Thursday, January 31, 2013

The NDP revisits the Clarity Act

I have written critically more than once about the New Democratic Party’s “Sherbrooke Declaration,” most recently in an article to be published in the next issue of Nouveaux Cahiers du Socialisme.[1] Although the Declaration, adopted by the federal NDP in 2006, represented modest progress in the party’s approach to Quebec, it has important ambiguities and contradictions that in my view undermine and even negate the Declaration’s formal commitment to uphold Quebec’s right to self-determination.

Although it is the NDP’s most complete statement on the Quebec national question, the Declaration is notable for its failure to address Quebec demands for a change in its constitutional status, whether through reform or independence. In fact, the Sherbrooke Declaration can be read as an attempt to circumvent the issue of constitutional reform in favour of essentially administrative and bureaucratic approaches designed to “make federalism work.”

The Declaration’s over-arching concept of “cooperative federalism” involves not a reallocation of powers but a never-ending process of policy and program negotiation between Quebec and Ottawa and (in most cases) the other provinces and territories, negotiations in which Quebec may and often does find itself alone arrayed against the other ten or more governments. It is cast as a strategy for winning Quebec acceptance of a federal union even before any constitutional guarantees of its national character have been achieved.

Most remarkably, the Declaration fails to mention the federal Clarity Act, which the NDP parliamentary caucus voted overwhelmingly to support in 2000 in the face of opposition to the Liberal government bill by the party’s Federal Council and the Canadian Labour Congress, as well as many rank and file party members. The Clarity Act makes Quebec sovereignty following a “yes” vote contingent on agreement by the federal Parliament and the other provinces, a clear denial of the democratic right of Québécois to determine their own future as a nation.

The NDP’s political incoherence on the Quebec question has once again been highlighted by its response to a Bloc Québécois bill now before Parliament. Bill C-457, An Act to repeal the Clarity Act, would do just that, if adopted. However, unwilling to support repeal without offering substitute legislation, the NDP has instead moved its own bill, C-470, which would in effect oblige the federal government to negotiate with Quebec should the Québécois vote in their majority for sovereignty (or other constitutional change) in a popular referendum. This is an improvement on the Clarity Act, which contained no such obligation. However, Bill C-470 is far less than a consistent defense of self-determination; it does not renounce some underlying concepts in the Clarity Act.

As its preamble makes clear, the NDP bill stands on the principles laid down by the Supreme Court of Canada in its judgment on the Quebec Secession Reference. It says the Clarity Act “does not accurately reflect some key dimensions of those principles and processes.” It cites in particular the “obligation of all parties to Confederation to negotiate” in the event of a Quebec vote for sovereignty or secession. And the bill sets out a procedure for allowing this:

1. The federal government must determine whether in its opinion the wording of the referendum question is clear. It suggests two possible wordings that would pass this test: “Should Quebec become a sovereign country?” and “Should Quebec separate from Canada and become a sovereign country?” If the government thinks the question is unclear, it shall refer the matter to the Quebec Court of Appeal, which must declare its opinion as to clarity within 60 days. Presumably, if the Quebec court says the question is unclear, the Quebec referendum has no legitimacy, in the NDP’s view.

In other words, the NDP is willing to let the federal government (or alternatively, the Quebec court of appeal, whose judges are appointed by Ottawa) determine the legitimacy of a Quebec referendum on its constitutional status.

2. Not only must Ottawa be satisfied that the referendum question is “clear.” It must be satisfied that Quebec’s procedures in the referendum — “balloting, counting of votes, transmission of results and spending limits” — are acceptable.

3. If the previous two conditions are satisfied, a “majority of valid votes” in favour of the proposed change will suffice to require “all parties to Confederation” — that is, not just the federal and Quebec governments, but the governments of all provinces and territories — to negotiate Quebec’s secession or desired constitutional change.

The Clarity Act studiously refrained from specifying what percentage of the vote would constitute a “clear majority” in the federal government view, implying that it had to be much more than 50% support for secession. The main purpose of the NDP bill — other than fending off its embarrassment in opposing the Bloc Québécois’ straightforward rejection of the Clarity Act — is to spell out a federal government role in determining what would justify the NDP’s acceptance in the Sherbrooke Declaration of a simple majority (50% plus one) vote for sovereignty.

Notable in all this is that there is no principle laid down in the NDP bill that would legally (albeit not constitutionally, let us note) require the federal government and the other provinces to accept a Quebec vote for secession and take appropriate action to implement it. Instead, it stands on the Clarity Act’s fundamental thesis that Ottawa (or its appointed judges) can determine the legitimacy of a Quebec vote for sovereignty (while suggesting how that might be done). And it leaves any action subsequent to such a vote to negotiations involving “all parties to Confederation” in which Quebec would almost certainly face a dozen or so reluctant or hostile governments, federal, provincial and territorial, willing or eager to wield all the formidable powers at Ottawa’s command — its crucial jurisdiction over banking and finance, trade and commerce, foreign affairs, the senior courts and judiciary, even the military and federal police — to drive a hard bargain with this upstart separatist government.

However, the NDP bill does contain a few novel features that are worth noting.

One is its proposal (in section 9) that Ottawa and the provinces must agree to negotiate any proposals adopted by voters in a Quebec constitutional referendum on such matters, short of secession, as accepting the 1982 Constitution (which Quebec has never done); limiting the federal spending power in Quebec; proposals affecting tax transfers and associated standards; and opting out by Quebec, with full compensation, from any federal programs in areas of exclusive provincial jurisdiction. This provision, if implemented, could reinforce Quebec efforts to oblige the other governments to address its concerns in these fields. And it might appeal to the Parti québécois leadership’s alternative to campaigning for sovereignty: its “sovereigntist governance” stance of step-by-step measures to increase Quebec powers within the federal union.[2]

Here too, however, Ottawa would have the same power to determine the legitimacy of the Quebec referendum that the NDP would give it on the question of sovereignty.

Also worth noting is the suggestion in the NDP bill (section 11) that it would be appropriate for the federal and Quebec governments to discuss or negotiate the wording of a referendum question prior to a decision on its actual wording. This may have been inspired by the agreement recently negotiated between the Scottish and Westminster governments on the wording of the proposed question or questions in the forthcoming Scottish referendum on independence. Quebec Premier Pauline Marois made a point of visiting Edinburgh on her recent European tour precisely in the hope of questioning leaders of Scotland’s governing National Party on the process adopted there.

These novel features of the bill suggest that the NDP is attempting to dialogue with the more conservative elements in the Parti québécois and the Quebec nationalist milieu, to offer itself as a potential bridge to ultimate constitutional reconciliation with the Rest of Canada. (They may also help to paper over differences among the party’s 58 Quebec MPs on approaches to the Quebec national question.)

Notable as well, however, is the remarkable hostility aroused by even these conciliatory gestures by the NDP. Not just from the other federalist parties; that was to be expected. But the reaction from the major media mouthpieces in English Canada has been vitriolic, with hostile editorials, for example, in the Globe & Mail and Ottawa Citizen (the latter also published two dismissively critical columns on the same day); and an editorial in the Toronto Star, the only daily that endorsed the NDP in the 2011 federal election, protesting that the NDP bill “lowers the bar to [Quebec] secession.” Pronounced the Star: “Canadians need to know that a party that aspires to govern the federation is prepared to defend it. In the NDP’s case that can’t be taken for granted.” These reactions do not auger well for Thomas Mulcair’s hopes of placating both Québécois nationalists and Anglophone federalists.

Reaction in the Quebec media has been more low-key. The few commentators there have focused on the media opposition to the bill in the other provinces, which they tend to attribute to the public’s lack of understanding of Quebec’s aspirations — itself a product of media mis-education, of course. Notable, however, was Ottawa-based columnist Manon Cornellier’s positive assessment of the NDP bill in the independent nationalist daily Le Devoir. The NDP bill, she wrote,

“largely reconciles the position of the Quebec caucus with that of the rest of the country, where a substantial majority of voters still support the idea of a law to control a possible secession attempt....

“That the federal government still has to give its opinion on the question sets one’s teeth on edge, as does the application to the Court of Appeal in case of dispute, but even if there were no law the federal government would resist negotiating if it considered the question ambiguous. The proposed procedure ultimately limits Ottawa’s latitude in the matter.

“As to appealing to some Quebec judges, one might ask whether that is better than relying, as now, on a majority of English-Canadian MPs perpetually convinced that the Yes supporters don’t understand the meaning of what they’re doing....

“Through this bill, [the NDP] reaffirms its adherence to some important principles: the right to self-determination of the Québécois, the recognition of a tight victory, and asymmetry. Which is clever.”

This suggests that the NDP bill may satisfy “soft” nationalist supporters of the NDP in Quebec (and thereby preserve many of the party’s seats there in the next election). It may be sufficient to minimize the damage to the party in Quebec from its opposition to the Bloc québécois bill.

In any event, both NDP and BQ bills will likely never be put to a vote, and die on the order paper. But in my opinion the limitations of the NDP bill, as well as its hostile reception in the English-Canadian mass media, underscore the size and scope of the challenge facing NDP members and supporters: to begin a long-overdue intensive critical evaluation of the Canadian constitutional set-up, the challenges posed to it by Quebec’s development as a distinct nation, and progressive responses to them.[3]

The Idle No More movement of indigenous activists is raising similar or related questions in its challenge to the legal and constitutional provisions imposed on them by the Canadian settler occupation state. Perhaps they will help stimulate some critical thinking on the left about these issues, which remain far from resolved.

-- Richard Fidler

[1] “Le NPD peut-il construire une alternative?,” in NCS No. 9. For analyses in English, see, inter alia, “The federal NDP’s electoral breakthrough in Quebec”; and “Layton chooses Supreme Court, Clarity Act over NDP’s Sherbrooke Declaration.”

[2] Quebec’s new Minister of International Relations Jean-François Lisée proposed this “stageist” Plan B strategy for a Parti québécois government in his book Sortie de Secours: Comment échapper au déclin du Québec (Boréal, 2000): one or more referendums on a list of essential needs that, if implemented, would constitute a renewed federalism.

[3] The NDP would also benefit by abandoning its hostility to the progressive wing of the Quebec sovereigntist movement, in particular the pro-independence Québec solidaire. A first step in this direction would be to reject Mulcair’s goal of building a Quebec wing of the NDP to compete with QS. Although action on his proposal was postponed for a few years at a recent convention of federal NDP forces in Quebec, largely on pragmatic grounds — last year’s recruitment drive brought federal NDP membership in Quebec to just over 13,000, slightly less than the QS membership and far from its goal of 20,000 — Mulcair shows no sign of relenting on his project.

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