Mr. Speaker, the resolution invites the House of Commons to agree to an amendment to the Constitution of Canada which would give effect to certain changes in the manner in which denominational schools are administered and governed in the province of Newfoundland.
The resolution is before the House pursuant to section 43 of the Constitution Act, 1982. Perhaps it is best to start with an examination of that section in order to better understand the nature of our role and function on this occasion.
[Translation]
As noted in the preamble to the Resolution, section 43 of the Constitution Act, 1982 provides for an amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces.
This amendment may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies. Therefore, it is up to us to consider the proposed amendment and to decide whether to approve it.
This change relates only to the educational system in Newfoundland, which reflects a feature of our federation. Our Constitution starting in 1867 made clear that education is to be within the legislative authority of the provinces. Because by the time each of the provinces in its turn joined the federation and there were arrangements governing religious involvement in education, the Constitution protected and perpetuated those arrangements by its terms.
In the case of the four original provinces section 93 of the Constitution Act, 1867 governed. In the case of those that joined Confederation after 1867, the terms of their union spoke to the question. In the instance of Newfoundland, which joined the federation in 1949, it was term 17 of the terms of union which dealt with denominational or religious education rights in the province of Newfoundland.
In 1949 term 17 sealed into the Constitution, in the form in which it then stood, the arrangement between the religious denominations and the Government of Newfoundland and Labrador in relation to denominational education.
And so we are asked by Newfoundland alone to make changes in relation only to the denominational school system in Newfoundland. We are asked to do so under section 43 of the Constitution Act, 1982, which by its terms provides for a Constitutional amendment where that amendment affects only one province or more than one but not all, in this case just one, and which provides that such an amendment can be made bilaterally, between the province affected and Ottawa, the national government, through resolutions passed respectively by the provincial legislature and by Parliament, both the Senate and the House of Commons. That is why we are dealing with this issue under this section in relation only to that province.
I will touch on the role of the House of Commons when invited to participate in such a bilateral amendment arrangement. No such amendment can be achieved without the concurrence of the House of Commons. In that sense we have a veto. We are an essential participant in the process of amendment.
There have been at least three other occasions in the recent past when the House of Commons participated in such a bilateral change. The occasion that might spring most immediately to the minds of members involved the fixed link with Prince Edward Island, which required a change in the terms of its union with the federation.
The role of the House of Commons when asked to participate in a bilateral constitutional amendment under section 43 is not simply to act as a rubber stamp or to reflexively agree to what is proposed. In my respectful view both the House and the Senate are required to form an independent judgment on the question of whether they should by resolution agree to such a change.
It is also true that in forming that judgment the federal Parliament should demonstrate a decent respect for the resolution passed by the provincial legislature. We ought to give great weight to the action taken by the province in question but we must not automatically pass a resolution at its request. We must form our own judgment and be satisfied that it is in the public interest to do so.
On the facts of this case, this government looked at the proposal, examined it on its merits and came to the conclusion that Parliament should act by resolution to effect the proposed constitutional change. I will touch briefly on some of the factors we took into account in arriving at our conclusion that this resolution should be adopted.
We looked at the present term 17 and the manner in which it provides for the organization and administration of denominational schools in Newfoundland. We had regard for the fact that that arrangement is antiquated and reflects an age long past.
We considered the factual arguments put forward by the government of the province of Newfoundland and Labrador with respect
to the cost and the quality of education under the terms and conditions reflected in the 1949 constitutional arrangement. Quite apart from cost and the modernity of the school system, we also looked at other issues.
We considered the question of whether the proposed change would adversely affect or would extinguish minority rights in the province of Newfoundland and Labrador. On that question we considered as well that there is in fact no majority denomination in that province. Unlike others, there is no single denomination which dominates numerically. Rather, it is plain that 95 per cent of the population of Newfoundland and Labrador is made up of those who adhere to one or another of the seven denominations whose involvement in the school system is constitutionally protected both before and after the proposed amendment.
We also gave weight to the fact that each of the seven denominations is affected equally by the proposed change. We concluded on a fair reading of the amendment and on a balanced assessment of its effect that what is an issue here is really a change in the manner in which denominational rights are exercised, the manner in which denominational schools are administered. After the change, the circumstances prevailing in Newfoundland and Labrador will be roughly comparable to those in other Canadian provinces in terms of denominational education.
We were much affected by the fact that even after the amendment there will still be denominational schools in Newfoundland and Labrador. They will still be constitutionally entrenched as an entitlement of the affected denominations.
The government of the province of Newfoundland and Labrador has also tabled draft legislation by which it would be provided that unidenominational schools may be created where numbers warrant and where the parents choose that for their children.
In light of all of that, we concluded that this is not an instance in which minority rights are being adversely affected by majority rule. The majority is composed of a composite of the separate denominations and there is no majority in that sense.
We also had regard to the process in the province, that is to say, the manner by which this resolution emanated from the assembly in Newfoundland and Labrador. We considered the history of the matter.
We learned that the nature and extent of the involvement of the churches in making administrative and economic decisions in the education system of Newfoundland has been a matter of controversy for generations. We learned that it was the subject of a royal commission which made recommendations that are reflected in the proposed amendment as recently as 1992.
We learned that there have been extensive negotiations and discussions between the government of that province and the leaders of the denominations involved.
We learned that there was a referendum in September of last year by which the province was asked its view on the question of whether this reform should take place. By majority vote, that proposition was approved.
We learned also that as recently as last week that same legislature which last fall had adopted a resolution calling for the amendment by majority vote unanimously adopted a second resolution calling upon this Parliament to act urgently to give effect to the constitutional change.
The premier of Newfoundland and Labrador was in Ottawa this week to remind us among other things that by modernizing the school system as proposed in this amendment, the province expects to save at least $27 million. This is money he says can be better spent to serve the people and the children of Newfoundland in an improved educational system.
In all of those circumstances, sensitive always to the question of the protection of minority rights and carefully considering the background from which this resolution arises and the process followed in achieving it, the conclusion to which we came is that it merits the support of this Parliament.
Quite apart from the particular circumstances in Newfoundland and Labrador, there are some who worry that if we act in this instance we might be establishing a precedent of interference by the national government in collaboration with the provincial government of the day to affect denominational involvement in education in a province, that a precedent would be set that would imperil religious education elsewhere. May I say two things about that.
In many respects the Newfoundland and Labrador situation is unique. Precedents require like facts or like principles. I dare say it would be very difficult to find a future circumstance in a different province where the same principles and circumstances would prevail.
The history of religious involvement in education in Newfoundland and Labrador dates from 1723, the first recorded instance of churches organizing schools for children. The practice grew up after the 18th century of schools being exclusively run by churches for the children of their adherents.
In 1874 this practice first found expression in the law. It developed over time to the point where in 1949, the then six denominations had exclusive control over their own schools. That practice was entrenched in the terms of union of that date. There is no other province in Canada in which there are only denomination-
al schools and no public school system. To that extent, with that history and background, Newfoundland and Labrador is a province that is unique.
Quite apart from the lawyerly argument that the circumstances and principles in this instance stand apart, there are still those who worry that we are establishing a precedent that would imperil religious education elsewhere. To that I say that concerns about the power of such a precedent ignore the right and the responsibility of Parliament to exercise an independent judgment in each instance to determine each request for an amendment on its own merits and to decide in any future case whether a proposed change to another province's system is in the interests of the public and of the children.
Should another province come forward next month or next year with a proposed change to its terms of union or to section 93 to deal with the involvement of religious education in schools, it will be up to us to make our own assessment on the facts of that case, on the question whether minority rights are respected, educational quality is preserved and denominational involvement will continue.
On the facts of this case I have explained our reasoning in concluding that we should proceed. In the facts of a future case it will be open to us to conduct the same analysis and to arrive at our conclusion. Parliament must not think that by acting in this instance we are creating a rigid rule which will bind us in all future cases to do the same. We shall make up our minds on the facts of those cases if and when they arise.
I say to those who are concerned about the power of precedent from that perspective that they need not be. We shall be here, we shall be vigilant and we shall examine critically any future proposal on its merits. Should Ontario for example come forward with a proposal to change the arrangements entrenched in section 93 of the Constitution Act of 1867, we shall examine such a proposal. If it does not meet the standards which we think are appropriate, we can decline to give our support.
There are also those who worry more broadly about minority rights. They contend that if this change can be made by a bilateral arrangement between one province and the national Parliament that minority rights in a broader sense might be imperilled and might be subject to a similar change.
There are those who are concerned about minority language rights in education in Ontario, in Manitoba and in other provinces. Concern has been expressed about aboriginal rights. It has been said that if we are prepared to act bilaterally to change the way school rights are exercised or administered for separate denominations, what is to protect the minority language rights in Manitoba or Ontario if the governments of those provinces come to Ottawa to ask our collaboration in a change?
As I have just said, in any such instance the Parliament of Canada would make up its own mind independently. More directly and more importantly, minority language education rights cannot be changed bilaterally. They are governed by section 23 of the Constitution Act, 1982. Any such change would require the broader amending formula to be applied. At least seven provinces with at least 50 per cent of the population would have to concur in such a change. It could not be carried out bilaterally. The instance we have before us is profoundly different from what would arise with a proposal to change minority language education rights entrenched and protected by section 23 of the charter.
Similarly, by sections 25 and 35 aboriginal rights are respected. Those rights cannot be changed. The terms of those articles in our Constitution cannot be amended without the operation of the general amending formula requiring at least seven provinces with at least 50 per cent of Canada's population. There need be no concern arising from this resolution in relation to minority language rights.
Finally, it does not affect official language educational minority rights in any way. These are constitutionally protected by section 23 of the charter and nothing in this amendment will diminish that protection.
I conclude by commending this resolution to the House. The Prime Minister has seen fit to direct that the vote be free. I invite members of this Chamber as they make up their minds on the question to look at the substance of the case and to meet the concerns which I have dealt with on their merits as well.
This is a case in which a member of the federation has properly and validly invoked section 43. A legislature has not only adopted a resolution as required, but more recently has unanimously called for urgent action on our part. It is an instance in which minority rights are not extinguished, they are not eliminated and they are not defeated. It is a case in which seven specific denominations will continue to be proprietors of a school system, those denominations with entrenched rights and representing 95 per cent of the population.
It is a case in which Parliament, by acting, will not be binding itself to automatic agreement with all future possible requests for change in the same field under section 43. It is a case in which the action under section 43 cannot and will not imperil minority language or aboriginal rights because they cannot be changed bilaterally. Last, this is in instance in which we can illustrate that
the Constitution of Canada is a living, flexible and responsive instrument which can meet and serve the needs of all provinces and all Canadians.
With that I ask the House to support this resolution to modernize the school system for the children of Newfoundland and Labrador.