Mr. Speaker, my apologies to the hon. member for London-Middlesex, but I believe the opposition was not among the last few members to speak, although there was no lack of debate.
My colleague, the hon. member for Mercier, always looks at things in their historical perspective. Knowing where she has come from, she knows where she is headed, and this gives me a point of departure.
I would be much happier today if, instead of taking a position, I was recognizing the result of a referendum held in Newfoundland indicating to us that the Province of Newfoundland and Labrador wanted to leave Canada, like the result in 1948, and we will come back to this. The Province of Newfoundland-then the Dominion of Newfoundland-made a decision regarding union with Canada.
In this event, it would be sufficient to recognize the result and sit down again, because the people of Newfoundland would have exercised their sacred right to self-determination, to the full constitutional destiny of their province.
Today, I am not in any way questioning the results of the September 5, 1995 referendum. A majority voted in favour of amending term 17 of the Terms of Union with Canada. A little bit of background is still necessary. What took place? What led to the establishment of terms of union between Newfoundland and Canada?
For the benefit of those who were not with us at the beginning of this debate, a reminder that before 1949, Newfoundland was not part of Canada. Until 1933 it was an independent Dominion, like Canada, like Ireland previously, like Australia and like New Zealand, and as such part of the British Empire, which has now become the Commonwealth.
When economic problems became apparent, the responsible government of Newfoundland was suspended by an act of the Imperial Parliament, the Parliament of Great Britain, in 1933, the Newfoundland Act, 1933, 24-25 George V, chapter 2, United Kingdom.
As of 1933, the Imperial Parliament suspended responsible government in Newfoundland and appointed a commission of government to take charge of what to all intents and purposes again became a colony.
Apparently, the commission of government operated satisfactorily, and the war got the economy going again, so that in the post-war period, the people in London and the people in Newfoundland wondered whether they should maintain this commission of government, in other words, a governor without an elected legislature. The governor received his instructions from London and carried them out.
An initial referendum was held to put the question to the people of Newfoundland. Actually, a national convention was called in Newfoundland to determine the status the people wanted for Newfoundland.
This convention suggested putting two questions to Newfoundland voters: Do you wish to maintain the commission of government-direct rule from London-or do you want to go back to the status that existed before 1933, in other words, the status of a Dominion within the empire? With of course, responsible government based on the institutions that existed before 1933.
As a result of political intrigue and pressure from the Canadian government at the time and from the government in London as well, a third option was considered which had not been planned by the national convention of Newfoundland. The third option was federation with Canada.
Despite the position taken by the national convention of Newfoundland, a third option was put on the ballot in 1948, by an imperial act of Parliament. Let us recall the results of the first referendum, which was held on June 3, 1948.
There was a very respectable turnout of 88.36 per cent. In favour of maintaining the commission of government, in other words, an administration under the orders of the United Kingdom, 14.32 per cent; in favour of federation with Canada, 41.13 per cent; and in favour of the return to responsible government, in other words, to Dominion status as of 1933, 44.55 per cent. There was a majority but not an absolute majority in favour of one of the three options. The option which got the least votes was eliminated and as prescribed by law, a month later, on July 22, a second referendum was held. The question concerned only two points: Are you in favour of federation with Canada or of a return to responsible government?
This time, Newfoundland voters responded as follows: 78,323 voted in favour of federation with Canada and 71,334 voted in favour of responsible government, which in percentages works out to 52.34 per cent against 47.66 per cent. The difference is not
considerable, a difference that in other circumstances would not be worth discussing, because the figures themselves are eloquent.
Things become more disquieting when we look at the voting by riding. In the riding of Ferryland, the turnout was 104.59 per cent; in Labrador, it was 119.44 per cent; in Grand Falls, it was 109.79 per cent; in St. John's West, it was 101.50 per cent; in St. John's East, 100.05 per cent and in Humber, it was 107.84 per cent.
This is a turnout that the hon. member for Humber-Sainte-Barbe-Baie Verte can appreciate now. However, as my colleague and friend, the member for Louis-Hébert, would say, something is wrong with democracy somewhere. They went a little bit too far.
Such that, if we look at voting excesses, a lot of ridings had a turnout of nearly 100 per cent. Something rarely seen. For example in the second referendum, it was 95 per cent in the riding of St. George's-Port-au-Port; 97.16 per cent in White Bay; 96.26 per cent in Grand Falls. That is not so bad. In the riding of St. George's- Port-au-Port, in the other referendum, the figure was 99.39 per cent. These figures are rather unbelievable.
Worse yet, however, was the discovery made since that time that London had decided, regardless of the outcome of the referendum, that there would be union with Canada. History speaks for itself; nobody gave two hoots about the people of Newfoundland.
Finally, if only to have it appear in Hansard , as the result of the figures, ambiguous to say the least, with a turnout in seven or eight ridings of more than 100 per cent, the Prime Minister of Canada, Mackenzie King, said at the time the results were released, and I quote: ``I consider such results clear and beyond possibility of misunderstanding''. That took some nerve. Fortunately, there was no live television, because the people of Newfoundland would have been hopping. In the September 5, 1995 referendum no irregularities were reported. As the result of this referendum, it was decided that Newfoundland wanted to join Canada. The terms of union had to be negotiated. There are 50 of them and they appear in the appendix to the 1985 Revised Statutes of Canada .
We are concerned here today with term 17 and it is not an easy matter to understand. I am simply going to read term 17, and even the most eminent jurists sitting in the House will not be able to give us an opinion regarding its meaning.
I will begin. I hope that the translators have the English version, because I am going to read it in French. Term 17, regarding education, is worded as follows:
- In lieu of section ninety-three of the Constitution Act, 1867, the following Term shall apply in respect of the Province of Newfoundland:
In and for the Province of Newfoundland the Legislature shall have exclusive authority to make laws in relation to education, but the Legislature will not have authority to make laws prejudicially affecting any right or privilege with respect to denominational schools, common (amalgamated) schools, or denominational colleges, that any class or classes of persons have by law in Newfoundland at the date of Union, and out of public funds of the Province of Newfoundland, provided for education,
(a) all such schools shall receive their share of such funds in accordance with scales determined on a non-discriminatory basis from time to time by the Legislature for all schools then being conducted under authority of the Legislature; and
(b) all such colleges shall receive their share of any grant from time to time voted for all colleges then being conducted under authority of the Legislature, such grant being distributed on a non-discriminatory basis.
I do not know whether anyone can rise and explain the term on the spot. I would be prepared to take my place and ask for the unanimous consent of the House to allow such an explanation. It is obvious that, through this term, the Newfoundland legislature gave up to the various denominations its control over schools, its power to legislate with respect to matters of education.
Today, we are hearing two theories. One claims that the repeal of term 17 of the Terms of Union of Newfoundland with Canada will not affect minority rights, and the other claims that it will. There is even a third school of thought, probably the objective one, which tells us that it would appear that the conclusion of the referendum indicates that the various religious denominations, or the six main ones, appear to have given consent. Just now, in quoting the referendum figures, the hon. member for Delta attempted to demonstrate that the Roman Catholic Church in Newfoundland did not have a majority vote in favour.
I am not, myself, in a position to give any answers. I feel that a thorough examination and careful attention to the speeches made in this House will make it possible to make a more informed decision.
But some questions do remain. One condition for union is not clear. Does it affect minority rights? If so, unilateral action, without knowing whether the minorities agree to having their rights abrogated, strikes me as a disquieting precedent. If not, then all that we have to do is take the simple step of merely ratifying the consent given in Newfoundland. We need some clarification on this. I personally do not have enough information to form a firm opinion. You can understand that, when it comes to minority rights, we in Quebec are a little gun shy.
If, tomorrow morning, the government of Manitoba were to hold a referendum to do away with section 23 of the Manitoba Act, what would happen? That is the section which requires the Manitoba legislature to pass its legislation in both official languages, the one which states that the language of legislation and the language of the courts is English and French.
The 1890 Greenway laws had abrogated francophone rights in Manitoba. Only in 1979 did the Supreme Court, in the Forest decision if my memory serves me correctly, conclude that the 1890 legislation was invalid because it was unconstitutional.
Almost 100 years later, it was difficult to restore the rights of francophones who formerly made up 50 per cent of the population of Manitoba. According to the latest census, scarcely more than 12,000 people in Manitoba stated they were of French Canadian origin.
If a referendum were held tomorrow morning in Manitoba and 80 or 90 per cent of the voters were in favour of repealing section 23 of the Manitoba Act, should we adopt it with our eyes closed and again make English the only official language in Manitoba, while for 100 years, Manitoba's francophones have struggled to maintain their rights? That is a good question.
If tomorrow morning, the Government of Ontario held a referendum to repeal section 93 of the Constitution Act, 1867, concerning schools for Catholic minorities which, at the time, were also francophone minorities, would we, in the event of a positive outcome, agree to accept such an amendment? Personally, I do not think so. I think these rights should be maintained, protected and even expanded.
There seems to be a complete lack of understanding between the people who embrace these two theories. I think it is necessary to clarify the interpretation of term 17 which, in any event, does not seem to be clear to anyone, so that we cannot really make up our minds. Once again, the question that was asked in the referendum in Newfoundland in 1995 was straightforward, but it referred to an extremely complex situation.
The hon. member for Ontario said earlier that the Constitution should reflect the changes that take place in society. I quite agree with what he said. In the case of a constitutional text like the one we have here, the Terms of Union of Newfoundland with Canada in 1949, if the present Government of Newfoundland had to renegotiate these terms and if Canada had to renegotiate them, we would not end up with the same terms, certainly not term 17 in its present form, because it does not seem to correspond with a certain social reality.
It is not up to me to find out whether it does or does not correspond with the social reality that exists in the province of Newfoundland and Labrador. It is up to the people of Newfoundland to decide what suits them. The only thing I have to check as a parliamentarian is whether minority rights, constitutional minority rights have been affected, yes or no.
If not, the question is clear. The people of Newfoundland have decided, and I do not have to check whether they were right to decide in this way. If, on the other hand, it involves constitutional rights, the rights enshrined to protect minorities from periodic changes by governments, to ensure that their rights endure, I am entitled to ask questions as to why the rights of a minority are to be changed. To my knowledge, this would be our first time in the history of Canada to legislate the rights of minorities and to limit them constitutionally. The effect of constitutional legislation respecting minorities has always been to extend protection.
I hope we come to a better understanding during this debate. I do not think this is a partisan debate. It should not become one. It is a fundamental debate on the role, on the place, of minorities within the federation and on the interpretation to be given the Canadian Constitution in general.
Let us recall that the terms of Newfoundland's union with Canada in 1949 were negotiated by the Government of Canada alone, without the provinces. The provinces were not involved in this negotiation.
Which province was most interested? The Province of Quebec, which has a common border, the border of Labrador, which was defined in 1927, with the definition being cast in stone in the terms of Newfoundland's union with Canada in 1949 and reconfirmed in the Constitution of 1982. If there is one border that is not at issue, it is the Labrador border at the moment. The Province of Quebec was not consulted.
Who protested in this House at the time? A member for the riding of Charlevoix, Frédéric Dorion, who, at the time, represented a riding along the Labrador, and consequently Newfoundland, border.
Frédéric Dorion, who later became the chief justice of the Quebec Superior Court, said in this House it was unacceptable that Quebec, the neighbouring province, was not consulted on the terms of Newfoundland's union with Canada. I understand, because had we been under the effect of the present legislation, the Constitution of 1982, which was forced on us, this procedure would not have been possible. The provinces would have to be consulted.
As we can see, the constitutional change mentioned by the member for Ontario is ubiquitous. Freezing the Constitution in an interpretation that was valid perhaps in 1949 is probably not very healthy. However, if the other alternative is to take away minority rights, I do not consider that healthy either.
I would hope that, in the course of the debate, the information and especially the understanding the members of this House may gain from Resolution No. 12 before us, will clarify this debate and enable everyone to come to an understanding in their soul and in their conscience.
