[Article by Yves Boisvert: "What Will Be the Geography of a Possible Sovereign Quebec?" Montreal LA PRESSE in French 24 Aug 91 p B4]

[Text] Among the hundred thousand ways to start a civil war, the surest is still a dispute over territory. Thus far, the Canadian constitutional debate has been relatively serene. But if these are people who are looking for an opportunity to steer things awry, the border debate will provide them with a golden one.

Before the burial of the Lake Meech Agreement, and above all before last year's Mohawk crisis, the subject of the borders of an independent Quebec was not much in fashion in Canadian political and juridical science circles.

Things have definitely changed. Peter Russell, political scientist at the University of Toronto, would have preferred to sidestep this debate "because it leads to violence. This can be seen in Yugoslavia..."

But Professor Russell will simply have to resign himself to that: The border issue has already been raised. And not solely by scatterbrains. Some examples?

The book that is currently creating a stir in English-speaking Canada is titled Deconfederation. It is the work of David Bercuson and Barry Cooper, two former citizens of Montreal, historian and political scientist respectively, who teach at Calgary University.

Either out of cynicism or of provocativeness, Cooper and Bercuson have dedicated their work to the memory of Rene Levesque and claim to have drawn their inspiration from the founder of the Parti Quebecois [PQ] in an impassioned advocacy of independence for Quebec. For them, the moment of the divorce has arrived.

There is a slight nuance, however: It is not Quebec that Cooper and Bercuson want to boot out of Canada...but New France! In a few lines, the authors assert that there are "excellent historical, juridical, and political arguments" to demolish the thesis of Quebec's territorial integrity.

All the Great North should remain in Canada, they say, since it was ceded to Quebec by federal law in 1898 and 1912 solely because Quebec was a Canadian province. For that matter, they say, Quebec hardly occupied this territory at all until around 1960. And the Hydro-Quebec dams? They would be taken over by the federal government, of course, which would sell the electricity to the Quebecois, if there were any left after having offered it to the Americans and Ontarians.

Cooper and Bercuson would also lop off from Quebec territory the south bank of the St. Lawrence (Loyalist land and a necessary corridor between the maritime provinces and the western part of the country), the lower North Coast (Newfoundlanders took part in its colonization), and, for obvious reasons, the Outaouais valley.

Lawyer David Varty, president of the Canadian Bar Association's Constitutional Law Section in British Columbia, is more generous. In the less subliminally titled book Who Gets Ungava? just published, he grants an independent Quebec the entire Quebec of 1867. That is, Quebec Province less the Great North, or less two thirds of its present territory.

Mr. Varty also has one eye trained on the Hydro-Quebec dams, but he makes no effort to hide his true intent: In view of the existence of such arguments, possibly the Quebecois will cease demanding independence, and the other Canadians will fear it less. This "puts Quebec's departure in perspective," he says.

Canada Indivisible?

Stephen Scott, who teaches constitutional law at McGill University, is not inclined to repudiate all of Varty's, Cooper's, and Bercuson's arguments. The partisans of Quebecois secession maintain that Canada is divisible? They are wrong, but if they were right, he says, the same thing could be said of Quebec.

Professor Scott argues that were Quebec to decide to leave the federation, not only would it have the right to nothing beyond the St. Lawrence valley, but furthermore, a declaration of independence by the National Assembly, even after a strong referendum majority vote, would amount to a unilateral and totally invalid amendment to the Canadian Constitution.

"The juridical rules are clear!" he says. "The Constitution does not provide for the right of secession. I cannot call together a group of people at the Carre Philip and take a vote on sovereignty! Nor can Quebec!" To be valid, secession must satisfy one of the rules set forth in connection with the amendment to the 1982 Constitution: Either the rule of seven provinces totaling more than 50 percent of the population, or the rule of unanimity (he leans toward the latter option).

Mr. Scott thinks that a resort to armed force by Canada would be justified if Quebec failed to conform to these rules. In his view, the authors of a unilateral declaration of independence should be brought to trial for treason. "When I speak of the Army, let us understand each other. Shutting off electric power to Montreal for four days might well be enough," he says.

It is difficult to judge the strength of this line of thought in Canada. According to Philip Resnick, political scientist at the University of British Columbia, these ideas probably reflect the opinion of "profoundly English Canada," which is very little inclined to be conciliatory toward Quebec, he says. Among intellectuals, however, they represent a minority.

Law? Which Law?

This said, are there any clear-cut rules of law on the basis of which an independent Quebec's borders could be either contested or confirmed?

First of all, let us settle one thing. As long as Quebec is part of the Canadian Federation, the rules are clear. Since 1871, under a British constitutional law, expanding, shrinking, or altering a province's territory requires the agreement of the province itself, the federal parliament, and all other provinces that would be affected by the proposed modification.

It is this 1871 law that enabled the expansion of Quebec in 1898 and 1912, through federal and provincial laws. The Hudson Bay Company had ceded its rights over the vast Northern Territory back to the British Crown. The Crown, in turn, made a gift of it to Canada.

But what happens if Quebec becomes sovereign?

According to Henri Brun, constitutionalist at Laval University, Quebec's ownership of the Northern Territories will be even more incontestable than now. Why? Under international law, upon becoming sovereign, Quebec acquires jurisdiction over all matters that concern it, territory included. "It will not even have to come to terms with the rest of Canada!"

Thus, depending on whether the question is put at the level of Canadian constitutional law or of international law, very different conclusions are reached...

"Mr. Scott is right when he says that, according to constitutional law, independence, to be legally obtained, requires the agreement of English Canada. Lacking such agreement, the law, strictly speaking, is sidestepped, and one can argue that a revolutionary act has been committed."

But this, says Henri Brun, simply demonstrates "the limitations of the law." "There are times," he says, "when the law must be recast. The creation of a new state can fail to be juridical, yet be legitimate. For guidance at that point, we must fall back on democratic values."

Professor Jose Woehrling of Montreal University, in his report to the Belanger-Campeau Commission, sets forth two possible approaches to secession by Quebec. Quebec either secedes in accordance with Canadian constitutional law (therefore with the agreement of English Canada), and in this case Quebec's borders cannot be modified without Quebec's agreement. Or, as is being proposed by the PQ, Quebec secedes without English Canada's agreement, basing its action on the right of nations to self-determination. In this second hypothesis, the integrity of Quebec's borders will be respected...if the secession "has succeeded."

What determines whether a secession "has succeeded"?

"That question is by no means easily answered, because there are too few precedents," says Lucius Wildhaber, who holds the chair of international and constitutional law at the University of Basel in Switzerland. "In the case of a unilateral declaration (without the agreement of English Canada), some time will have to elapse before it can be determined whether the secession has succeeded. It will be necessary to see whether Canada makes an effort to retain Quebec, and the extent of Quebec's international recognition. International law experts will bow to realities.

"It is an exercise in which the law more or less yields to the political reality. We find it very difficult to define what is a people and what is a legitimate demand," this expert on matters of self-determination admits readily and without beating abount the bush.

In other words, "should the issue of secession some day arise in concrete terms, it would be addressed more on political than juridical grounds," according to Jose Woehrling.

Political scientist Peter Russell is not very sympathetic to the idea of dissolving Quebec's borders. To the extent that a truncated Quebec would be nonviable, this debate "is but a veiled denial of self-determination, and I am not in agreement."

But Mr. Russell anticipates that if Quebec does not reach an agreement with the Crees before declaring sovereignty, and the Crees wish to remain in Canada, the federal government would have an excuse, having all the appearances of legitimacy in English Canada and the international community, to occupy the North and contest Quebec's borders.

In this regard, James O'Reilly, the Crees' lawyer for the past 20 years, maintains that it must not be taken "for granted that the Crees would come down against Quebec sovereignty, if their rights are respected."

If sovereignty comes to pass, it is only then, in the critical period of juridic fluidity between the exit of Canada and the recognition of the new state, that the borders question risks being put again at issue. Only at that moment, if it ever arrives, will it be known whether they were inviolable; that is, unviolated.