The Clarity Act and the NDP’s Sherbrooke Declaration are not the same thing

Much buzz on twitter and in politicaldom yesterday on the confusion around the NDP’s position on recognizing a sovereignty referendum vote by Quebecers. NDP policies on this issue have been somewhat confused and contentious for years, but with their newfound relevance many are just now beginning to pay attention to them and try to get some clarity.

Much of the debate and the confusion has centred around two specific documents: the Clarity Act passed by the Liberal government under Jean Chretien and Stephane Dion following the 1995 referendum and a subsequent Supreme Court reference, and the Sherbrooke Declaration which has outlined NDP policy on Quebec since its adoption in 2005. I’d encourage you to read both documents to better frame the debate going forward.

In my view, the root of the confusion has been the NDP doing what many political parties have been guilty of: saying one thing in Quebec, and one thing in the rest of Canada. In Quebec, they point to Sherbrooke as their policy. In the rest of Canada, they seem to signal support for the Clarity Act, trying to back away from pre-Sherbrooke comments to scrap it. And they’ll have you believe those two positions are compatible.

However, if you’ve read both documents it’s hard to support that argument on two key points: acceptance of the referendum question, and the threshold required to accept a yes vote.

Setting the question

First, the question. Here’s the NDP position via Sherbrooke:

The NDP recognizes as well that the right to self determination implies that the Assemblee Nationale is able to write a referendum question and that the citizens of Quebec are able to answer it freely.

I read this as saying the Quebec national assembly has sole right to select whatever question they want and the NDP will accept it. Yet here’s the Clarity Act on this point:

1. (1) The House of Commons shall, within thirty days after the government of a province tables in its legislative assembly or otherwise officially releases the question that it intends to submit to its voters in a referendum relating to the proposed secession of the province from Canada, consider the question and, by resolution, set out its determination on whether the question is clear.

It goes on to set out broadly some criteria for judging the clarity of the question, and says the Government of Canada will not recognize an unclear question.

Now, I view those two positions as opposed, and it’s hard not to. The NDP says the National Assembly sets the question, and we need to accept it. The Clarity Act says we'll only accept a clear question, and the House of Commons will make the call. This is kind of important, because the sovereignty movement has a history of trying to hoodwink Quebecers with confusing questions and messaging that’s just not true, like they’ll keep their passports and the dollar.

Now, you could try to argue the NDP is just saying Quebec picks the question but that doesn’t mean the feds can’t reject it. I don’t read it that way, but to make that argument you’d have to overlook the fact they don’t say the question is open to judgment so, at best, in that scenario you’re arguing they’re deliberately misleading Quebecers by leaving that part out. But I don’t buy it; they’ll clearly accept Quebec’s question, no reservations. And accepting a confusing or misleading question that could lead to the break-up of Canada is unacceptable.

The percentage threshold

The other point of contention is around the percentage needed for a sovereignty referendum yes vote to be accepted. The threshold has generally in the past been accepted as 60 per cent, although it was revealed post-1995 referendum that if he got one vote over 50 per cent Jacques Parizeau was pulling the trigger in a unilateral declaration of independence (UDI).

In Sherbrooke, the NDP also affirms its support for accepting 50 per cent plus one:

The NDP would accept a majority decision (50% + 1) of the Quebec people in the event of a referendum on the political status of Quebec.

Clear enough. It had appeared to some recently that Jack Layton was backing away from this position, but under questioning yesterday he confirmed the party’s position:

"The Supreme Court decision says you need a clear majority. And our Sherbrooke Declaration put a number to what a clear majority means: 50 per cent plus one. That's been our policy for a long time, and it remains so."

With that clear, what does the Clarity Act say on the matter?

House of Commons to consider whether there is a clear will to secede

2. (1) Where the government of a province, following a referendum relating to the secession of the province from Canada, seeks to enter into negotiations on the terms on which that province might cease to be part of Canada, the House of Commons shall, except where it has determined pursuant to section 1 that a referendum question is not clear, consider and, by resolution, set out its determination on whether, in the circumstances, there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada.

Factors for House of Commons to take into account

(2) In considering whether there has been a clear expression of a will by a clear majority of the population of a province that the province cease to be part of Canada, the House of Commons shall take into account

(a) the size of the majority of valid votes cast in favour of the secessionist option;

(b) the percentage of eligible voters voting in the referendum; and

(c) any other matters or circumstances it considers to be relevant.

While it’s deliberately vague in setting a precise threshold, the Clarity Act does clearly say “a clear majority” is needed. Is 50 per cent plus one a clear majority? I don’t think so. If the act accepted 50+1, it would have just said majority. Clear is the operative word.

Stephane Dion yesterday said it best:

But Liberal MP Stephane Dion, who spearheaded the secession reference to the Supreme Court and authored the subsequent Clarity Act based on the court's ruling, scoffed at Layton's logic.

Dion said the top court would have said so if it meant a bare majority would be good enough to trigger secession negotiations. Instead the court insisted, 13 times, that a "clear majority" would be necessary.

"If (Layton thinks) 50 per cent plus one is a clear majority, what is an unclear majority?" Dion asked in an interview.

Indeed. Clearly, on the two fundamental points here – the question, and the threshold for acceptance – the Sherbrooke Declaration and the Clarity Act are opposed.

Pick a position

You may be asking yourself, so what? I agree, the NDP is free to take whatever position on these issues they want. They’re free to accept a confusing question, and they’re free to let Canada break-up on a one-vote majority resulting from that confused question. I disagree fundamentally and vehemently with both policy positions, but they’re free to take them. And as Antonio notes, both positions are within the Quebec political mainstream.

What they can’t do, however, is try to have it both ways. They can’t tell Quebecers one thing and Canadians another. They can’t say Sherbrooke is their policy but claim support for the Supreme Court opinion and the Clarity Act, because the two aren’t compatible. They need to pick a position, own it and stand by it in all of Canada.

As for the NDP pushback on this issue, which can be summarized as a) our position isn’t confused but no one cares about this so stop talking about it, and b) the Liberals making an issue of our position is akin to fermenting a national unity crisis, I can only say both positions are ridiculous.

With half the NDP caucus hailing from Quebec, and with most Quebec MPs now NDPers, some of whom have been unclear on the unity issue, their party’s position on this issue is incredibly relevant and should, at the very least, be made clear. And if talking about the NDP’s position on this issue is someone dangerous to national unity, is the problem really talking about it, or is the problem actually their position?

As Jack would say, that’s a hashtag fail.

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