The past couple of weeks have offered a vivid demonstration of this country’s penchant, as someone once put it, for pulling ourselves up by the roots every so often to see if we’re still growing. Responding to the demands of precisely no one, the NDP offered up a private member’s bill, C-470, it proposes should replace the Clarity Act, the 1999 legislation setting the conditions under which the federal government would enter negotiations with “a province” — let’s call it Quebec — proposing to secede.
Where the latter required a “clear majority” on a “clear question” in a referendum on secession, the clarity or otherwise of both to be assessed by Parliament, the NDP bill sets out in black and white what at least one of them would mean : a majority of just 50% plus one. Moreover, it reverses the onus. Where the Clarity Act forbids the government from entering negotiations unless its conditions are met, C-470 obliges Ottawa to negotiate in that event.
The timeliness of this initiative is, shall we say, open to debate. The Parti Québécois may be in power in Quebec, but as a minority government it is in no position to call a referendum soon, and would not be even if it held a majority. To make matters more hypothetical, the bill’s sponsor, NDP democratic reform critic Craig Scott, holds down the very last spot — 240th out of 240 — in the lottery that determines the order in which private member’s bills are taken up. So there is zero possibility of this bill coming to a vote in the current Parliament.
Nevertheless, if the PQ were to win a majority, and if the NDP were to win the next federal election, and if the PQ were to hold a referendum, and if it were to win it, this might become an issue worth debating. As it is, it is almost as hard to take seriously the NDP’s critics as it is the party itself.
Scenarios calling for majorities larger than 50%+1 :
• Constitutional amendment : In Canada, a constitutional amendment requires the approval of the House, the Senate and seven provinces representing 50% of Canadians. In the U.S., two-thirds of both congressional houses as well as 38 states must vote “yes.”
• Tax increase : Some city and state governments require a two-thirds, three-quarters or four-fifths majority to raise taxes. New Hampshire, for its part, on Wednesday voted down a proposal that would have required a supermajority on tax increases or to approve borrowing.
• Veto override : If the U.S. Congress wants to overturn the president’s veto of a particular bill, for example, two-thirds of both houses must vote “yes.”
• Corporate merger : A supermajority, typically of two-thirds of shareholders, is oftentimes required to approve a merger or acquisition.
• Impeachment : Then-president Bill Clinton was impeached by a majority vote in the House of Representatives, but he was acquitted by the Senate, which requires a two-thirds supermajority to convict.
• Municipal re-zoning : Some cities and counties require a supermajority to pass a zoning amendment. Aldermen on a Mississippi council, for example, blocked a move to rezone a residential area because they did not come up with the majority-plus votes.
Notwithstanding the near universal scorn the NDP proposal has aroused, at least in the English-speaking media, the striking thing is how much the two sides are agreed. Both share the same bedrock assumption : that a vote of Quebecers, by itself, is sufficient to trigger negotiations on secession. They differ only on the size of the majority, or more particularly, whether to spell it out in advance.
The problem with the Clarity Act, the NDP likes to say, is that it is unclear. Well, no : that’s its virtue, as I’ll explain in a minute. In the meantime, be clear on this : Canada is under no moral or democratic obligation to dismantle itself in response to a vote of just one province, no matter how “clear” the majority.
I would say it was under no legal obligation, either, had not the Supreme Court, in its famous 1998 secession reference, invented a constitutional duty to negotiate, not only in response to a demand for secession but for any constitutional change, provided it had the support of a clear majority of “a province’s” voters — though the court, like the government, preferred to leave the meaning of “clear” unclear.
Also unclear is how enforceable this vague convention-without-a-precedent would be, or what exactly the rest of Canada would have to negotiate. What is clear, however, is that, notwithstanding the ecumenical language, this obligation would only ever apply with regard to Quebec. Suppose Alberta were to demand, backed by a referendum vote of 90%, that equalization be abolished. Does anyone pretend this would trigger negotiations with the rest of Canada, or that Quebec would show up if it did ?
So people who claim to believe a clear majority of one province is enough to force negotiations do not actually mean it. They can’t. It’s preposterous. Democracy does not mean you get whatever you vote for, no matter how fanciful. It means you get what you’re entitled to. You can’t vote to help yourself to something that isn’t yours : for example, one-sixth of the territory of Canada. And a part of any population cannot decide, by itself, on matters that affect the whole.
But, you protest, we don’t accept a referendum vote as sufficient in itself to secede : only to force negotiations. That’s true, though it’s a fairly late-breaking development. For decades, the consensus position among federalists, even outside Quebec, was that secession was a matter exclusively for Quebecers to decide. But while it’s progress that conventional wisdom now obliges a seceding province to negotiate the terms of its departure, it does not follow that the rest of Canada is under the same obligation.
The only way the two sides would have anything to negotiate, after all, is if Quebec’s obligation to negotiate could be enforced — that is, if it could be prevented from seceding unilaterally. And if we could prevent it, why would we negotiate ? In fact, the issue in such an unlikely event wouldn’t be whether we could prevent it, but whether a seceding government would be able to make it stick : that is, to evict an unwilling federal authority from its soil. That’s especially difficult to do when nearly half the province is dead set against the idea.
All right, it’s possible to imagine Quebecers voting by such an overwhelming majority that the rest of Canada would have to respond in some fashion — as a purely practical matter, that is. But quite how large a majority that would be is best left to the judgment of Parliament in the circumstances that presented themselves at the time.
Perhaps that strikes you as cynical. Fair enough : why should separatists have all the fun ? Sovereignty, someone once said, is what you can get away with. Maybe federalism is what you can put a stop to.