The Clarity Act (2000): An Overview

(Revised content and secession formula-for-consideration courtesy of FreeAlberta.com.)

The Clarity Act (2000) is federal legislation that enables provinces to legally secede from Canada. The act sought to clarify the legalities of Quebec seceding from Canada, but applies equally to all provinces. By extension, one unified Novacadia province can use the Clarity Act (2000) to legally secede from Canada. Maritime union first, then secession.

Origin of The Clarity Act

The Supreme Court of Canada, prior to the introduction of the Clarity Act (2000), determined that several items needed to be resolved with respect to referenda used to secede from Canada:

1. The referendum question must be free of ambiguity and it must clearly indicate that such a result would obligate the province to enter into negotiations leading to secession.

2. A clear majority that is in favour of secession would be required to create an obligation to negotiate a separation.

3. Since the secession of a province would require an amendment to the Constitution of Canada, such an amendment would require negotiations with the governments of all provinces and the federal government. Thus, the Supreme Court confirmed that negotiations on secession must involve those parties and be governed by the principles of federalism, democracy, the rule of law and the protection of minorities.

The Clarity Act (2000) tries to answer these questions in the following manner.

The Clarity of the Referendum Question

The House of Commons must decide whether a referendum question is clear no later than 30 days after the referendum question has been tabled by the provincial government. Should the question be tabled during any part of a federal election, the House of Commons would get an additional 40 days to comply with such a request.

The House of Commons can only decide whether the referendum question is clear in that it must reflect the will of the population of the province on the question of whether the province would cease to be part of Canada and become an independent state. The Act further clarifies that such a referendum question is simply that it is a vote for independence. Because of this, the act must specify that the referendum question clearly states that a vote for independence is a vote for an independent state that would cease to be part of Canada. Also, such an act must be devoid of envisaging other political or economic arrangements with Canada.

Thus, the question of: "Would you support Novacadia to enter into sovereignty association with Canada, as part of a new economic and political union?" would fail such a test of clarity. But, "Should Novacadia secede from Canada and become an independent state?" would pass such a test.

The Act also states that the House of Commons should take into account various groups’ views, including:

1. All political parties represented in the legislative assembly of the province whose government proposed the referendum on secession.

2. Any formal statements or resolutions by the following:
   i) any province
   ii) any territory
   iii) the federal Senate
   iv) representatives of the Aboriginal peoples of Canada
   v) any other views it considers relevant

The Clarity Act (2000) states that the Government of Canada will not enter into negotiations on secession if the referendum question is not clear.

Is There A Clear Will To Secede?

The Clarity Act (2000) states that the House of Commons must determine that 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." The Act specifies that the House of Commons has to take into account the:

1. Size of the majority in favor of seceding;

2. Percentage of voters voting;

3. All political parties represented in the legislative assembly of the province whose government proposed the referendum on secession, and;

4. Any formal statements or resolutions by the following:
   i) any province
   ii) any territory
   iii) the federal Senate
   iv) representatives of the Aboriginal peoples of Canada
   v) any other views it considers relevant

The Clarity Act (2000) is not definite on the size of the majority necessary to constitute a clear will to secede. Nor is it definite what percentage of voters is necessary to constitute a clear will to secede.

The Clarity Act (2000) states that the Government of Canada will not enter into negotiation on secession unless the House of Commons determines that 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.

Constitutional Aspects of the Clarity Act

The Clarity Act (2000) states an amendment to the Constitution of Canada would be required for any province to secede from Canada. Thus, should negotiations on secession ensue, the federal government and all provincial governments would need to be involved.

The Act also requires that the Government of Canada (but not necessarily the provinces) address certain terms of secession. The terms that are specified include the division of assets and liabilities, changes to borders, the status of Aboriginal peoples and the protection of minority rights.

Interpreting the Clarity Act

Essentially, the Clarity Act is an extension of the Supreme Court’s opinion that a province cannot secede unilaterally, but that the Government of Canada is obligated to negotiate secession if there is a "clear mandate on a clear question." But the Clarity Act still leaves many things unclear.

While the Supreme Court and the Clarity Act (2000) speak of a clear majority, it is uncertain what is meant by a clear majority. And the Supreme Court indicated that a majority of 50%+1 of the ballots cast would not be sufficient. Many suggestions on what constitutes a clear majority have been made, from 50%+1 of eligible voters, to supermajorities requiring 2/3 of the ballots cast for secession. As an advocate for Novacadia secession, let us propose another: 50%+1 of the ballots cast plus 50%+1 of Novacadia's Legislative Assembly.

The addition of the vote of the Legislative Assembly is an additional requirement which lends credibility, since it no longer solely depends upon the referendum vote, but on the vote of the MLA’s for the question as well. Would it be a sufficient action to be a clear majority? Nobody knows. However, two separate votes for secession would address the Supreme Court’s decision to refer to a clear majority, as opposed to a majority defined as 50%+1.

By having two separate votes for independence, by a vote in the Novacadia Legislature and by referendum, Novacadia would satisfy the Supreme Court’s opinion for a clear majority.

Clarity Act, Wikipedia

Clarity Act, Government of Canada