By Howard Schneider
Washington Post Foreign Service
Tuesday, February 17 1998; Page A12

For 400 years, the people of this northern land have argued over the place French culture has in the country called Canada. Over the past 30, they have fought over whether the mostly French-speaking province of Quebec should settle the matter for good by becoming an independent state.

Today, Canada's Supreme Court opened an extraordinary week of hearings that began by delving into the philosophical and legal roots of nationhood and could end with the court specifying some ground rules for the country's disintegration.

Though the question of whether the court's eventual decision will have any effect on the aspirations of Quebec or any other province remains wide open, the hearing has sparked strong feelings throughout Canada. The court proceedings – as part of the dance that goes on between Quebec sovereigntists and the rest of the country – are characterized as either a high-minded exercise in constitutional democracy or a base ploy by Ottawa to convince Quebecers that they would be breaking the law if they tried to secede.

It is also proof that this country has made little if any progress toward reconciliation since an October 1995 referendum in which Quebec separatists came within a few thousand votes of a victory that would have set the stage for their own declaration of independence.

If anything, relations are at a low. Even some pro-Canada forces in Quebec are angry about the federal government's use of the Supreme Court for what they feel are blatantly political ends; meanwhile, the province's separatist premier, Lucien Bouchard, is riding high in public opinion for his management of the devastation wrought by a recent ice storm, and sovereigntists have been bashing Ottawa for everything from refusing to pay for storm cleanup to not providing enough French-language presentations during Team Canada's activities on the opening day of the Winter Olympics in Nagano, Japan.

There is even speculation that Bouchard, a master of well-timed and dramatic political gambits, might stage a provincial election and follow-up referendum on sovereignty as early as this spring, though continuing budget problems and upcoming labor negotiations make that less likely.

"There is a lot of tension in the air," said Yves Fortier, the lead lawyer for the federal government in the Supreme Court hearings – an unusual proceeding that is by no means a legal case of the sort that courts usually decide.

To begin with, the issue is, in some fundamental sense, beyond the court's reach: Imagine the U.S. Supreme Court in the 1860s telling the nascent Confederacy that it was unconstitutional to fire on Fort Sumter.

Additionally, there is no actual dispute for the court to decide. Rather, the current hearings are part of the Canadian court's practice of occasionally accepting what are in essence hypothetical "references" that ask for non-binding guidance on the country's constitution.

In this instance, the federal government a year and a half ago asked the nine-member panel to answer a series of questions about any move by Quebec to separate – whether, either under Canada's constitution or international law, Quebec could leave Canada without the agreement of either the federal government or the other provinces or a constitutional amendment to authorize it.

The federal government argues that the answer is no and that any separation would require the involvement of the entire country and a constitutional amendment approved by the rest of Canada.

Quebec, in another demonstration of the divide on this issue, has refused even to participate in the hearings on the grounds that the province's sovereignty is a political issue for Quebecers to decide on their own. The terms of separation could perhaps be negotiated with the rest of Canada – that's what sovereigntist leaders have said is their intent – but it certainly would not be governed by the strictures of a constitution that the province has never even ratified.

Bouchard emphasized that in a speech before a cheering University of Montreal crowd last week when he urged the court to leave the government's questions unanswered, or risk losing legitimacy in the eyes of Quebecers who feel the whole thing is a political ploy to intimidate them.

"Ottawa is asking judges it appoints unilaterally to rule on a constitution it imposed unilaterally so it can unilaterally oppose democracy," Bouchard said. "The right to choose – their government or their future – belongs to the Quebecois. It does not belong to the government."

That sentiment is shared by many federalists in Quebec as well, and their willingness to say so publicly has raised concerns that what looked like a strong ploy by Prime Minister Jean Chretien to stand up for Canada may backfire. In recent days, Chretien's Liberal Party colleagues, including Claude Ryan, a respected former Liberal Party leader in Quebec, have said the Supreme Court reference was a mistake and that the issue of Quebec's status in the country should be left to residents of the province to decide.

Federal officials retort that the country's future is too important not to understand the rules of the game as thoroughly as possible.

"We need to have a clear process, within a legal framework, within a clear procedure," said Stephane Dion, Canada's minister for intergovernmental affairs. "I would not lose Canada through confusion."

The very existence of the case is part of the harder line toward the sovereignty movement that Ottawa has slowly adopted since the 1995 referendum. After largely ignoring the separatist threat in advance of that vote – and nearly losing it – Chretien now has government lawyers developing arguments about the conditions under which a country's authority over its territory take precedence over demands by individual groups for "self-determination."

A host of other parties, including representatives from several provinces, Indian groups and others, will make presentations during the week. At week's end, a court-appointed attorney will present Quebec's case in the province's absence, arguing that under international law, a vote by Quebec to secede should be respected.

A decision is not expected until summer or fall – and even then, it is unclear what practical effect the court's advice will have. As Fortier and other government lawyers delve into the arcana of international law, they acknowledge, along with politicians like Dion, that if Quebecers make a clear political decision to leave Canada, they will be allowed to do so.

Having won a referendum, for example, no separatist leader in Quebec is likely to defer to the Canadian Supreme Court; conversely, most analysts say it is improbable that, having lost a referendum, a Canadian prime minister would call on the military, for example, to enforce the constitution.

"Canada does not question or contest the right of Quebecers to decide their future," Fortier told the court, "including whether they choose to stay in Canada or separate."