Constitutional Conference Continuing Committee of Officials, Working Papers on Foreign Relations (5 February 1969)

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Date: 1969-02-05
By: Québec
Citation: Constitutional Conference Continuing Committee of Officials, Working Papers on Foreign Relations (5 February 1969).
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Notes prepared by
the Québec Delegation

Québec, February 5th, 1969.

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Institutions are a sort of mirror held up to the era which gives them rise and permits them to function. They reflect the different forms which man imparts to society, depending on his conception of how life should be organized and what its goals should be.

Because they express ideas and needs which are more or less closely associated with moments in history, institutions are constantly subject to change, just like the realities which determined their shape.

1. Federalism

Federalism is no exception to this law of change. It is even safe to say that, because of the greater degree of participation in public affairs which its complex structures exact from citizens, the federal system is more sensitive to economic and social evolution than any other form of political society, and more amenable to solutions dictated by circumstances.

In fact, federalism varies from age to age from country to country, offering a broad range of options compatible with its fundamental requirements. The nineteenth century, which witnessed the rise or consolidation of the first modern federal systems, produced no identical forms. During the twentieth century, which saw the expansion of federalism throughout the world, this diversity was further increased. At the present

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time, twenty-odd states, including seven of the world’s eight largest countries, have federal systems, yet no two of their constitutions are alike. More importantly, turning to the exercise of international powers, we find a variety of situations, ranging all the way from absolute centralization to genuine participation by the member-states. Examination of federalism’s historical evolution and the way in which it new functions would seem to justify Marcel Prélot’s finding that “there is a federalism for every era, for every people, for every ideology”.1

To be sure, federalism is not proof against violent crises. Moreover, several federations have been dissolved during the last decade. However, largely because of the close relations which the constituent parts of a federal state customarily maintain with one another, they can usually manage to find solutions to their problems in time to prevent their association from breaking up.

2. Canadian federalism

Canada’s federal system is just over a hundred years old. It came into being for a number of reasons, one of which – the failure of Union government – contains lessons we are prone to forget. When Canada first became a federal state, her needs were a very far cry from what they are today. Accordingly, her international dealings were made subject to imperial authority and there was no reason to expect that, a half-century later, Canada would be called upon to assume her own responsibilities in world affairs. However, the

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British North America Act contains no reference to international powers; this explains why it has been a source of constitutional difficulties which neither judicial rulings nor constitutional practice have yet succeeded in removing.

Canada entered the world stage at a time when intern national affairs were taking on a new dimension. After a long period of being limited to questions of war and peace or diplomatic and commercial exchanges, international relations had begun to branch out, to encompass social and cultural problems, new interests borne out by the creation, between the two world wars, of the International Labour Organization and the International Institute of Intellectual Co-operation.

Soon after the Second World War, the Government of Canada decided to play a more inmortant part in world affairs. Accordingly, it joined a large number of international organizations of which some, being of a social and cultural nature, pursue ends more properly associated in Canada with the federated states. More recently, Canada has extended her membership to still other intergovernmental bodies and some of these, such as the International Bureau of Education, deal with matters completely outside the central government’s legislative sphere.

This generally increased participation by the Government of Canada in the work of international organizations coincided with Quéhec’s need to assumw its powers to the full. Thus Québec has been led to organize with certain countries – particularly those whose language and culture are French – ex-

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changes it considers indispensable in order to exercise its powers under the constitution. This occasionally parallel activity carried on in the same fields by Ottawa and Quebec has caused some confusion abroad; even more serious, it has generated internal tensions and misunderstandings which it is important to resolve.

We would do well to remember that Quebec is not the first province to seek a measure of international capacity. More than thirty years ago, before the Judicial Committee of the Privy Council, the Attorney General for Ontario put his case this way:

There are no grounds whatever for saying that the parties to advise His Majesty in matters relating to the jurisdiction of the Provinces have in some way come to be the Dominion Ministers. The Province has the right to advise the Crown in matters where its legislative powers apply. Ontario has a right to enter into an agreement with another part of the British Empire or with a foreign State.2

Since the last war ended, a number of Canadian provinces have had dealings with foreign governments or organizations to settle questions falling within their jurisdiction. No doubt more such contacts will be made. Because international relations now take in many matters formerly considered to be of purely local interest, it will become increasingly difficult for the membcr~statcs of certain federations to discharge their full constitutional obligations without entering into relations with other countries. Moreover, in so doing, federated states will merely be following the example set by professional and

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labour organizations, commercial, industrial and financial enterprises, educational institutions, even municipalities, all forced by the growing interdependence of peoples into opening windons on the world so as to avoid falling into mediocrity and stagnation.

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Before turning to the law to consider what solutions it may offer, we might well look at the facts and see briefly what Quebec’s present international activities are so as to understand the needs they fill. we propose to examine these activities under the headings or international agreements, presence abroad, participation in international organizations and international development aid.

1. International agreements

As it is the case for most other provinces, Quebec has always felt free to enter into agreements with foreign governments in matters within its jurisdiction. As examples, we may refer to the agreements concluded with some ten American States on trucking and to the reciprocal arrangements with the United Kingdom, Northern Ireland, Trinidad and Tobago on succession duties.

However the best known of these agreements are those which Quebec signed, in 1965, with the Government of the French Republic – one on education and the other on culture. A protocol was added to the first agreement in 1968, setting up the Office Franco-Québécois pour la Jeunesse. There is also an agreement signed in 1964, calling for co-operation between our Education Department and a guasi-publie French organization known as ASTEF (Association pour l’organisation de stages en France). These different agreements are implemented by a body of officials appointed by the two governments

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and called Commission permanente de coopération franco-québécoise; in principle, it meets twice yearly to review progress and fix the final details of future programmes.

Since the beginning of the ASTEF agreement in 1964 299 stages and missions were organized in France and 369 in Quebec (total 668); these exchanges covered various technical fields; electric power, engineering, electronics, planning, etc.

Another type of technical exchanges made it possible, in 1968-69, for Quebec to receive some 103 coopérants an titre du service national; Franco-Québec seminars were organized; stages were made in Ecole nationale d’administration and in Ecole natianale de santé publique; other stages were organized for journalists and research programs were carried in many fields: Northern Quebec development, hydrology, geology and mines; land and rural development, tourism, urban planning… In the last nine months of 1968, 188 Quebec experts have received invitations and bursaries from the French government; on the other hand, the French government sent to Québec some ten missions.

The agreement for cultural cooperation was instrumental in bringing to Québec a dozen outstanding exhibition from France, while a number of our exhibitions travelled to France.

Important book exchanges took place and a start was made on reciprocal arrangements for the deposit of duty copies of books between Québec and France National Libraries.

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Quebec has taken part in the first Biennale de la langue française, and has been host to the second; it has participated in the creation of the Conseil international de la langue française and has organized several seminars for linguists from French-speaking countries.

In the field of education, where the cooperation has been remarkably close, the exchanges of experts go back to 1965; the number of participants reaches 414, of which 173 (i.e. 42% of the total) took place in the last nine months of 1968.

In addition to the 103 aides under the service national, referred to above, 312 came, in 1968, to teach in Quebec institutions. In all, since 1965, 669 coopérants came to Quebec.

More than 500 university professors were exchanged between France and Quebec.

Since l965, Quebec institutions were attented by 295 French scholars; and 277 young Québecers went to France under French government’s scholarships.

Thus, more than 2000 teachers and students, both from France and Quebec, were able to benefit from the development of Franco-Québec cooperation either through missions, stages or scholarships.

Finally, under the sponsorship of the Office Franco-Québécois pour la Jeunesse, created in 1968, a thousand young Québecers went to France and a like number of young Frenchmen came to Quebec; it is hoped that in l969-70, these numbers will be doubled.

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It will be obvious to anyone reflecting on these many and varied exchanges, whose numbers grow with each passing year, that such agreements can make a substantial contribution to the development of Quebec, and of her human resources in particular. In fact they have become an important instrument for carrying out our policies respecting education and culture. They also represent a concrete effort to brean the cultural isolation in which events have contrived to keep Quebec for two hundred years. In their fashion, tailored to the French way of thinking, they provide Quebec with the same kind of cross-fertilization from Europe as the other Canadian provinces have always received from the British Isles.

Finally, the very nature of these agreements, whose exact substance is determined annually by the Commission permanente to which we alluded earlier, explains why the Quebec Government must be a direct party to them and cannot agree to participate in them with the federal government as go-between. All these exchanges require an intimate knowledge of governmental machinery and educational institutions. Before anything can be done, needs have to be determined and priorities set, which entails carrying on discussions with departments and teaching establishments; then the entire programme has to be negotiated each year with the French authorities; this done, funds have to be appropriated and results asses:ed. Now, in accordance with the constitution and the nature of thinas, only the Quebec Government is competent to perform this task. For example, the federal authority would not be able to weigh the need for kindergarten teachers or assess the professional compe-

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tence of educators from France without leaving the whole question to the Quebec Government or ovorstepping the bounds of its constitutional powers. In other words, only the Government of Quebec has both the practical information and the constitutional responsibilities needed to negotiate and implement this type of agreement. This being so, it is to be wondered why she should not Sign them in her own right, subject to rules agreed upon by both levels of government.

2. Presence abroad

Like the other Canadian provinces, Québec has an Agent- or Delegate-General in London; she is similarly represented in New York and Paris, maintains an office in Milan, will soon open one in Chicago and in other American cities.

Like the representatives of other Canadian provinces and Commonwealth federation member-states, Quebec’s Agent-General in London enjoys a status similar to that of a consul general, conferred by act of Parliament. The Paris Delegate-General is granted most diplomatic immunities and his staff, consular privileges. In New York, the Quebec De1egate-General enjoys a special status granted to a certain category of foreign agents.

The existence of Quebec representatives and offices abroad has never been a cause of serious controversy. Besides, the practice is one of long standing.

3. International organigations and conferences

In the past, through her ministers and officials serving as members of Canadian delegations, Quebec has participated

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in the work of many international conferences and organizations. Large numbers of Quebec citizens and associations also contribute regularly to the achievements of other international bodies which are not strictly governmental. This applies to several of our departments, commissions or state enterprises.

In February 1968, for the first time, Quebec participated directly in a government-level international conference. At Gabon’s invitation, our Education Minister attended the enlarged Conference of Education Ministers from French-speaking countries in Africa and Malagasy, held in Libreville. when the same conference was continued in Paris in April 1968, Quebec was again represented.

In January 1969, just as she had the year before, Quebec took part in the second meeting of this expanded conference, this time in Kinshasa. Since Canada was also invited to this session, the Quebec delegation joined the other representatives of the Canadian federation,at the place of the meeting, although remaining duly identified.

Quebec has also accepted an invitation from the President of Niger to attend the conference of la Francophonie to be held soon in Niamey.

4. International development aid

The number of Quebec people now at work in countries on-the road to development is impressive. Some are there as members of missionary orders, others as teachers or specialists under various external aid programmes. Manstudents from those countries hold bursaries at Quebec universities.

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At present, the federal government undcrwrites most of this technical aid, although Quebec makes an appreciable contribution. Indeed – to mention but two examples within the framework of federal programmes – Quebec recruits most of her own teachers and experts whom the Canadian International Development Agency (formerly the External Aid Office) sends to other lands, and absorbs the indirect costs of having many foreign students in her institutions of higher learning. In addition Quebec, on her own initiative and at her own expense, has set up several still-modest programmes for co-operation with certain French-speaking African countries, and in particular in Rwanda and in Gabon. Moreover, Quebec makes a financial contribution to agencies such as l’Association des Universités partiellement ou entièrement de la langue française(AUPELF), le Fonds internationaZ de coopération universitaire (FICU) and Ze Centre africain et malgache de l’enseignement supérieur (CAMES).

5. Other activities

Finally, Quebec participates directly in many cultural or technical international activities. Thus, like several other provinces, she plays an active role each year in a number of European or American fairs and expositions. In September 1968, she accepted an invitation from the Czechoslovak government to take part in the theatre quadrennial at Prague. lt would be possible to list numerous other instances of Quebec’s constant Contact with the outside world.

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Now that we have reviewed the scope of Quebec’s international activities, we can examine their legal implications from the points of view of international law as well as Canadian constitutional law.

1. International law

It can never be sufficiently repeated that Quebec’s entrance into this field raises no special problem in international law, which, in such matters, abides only by the internal law of the country concerned. If, for example, a federation’s constitution permits its member-states to make treaties with foreign countries, sdch treaties are perfectly valid in the eyes of international law. This is explicitly acknowledged in the draft articles for the codification of the law of treaties prepared by the International Law Commission of the United Nations in which Article 5 reads:

1. Every state possesses capacity to conclude treaties.

2. States members of a federal union may possess a capacity to conclude treaties if such capacity is admitted by the federal constitution and within the limits there laid down.3

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It is therefore each country’s constitutional provisions which determine the powers of its constituent parts. Quite logically, international law merely takes note of such provisions and draws the practical conclusions to which they give rise. Moreover, this point is not at issue, since the federal government accepts it as basic in discussing this matter in its white paper, Federalism and International Relations.4 We must now turn to the Canadian constitution.

2. The Canadian constitution

The Canadian government has sought to show that under Canada’s present constitution only the Government of Canada has the power to make treaties at international law. We do not accept this conclusion and we explain why below. We wish however to state that even were this true under the present constitution, it should be otherwise in the new constitution, which, as the Quebec Government has asked, should explicitly recognize the right of the States to make agreements with other countries in fields where they have internal jurisdiction. In other words, since constitutional revision is now under way, a purely legal discussion of how the law now stands loses some of its importance. It may indeed be useful to agree on the present rules of law if only to avoid constant differences, but it is even more important to agree on what should and will be the law when we have our new constitution. with this in mind, we approach our study of the present legal situation.

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There is no constitutional provision or judicial authority to support any exclusive federal treaty-making power. No-one questions the fact that the British North America Act makes no allusion to this matter; in reality, the whole debate is centred in the interpretation to be given to certain court decisions.

The federal government’s argument rests entirely on the Labour Conventions case of 1937. In its view, this case shows “that the authority to enter into international agreements resides exclusively with the federal authority.”5 As a matter of fact, the federal government here bases itself less on the Privy Council decision than on that of the Supreme Court judges; in this case, it assures us, ” … the judges of the Supreme Court of Canada explicitly recognized that the Canadian Government could enter into treaties on all subjects, and the Judicial Committee of the Privy Council, which was the final court in that case, did not challenge this opinion.”6 The last part of this statement is not accurate. Actually, in its decision the Privy Council,first of all,came to the conclusion that it was not necessary to decide on the treaty-making power in order to determine the power to implement treaties, and it unequivocally stated that it had no intention to give an opinion on the power to enter into treaties and that it would leave this point undecided.

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Reverting again to the original analysis of the contentions of the parties, it will be seen that the Provincial contention 1. (b) (“That the Canadian Government had no executive authority to make any such treaty as was alleged”7 relates only to the formation of the treaty obligation, while 1. (c) has reference to the alleged limitation of both executive and legislative action by the express terms of the treaty. If, however, the Dominion Parliament was never vested with legislative authority to perform the obligation these questions do not arise. And, as their Lordships have come to the conclusion that the reference can be decided upon the question of legislative Competence alone, in accordance with their usual practice in constitutional matters they refrain from expressing any opinion upon the questions raised by the contentions l. {b} and (c), which in that event become immaterial. Counsel did not suggest any doubt as to the international status which Canada had now attained, involving her competence to enter into international treaties as an international juristic person. Questions were raised both generally as to how the executive power was to be exercised to bind Canada, whether it must be exercised in the name of the King, and whether the prerogative right of making treaties in respect of Canada was now vested in the Governor~General in Council, or his Ministers … Their Lordships mention these points for the purpose of making it clear that they express no opinion upon them.8

Obviously, the effect of the Privy Council’s opinion is to remove any character of judicial authority from the opinion expressed by certain Supreme Court judges regarding the treaty-making power. These opinions can, of course, be viewed as such, but cannot be regarded as having authority.

In the absence of any express constitutional provision or authoritative decision on this matter, we are obliged to fall back on the general principles of law. And indeed this is what the federal government does when it alleges in support of its contention the language of the Letters Patent issued to the Governor General in 1947 (RSC 1952 VI 305),

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which, it claims, shows “that the foreign affairs prerogative is now exercised by the Governor General.”9 Quebec, however, maintains that, with regard to exercise of the royal prerogative, the language of letters patent cannot prevail over the constitution and that the latter implies an apportionment of the prerogative corresponding to the apportionment of legislative powers.

It is not difficult to show that the language of letters patent issued by the executive cannot prevail over the constitution. Were this not the case, the executive would have primacy over what the constitution states, which would amount to denying the constitution and the federal principle. Thus the courts have decided that, even though the Governor General’s Letters Patent invest him with control over church benefices, this, in the light of our constitution, is null and void and that this power should in fact be exercised by the Lieutenant-Governer (Dos ex.dem. St. George’s Church V. Cougle & Mayes, (1870) 13 N.B.R. 96). As much could be said about several powers listed in the Commission given to Lord Monck in 1867 which the courts have recognized as belonging exclusively to lieutenant-governors: licenses for marriages, letters of administration and probates of wills, custody and management of idiots and lunatics, and their estates. We may then conclude that the powers vested in the Governor General by the 1947 Letters Patent (which indeed are stated in very general terms and do not relate specifically to treaty-making) cannot prevent provincial governments from exercising

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executive powers corresponding to their legislative competence.

In fact, there are two judicial decisions with a specific bearing on the distribution of the royal prerogative between the two Canadian orders of government, and both lead to the conclusion that the provinces can make treaties with regard to matters within their legislative capacities. The first of these was in the matter of The Liquidators of the Maritime Bank of Canada v. The Receiver-General of New Brunswick (1892 A.C. 437) in which the Privy Council laid it down that provincial governments enjoyed the powers of the royal prerogative inherent in their governmental status without further authority than the British North America Act. The second was Bonanza Creek Gold Mining Company Limited v. The King (1916, 1 A.C. 566) in which the Privy Council formally declared that the powers of the royal prerogative automatically followed concomitant legislative powers: “ … the British North America Act has made a distribution between the Dominion and the provinces which extends not only to legislative but to executive authority…. The effet of … the British North America Act is that … the distribution under the new grant of executive authority in substance follows the distribution under the new grant of legislative powers.“ 10 It is hence quite certain that for matters within their competence, the provinces have both executive and legislative power and therefore possess, through the constitution, the right and the authority to deal with foreign affairs and to enter

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into agreements in fields where they have jurisdiction. Indeed, a little further on in its decision the Privy Council reverts to the question and declares “that executive power is in many situations which arise from the statutory Constitution of Canada conferred by implication in the grant of legislative power, so that where such situations arise the two kinds of authority are correlative. It follows that to this extent the Crown is bound and the prerogative affected.” 11

The necessary conclusion arising from this examination of Canadian constitutional law is that there exists no explicit text or authoritative judicial decision bearing directly on the treaty-making power. Yet applying to this matter the general principles governing the exercise of the royal prerogative forces us to conclude that, by virtue of the present constitution, the provinces enjoy the right to make treaties with other countries concerning anything that falls within their legislative capacity.

As the Quebec Government has already asked, the new constitution should make this power clear and beyond doubt.

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Having set forth the facts and the present state of the law, the Quebec Delegation believes that the real problem which arises between the federal and provincial governments comes from the fact that it has not yet been possible or thought desirable to set up_the machinery needed in order that the federated states may have relations abroad without running counter to the foreign policy of the country.

Here is therefore the machinery which the Quebec Delegation would like to submit to the consideration of the other members of the Continuing Committee.

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A – International agreements

Negotiating and signing an agreement should not be dissociated from carrying it out. An agreement is made on the assumption that it will be applied. Consequently, there is no reason to deny the authorities expected to execute an agreement the right to negotiate and sign it.

Yet clearly, in a federal state, the constituent parts must arrange their exchanges abroad so that they will remain within the limits set by the federation’s foreign policy. This is why it would be normal to recognize that before it concludes an agreement with another goverment, a federated State should make sure that what it proposes to do is not in conflict with foreign policy of the federation.

Thus the Quebec Delegation would like to propose that each State commit itself to communicate to the central government the terms of any agreements it wishes to make with foreign countries in due time before they are signed. Whenever the object of an agreement lies wholly within State jurisdiction, the federal government should examine the proposed text for the sole purpose of determiing whether it is compatible with Canadian foreign policy and, in case it withholds its approval, state its reasons for doing so. Whenever agreements relate to matters of joint jurisdiction, in which the federal Parliament has primacy under the BNA Act, the federal government could refuse its assent for reasons either of internal or foreign policy. Such a procedure would avoid all later complications in implementing an agreement.

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As a general rule, Canada’s assent should be conveyed to the interested State. However, there would be no objection to the central government’s later informing the foreign country concerned.

Conversely, whenever the Government of the Union wishes to sign mu1ti-lateral agreements affecting matters under State jurisdiction, it should make sure beforehand of State co-operation by informing them of its intentions, keeping them posted on the nature and scope of the proposed agreements and associating them with the actual process of framing, negotiating and ratifying such agreements.

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B- International conferences and organizations

The present speed and growing ease of communications joined to increasing awareness by individual countries of their common problems and interests will bring about more and more frequent international gatherings and, in the next few years, lead to the establishment of new intergovernmental organizations. We must also stress the increasing desire of French~speaking countries and communities to forge ever closer links between themselves. Moreover, it seems likely that relations between countries will be constantly more concerned with fields which, in Canada, come under provincial responsibility, and which, under the new constitution, are most likely to continue under State jurisdiction.

Just as it wishes to sign its own agreements relating to matters within its jurisdiction, the Quebec Government has already expressed its desire to participate directly and on its own account in meetings, conferences and international organizations which work in these same realms. Indeed, we are only dealing here with two sides of the same coin; one cannot be severed from the other. Then again, when we consider spheres under Quebec jurisdiction – especially education – the federal government lacks constitutional power, human resources and requisite experience to claim that it can adequately represent Quebecers or other Canadians.

Here, then, are the solutions that the Quebec delegation would like to propose in order to achieve the unity of the Canadian representation abroad without either the central government or the government of any State taking on in fact activities not hclongiuq to it constitutionally.

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To be concrete, let us assume that, as happened at Kinshasa, an international conference of French-speaking education ministers is to take place. Here are the specific arrangements that could be made in this instance and later adapted to suit other similar cases.

1. Québec would send to the conference her own delegation headed by her minister of education or someone he names to take his place. So as to form the Canadian representation, the Quebec delegation would join forces with any delegations from other States attending the same conference. If necessary, federal officials could advise the Canadian delegates on foreign policy matters. For the sake of co-ordination, the Quebec minister would assume the chairmanship or, together with a representative from another State, the co-chairmanship of the Canadian group.

2. Quebec’s Education Minister or his representative would speak on behalf of Quebec, except if the other delegations agreed that, in his capacity as chairman or co-chairman, he would express opinions shared by Canadian delegates as a whole.

3. Attendance by Quebec (and other States when represented) would be clearly signified by her name on the list of delegations, her flag displayed in appropriate places and at appropriate times – with due regard for the precedence normally reserved for the Canadian emblem – and the documents tabled in her name on issues within her jurisdiction. The consideration shown to Quebec’s delegation (and those of other States when represented) would be similar to that granted to other delegations. Such an arrangement would accomodate the presence of one or more State delegations – the States being parts of Canada – within a single Canadian representation.

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4. At conferences dealing with exclusively provincial matters, Canada’s representatives should have as many votes as there are State delegations. Should the Canadian delegation have only one vote, it would be cast by the chairman or one of the co-chairmen; in case of disagreement between State delegations, the Canadian group should abstain from voting.

5. The minutes or records of the conference, or any other document of similar nature, would be signed by the chairman of Canada’s representation; should there be co-chairmen, each would sign.

6. Invitations to such conferences might be sent directly to State governments; the State or States receiving an invitation would keep the federal authorities informed and measures would be taken along the lines described above. If an invitaa tion were extended to both the federal and one or more State governments, no special difficulty would be occasioned by such a circumstance. Finally, if the federal authorities were to receive an invitation intended for a State, they would simply forward it to the State concerned.

It seems to us that, even under present conditions, the solutions set forth above constitute a procedure that should be acceptable to all parties involved. Of course, it is impossible to foresee every possible situation, but one thing is certain: none must be presumed insolvable. What matters is that reciprocal consultation mechanisms be set up to cope with situations as they confront us.

The rules just discussed in connection with international conferences could also apply to international organizations

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working in fields which are within provincial competence. we are fully aware that difficulties could arise in specific cases, but we believe that it would be possible to cope with them in the spirit of the arrangements suggested above.

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C- External aid

Since the end of the Second world War, international solidarity in social and cultural endeavours has gained favour among governments, peoples, professional associations and individuals. Nowadays, rare is the state or the government agency which does not seek to promote all sorts of exchanges abroad, either to gain further knowledge or to pass the benefit of its experience to others. Technical co-operation has indeed become the classical approach used to harmonize the dependency binding nations together.

It should be kept in mind that, first and foremost, technical assistance must be the expression of mutual dependency between groups of people who grew from the same roots, share the same culture or are united by the same destiny. Whenever and wherever possible, political views should give way before considerations resting on human fellowship.

In Canada, both government sectors take direct interest in external aid. Since it plays a part in foreign policy, it is properly, in our view, the responsibility of Ottawa to shoulder the larger share of Canadian assistance to developing countries and co-ordinato its modalities. But central government responsibility should not serve as an excuse to overlook the fact that this is shared by the provinces – indeed, some already have their own programmes for co-operation with other countries. what is more, the human and institutional resources of the federated States are very often the power behind

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Ottawa’s technical assistance. To the extent that the federal government could not effectively pursue its humanitarian endeavour in any foreign country without assistance from the States, they obviously have a part to play in drafting and implementing Canadian policies on external aid.

With a view to safeguarding the interests of the provinces in the realm of foreign aid, the Quebec Delegation submits the following recommendations which take into account both existing constitutional arrangements and the desire expressed by the Quebec Government to completely fulfil its role in international co-operation.

1. The Canadian government should always consult State authorities before formulating programmes which call for participation by personnel or institutions under State administration.

2. Without prejudice to the right of the central government to accept or reject recommended applicants, the State government concerned should have full power to recruit teachers or civil servants from its own departments or agencies who are to work abroad within the scope of Canada’s technical assistance programmes.

3. For the duration of his assignment to any foreign country, an applicant selected by State authorities should have formal assurance that he will not lose, in his State, the rights and privileges inherent in the practice of his profession.

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4. Federal and State authorities should jointly establish conditions for terminating assignments, especially when the reason is the incumbent’s presumed incompetence.

5. State governments should be’ahle to obtain from the host foreign institution all information required on the educational and professional conditions under which their teachers and civil servants will be working, as well as full details concerning the practice of their profession or the discharge of their duties. To this end, the States would send missions to beneficiary countries to secure educational and professional information, with or without assistance from federal teams operating in the same fields.

6. Finally, State authorities should be able to initiate certain programmes of their own for co-operation abroad after consultation with the federal governement.

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D – Consultation mechanisms and constitutional reform

The Quebec Delegation is fully aware that despite the underlying principles and practical arrangements which it has suggested, the subject has not been exhaustively covered. Much remains to be said not only on the questions we have dealt with but also on international agreements, the status of State representatives in foreign countries, and so on. However, the Quebec Delegation hopes that the comments and propositions contained in this document will succeed in showing the direction in which solutions may be found to our present problems and in which the discussions towards a new constitution should proceed.

Despite all the concrete arrangements that may be reached, or perhaps because of them, the fact remains none the less that lasting mechanisms for reciprocal consultation must still be provided. Therefore, the Quebec Delegation would like to suggest the establishment of an intergovernmental liaison committee of government officials whose primary concern would be to provide the consultation and co~ordination needed between the two orders of government for applying the principles and implementing the arrangements described earlier. Thus, we could avoid needless confrontation and reciprocal suspicion and, at the same time, solve various problems as they come up in this ever-changing sphere of activity. The Quebec Delegation believes that such exchanges would facilitate mutual understanding, throw light on Canada’s foreign policy and help greatly to remove the sting from a number of conflicts now stemming from mistrust or an inflexible conception of the part to be played on the international scene by each order of government.

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State participation in the international community creates new problems for Canadian political institutions. The perfectly normal reaction is to wonder whether federalism can really adapt itself to such a development, so we look elsewhere for examples. we must bear in in mind however that the classical forms of federalism cannot be of great help in this case. For instance, there is little significance in the fact that relations with other countries were generally left to the central government at a time when such relations had to do mostly with war and peace or commercial exchanges. This is so because external relations these days increasingly concern education, culture and social issues.

Besides, we must recognize that when federalism is aimed at uniting already constituted nations – as some would hope it might do for Europe, Africa and Latin America – it has to come up with new formulas. For example, can anyone imagine France, Great Britain and the Federal Republic of Germany agreeing to form a federation without any guarantee that each nation would enjoy continued autonomy to take action, even at the international level, in matters vital to their respective cultures? Federalism is unthinkable in such cases if divided sovereignty does not extend to external relation. This is why the Canadian federation, if it can successfully test the formulas that make this division possible, might serve as a pattern for federations of tomorrow.

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On the basis of her own experience, the Quebec Delegation has summed up in this document a series of propositions which it believes to be eminently reasonable. It trusts that they will become the subject of sympathetic examination likely to uncover a solution to this complex and delicate question.

1 Institutions politiques et droit constitutionnel, Paris, Dalloz, 1957, livre premier, 234.
2 (1937) A.C. 326.
3 United Nations. Reports of the International Law Commission on the Second Part of Its Seventeenth Session, January 3-28, 1966, and on Its Eighteenth Session, May 4-July 29, 1966“, American Journal of International Law, 61, i (January, 1967), 265.
4 Ottawa: the Queen’s Printer, 1968. Subsequent references to this work will use the short title Federalism.
5 Federalism, 14.
6 Federalism and International Conferences on Education, Ottawa: the Queen’s Printer, 1968, 10.
7 (1937) A.C. 342.
8 (1937) A.C. 348-349
9 Federalism, 14.
10 (1916) 1 A.C. 579-580.
11 (1916) 1 A.C. 587.

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