Bill 99: To be or not to be a nation

In 1998, the Government of Canada put three questions on Quebec's right to unilateral secession to the Supreme Court of Canada, one of which referred to the right of peoples to self-determination. The questions read as follows:

Question 1: Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?

Question 2: Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?

Question 3: In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

These questions were severely criticized by the former head of the International Law Commission of the United Nations in a legal opinion. The renowned international French scholar Alain Pellet stated:

“I am profoundly distressed and upset by the partisan manner in which the questions are put and I take the liberty of suggesting that a court of justice has the duty to react to what appears to be a blatant attempt at political manipulation.”

Yet, contrary to all expectations and as constitutional experts have pointed out, the Court refused, in its August 28th 1998 Reference re Secession of Quebec to answer YES or NO to the questions put to it. And, rather than simply denying Quebec's right to declare independence unilaterally and state that international law on the self-determination of peoples did not recognize the right to unilateral secession, it noted that the federal and provincial governments had a constitutional and mandatory duty to negotiate should Quebec vote in favor of sovereignty. It also considered the question of the international community's recognition of Quebec's sovereignty, linking the two questions. It said:

“The corollary of a legitimate attempt by one participant in Confederation to seek an amendment to the Constitution is an obligation on all parties to come to the negotiating table. The clear repudiation by the people of Quebec of the existing constitutional order would confer legitimacy on demands for secession, and place an obligation on the other provinces and the federal government to acknowledge and respect that expression of democratic will by entering into negotiations and conducting them in accordance with the underlying constitutional principles already discussed.”

The advisory opinion of the Supreme Court hurt the federalists especially because it recognized that Quebec could turn to the international community if Canadian governments failed in their obligation to negotiate in good faith.

In order to circumvent the obligation to negotiate set out in the advisory opinion by the Supreme Court of Canada, the Parliament of Canada tabled on December 10th, 1999 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 (Bill C-20). This federal initiative led to the passing of the Clarity Act on June 29, 2000 which purports to impose conditions on Quebec before the federal government fulfills its obligation to negotiate with Quebec.

The intent of the Clarity Act is to give the House of Commons the power to decide that a majority of 50% + 1 of valid votes cast is not enough to oblige the federal government to assume its constitutional and mandatory duty to negotiate. It also gives the federal government the possibility to shirk its constitutional obligation to negotiate if it feels that the question asked was not "clear enough" It's a masterpiece of legal sophistry, open to almost any interpretation.

Fundamental Rights

In reaction to such a serious threat to the freedom of the people of Quebec to determine their future, the Government of Quebec tabled, on December 15, 1999, a bill entitled An Act respecting the fundamental rights and prerogatives of the Quebec people and of the Quebec State (Bill 99). With this bill, the government called on the National Assembly of Quebec to reaffirm Quebec's freedom to determine its own future.

The first chapter of the Fundamental Rights Act affirms, as no other Quebec legislation had ever done before, the concept of a Quebec people. It stats certain rights that belong to the Quebec people: the right of self-determination, the right to freely decide the political regime and legal status of Quebec, the right to determine alone the mode of exercise of its right to choose the political regime and legal status of Quebec.

In 2001, Keith Henderson of the Equality Party filed a motion in the Superior Court to strike down six sections of Bill 99. He alleges that Quebec, by passing these provisions, exceeded its powers and that Bill 99 caused Mr Henderson personal injury as a Canadian citizen. He argues that Bill 99 sets the stage for a possible unilateral declaration of independence, in violation of the Canadian Constitution.

For more than ten years the progress of this motion was hampered by judgments on inadmissibility in the Superior Court and the Court of Appeal. But these judgments were finally settled, so in May 2013 the Government of Quebec presented its defense.

In the fall of 2013, it was the turn of the Government of Canada to intervene in this dispute by presenting a position similar to Henderson's and arguing that Bill 99 must be invalidated. On October 23, 2013, the National Assembly adopted a unanimous motion denouncing the federal government's intervention in this matter, and reiterated its support for Bill 99. After some more delays, a Quebec court has finally begun hearings in this case.

What is being put on trial is the very notion of a distinct Quebec nation. Canada's position is clear. It wants to reduce the French-speaking nation to a simple ethnic minority, one among many in a multicultural Canada. There is no such thing as a Quebec people according to the Canadian Constitution. Keith Henderson wants assurances that our self-proclaimed right to self-determination will be crushed and that his "right" to be Canadian in Quebec will always prevail.

However, if Mr Henderson can't have our right to self-determination suppressed, and Quebecers choose independence, then he is in favor of granting this right to every neighborhood and street corner as he is a strong proponent of the partitioning of an independent Quebec. This partitioning, of course, would be done unilaterally. I'm sure Mr Henderson dreams of his own version of the Republic of Serbian Krajina somewhere out in the West Island.

Conclusion

We are often told that support for Quebec independence is low these days, and it is then inferred that this means a majority of Quebecers are content with being a part of Canada. However, a majority of Quebecers also believe that Quebec is a distinct nation with a right to self-determination. Canada has made it quite clear that it rejects this idea and it has gone to great length to undermine it.

One day, I believe the cognitive dissonance that many Quebecers live with will prove too great and something will snap. In the end, we will either have to affirm ourselves and declare that we are a sovereign nation, equal to all the other nations of the world, or we will have accept being nothing more than an ethnic group in Canada, and accept the slow assimilation that comes with this reality. The in-between position that many Quebec federalists try to hold is simply untenable.

Based on a speech by Daniel Turp from February 2, 2001 

Corruption, racism and a railway: The making of Canada

John A. Macdonald dreamed of an Aryan Canada

Confederation: A political coup by crony-capitalists and power-hungry politicians

Not many merchants, lumbermen, manufacturers or bankers were particularly enthusiastic about the creation of the Dominion of Canada on July 1, 1867. The plan to make a new nation out of squabbling, debt-ridden colonies injected new instability into British North America’s economic climate. Confederation would probably bring more government, more debt, more taxes, more friction with the United States and more wildly visionary schemes by impractical politicians. Why upset the business status quo?

But suppose you were a failing businessman, longing to be bailed out. Suppose the only choice for your enterprise was to go big or go broke. Suppose your best hopes lay in wild visionary schemes for expansion.

The Grand Trunk Railway of Canada was by far the biggest enterprise in all of British North America. By 1861, its main lines ran about 1,800 kilometres from Sarnia in Canada West to Quebec City and Portland, Maine, in the east. It claimed to be the greatest railway in the world, and the greatest foreign project ever financed from Britain. The investors who had poured almost $5 billion in today’s purchasing power into building the Grand Trunk had vitalized the colonial economy as they anticipated fabulous returns. In their first golden age, railways were expected to be everybody’s gravy train.

The reality was very different. The Grand Trunk’s promoters, like most early railway entrepreneurs, had grossly underestimated their costs of construction and overestimated the traffic their line would generate. They had trouble competing with waterways and trouble with the harsh Canadian climate, and had foolishly built their line to a gauge that would not allow for connections with U.S. railways. In an ethically challenged business climate, insider trading, bribery and political chicanery drained off money and credibility.

A committee of the Grand Trunk’s debt holders described it in 1861 as “an undertaking which is overwhelmed with debt, wholly destitute of credit and in imminent danger of lapsing into utter insolvency and confusion.”

There seemed to be two routes to salvation: Build more track and get more government help. Early in the 1860s, the Grand Trunk Railway of Canada began lobbying for railway expansion eastward to the Maritime colonies, railway expansion westward through “Indian” and fur-trader country to the Pacific, and all the help of any kind it could get from the government of the Province of Canada.

These hopes coincided almost exactly with the grandiose vision of the coalition of Canadian politicians led by John A. Macdonald, George-Étienne Cartier (a solicitor for the Grand Trunk) and George Brown, who wanted to create a new country by uniting with the Maritime provinces, annexing the Hudson’s Bay Company lands in the west and tying it all together with an intercolonial railway running to Halifax and a transcontinental line to British Columbia.

The Grand Trunk did everything it could to promote Confederation. We don’t know what “everything” involved because so much power and cash circulated in backrooms and under tables in those days. It is known that in 1866 the general manager of the Grand Trunk, C.J. Brydges, was the conduit for supplying what John A. Macdonald called “the needful” (cash worth more than $2 million today) to help overthrow an anti-Confederate government in New Brunswick in 1866. We can assume that pro-Confederate politicians got free rides on the Grand Trunk, while their opponents had to pay their way. And the possibility of serious opposition to Canadian expansion by the Hudson’s Bay Company was neutralized when key Grand Trunk shareholders purchased control of the historic enterprise in 1863.

Except in New Brunswick, the Confederation plan was never put to a popular vote. It might have had trouble passing. Its opponents loudly proclaimed the whole idea to be nothing more than a great Grand Trunk railway “job” – a swindle mainly for the benefit of its shareholders and their political henchmen. The muddy waters of Confederation’s paternity were not clarified by the claim of Edward Watkin, Britain’s leading spokesman for the Grand Trunk, that he was the true Father of Confederation.

Regardless of who Canada's real daddy is, one thing is certain, Confederation had nothing to do with "independence" as the British colonies of North America didn't acquire any new powers at the expense of the British Empire. In fact, they actually found themselves with less freedom following 1867 as many powers designated under provincial jurisdiction were reassigned to the newly created federal government. This new government had unlimited authority over provincial jurisdiction, all matters not explicitly outlined in the Constitution and all forms of taxation and regulation. No, Confederation was not about any kind of "national" independence, it was essentially a coup performed by British crony-capitalists and power-hungry politicians.

Ethnic cleansing

Sir John A. Macdonald deliberately starved thousands of aboriginal people to clear a path for the Canadian Pacific Railroad and open the prairies to white settlement. His “National Dream” cost them their health, their independence and – in many cases – their lives.

In March of 1882, John A. Macdonald said in the House of Commons that the Indigenous people south of the proposed railway tracks in the territory of Assiniboine or south-western Saskatchewan would be removed by force if necessary. What he wanted to do was eliminate any threat to the construction of the railway. So when the Europeans showed up over the next couple of decades, the land was literally cleared of people. 

Despite guarantees of food aid in times of famine in Treaty No. 6, Canadian officials used food, or rather denied food, as a means to ethnically cleanse a vast region from Regina to the Alberta border as the Canadian Pacific Railway took shape. Acting as both prime minister and minister of Indian affairs during the darkest days of the famine, Macdonald even boasted that the indigenous population was kept on the “verge of actual starvation.” 

For years, government officials withheld food from aboriginal people until they moved to their appointed reserves, forcing them to trade freedom for rations. Once on reserves, food placed in ration houses was withheld for so long that much of it rotted while the people it was intended to feed fell into a decades-long cycle of malnutrition, suppressed immunity and sickness from tuberculosis and other diseases. Thousands died.

Asian exclusion

From 1880, thousands of Chinese workers were imported to build Canada's national railway and were paid starvation wages for performing the most dangerous tasks. Right after the last spike was driven, the Canadian government thanked them by imposing a unique and racist law, the head tax of 1885, which forced all Chinese immigrants to pay a $50 tax. This was increased to $100 in 1900 and $500 in 1903. Between 1885 and 1923, the Canadian government collected an estimated $23 million from 81,000 Chinese immigrants. (This would be worth $1 billion today.)

The head tax imposed a crushing burden on the impoverished new immigrants. At the time, $500 was the equivalent of two years' wages. Many paid off the unwieldy debts incurred by the tax through long, painful years of hard labour. At the same time, the Canadian government was paying many European immigrants to settle on land that had been seized from Aboriginal peoples. The Chinese were the only immigrants ever forced to pay a head tax.

In 1885, the Electoral Franchise Act explicitly denied Chinese Canadians the right to vote; but, in 1898, new legislation extended the franchise to Asian voters. This lasted until 1920 when the Dominion Elections Act said that if a province discriminated against a group by reason of race, that group would also be excluded from the federal franchise, meaning that British Columbia residents of Chinese, Japanese and South Asian background lost their right to vote in national elections. Saskatchewan also disenfranchised the Chinese. 

The suppression of French

In the aftermath of Confederation, francophones from several English-speaking provinces watched helplessly as their rights were systematically eroded. Throughout Canada, French-Catholic minorities were attacked one after the other in an attempt to make them conform to the White, Anglo-Saxon Protestant mold. 

In Manitoba and the North West francophone rights were curtailed. The anglophones of these provinces took advantage of their majority in the legislature to declare war on what they called the French-Canadian “threat” in an attempt to “Keep Canada British!”

In 1890 Manitoba's Official Language Act banned French, formerly an official language in the province. It diminished the rights of French school and abolished the use of French in the Parliament and in the Courts of the province. In 1916, the Thornton Act abolished bilingual schools and completely ended the teaching of French in the province in spite of these rights being explicitly guaranteed in the federal Manitoba Act.

In 1905, the Alberta School Act imposed English as the only language of instruction and in 1909, Saskatchewan follows suit with its own School Act which made English the only language of instruction but allowed limited use of French in primary classes. In 1929, a different Saskatchewan law completely abolished French in public education. 

It's no coincidence that in the early 20th century, the Ku Klux Klan was one of the largest organizations in Saskatchewan, with only the Saskatchewan Wheat Pool accounting for more members. Although the Klan itself was an American import, the Saskatchewan branch must to be situated in this decades long battle against Catholic and francophone rights. The Saskatchewan KKK's driving motivation was not specifically against Blacks, as in the US, but it was rather about preserving a narrow, religious and ethnic based notion of Britishness in Canada. And this goal fit very well with official government policy at the time.

Conclusion

Canadians like to portray the Fathers of Confederation as god-like men and exalt Confederation to biblical proportions. According to the usual narrative, Confederation was all about putting aside differences and working together to build something great. This story is almost always a complete whitewash of history. The ugly side of that story is rarely told. 

The reason is that Canadians have a pathological need to see themselves as the good guys of the universe, a need that stems from a deep seated insecurity. Canada is basically a relic of empire, which means it has no inherent legitimacy. The good guy fantasy provides a means of dealing with that unpleasant reality. It also provides a means of feeling superior to both Quebecers and Americans.

People can live in whatever fantasyland they like. I don't know what Mexicans tell themselves about their origins. It may be factual or it may not. It's not really something that concerns me. However, what Canadians tell themselves does concern me as it often leads to hypocritical fingers being pointed at me, like when some jackass from British Columbia, the Canadian jurisdiction that has passed the most racist laws by far, accuses me and all Quebecers of being horrible racists. That type of ignorance and hypocrisy is a byproduct of Canadian myth-making.

This is what compels me to tear down the fantasy. People should see Canada for what it really is. English-Canadians just reinvented themselves in the 1960s as this kind, forward-looking, progressive country without ever really coming to terms with their dark past. They seemed more fixated on America's past and flattered themselves that they were somehow better. It's the fantasy of a caring, sharing Canada whose beloved Mounties settled the west without America's violence and lawlessness. It's a Canada sanitized of its real history.

So, the same patterns of dominance remain but with new and more acceptable window dressing. The same assimilationist attitudes persist but they're now coated with a veneer of "multiculturalism." The same feelings of superiority persists but they are no long presented as racial or cultural superiority, they're now about Canadian moral superiority over "racist" Quebec. Independence for Quebec will not only liberate Quebec, but it will also free Canadians from the mental straitjacket needed to keep their empire together. It will not only lead to a better, freer, and more just Quebec, but it will probably lead to a better English Canada as well.

Based on an article by Michael Bliss in the Globe and Mail, July 1st, 2016