Negotiating Separation?

[Figleaf]

Some believe that the Supreme Court has decided that if a province wants to separate and that a clear majority of it's residents clearly say so in a clearly worded referendum, the federal government has an obligation to come to a negotiated separation with that province. I disagree, in that there is no obligation to acheive an agreement, merely to negotiate one.

But in any event, I got thinking about what such a negotiation should contain, and I present here what should be the minimal requirements from the federal side:

TERMS:

1. The Government of Canada is obliged to first protect the interests of the Canadian state and the interests of its citizens and residents.

2. A province seeking separation will be represented for all purposes in the negotiations by the elected government of the province under the terms of the constitution of Canada, and any agreement as to separation can be concluded only by and through the said legitimate provincial government. Prior to conclusion of separation the laws and constitution of Canada will continue to fully apply within the province proposing separation.

3. Prior to conclusion of separation, the all residents of the province proposing separation will be required to choose to retain their citizenship (or other civil status) of Canada, OR to choose to become citizens of the new entity. Canada will permit no dual citizenship for citizens of the new entity.

4. The new entity will enshrine rights equivalent to those guaranteed in Canada's Charter of Rights and Freedoms, and the Supreme Court of Canada will act as the court of last resort for the new entity for a period of fifty years from the date that separation is concluded.

5. The new entity will not seek to enter any international treaties without the prior consent of the Government of Canada for a period of fifty years from the date that separation is concluded.

6. The territory of the new entity will consist of:

(a ) the territory it held the day prior to its accession into the federation (i.e. for PEI -- all of PEI, for Quebec -- the historic territory of Lower Canada, for Saskatchewan -- nothing);

PLUS

(b ) such lands within its provincial jurisdiction as it chooses to purchase sovereignty and eminent domain over from the crown of Canada at a price determined according to international norms;

MINUS

(c ) any and all lands subject to valid First Nations claims.

7. The separating province will purchase the freehold interest in any lands, buildings etc, owned by the Federal government, the Crown in right of Canada, or any federal crown corporation within the territory noted in #7, above (at fair market prices as of the day prior to the referendum).

ADDED: 7.5. The separating entity will also pay its portion of the national debt on a pro rata basis for each person choosing citizenship in the new entity.

8. The separating province will tender to purchase the freehold interest in any and all lands, buildings, etc. within the territory noted in #7, above owned by individuals or corporations resident in Canada outside of the separating territory (at fair market prices as of the day prior to the referendum). The said residents may accept the offer or not as it suits them.

9. One year PRIOR to the date of separation, the new entity will place the full amount of payments it is required to make under the negotiations in an escrow account, and these amounts will be released to the government of Canada or the relevant citizens and corporations upon completion of separation. These deposits must be in a combination of gold bullion and/or a blend of U.S. dollars, Euros, and Yen.

10. Prior to completion of separation, the government of Canada will conduct a second referendum within the separating province to confirm the intentions of the province's residents. The threshold for confirmation will be 50%+1. Failing confirmation at this time, separation will not occur.

11. All expenses of negotiations, measurement, oversight, referenda, etc. incured by the Government of Canada in relation to the proposed separation shall be paid by the separating entity.

12. Any default by the separating entity in discharging any of these terms will result in termination of the separation process and the assumption by the crown of Canada of the separating territory as a Territory administered solely by the Government of Canada.

[geoffrey]

Problems I have with this:

2. A province seeking separation will be represented for all purposes in the negotiations by the elected government of the province under the terms of the constitution of Canada, and any agreement as to separation can be concluded only by and through the said legitimate provincial government. Prior to conclusion of separation the laws and constitution of Canada will continue to fully apply within the province proposing separation.

Could the leaders of the seperatist movement be charged with treason?

4. The new entity will enshrine rights equivalent to those guaranteed in Canada's Charter of Rights and Freedoms, and the Supreme Court of Canada will act as the court of last resort for the new entity for a period of fifty years from the date that separation is concluded.

Alberta would have to protect French language rights? Nope, this one doesn't work for me.

5. The new entity will not seek to enter any international treaties without the prior consent of the Government of Canada for a period of fifty years from the date that separation is concluded.

Alberta is banned from entering NAFTA or even an environmental treaty? Nope. This one doesn't work either.

6. The territory of the new entity will consist of:

(a ) the territory it held the day prior to its accession into the federation (i.e. for PEI -- all of PEI, for Quebec -- the historic territory of Lower Canada, for Saskatchewan -- nothing);

PLUS

(b ) such lands within its provincial jurisdiction as it chooses to purchase sovereignty and eminent domain over from the crown of Canada at a price determined according to international norms;

MINUS

(c ) any and all lands subject to valid First Nations claims.

Would the "First Nations" get to choose to join Alberta or stay in Canada? Or are they stuck with Canada forever? What if the province doesn't recoginize the claims as valid, such as in the West where the Indians had little permenant settlement?

Are you saying that Alberta gets nothing? Where is your logical justification that it gets what it got during accession into Canada? What if Alberta and Saskatchewan voted to leave? Can we take all of Rupert's land as our two provinces would have a majority no matter if you included the few thousand Northern Territories people? I think you need to put more thought into your clause #6.

By the way, the province holds land rights in Canada. Your fee simple is from provincial powers in the consitution, s.92... "13. Property and Civil Rights in the Province."

7. The separating province will purchase the freehold interest in any lands, buildings etc, owned by the Federal government, the Crown in right of Canada, or any federal crown corporation within the territory noted in #7, above (at fair market prices as of the day prior to the referendum).

Agreed... at a real value judged by an independant source prior to the referendum.

8. The separating province will tender to purchase the freehold interest in any and all lands, buildings, etc. within the territory noted in #7, above owned by individuals or corporations resident in Canada outside of the separating territory (at fair market prices as of the day prior to the referendum). The said residents may accept the offer or not as it suits them.

Nope, I disagree. Your private ownership is your deal... sell before the referendum. Too many big quick bucks could be made with this scheme.

9. One year PRIOR to the date of separation, the new entity will place the full amount of payments it is required to make under the negotiations in an escrow account, and these amounts will be released to the government of Canada or the relevant citizens and corporations upon completion of separation. These deposits must be in a combination of gold bullion and/or a blend of U.S. dollars, Euros, and Yen.

Why? Just setup a payment plan as long as the province is credit worthy. Alberta has a higher credit rating then Canada from international lenders, why should we have unfavourable terms?

10. Prior to completion of separation, the government of Canada will conduct a second referendum within the separating province to confirm the intentions of the province's residents. The threshold for confirmation will be 50%+1. Failing confirmation at this time, separation will not occur.

That's ridiculous... a big waste of money and time. One vote is enough. Do you really think the second vote would be as fair? That's like electing a government and the next week holding a vote to ensure that people really meant to elect that government? How silly. I strongly disagree with this point.

11. All expenses of negotiations, measurement, oversight, referenda, etc. incured by the Government of Canada in relation to the proposed separation shall be paid by the separating entity.

Not if the seperating entity has to pay for subversive programs like Sponorship (which clearly IMO violated the terms of the Yes-No campaign agreement). Legal fees, maybe. They'd have to be independantly audited to insure that the seperating entity wasn't being screwed...

11. Any default by the separating entity in discharging any of these terms will result in termination of the separation process and the assumption by the crown of Canada of the separating territory as a Territory administered solely by the Government of Canada.

With what authority? That would be an act of war if independance was already ok'ed.

[Figleaf]

Problems I have with this:

4. The new entity will enshrine rights equivalent to those guaranteed in Canada's Charter of Rights and Freedoms, and the Supreme Court of Canada will act as the court of last resort for the new entity for a period of fifty years from the date that separation is concluded.

Alberta would have to protect French language rights? Nope, this one doesn't work for me.

If minority rights cannot be protected at the level Canada feels they ought to be protected, then Canada has no business letting separation be used as a way of carving citizens out of their rights.

5. The new entity will not seek to enter any international treaties without the prior consent of the Government of Canada for a period of fifty years from the date that separation is concluded.

Alberta is banned from entering NAFTA or even an environmental treaty? Nope. This one doesn't work either.

Well, Canada could agree to let a separated province into treaties, but if a separated province is just going to go out and make alliances or treaties against Canada's interests, we'd be unwise to let them go.

6. The territory of the new entity will consist of:

(a ) the territory it held the day prior to its accession into the federation (i.e. for PEI -- all of PEI, for Quebec -- the historic territory of Lower Canada, for Saskatchewan -- nothing);

PLUS

(b ) such lands within its provincial jurisdiction as it chooses to purchase sovereignty and eminent domain over from the crown of Canada at a price determined according to international norms;

MINUS

(c ) any and all lands subject to valid First Nations claims.

Would the "First Nations" get to choose to join Alberta or stay in Canada? Or are they stuck with Canada forever? What if the province doesn't recoginize the claims as valid, such as in the West where the Indians had little permenant settlement?

First Nations can make their own deals with Canada about how much they are in or out. The separation of a province should have no impact on Canada's responsibilities toward First Nations. Whether a province recognizes First Nations claims is irrelevant -- the existence of the claims in Canada's view before separation would be the test.

Are you saying that Alberta gets nothing? Where is your logical justification that it gets what it got during accession into Canada?

Alberta would get nothing under A, but could buy its territory under B. The justification is that it brought nothing into the federation so why should it automatically get something to take away?

8. The separating province will tender to purchase the freehold interest in any and all lands, buildings, etc. within the territory noted in #7, above owned by individuals or corporations resident in Canada outside of the separating territory (at fair market prices as of the day prior to the referendum). The said residents may accept the offer or not as it suits them.

Nope, I disagree. Your private ownership is your deal... sell before the referendum. Too many big quick bucks could be made with this scheme.

The government of Canada cannot permit a the interests of its citizens to be compromised on the whims of any provincial separatist movement.

9. One year PRIOR to the date of separation, the new entity will place the full amount of payments it is required to make under the negotiations in an escrow account, and these amounts will be released to the government of Canada or the relevant citizens and corporations upon completion of separation. These deposits must be in a combination of gold bullion and/or a blend of U.S. dollars, Euros, and Yen.

Why? Just setup a payment plan as long as the province is credit worthy. Alberta has a higher credit rating then Canada from international lenders, why should we have unfavourable terms?

The separating province should not be permitted to put Canada at risk of its default. If a province wants to go, why should Canada trust them in any way at all?

10. Prior to completion of separation, the government of Canada will conduct a second referendum within the separating province to confirm the intentions of the province's residents. The threshold for confirmation will be 50%+1. Failing confirmation at this time, separation will not occur.

That's ridiculous... a big waste of money and time. One vote is enough. Do you really think the second vote would be as fair? That's like electing a government and the next week holding a vote to ensure that people really meant to elect that government? How silly. I strongly disagree with this point.

Canada owes a duty to all its citizens, including any who are in a separating province who would have prefered to remain. The very minimum obligation this imposes is to ensure that at the time it happens separation is still the wish of the Canadian citizens living there.

11. Any default by the separating entity in discharging any of these terms will result in termination of the separation process and the assumption by the crown of Canada of the separating territory as a Territory administered solely by the Government of Canada.

With what authority? That would be an act of war if independance was already ok'ed.

On the authority of the laws of Canada and of the negotiated agreement itself.

Thank you for your comments, Geoffrey. I would point out that the SCC says the government has to negotiate, but it doesn't say anything about having to accept a deal that doesn't serve Canada's interests.

[Rue]

I have no idea what is behind the original hypothesis of this thread because there has never been a Supreme Court decision that has stated anything even remotely close to what Figleaf has stated.

[Figleaf]

I have no idea what is behind the original hypothesis of this thread because there has never been a Supreme Court decision that has stated anything even remotely close to what Figleaf has stated.

http://www.thecanadianencyclopedia.com/ind...s=M1ARTM0011758