Madam Speaker, I rise to address the question of the Newfoundland schools amendment and in particular the motion before the House to utilize section 43 of the Constitution Act, 1982 to amend the constitution. The purpose of this amendment is to replace the present term 17 of the Terms of Union of Newfoundland with Canada with a new term 17.
The effect of this amendment is to replace the denominational school system of Newfoundland with a single public school system where all children, regardless of their religious affiliation, will attend the same schools. Stated another way, the effect of this amendment is to extinguish the denominational rights provided in the present term 17 and replace them with the provisions and rights contained in the new term 17, namely the provision of a single, publicly operated school system, the provision for courses in religion not specific to a religious denomination, and the rights of parents to request religious observances in schools.
Before getting into the details I would like to express two sentiments which will govern everything I have to say on this subject. First I want to express, on behalf of the members of the official opposition, our good will toward the people in the province of Newfoundland and our sincere interest in their desire to improve their educational system.
We all know the enormous difficulties that Newfoundland has faced and the economic hardships that have been caused by the collapse of the fishery, one of the basic primary industries of that province.
Alberta MPs like me can identify with this because our parents lived through a period when our province was flat on its back due to the collapse of its primary industry, agriculture, during the great depression. We can also identify with the recent good news from Newfoundland that after an enormous front end capital investment and the application of great technical ingenuity, the first oil is now flowing from Hibernia.
It was primarily oil and gas which transformed the economy of my home province. I want to express the hope that the development of this resource will mean the dawning of a new day for the province of Newfoundland and a stream of revenue that will enable it to finance the social services, including the educational services, required by its people.
I also want to say that the members of the official opposition fully respect Newfoundland's jurisdiction over education. We know that education deals with Newfoundland's most precious resource, the lives of its children. We therefore wish Newfoundlanders well in whatever educational reforms they decide to undertake and whatever the future may hold.
The second point is that as members of the federal Parliament, we should define our principles and choose our positions carefully when we are dealing with constitutional amendments. Over the next number of years this Parliament could very well be faced with major constitutional challenges, not just from the continuing secession threat from Quebec, but demands that will arise from various parts of the country for major changes in our constitutional arrangements, changes affecting the division of powers between the federal and provincial governments and the balance between majority and minority rights.
Everything we do and say in this area of constitutional law can be taken as political, if not a legal, precedent in future situations. We should therefore look down the road as to the precedent effect of anything we propose or adopt in relation to the Newfoundland schools amendment.
When we define positions on majority and minority rights with respect to this amendment, we should think through how those same positions would relate to other situations where majority and minority rights are constitutionally affected.
When we define positions and make statements about what constitutes democratic consent for a constitutional proposal from Newfoundland, we should think through how that same principle would apply in other situations where we require democratic consent. For example, I have noted with interest the language used by the Minister of Intergovernmental Affairs in providing his definition of the principle of democratic consent. In his presentation to the special joint committee on November 18, 1997 he said:
Given this amendment's impact on minority rights, a mere 50 plus one referendum majority would not have been sufficient nor adequate in measuring the degree of consensus among those affected. But the referendum did not result in a narrow majority: It was an overwhelming majority of 73%, which provided evidence of minority support.
This is all well and good, but I note that it is a slightly different conception of democratic consent from what was taken by the government in 1996 when the previous Newfoundland school amendment came before the House. The referendum that preceded that amendment carried by only 54%, but on that occasion the government considered that a big enough majority to satisfy the requirement of democratic consent. The government will want to strive for consistency on this point because inconsistency on the principle of democratic consent will not go unnoticed by us or by others.
I also noted with interest just a few minutes ago the pronouncements of the minister on whether denominational or confessional rights are fundamental rights under the law. It is maintained by many that denominational or confessional rights are not a fundamental right. This is primarily the view of the secular and legalistic mind and the courts and the minister hold and defend that view. But to the religious mind for those whom matters of faith and conscience are supreme, confessional rights are seen as an extension of freedom of conscience and freedom of religion. Therefore they are in some way fundamental.
The minister argues that the right to confessional schools in Quebec is not a fundamental right. Therefore, by logical extension the right to linguistic schools in Quebec is not a fundamental right. I would be very surprised if the majority of Quebeckers do not regard the right to linguistic schools as a fundamental extension of their right to freedom of speech and expression.
This matter of what is fundamental and what is not in its broadest sense therefore very much depends on your orientation and your deepest values.
Hon. members will forgive me if I take a moment, as the first speaker for the official opposition on this motion, to briefly sketch our understanding of the background behind the constitutional amendment requested of us by the government of Newfoundland.
If I sketch the background here—and I know this is very familiar to those who have been following this issue but not as familiar to those who have not in detail—then subsequent Reform speakers will not need to repeat it and can deal directly with more important details and matters of principle.
We also want to state our understanding so that other members, especially the members from Newfoundland, can correct us if we misunderstood or misinterpreted the background in any way.
I have read the background to term 17 provided by the minister and by the special joint committee as to the origins of the original term 17 and I find them deficient on one very important point. It was a point which I was reminded of by former Premier Wells when he was in town last week.
That point is that term 17 was included in the original terms of Union primarily to meet a political, not a legal or a constitutional requirement. When Newfoundlanders were debating whether to join Canada in 1949, one of the principal arguments of those opposed to the union was that union with Canada would destroy Newfoundland's unique denominational educational school system. To take that argument away, Joey Smallwood and others proposed the original term 17 in the terms of union to provide a constitutional guarantee of the continuance of that unique educational system.
That original term 17 read as follows:
17(1) In lieu of Section 93 of the British North America 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 or 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.
The language used in this original term 17 is borrowed from section 93 of the British North America Act of 1867 which said in part:
In and for each province, the legislature may exclusively make laws in relation to education, subject and according to the following provisions:
1) nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the province at the union.
I am indebted to the minister and to others for pointing out that section 93 itself does not apply to the province of Newfoundland and, hence, no amendment to term 17 can strictly be said to violate section 93. Term 17 in all its forms is said to apply “in lieu of section 93 of the Constitution Act, 1867.”
The original term 17 guaranteed the denominational school rights of seven specific religious groups. In 1987 it was amended to include another denomination, the Pentecostal Assemblies of Newfoundland, in the denominational schools system.
As members will know, in 1992 after two years of study, the Williams royal commission recommended the reorganization of the school system in Newfoundland and Labrador to permit the government to administer the system in a more efficient way. The commission proposed the creation of a single interdenominational school system encompassing the four separate denominational systems then in operation.
In June 1995 the government of Newfoundland sought the approval of the people to amend term 17 of the terms of union in order to proceed with these restructuring plans. A referendum was held on the following question: “Do you support revising term 17 in the manner proposed by the government to enable reform of the denomination educational system? Yes or no?” The result was approved by 54.4% of those voting. The proposed amendment of term 17 altered the rights to denominational schools in Newfoundland but did not extinguish them and endeavoured to reconcile them with the demands for a more updated system. It was a compromise solution.
On December 4, 1996, the House of Commons, of course, passed a resolution to amend term 17 as proposed, and that revised term 17, the term currently in place reads as follows: For the written record, I would like to have this current term 17 recorded in this place in Hansard , but to save the time of the House I would seek the consent of the House to dispense from actually reading the entire section and have it recorded in Hansard as read.