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Constitutional Law and Regionalism

A Comparative Analysis of Regionalist Negotiations

Vito Breda

This topical book analyses the practice of negotiating constitutional demands by regional and dispersed national minorities in eight multinational systems. It considers the practices of cooperation and litigation between minority groups and central institutions in Australia, Britain, Canada, New Zealand, Italy, Spain, and the U.S. and includes an evaluation of the implications of the recent Catalan, Puerto Rican and Scottish referenda. Ultimately, the author shows that a flexible constitution combined with a versatile constitutional jurisprudence tends to foster institutional cooperation and the recognition of the pluralistic nature of modern states
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Chapter 5: Canada: a multinational constitution and the obligation to negotiate

Vito Breda

Extract

This chapter discusses the constitutional negotiations and the process of accommodation of identity-based constitutional claims in Canada. Canada is a multinational constitutional system that recognizes Aboriginal rights, protects the French language and, albeit only statutorily, recognizes Québécois national identity. In this chapter, I will explain how constitutional principles such as multinationalism and the obligation to negotiate in good faith with sub-state national groups have shaped the Canadian constitutional system. The chapter will show the effect that a rigid constitutional system might have in the development of a multinational polity. In particular, I will discuss the overlapping effects of three drivers of change. The first driver of change is the role played by Quebec nationalism as a stimulus of constitutional change. The Supreme Court has instead incrementally developed a series of constitutional principles aimed at accommodating the Indigenous Peoples of Canada’s demands and Quebec nationalist aspirations. The term ‘Indigenous Peoples of Canada’ is used in this chapter in a way that includes three very distinct, internally complex identity groups, which are the Metis, Inuit and American Indians. The last driver of change analyses the effects of rigid constitutional amendment procedures. The chapter is divided into three sections and is preceded by an introduction and followed by a conclusion. The introduction discusses the historical and political events that altered the Canadian constitutional system. The three sections that follow the introduction explain the three elements (Quebec nationalism, the jurisprudence of the Supreme Court and the rigid constitution) that affect the process of the accommodation of identity-based claims in Canada. The conclusion reflects on the narratives discussed throughout the chapter.

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