the court.

Mr. Grant Hill: What I really was after was do you think the Supreme Court reference is well followed by this clarity bill? Is it accurate in terms of the reference there? I need to know that fairly quickly, because the time is tight.

Mr. Joe Clark: My answer is germane, Dr. Hill. I think the view of the then presiding chief justice was that there was no obligation to follow the position of the court.

Let me make a distinction. If the court gave an opinion that was clearly only an opinion, that has one status. If Parliament passes a law, that has an entirely different status. What I'm worried about is what happens in the event of a secession, in the event of a negotiation that fails. I have been worried about what the seceding province does. They will start the negotiations and they will go off, after a period of time when negotiations fail. They'll go to France and they'll say “Bonjour, France; allô, Gabon. We want to be recognized internationally on the basis of the law of Parliament.” That's very different from doing that on the basis of an opinion of a court.

Mr. Grant Hill: Your words were that you would somehow face a threat to secede by using mechanisms like “ingenuity and ambiguity” from the federal government. That, I think, is disrespectful of a province trying to secede.

• 1645

I would approach this from a standpoint of respect, from a standpoint of frank, open, honest debate, and in my view, those words are not the sort that I would say would keep a province in this country. I cannot imagine that really was what you intended to say. Please tell me it wasn't.

Mr. Joe Clark: I must have been misinterpreted, Dr. Hill. Perhaps we speak a different High River.

My reference was historic. My reference is to the fact that if you look back on crises that this country has survived before, we have been very well served by the availability of ambiguity, by the availability of ingenuity. Mackenzie King would not have navigated Canada through the conscription crisis without judicious use of ambiguity.

What this bill does is take away from any future Mackenzie King the capacity to find ways in which we might have the issue reconsidered, find ways in which we might save Canada with sober second thought, with some more ingenuity. That's what I'm talking about, the Canadian record, how we have kept the country together in the past, and this bill takes away that essential flexibility, which has been so important to our country in the past.

[Translation]

The Chair: Mr. Turp.

Mr. Daniel Turp: Thank you very much, Mr. Chairman.

Mr. Clark, you were privileged to witness the events leading up to the adoption, and subsequently the rejection, of the Meech and Charlottetown accords. You observed first hand how difficult it is to use a constitutional amendment process to achieve these objectives.

Do you find the proposed procedure set out in Bill C-20 appropriate, particularly the provisions respecting the constitutional amendment process that would be required in order for Quebec to secede and become independent?

Mr. Joe Clark: Obviously, I would prefer not to see a bill like this because I don't think this is the right approach to take. I think it will create obstacles in terms of negotiating more practical constitutional arrangements that make a society like ours run.

Mr. Daniel Turp: Are you saying then that Bill C-20 will complicate matters for all of the political actors, as identified by the Supreme Court in its opinion?

Mr. Joe Clark: Will it complicate matters? I would have preferred that this bill not have been tabled in the first place because it takes an inflexible position and a negative approach which doesn't encourage the types of changes that can be achieved in a federation.

Mr. Daniel Turp: I also know that your party concurs with the Court's opinion, namely that sovereignty is a legitimate aspiration, and that it supports the desire of certain Quebeckers to achieve sovereignty through a very legitimate and democratic process. As you pointed out, the majority issue is critical and needs to be clarified.

Am I correct in saying that your party is of the opinion that the applicable rule in this instance is the rule of a clear majority of 50 per cent plus one? In your opinion, would the Quebec National Assembly have the right to decree that the applicable rule in Quebec's case is 50 per cent plus one?

Mr. Joe Clark: First of all, I have no doubt whatsoever that sovereignty is a legitimate aspiration. As I said in my presentation, I believe that it is in the interest of sovereigntists to ask a clear question because should they emerge victorious in a referendum, they would be in the best possible position then to put a legitimate face on their proposal for the rest of Canada.

• 1650

As for the rights of the National Assembly, I believe the National Assembly, or the legislative assembly of any other province for that matter, should this become an issue in another province, has the right to draft the question. For me, the democratic rule is always 50 per cent plus one.

I also believe it's important to ensure that other Canadians not directly involved by this process feel that they are participants and that their opinion does count. However, I don't think this means action should be taken that might be construed as interference in the jurisdiction of the National Assembly.

The Chair: Thank you.

[English]

Mr. Blaikie.

Mr. Bill Blaikie: Thank you, Mr. Chairman.

I want to thank Mr. Clark for one of the more compelling criticisms of the bill.

I would certainly agree that the bill is in some ways a counsel of despair. The question, of course, is whether that despair is justified. I would certainly think there's a great deal of justification for that despair, whether it stretches out over the long term or not. But certainly if there's going to be the kind of plan A that you seem to refer to, that—in my judgment anyway—would involve some kind of asymmetrical federalism that recognized Quebec as a people, or as a distinct society, or in some way was beyond administrative reform and involved some kind of constitutional recognition.

We've gone that route. We tried that with Meech, and the Liberals stopped it. We tried it with Charlottetown, and Reformers stopped it. We have a political landscape and a country that is dominated by the two parties that made those two attempts fail.

So we now have a situation, unfortunately, where we have a sovereignist government in the province of Quebec that may be prepared to take both fair advantage and unfair advantage of that situation, of that failure. It seems to me what one could argue about this bill is that it creates a framework in which unfair advantage can't be taken of that.

I can see a sovereignist government taking fair advantage of it and saying, look, these guys are hopeless; you just cannot get something out of the rest of Canada that holds, that doesn't fall apart, that isn't sabotaged for either justified or unjustified political reasons, so we think we should form our own country.

On the other hand, you yourself admitted that many federalists voted yes in 1995 as a way of responding to that failure, but also as a way of trying to indicate that they want to go at it one more time. And isn't it a fair argument, if you like, to create a situation in which no question that people responded to in that way—that is to say, they voted yes not to secede but to create a different political context in which there could be renewed federalism—could ever be used by a sovereignist Government of Quebec to create a false mandate for requesting negotiations on secession?

Mr. Joe Clark: Let me try quickly to answer two parts of that question.

One, I do not think despair is justified. I don't think failures in the past guarantee failures in the future unless we fail to try, and my worry about this kind of approach is that it will turn people away from trying.

After the rejection of Charlottetown and Meech Lake, remember, the premiers came together with the Calgary declaration, not as strong as people would want, but nonetheless they came together because there was an atmosphere of looking for solutions. If we change the atmosphere to looking to threats rather than to solutions, we will not have that kind of creative proposal.

My own sense is that there are substantial changes. We're hearing testimony—you've heard testimony here, and you've read it in the newspapers—about significant change in the province of Quebec. I can't judge that as well as others can, but I have to take seriously what Alain Dubuc and Jean-François Lisée write. Certainly my own instinct says there are changes in that province.

• 1655

I think in our own region of the country there would be a willingness to look at making the country work. I don't think there's likely to be any interest in the short term in formal constitutional change, but I think there is a possibility of a number of other approaches.

On the other question you raised, if you want to do that, if you want to send a warning shot across the bow, if you want to try to limit the capacity of a secessionist government to propose an ambiguous question, there are ways to do that other than this law. I suggested the proposal that Gordon Robertson put forward. That would be one way.

One should not dismiss the power of first ministers or aboriginal conferences being called, or special sessions of Parliament at the time. There are other ways to do this that don't require formal law. Formal law, as we begin to look at this, has all sorts of difficulties.

I hope you will not dismiss my concerns about the international implications of this bill. I think this gives to the sovereignists a great degree of help in going internationally for recognition.

You, I know, are very worried about the aboriginal situation. I heard only the last part of the testimony of the Crees, but it is the case that the government deliberately asked the court not to make a judgment, not to make a recommendation on aboriginal issues. That doesn't remove aboriginal issues from the concern of Parliament. You have—Parliament has—a fiduciary responsibility here.

If we go the route of a formal law to accomplish the goal you're setting out, we get into all sorts of difficulties. And I would think that unless this committee can show a lot of ingenuity, Dr. Hill, in the way that it tries to amend the bill, you're going to end up with a piece of law that may or may not discourage an independentist government, but it will create all sorts of other problems for the country. So I would do it less formally.

[Translation]

The Chair: Go ahead, Mr. Bachand.

Mr. André Bachand: Very rarely in the history of committee and parliamentary work do members formally get the opportunity to put questions to their leader. Therefore, I will endeavour to be fair and balanced in my questioning.

Continuing along the same lines as my colleague Mr. Blaikie, in 1995, some federalists voted yes, either because they were fed up with things, or because they wanted to see some changes. The same thing happened in 1980. You may recall that “No” meant “Yes” in 1980. The more ambiguous the question, the more ambiguous the outcome, depending on which camp you consult. That's not surprising. However, I do think we must put our trust in people. After all, the public voted the Liberal Party in in 1993 and re- elected it in 1997 believing that it would scrap the GST and free trade.

I have a question for you, and maybe even two, if time permits. First of all, there is one subject that is often discussed by the two political parties represented here, and that's the famous question of partitioning which could be summarized by the following phrase: If Canada can be partitioned, so too then can Quebec. It's a question that arouses people's passions, whether they live in the Eastern Townships, the Outaouais or Northern Quebec. I'd like to hear your views on partitioning and its implications, not only for aboriginal peoples of course, but also for some of the other federal parties represented here today.

Mr. Joe Clark: This issue affects aboriginal peoples in a very unique way, given their situation and the history of New Quebec. It's a complex issue. However, there is at least a basis for the position taken by aboriginal peoples.

As far as most governments are concerned - and I accept this - partitioning is not a plausible option in a society like ours. It could lead to tremendous confusion. That's my answer, Mr. Bachand.

Mr. André Bachand: I have another question, if you'll allow me to continue, because the Chair has a way of cutting Mr. Mills, Mr. Blaikie and I off occasionally. I say that with no animosity whatsoever, Dennis.

[English]

Mr. Raymond Bonin: At least you get a second question.

Mr. André Bachand: That's because the first one was quite short.

• 1700

[Translation]

Regarding the role of the provinces, yesterday evening, we heard an excellent presentation from Mr. Gibbins from the Canada West Foundation. Since you're from the West, what message would you have for all provinces, but more specifically for Western provinces, regarding their role in the bill and the opinion of the Supreme Court? What would you say to Western provinces wanting more than ever to participate in Confederation?

Mr. Joe Clark: As I see it, the biggest problem with this bill is that it does not provide any kind of role in the process for the provinces, the Senate, the territories or aboriginal peoples. They are not considered political actors, as mentioned by the Supreme Court. The Supreme Court was very clear on this. It referred to political actors in the plural.

Allowing the House of Commons to make decisions on its own on behalf of all Canadians alters the vary nature of our federal system. We are a federation. Our country is founded on this principle. I think we would be setting a dangerous precedent if we were to give the Parliament of Canada the power to act on behalf of the provinces.

[English]

I can think, for example, in my own province of a—

An hon. member: [Inaudible—Editor]

Mr. Joe Clark: Exactly, it's the old 1981 debate. But it's also the debate about the national energy program. The national energy program, from the perspective of my province, was seen as the intrusion by the federal government into a jurisdiction that was not their own.

I think there is a foreshadowing of that kind of putting aside of legitimate provincial interests when the Government of Canada pretends to be giving effect to a court opinion when the court opinion said to treat the provinces as political actors. The Government of Canada says to treat only the House of Commons as a political actor. I think that is a chancy road on which to embark.

The Chair: Mr. Alcock.

Mr. Reg Alcock: Thank you, Mr. Chairman.

Thank you very much, Mr. Clark, for being here with us today.

We have certainly been spending some time trying to sort out exactly what the policy of your party is on this particular question. If I understand your presentation, I think it actually has become a little clearer to me as you talked about the instruments of ambiguity.

You made some choices before about who you would seek advice from by bringing Mr. Bouchard and others into your party. Today you chose to take advice from Mr. Lisée. But you could also choose to take advice from Mr. Peter Hogg, Bob Rae, Mr. Rémillard, Claude Castonguay, and others, who also have some opinion about this bill and feel it is a very useful tool in this discussion.

Mr. Joe Clark: Pierre Pettigrew.

Mr. Reg Alcock: Let me just ask “the” question, because you seem to walk down two roads at the same time. You said on December 13, 1999, that this bill was a road map to secession, suggesting that it creates an opportunity for secession that didn't exist before. Now, this criticism implies that even if the question and the majority were clear, you think the federal government should not negotiate secession. But you've also said that this bill—you said it today—is inflammatory, that it's an invasion of the jurisdiction of the Government of Quebec and the National Assembly of Quebec. That would imply the opposite assumption, that the Government of Canada should negotiate secession at the whim of the Government of Quebec, even if the question and the majority is not clear.

So it seems to me—and this is one of the problems we've had with assessing where you're at—you're saying we should not negotiate even if it's clear, that the bill is a road map to secession; or we should negotiate even if it isn't clear, that the bill is inflammatory. Can you help us pick those two questions apart?

Mr. Joe Clark: Well, certainly someone is unclear, Mr. Alcock.

• 1705

Some hon. members: Oh, oh!

Mr. Joe Clark: Let me tell you what I mean by a road map to secession.

We now have a situation in which, in response to a reference by the Government of Canada, the court has indicated that there is an obligation on the part of the other partners in the federation to take account of and to treat seriously any proposal for a change in the federation. That was the court's view, any change. The government has limited it much more seriously. It has said to take account only of proposals for secession. I think that's wrong. I'd be interested in knowing why the Liberal Party is accepting only half of the advice of the court and not following the full advice of the court.

On the half that it's following with regard to secession, what it does here is set out a very firm timetable. It cuts out options. If there were a clear question, if there were a clear majority, the Government of Canada would be obliged by this law to follow a quick timetable and move with dispatch to a negotiation.

If I may quote a former prime minister of your party, Mr. Mackenzie King, who faced problems of this kind with conscription, as I said earlier, he made ample use of finding ways to change the subject and to buy time. That's the way this country has been kept together.

Let me use an example. Without this bill, if you were the Prime Minister of Canada and this occurred, you would have the option of calling, for example, a federal referendum across the country or in Quebec. You would have all sorts of other options available to you without this bill. But you take this bill, and you deny yourself those options to defend Canada. What you're doing is giving secessionist provinces a fast track through the House of Commons, spelling out the way they have to proceed, and denying the country the capacity to protect itself. I think that makes no sense at all.

I would hope that you and other members of the party of Laurier, the party that played such a central role in building this country, would look at the value of preserving the political aspects of this political question.

The Chair: Mr. Lowther.

Mr. Eric Lowther (Calgary Centre, Ref.): Thank you, Mr. Chairman.

I have just a couple of quick questions. I'd like to come back to what Mr. Alcock brought up a minute ago.

But first, in reference to what Dr. Hill said earlier, I'm unclear as to your position, Mr. Clark. It sounded to me as if the Supreme Court direction was not in the equation as far as you're concerned. My question is, if it were your call, would you repeal Bill C-20, continue to ignore the Supreme Court reference, and rely on ambiguity and flexibility to govern on this issue?

Mr. Joe Clark: Let me quote again the former chief justice, who said that there's no obligation on anybody to accept an opinion of a court. He went out of his way to make a very clear distinction between the binding nature of a judgment of a court, which this is not, and an opinion of a court, which this is. Those are not my words; those are the words of former Chief Justice Antonio Lamer. So it's not at all a question of ignoring the courts.

My preference with this bill would be not to have it pass, because I think to have it pass would be to provide help and comfort to secessionists, who would be able to say, even if the bill were subsequently repealed, “This was the law of the country. The Parliament of Canada spelled out this process. We followed the process. It didn't work, so here we are with the authority of Canada asking that our bid to be recognized as an independent nation be accepted.” I'd prefer not to provide a secessionist province with that capacity.

I was asked at a press conference whether a government I led would repeal this. I don't like the bill. I don't think it should be passed. I had to face a situation like this with regard to the national energy program. I fought against it in opposition, and when we came into government we got rid of it. My inclination would be to do the same thing with this bill.

• 1710

Mr. Eric Lowther: Okay. That helps. We're all striving for clarity here, but your direction to use ambiguity seems to be working on me, because I'm having a hard time sifting out your position. I have heard you say that clarity takes us in the wrong direction and takes away flexibility, but then I hear you say that we need more clarity. So there are those two sides of the equation.

What's important for me today is that I'm looking at a poll that says that in my riding of Calgary Centre 98.7% of the people believe there should be a clear question. They say it is important, and they support it. They generally support this bill. I'm wondering what you would say to the voters of Calgary Centre if you wanted their support.

A voice: He'd change the subject.

Mr. Joe Clark: No, I wouldn't. I'd say that there are times in public life when people have to stand for principle, and I believe on principle that this bill is wrong. I would hope to be able to persuade people to my point of view. That's what I would say.

But on the part that appears to confuse you, Mr. Lowther, if we're going to have a clarity bill, it should be clear. Your own colleague Ms. Meredith said in the House, if I'm quoting her correctly, that this bill is not clear. It's not clear at all. It's not clear on any of the important questions. So don't pretend to have clarity if you don't. Frankly, since you have waded into the waters of partisanship, I don't know how the Reform Party could in any kind of conscience support a bill that is called clarity when it isn't clear at all.

The Chair: Mr. Lowther.

Mr. Eric Lowther: Mr. Chair, I go back to my earlier comment. He's saying that this is a road map that takes us in the wrong direction. Yet I hear him saying that he wants more clarity in the bill. To me that's ambiguous, and it's consistent with his direction to the government here on how we approach this issue.

But the people of Calgary Centre will be asking why they should vote for you when they're clearly on the side of a clear question and getting away from the fuzzy questions we had in 1995 and the problems we had there. I haven't heard an answer to that, and I think they'll be interested to hear your answer.

A voice: Save it for a town hall meeting.

Some hon. members: Oh, oh!

Mr. Joe Clark: Let me be clear on clarity. I think this bill is not a good idea. I think if the Reform Party or the Liberal Party are going to support a bill based on the principle of clarity, then the provisions of the bill should respect the principles of clarity. This doesn't. This is not clear on virtually any important question.

Would I prefer to have this bill withdrawn? Yes. If the bill is going to go forward, should it spell out some of the areas that are now vague? Yes. I don't think there's any inconsistency there, and I think most reasonable people would understand what I'm saying.

[Translation]

The Chair: Mr. Patry.

Mr. Bernard Patry (Pierrefonds-Dollard, Lib.): Thank you very much, Mr. Chairman.

Thank you, Mr. Clark. I have a comment along the same lines as Mr. Alcock, as well as a very straightforward question for you. Everyone knows you as a great democrat and I've always believed up until now that you and your party would support Quebec sovereignty if that what's Quebeckers clearly desired.

In your opening remarks today, you stated that this bill opens the door to Quebec's secession. You even hinted at the possibility of British Columbia's secession. You told us that you preferred the status quo and that should the Yes side emerge victorious, you would do everything in your power to prevent secession.

I'm finding your comments extremely ambiguous, not to say confusing. I would almost go so far as to say that you do not respect the wishes of Quebeckers, because I have the impression that you are not interested in a clarity bill at all, but rather in an ambiguous bill. You don't want to say yes or no.

My question is very simple. Speaking of the question put in the 1995 Quebec referendum, the wording of which I'm sure your familiar with, had you been Prime Minister of Canada at the time and the Yes side had claimed victory, would you, as Prime Minister of Canada, have agreed to initiate negotiations with Quebec leading up to the eventual secession of Quebec?

Mr. Joe Clark: Let me say that had this been the outcome, I would not have been tempted to ignore the question or the facts.

• 1715

In a way, that's the problem with this bill. We live in a political system. Legislation cannot provide for every eventuality. Obviously, our society has laws, but it is also a political society and some questions are political questions and as such, require political answers. I think that too often, we try to be overly rigid in our responses, but if the reality was that

[English]

if I had to face a reality, I'd face it. What I'm saying is that it would be possible to face that kind of reality without a bill of this sort.

Mr. Bernard Patry: But with the reality of the last referendum coming that close, that time with a little bit over 49% in the yes camp, would you agree with the fact that you would have to start the negotiation if it was over 50%—for instance, 50% plus one—at that time?

Mr. Joe Clark: You're making me prime minister in the last referendum. Had I been prime minister in the last referendum, there would have been more on offer from the federation than there was under the approach that's been taken by your government.

You heard Mr. Ryan the other day indicating that, in his view, a significant factor—he couldn't quantify it and I couldn't quantify it—of the vote for oui came from frustrated federalists.

The whole purpose of my approach to public life in Quebec has been to try to give federalists, or nationalists in Quebec who are not separatists, reason to believe in Canada, reason to adhere to Canada. If we were to pursue that now—and this is a very germane question—I think we would have a much better chance of building and keeping a strong nation. If instead we resort not to finding common ground on which we can build but to the politics of threats, then we are going to drive more people—reluctantly, out of frustration—to embrace a secessionist cause. I don't want that.

Mr. Bernard Patry: Thank you.

The Chair: Unfortunately, we've used up the time allotted for this witness.

[Translation]

The Chair: I know it's happened twice now, but what's to be done? Everyone has many questions for you, Mr. Clark. I greatly appreciate your taking the time to appear before the committee this afternoon.

[English]

I'm sure all the members have found your testimony very helpful to us in our deliberations on this bill. Thank you very much, sir.

• 1718

• 1721

[Translation]

The Chair: Order, please. Perhaps we can resume our proceedings.

[English]

Mr. Dennis J. Mills (Broadview—Greenwood, Lib.): We don't have a quorum.

The Chair: Yes, sure we do. A reduced quorum is all we need.

Mr. Blaikie, you have an announcement you want to make.

Mr. Bill Blaikie: Yes, Mr. Chairman. I would like to take this opportunity to table the NDP amendments. I know there's a rule that we don't have to have notice, but I'd rather table them now and have them on the record. I have eight different amendments here. As I understand it, all I have to do is give them to the clerk.

The Chair: Thank you, Mr. Blaikie. We'll see they're distributed.

Mr. Bill Blaikie: Thank you.

The Chair: Our next witness is from the Association for Non Resident Quebecers. Their spokesperson is the director general, Mr. Marshall Miller.

Mr. Miller, we want to thank you for taking the time to come to the committee today. We appreciate your attendance, sir. You will have 10 minutes in which to make a presentation, followed by a maximum of 35 minutes of questions from the members.

We look forward to your remarks. You have the floor, sir.

Mr. Marshall Miller (Director General, Association for Non Resident Quebecers): Thank you very much, Mr. Chairman, and good afternoon, ladies and gentlemen.

Thank for for agreeing to hear our views. The ideas I will be outlining may sound new and unusual in the Canadian context, but they are neither new nor unusual in other referendum situations.

The objective of the Association for Non Resident Quebecers is to gain the right for all Quebeckers, regardless of where they may reside, to vote in any referenda that could lead to the secession of the province of our birth from the country of our birth.

[Translation]

We say that people born in Quebec are Quebeckers no matter where they may be residing. Our association is an Internet-based grassroots effort. We have not received any financial assistance from any government, political party, or corporation, except for a small private company that contributes to the cost of our website.

It is Internet-based because, as its name implies, non- resident Quebeckers are everywhere, and do not fit the classic local community structure of most associations.

[English]

Among the key considerations I hope you will consider are the mobility rights of Canadians. Canada is a place where we want people to be able to move about freely. This is a right guaranteed in subsection 6(2) of the Canadian Charter of Rights and Freedoms. If a consequence of our interprovincial mobility is the effective loss of secession referendum voting rights, then those mobility rights are hollow. They disenfranchise voters from perhaps the most important vote in their lives.

At the end of this presentation I will want to return briefly to the issue of mobility and the notion of frontiers.

The minister has correctly pointed out that referenda on secession are different. The reason is that secession is forever. When we left Quebec to work in other provinces, we left as both Quebeckers and Canadians. Secession could force us to choose between them without ever having had the opportunity to vote on that change. We seek no other voting rights.

We believe Bill C-20 changes language used by the Supreme Court in a potentially dangerous way. Bill C-20 cites paragraph 87 of the Supreme Court opinion in both the preamble and the operative subclause 1(3) as the foundation for the following comment, “the population of a province”, in connection with the rights of any provincial government to consult its people and with the House in considering the clarity of the result.

However, paragraph 87 of the opinion of the court does not use the word “population”. It uses the expression “the people of Quebec”. There are two potential problems with this change, in our view. The first problem is the danger arising from changing the language used by the Supreme Court. Changing the language risks weakening the legal foundation that Bill C-20 is built on.

• 1725

The second problem has to do with clarity. “Population” is a word with more than one meaning. It can have a narrow residentially based meaning, but it can also have a broad, inclusive sense, as in belonging to an identifiable group that shares a common characteristic. We share the characteristic with many other Quebeckers that we were born there—there are other ways to become a Quebecker in addition to being born there—and we experience to varying degrees being raised and participating in Quebec society either through education, or culture, or through our work. And that characteristic is shared by all of us Quebeckers on the outside. It is not clear which meaning is intended in the bill, but the meaning is obviously of critical importance to us.

To try to understand which the Supreme Court meant, we not only studied carefully the opinion on the reference, but we also looked at an earlier case that the Supreme Court considered in 1993, the Haig case. This case dealt with a constitutional referendum, residency issues, and voting eligibility. Even though the referendum had passed and the decision was already moot, the Supreme Court wanted to tell us something. We concluded that the Supreme Court means all Quebeckers, not just residents.

In speaking notes, the Minister of Intergovernmental Affairs cites how often the word “clear” is used by the Supreme Court as a measure of its importance. We'd like to do the same.

In our written brief we show a table listing the frequency with which the Supreme Court referred to phrases with narrow, precise interpretations, such as “domicile”, which is an important element in Quebec provincial electoral law and even more powerful than mere residency; “residents”, in various combinations; and also to broader inclusive concepts such as “Quebeckers”, the “people of Quebec”, as well as the ambiguous expression “population”.

The broad, inclusive approach had at least twice the weight of a narrow, residency-based approach, and perhaps over 80%, depending on how we treat the ambiguous expression “population”. In fact the narrowest concept of “domicile” or “domiciled” in Quebec was not mentioned even once. It seems clear that the Supreme Court means all Quebeckers, not just those resident in the province at the time of a referendum.

The Supreme Court is not considering this in a vacuum. We find also that non-resident voting rights have powerful international support. The Security Council of the United Nations endorsed and enforced the principle of extensive non-resident voting rights for the 1999 referendum on independence in East Timor, which rights are listed in appendix B of my written brief. I'd like to return to that shortly.

As an aside, we note that the question itself was negotiated between the seceding province and the federal body, among others.

We also believe there are profound federal obligations that require the inclusion of non-residents. The reference opinion leaves it to the political actors to decide what constitutes a clear majority. The Minister of Intergovernmental Affairs repeated it in his presentation to this committee. Political actors include members of the House of Parliament, and it is you who are dealing with this question at this moment.

There is more to a clear majority than merely the numerical figure. The breadth of the consultation is also important. What we need from Parliament, from Bill C-20, is clarity on the breadth of the consultation that Parliament would consider necessary.

It is important to do that for many reasons, including strengthening the mobility issue I referred to earlier, but is also important to avoid the perception of trying to set a trap for any future referendum on secession. If it is known ahead of time that non-residents must be properly included, then the voting apparatus of the province can be geared up to ensure that. If it is not known ahead of time and only surfaces later, then the separatists can easily cry foul, and they might get a sympathetic ear in the international arena.

Let us not forget that the Supreme Court provided an escape hatch in the event of either frustrated negotiations or no negotiations at all. That escape hatch is the potential international recognition of a unilateral declaration of independence. Let us not encourage that prospect by the laying of secret traps to be sprung later. That could be a strategy that backfires. Instead, let us be clear in the spirit of the clarity bill on where the rights of non-residents stand on the question of the secession of their province of birth from the country of their birth before we run into the next referendum.

Moving to a more personal level, what about our rights as individuals? Our experience is that a provincial government seeking secession has no inherent incentive to enfranchise non-residents generally. Our provinces of residence have no jurisdiction. Only the federal government, the government of all the people, and Parliament is in a position to protect the secession referendum voting rights of its citizens through loss through interprovincial mobility.

• 1730

We also say the same democratic standard must be available in Canada as Canada endorses elsewhere. The Government of Canada supported non-resident voting rights when it was a member of the Security Council of the United Nations, at the time of the East Timor referendum in 1999. It is inconceivable and absolutely intolerable that a higher standard of democratic rights can be endorsed in as sad a place as Indonesia and East Timor on a referendum on secession than is permitted in our own country. The same standard for non-resident voting rights should be available to all Canadians as the Government of Canada has supported for others. We look to this committee and to Parliament to ensure that this is the case.

Finally, before making specific recommendations, I would like to make another comment regarding mobility and the notion of frontiers.

When I visit the United States, I expect to have to cross a frontier and be subject to the conditions of entry. They have the sovereign right to decide for themselves, and their history is that those decisions can change from time to time. That is normal.

But when I go to Quebec, I don't feel that I am crossing a frontier in the sense that I am a guest. There is a definite feeling that I am returning home, and I don't want that to change. When I return to visit my two children who still live in the Montreal area, or when I return to visit the gravesite of my daughter buried in the Montreal cemetery, I don't want to have to feel that I have to cross a frontier.

Just as I think it may be Nelson Mandela who said that bars do not make a prison, so I believe there is more to a frontier than armed guards and barriers. It can also become a sad state of mind and the opposite of feeling included. If that sad day is ever to come, I want my voice heard alongside all other Quebeckers in this decision.

We look to this committee, to Parliament, to the Government of Canada to ensure that our voices must be heard before they will consider any result in favour of secession to be valid.

I have two recommendations. The language in Bill C-20 should be changed to delete references to “population of a province”, because of the unclear meaning of the word, and to substitute instead “people of a province”, in keeping with the actual wording and intent of the Supreme Court reference.

Secondly, a new clause should be added to Bill C-20 to require explicitly that eligibility include persons normally eligible to vote in provincial elections and other referenda, and the following persons: persons born in the province; persons born outside the province but with at least one parent having been born in the province; and persons whose spouses fall under either of the two categories above. All these criteria are completely consistent with the standards endorsed by the Government of Canada for others.

Thank you.

The Chair: Thank you very much, Mr. Miller, especially for keeping your remarks within the time allotted.

Are there any questions? Ms. Meredith.

Ms. Val Meredith: Thank you, Mr. Chair, and thank you, Mr. Miller.

I listened with interest to your feeling that you were excluded from voting in the referendum because you didn't live in the province of Quebec, and I gather—and I may be putting words in your mouth—you were a little offended that you had to register to vote in the referendum. But isn't that the standard form?

If I wanted to vote in, say, the province of Alberta in a federal election, I couldn't unless I was a resident 60 days or whatever prior to that, unless I registered to vote because I was out of province or out of country because of work. Why would you treat this referendum as any different from any other legitimate vote in the country where, if you're not a resident, you really lose your right to vote unless you have a legitimate reason for being out of province?

Mr. Marshall Miller: There are two parts or two answers that I would like to give. One follows the other.

One is that as a non-resident, I applied to the director-general of Elections Quebec early in 1999 to be registered on the register of voters allowed to vote outside Quebec, which the DGEQ maintains, specifically, though, for referenda on secession. I don't believe we have any rights in any other sort of local issues or issues that are purely under the provincial division or separation of powers under our Constitution. They are sovereign in certain areas, and the federal government is sovereign in other areas, and that is what makes up Canada.

So as long as they are asking questions that fall within their own jurisdiction, then I don't think those of us who have moved away, either temporarily or for longer periods, have really anything to say about it. Any rights we may have are fully protected under our Constitution, because Quebec remains under part of the Constitution of Canada. Everyone's rights are protected in the same way.

But secession is different. Secession, if it is successful, creates a new country. So whatever privileges, rights, feelings, and beliefs we had as Quebeckers are suddenly lost. We have to choose between being Canadians or being Quebeckers, and we come under the threat of a change of government in the future, where one or the other of the two governments might decide to change its policies. We've had no chance whatsoever to express our views even though we are affected by this.

• 1735

I don't want to take up all the time, because you may have another question, but in my written brief I use an analogy. If someone born in Prince Edward Island were working in Toronto or Ottawa and Prince Edward Islanders decided they wanted to secede, I don't think anybody would find it unusual that people across the country from Prince Edward Island could vote on that. That is a standard that was applied by the Security Council, and it was a standard that Canada endorsed, so I don't see why it shouldn't apply here.

Ms. Val Meredith: I guess my concern is what you feel although you've left the province. I'm not saying you shouldn't have a feeling for that province, that you shouldn't feel concerned about its decision to hold a referendum on secession. But you're saying the rest of Canada, Canadians outside of Quebec, who are equally going to lose something.... They're going to lose a very major part of what they consider to be their country, and they're going to be very much affected by the decision. Although it may not be in the same emotional way or in the same way of being denied their birthright, as you see it, they still will be very much affected by the decision. Yet you're implying—and maybe you don't mean to imply this—that only people who were born in Quebec or have lived in Quebec have a right to decide whether or not they want to accept this changing of the nation.

I would suggest to you or put before you—and I ask for your reaction—that all Canadians should have the ability to be asked how they feel on a secession question. Does it not concern all Canadians and not just people who have a birthright?

Mr. Marshall Miller: I think it probably concerns all Canadians, but I think those of us who were born there are affected in a very special way that no other Canadians are. Someone from British Columbia continues to be a British Columbian and a Canadian after the secession of Quebec. Someone born in Quebec who hasn't had an opportunity to vote on it is affected in a very different way. We would have to choose between whether or not we wanted to be in Quebec or whether or not we wanted to be Canadian and also Quebeckers.

Ms. Val Meredith: But I would suggest to you.... Maybe I'm sort of cutting to the chase in simplifying it, but I was born in Alberta. When I left Alberta, I left Alberta. I don't consider myself an Albertan, I consider myself a British Columbian. I made a decision and a choice to move somewhere else and to take on that identity in that relationship. I would therefore ask you, if you have left Quebec and are gone for twenty or thirty years, how would you feel you have any more of a decision to make than I, who am part of the outside world according to you?

Mr. Marshall Miller: When I leave Quebec, I don't cease to be a Quebecker. That's my profound belief.

Let me give you an example. I had a recent conversation with a member of the Ontario legislature on a completely different issue. He mentioned in passing that his wife was born in Montreal. I asked if I could have another ten minutes after our formal discussion was completed. He said I could, and I told him what I was doing. He told me a story of something that happened in a restaurant. Some Quebeckers came into the restaurant, and his wife joined in claiming that she was a Quebecer too. I'm not the only one. We all feel this way.

People from Quebec are, in various ways, different. The polls show that. The way we think about things shows that. In my view, it isn't just the Prime Minister and the Minister of Intergovernmental Affairs who can get up proudly and say “I am from Quebec. I'm a Canadian and a Quebecer too.” We all feel that way, and I think we should be allowed to maintain that feeling. If it's going to be taken away, at least hear our voice alongside that of everyone else.

The Chair: Monsieur Guimond.

[Translation]

Mr. Michel Guimond: Mr. Miller, to understand your testimony and truly appreciate what you're saying, I'd like to know if you currently reside in Toronto.

Mr. Marshall Miller: Yes, I do.

Mr. Michel Guimond: How long have you lived there?

Mr. Marshall Miller: For 22 years now.

Mr. Michel Guimond: You've lived in Toronto for 22 years.

Mr. Marshall Miller: That's correct.

• 1740

Mr. Michel Guimond: I think Ms. Meredith has asked a very relevant question and I'd like to run with it a little.

You are originally from Quebec and you have been living in Toronto for the past 22 years. If a referendum on sovereignty were held this year, according to your submission, you would ask to vote in this referendum.

Mr. Marshall Miller: Yes.

Mr. Michel Guimond: If the vote was in favour of sovereignty and a process was initiated pursuant to Bill C-20 to amend the Constitution, the Ontario legislature would be required to hold as referendum of its own to ratify any changes to the Constitution. Were you aware of that?

Mr. Marshall Miller: No.

Mr. Michel Guimond: Well, it's true. Would you also be entitled then to vote in the Ontario referendum?

Mr. Marshall Miller: It seems to me that people would have to make a choice as to where they wanted to vote. I believe in the principle of one person, one vote.

Mr. Michel Guimond: Therefore, even though you've lived in Ontario for the past 22 years and even though you pay taxes in Ontario... Do you vote in school, municipal and provincial elections in Ontario? If you're a Quebecker... Do you in fact vote in Ontario?

Mr. Marshall Miller: That's not the point.

Mr. Michel Guimond: I'm not trying to make a point. I'm merely asking you some questions.

Mr. Marshall Miller: May I ask you a question?

Mr. Michel Guimond: No. I'm not the witness here. You tabled a brief and asked to be heard by a committee struck by the government to examine Bill C-20. You are here to answer my questions. Do you at present vote in school, municipal and provincial elections in Ontario?

Mr. Marshall Miller: Of course I do.

Mr. Michel Guimond: This in spite of the fact that you are a Quebecker?

Mr. Marshall Miller: Of course.

Mr. Michel Guimond: I see.

Mr. Marshall Miller: These areas fall under Ontario's jurisdiction. I'm not saying that I want to vote on everything that takes place in Quebec.

Mr. Michel Guimond: If we follow through on what you're asking, how in fact would things be done? Do you understand what I'm asking you?

Mr. Marshall Miller: Yes.

Mr. Michel Guimond: How would it be possible to allow you to vote in the referendum on Quebec sovereignty, as you are requesting, and then to strike your name from other lists, in accordance with the one person, one vote rule? How would officials know that you had voted in the Quebec referendum and be certain that you were not going to vote again elsewhere? Should they simply take your word for it? Would you ask that your name be removed from the voters' list? Would you not want to vote, even though you may have voted the previous week in school elections, and the month before that, in provincial elections, and on the previous November 1, in municipal elections? Would you ask that your name be removed from the voters' list so that you would not be able to vote in your province's referendum? Is that in fact what you're saying would happen?

Mr. Marshall Miller: Not exactly, because Ontario would not hold a referendum until such time as the results of the Quebec referendum are known. Quebeckers will have already taken a stand on the issue. I'm saying that I am entitled to vote in the first referendum, but not in any subsequent referendum held elsewhere.

Mr. Michel Guimond: Yet, this second referendum will be for Ontario residents. Just like you, Mr. Bonin, my colleague from Sudbury, will be required to vote in his home town to ratify any constitutional amendments. As a resident of Toronto and of the province of Ontario for the past 22 years, but equally as a native Quebecker, would you vote? Do you have the right to cast your vote in a subsequent referendum?

I have a brief supplementary question for you. In the event Quebec achieves independence, would you claim Quebec citizenship as well?

Mr. Marshall Miller: I can't answer that question. I probably wouldn't, because my children live here. If I understand the proposed legislation and the last referendum, I could choose to have dual citizenship.

Mr. Michel Guimond: And what about the second referendum that would be held in Ontario? Would you vote in it or not? Would your name appear on the voters' list, just like that of Raymond Bonin, a resident of Sudbury, Ontario?

Mr. Marshall Miller: Referendums wouldn't be held simultaneously in Ontario and Quebec.

Mr. Michel Guimond: No. The legislation wasn't in place and Quebec hasn't yet said yes to sovereignty. Bill C-20 has created the potential for such a situation. You will have to give this matter some serious thought, because you may have two chances to vote.

• 1745

Mr. Marshall Miller: The federal government should have some kind of control over this. I'm talking here strictly about a referendum on Quebec sovereignty.

Mr. Michel Guimond: Perhaps it should be...

Mr. Marshall Miller: As for other...

The Chair: You are really out of time.

Mr. Cotler.

[English]

Mr. Irwin Cotler: I just had a brief question. I'm wondering how the federal government would purport to effect an amendment with respect to provincial legislation determining the characteristics of residency and the like for voting in a provincial referendum process.

Mr. Marshall Miller: That isn't what we are after, Mr. Cotler. Bill C-20 does not try to dictate to the Province of Quebec what question it asks. As I understand it, what Bill C-20 says is that the Government of Canada and the House of Commons will only consider a result valid if certain conditions of clarity with respect to the question and the majority occur, and given that the international practice is that they don't ask questions about how long you have been away and they don't ask other questions about how much of a Quebecker are you....

I don't know if you remember—you may not have been in the House at the time, but I'm sure you heard about it—the accusation made by one of the Bloc members that Céline Dion was not sufficiently a Quebecker any more because she was so much outside of it and so much involved in world affairs. There was an uproar about that.

The UN does not ask questions in its consideration of who is an East Timorese, of how long they have been away. They consider it a birthright issue. It's not something you lose. It's just like being a Canadian, an American, someone from England, or any other countries, where there is a birthright recognition. It is this issue that is the determining factor. I was born a Quebecker. Nothing has taken that away.

The Bloc says it depends on how long you've been away, and there's a certain sympathy for that. I feel this prejudicial perspective all the time when I walk around talking to people, but it is something I was born with and it's not something that I have lost. I therefore don't feel it is right that this be taken away. I recounted an example of someone else who felt the same way, and I get this feedback from the people who join our association all the time. They feel the same thing. The people around them say they've left Quebec, they're no longer Quebeckers. We don't feel that way.

I can't help it if someone from Alberta or British Columbia doesn't feel an attachment to their province the way we do, but we do, and I think we deserve to have that taken into account. It's not for the House or anyone to say what question or what majority is needed or how Quebec decides its electoral list. But it is up to the House—they are making it their business—to say what breadth of consultation it will consider appropriate.

What we're saying is that if the standard elsewhere is birthright and there aren't these subordinate questions—birthright is not put into question that way—why is that valid for someone else? It was even endorsed by the Government of Canada when Canada was on the Security Council of the UN—and there weren't any objections, I don't believe, or any abstentions or anything of that nature—so why is it not good enough for us?

The Chair: Mr. Hill.

Mr. Grant Hill: Thank you, Mr. Chair, and thank you, Mr. Miller.

The fact that you zero in on the word “population” is interesting, because it was in fact an issue for me. It's a puzzle as to why the word “population” was used, and I'm still not certain I understand why that phrase was used. It is not specific.

We heard about ambiguity here this afternoon in a way that puzzles me, frankly. You suggest that maybe this has been put in for that very reason, a reason of ambiguity. Could you explain that? Maybe you could help me to understand what that phrase meant.

Mr. Marshall Miller: I don't know that I can help you understand a word substitution that could, after the fact, be invoked to have perhaps two different meanings. Why would that be done?

• 1750

Certainly the word “population” appears at several points, as you may be able to see in my written brief, which was too long to read. I had to do a different one, because I know the vigour with which the chair has been enforcing the 10-minute rule or the time rule. I apologize that you didn't have the other brief in front of you.

The word “population” can have either of two meanings, and that is one of the reasons I think we should revert to the meaning used by the Supreme Court. It's true that the Supreme Court itself ducked this issue.

The Chair: Order, please. There's a little bit of noise at the table. If members want to discuss something, maybe they could just move away and have it out of earshot of everybody.

Sorry, Mr. Miller.

Mr. Marshall Miller: Thank you.

In the Supreme Court opinion, under the section in which it was talking about the right of unilateral secession in the case of a colonial situation, it used the word “population” often in that context. But it seems to me that if we're after clarity in the Clarity Act, we should not have these hidden traps. That was the point I made in my oral presentation, when I realized the further dimension to that issue, which is a question you've raised as well: was it going to be used as a trap later? I think if it was used as a trap later, it would be a very dangerous thing to do. I don't know that it's going to avoid a referendum. I don't even know that it's going to be determinate in it. But the clearer it is at the beginning, the more likely it is that people are going to vote not strategically but really the way they feel they should vote.

Mr. Grant Hill: If I might digress a little bit as well, you've spoken of being a Quebecker, born in Quebec. You also speak French. You have lived outside of Quebec for awhile. In Quebec's Bill 99 they talk about the Quebec people over and over again. Do you think you would qualify as one of the Quebec people with either of those two criteria?

Mr. Marshall Miller: I'm sorry, which two criteria?

Mr. Grant Hill: Born in Quebec, and speaking French.

Mr. Marshall Miller: I don't know that it's necessary to speak French to be a Quebecker. There are many who don't. Certainly I grew up in a time when it was.... My parents did not, for example, despite serious efforts to learn it, yet they considered themselves Quebeckers. In the modern day and age, though, if one wants to enjoy fully what Quebec has to offer and one wants to participate economically and socially in all of those things, it behooves people to speak French. But I don't think that makes it. I think either the time one spends there or the birthright is what creates it.

It's like becoming a Canadian. There's no time limit put on my right to be a Canadian if I choose to live in the United States for an extended period of time. I am always guaranteed re-entry. And I'm sure that if there was ever a referendum across the nation to divide Canada and dissolve it into its constituent parts, every Canadian around the world would be invited to vote on that decision because of that unique feature of a birthright.

A voice: He said every Canadian should have a vote.

Mr. Marshall Miller: I don't feel I lose that birthright by taking advantage of mobility, which is guaranteed in the charter, or that I have put something in jeopardy by doing so. It certainly wasn't my realization when I left that I was going to put into jeopardy any of the rights I held as a Quebecker.

Mr. Grant Hill: All right, and you are talking about every Canadian having a right to vote on secession.

Mr. Marshall Miller: No, I'm not. I'm talking about every person born in Quebec. They remain Quebeckers until they die, just as every person born in Canada remains a Canadian until they die.

I think one of the errors in our thinking is something I've grown up with and debated in my own mind. I grew up in a time when the question used to be: you're a Quebecker and you're a Canadian, but which one are you first? I think the Supreme Court has reminded us that this is a wrong question, and that we are both. I'm saying I don't lose that just because I have moved somewhere else, just as I don't lose being a Canadian because I have moved to the United States for a long period of time. We don't take that right away. It's a birthright.

You know, it's interesting. I'm an ordinary person; I don't have gestures like this. But the card I carry to prove who I am is a Quebec identity card. It says nothing about Canada. There was an occasion when my wife and I were crossing the border in the United States and we were asked to provide identification. I had a driver's licence with a photograph on it and I had my birth certificate from Quebec with just my name on it. He looked at it and he said, “Oh yes, Quebecker. You're a Canadian too.” We have both and it is accepted. It is not something that is unusual around the world. Everyone understands that. We don't seem to understand that here.

• 1755

[Translation]

The Chair: Mr. Turp.

Mr. Daniel Turp: Thank you, Mr. Chairman.

I have to admit that I haven't found your argument very convincing, Mr. Miller. You have tried to interpret the notion of population as one that includes Quebeckers living beyond Quebec's borders. I don't think that restricting the right to vote, as the Quebec Elections Act does by allowing non-residents the right to vote under certain conditions - as you know, there is a time factor of two years - can be construed in any way as an infringement of a person's mobility rights in a free and democratic society. Clearly, this limitation or restriction is reasonable in a free and democratic society, because most legislation having to do with the right to vote of non-residents of the territory in which the vote is taking place has been found to be in compliance with existing charters of rights and freedoms and political rights.

There are two possibilities here: either you want to vote in a Quebec referendum, while holding on at the same time to your right to vote in the province in which you reside, or you want the right to vote twice on the same question. As my colleague Mr. Guimond pointed out, if you were granted this right, you could vote no in the sovereignty referendum if you rejected this option, and, even if the outcome is not what you want to see, you could vote no in Ontario on the constitutional amendment to allow Quebec to become sovereign.

It seems to me that it would be far simpler and more logical for you, if you are so intent on voting in Quebec, if you love Quebec and don't wish it to secede from Canada, to move back to Quebec for six months. Then, under both the Quebec Elections Act and the Referendum Act, you would be entitled to vote.

Wouldn't that be the logical thing to do?

Mr. Marshall Miller: It's not really a practical or reasonable option. It may be an interesting proposition from an intellectual standpoint, but practically speaking, it wouldn't be reasonable. It shouldn't be difficult, in my opinion, for Quebec and Ontario to come to some kind of agreement whereby a resident of Ontario who demands the right to vote in a referendum on secession, and only secession, should be entitled to vote with Quebeckers. I think this could be done.

If Quebec were to work out an arrangement of some kind with all of the neighbouring provinces, we could be certain that a person has one vote only, and not two, as you maintain, in any referendum on the issue of Quebec's secession.

Mr. Daniel Turp: There is nothing to indicate that you wouldn't be entitled to vote in Ontario, Alberta or British Columbia if you happened to reside in one of these provinces.

Finally, if, hypothetically speaking, Ontario wanted to secede and invoke the provisions of this unfortunate Bill C-20, you would be entitled to vote in Ontario in order to decide if it can become a country. However, according to your way of thinking, you would also be entitled to vote in a Quebec referendum on sovereignty. It's as simple as that. The right to vote is based on residency criteria. It's entirely reasonable, in a free and democratic society, to restrict the right to vote by establishing residency criteria.

Why then did the Supreme Court not use in its ruling re Haig, a decision to which I referred, or in its opinion respecting the secession of Quebec, use these words or talk about these rights?

• 1800

The Supreme Court wants us to understand that in the event of secession, the existing residency criterion isn't sufficient. Everywhere it refers to the Quebec people. The only matter that needs to be decided is how we actually define the Quebec people.

Mr. Daniel Turp: You're reading certain things into the Supreme Court reference that I'm not seeing and that very few people have seen. You have a very creative imagination.

Mr. Marshall Miller: Is that a question?

Mr. Daniel Turp: No, it's a comment. Thank you.

The Chair: Is that all? Fine.

[English]

Mr. Bill Blaikie: I just think this is an interesting debate, Mr. Chairman. It strikes me that Mr. Miller is making an argument that would otherwise be acceptable to some of my Bloc colleagues. He's basically arguing that being a Quebecker is like being a Canadian. In other words, he's making an analogy between Quebec and Canada, Canada being a country and Quebec being somewhat like a country. He says there's this birthright that comes with being a Quebecker. That is something I would have thought my Bloc colleagues would like, because they see Quebec as a nation and want it to become an independent nation.

The argument the witness is making is that there's some analogy between Canada and Quebec. I'm not sure that I accept the argument of Mr. Miller that there is a Quebec birthright, but I would have thought that people who want Quebec to become a separate country might be more amenable to that argument than my Bloc colleagues are. I just think it's kind of a—

Mr. Daniel Turp: We're talking about the right to vote. It's a different issue.

Mr. Bill Blaikie: Well, it's not the right to vote—

Mr. Daniel Turp: It's a different issue.

Mr. Bill Blaikie: So you're making a separation between citizenship and voting.

Mr. Daniel Turp: Yes, that's right. Citizenship usually requires that you have to fulfil a criterion of residence to be allowed to vote. It's quite accepted that it's not only citizenship that allows you to vote; you have to fulfil a residency requirement. Canadian citizens cannot all vote in federal elections, because they have to fulfil the residency requirement. It's the same thing for

[Translation]

a citizen of Quebec.

Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): The only consideration is the citizenship criterion. Canadians residing in certain European countries may exercise their right to vote in elections.

The Chair: Order, please.

[English]

Mr. Marshall Miller: Nobody's turned my mike off yet.

The Chair: We're not here to have a debate at the moment; we're here to hear a witness.

The questions having been exhausted, I want to thank you, Mr. Marshall, for your attendance. We appreciate very much the fact that you've come today and we appreciate the fact that you've assisted the committee with your testimony. Thank you very much.

[Translation]

Mr. Daniel Turp: As I recall...

Mr. Michel Guimond: Mr. Chairman...

The Chair: Just a moment.

Mr. Reg Alcock: On a point of order.

The Chair: Yes, Mr. Alcock.

[English]

Mr. Reg Alcock: Thank you, Mr. Chairman.

Is it Mr. Guimond's intention to conclude his remarks this evening prior to the appearance of the next set of witnesses in order that we may vote on the motion that is before us?

[Translation]

Mr. Michel Guimond: No.

Mr. Reg Alcock: No? Merci.

The Chair: Mr. Guimond.

Mr. Michel Guimond: Mr. Chairman, I'm pleased to have the opportunity to speak yet another blessed time, as my mother would say. Since 2:30 Monday afternoon, I've been debating a motion tabled by my colleague, the parliamentary secretary to Minister Stéphane Dion.

Mr. Reg Alcock: And the President of the Privy Council.

Mr. Michel Guimond: I don't care if he's the President of the Privy Council.

Mr. Chairman, I think it would be a good idea to re-read the motion on the table:

That the Committee may, if necessary, to further accommodate the list of witnesses, continue to hear witnesses up to 5:30 p.m. on Thursday, February 24, 2000, provided that the Chair shall put, without further debate or amendment, all questions necessary to dispose of Bill C-20 no later than midnight on Thursday, February 24, 2000.

• 1805

Mr. Chairman, clearly, a motion like this, in a British parliamentary system such as ours, is a gag order designed to gag members of this committee and anyone wishing to be heard, that is ordinary citizens from across Canada and Quebec would wish to express their views on the anti-democratic piece of legislation that is Bill C-20. That's why we can't support the motion, Mr. Chairman.

I've something new to add to this, Mr. Chairman. I was speaking to you about Mr. Claude Ryan's views on the Supreme Court opinion, but before I continue, I'd like to talk about another move that has been taken to gag us.

Earlier, Mr. Chairman, that is at 5:31 p.m. on February 23, 2000, the government tabled a notice of motion in the House that I think deserves to be read out loud at this time.

If the Minister's henchman doesn't manage to convince the parliamentary secretary to interrupt me and to call for the quorum  - they've done that three times already, Mr. Chairman - does this mean that the Liberals are afraid that I might actually debate this motion? Why do they call for a quorum?

Mr. Daniel Turp: They're afraid.

Mr. Michel Guimond: If they weren't afraid of hearing me out, if the members of this committee were as attentive as Mr. Cotler, my new colleague in the House, who respects people's right to speak and parliamentary democracy... I think he's going to make his mark in Canada's Parliament. Of course, he is soon going to find himself in the ranks of the opposition and he will have to live with that. We're extending our hand to him and inviting him to come over to our side, the Bloc Québécois.

Mr. Daniel Turp: Irwin, we need you.

Mr. Michel Guimond: At this time, I would like to read to you the notice of motion tabled a while ago in the House:

... it was not possible to reach an agreement pursuant to Standing Orders 78(1) and 78(2) with respect to the proceedings at committee stage of Bill C-20, an act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference.

Pursuant to Standing Order 78(3), I give notice that, at the next sitting of the House, a minister of the crown will be moving a time allocation motion for the purpose of allotting a specified number of days or hours for the consideration and disposal of proceedings at that stage.

So reads the notice of motion tabled in the House.

Mr. Daniel Turp: There was no agreement on the motion.

Mr. Michel Guimond: Mr. Chairman, why was there no agreement? Is someone about to call for a quorum once again? This proves that the Liberals are afraid.

[English]

The Chair: Mr. Alcock.

Mr. Reg Alcock: Mr. Chairman, it pains me to raise this on a point of order, but it seems to be occurring repeatedly that Mr. Guimond is having trouble holding his audience. I'm not certain that there is a quorum here.

[Translation]

Mr. Daniel Turp: The Liberals don't want to listen to him. He has too many important things to say.

Mr. Michel Guimond: It should be noted that the presence of eight Liberal members is required for a quorum, but I see that only two are in their seats. We should know why we have lost quorum.

The Chair: I'm sorry, but since we've lost quorum, these proceedings are suspended until 7:30 p.m.

The meeting is adjourned.