Mr. Speaker, I am pleased to introduce today a resolution to allow a bilateral amendment to Term 17 of the Terms of Union of Newfoundland with Canada.
The Terms of Union of Newfoundland are part of the Constitution of Canada. Section 43 of the Constitution Act, 1982, provides that an amendment may be made to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces. Such an 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.
On September 5, the Legislative Assembly of Newfoundland adopted unanimously a resolution authorizing certain amendments to Term 17 of its Terms of Union with Canada, which apply to Newfoundland only. This amendment will have no legal impact on the educational systems or religious minorities of other provinces. In accordance with established procedure, the Speaker of the Legislative Assembly of Newfoundland forwarded to the Clerk of the Privy Council a certified copy of the resolution, which was received on September 8, 1997.
Our role and responsibility as parliamentarians is to consider the proposed amendment and to decide whether to approve it. As I have already indicated on several occasions, the Government of Canada supports the proposed amendment which will allow Newfoundland to proceed with major reforms to its education system.
Following many years of rancorous and divisive debate in Newfoundland over the role of the churches and religion in education, it is the government's view that the proposed amendment strikes a workable balance. In Newfoundland the proposed amendment appears to enjoy a high level of consensus, including a reasonable degree of support from affected minorities. The government bases its assessment in part on the House of Assembly's unanimous endorsement of the amendment resolution and on the result of the provincial referendum in which 73% of the voters approved a proposal to reform the education system.
Nevertheless the Government of Canada is of the view that any attempt to alter entrenched minority rights should be marked by processes that are fair and thorough. To this end, the government is striking a special joint committee to examine Newfoundland's resolution to amend term 17.
It is our belief that the hearings will help to enhance public input and understanding of the proposed amendment. Moreover the committee's work will aid Parliament in making its independent assessment on the facts of the case and on the merits and appropriateness of the proposed amendment.
As hon. colleagues will recall, this is the second time in less than two years that Parliament has been asked to consider an amendment to term 17 of Newfoundland's terms of union. While this situation may seem unusual, the Constitution does not set any limits on how often legislators may seek constitutional amendments. It is up to Parliament and the provincial legislature to which the amendment applies to determine the appropriateness of each proposed constitutional change.
To understand fully the circumstances which have given rise to this second amendment proposal, it is necessary to briefly review the provisions of term 17. It is also helpful to examine the intensive efforts that have been made over the past seven years to reform the education system in Newfoundland.
In lieu of section 93 of the Constitution Act 1867, constitutional authority for education in Newfoundland was set out in term 17 of the province's 1949 terms of union with Canada. Term 17 granted six denominations the right to operate their own publicly funded schools. In 1987 term 17 was amended to extend denominational school rights to the Pentecostal assemblies. These seven denominations operated four separate school systems: the integrated school system of Anglican, Presbyterian, Salvation Army and United churches; the Pentecostal school system; the Roman Catholic school system; and the Seventh Day Adventist school system.
In 1990 the Government of Newfoundland and Labrador appointed Dr. Len Williams, a former teacher, principal and president of the provincial teachers association and current university professor, to chair a royal commission on education reform. The commission was asked “to obtain an impartial assessment of the existing education system and to seek an appropriate vision for change”.
The 1992 report of the Williams royal commission recommended the reorganization of the education system in Newfoundland and Labrador to permit government to administer the system in a more efficient manner. The commission proposed the creation of a single interdenominational school system encompassing the four separate denominational systems in operation at the time.
Initially the Government of Newfoundland sought to achieve this change through non-constitutional negotiations with denominational leaders. When nearly three years of discussions failed to achieve an agreement the Government of Newfoundland sought institutional reform through a constitutional amendment to term 17 of its terms of union.
But the amendment that Newfoundland sought, and which was authorized by this House and proclaimed by the Governor General on April 21, 1997, represented a compromise. The amendment would not have eliminated all single denominational schools. The amendment was designed to provide the Newfoundland House of Assembly with additional powers to organize and administer public education through a system of interdenominational schools, while retaining the rights of Roman Catholics and Pentecostals to unidenominational schools under certain conditions. These conditions were to be set out in provincial legislation that was equally applicable to all schools, either unidenominational or interdenominational.
However, the attempt to legislatively implement the new term 17 under a revised schools act was successfully challenged in the Newfoundland supreme court. On July 8, 1997, Mr. Justice Leo Barry granted representatives of the Roman Catholic and Pentecostal churches a temporary injunction halting the entire educational reform process. In Justice Barry's view, the new schools act favoured interdenominational over unidenominational schools. Therefore he found that a trial judge would likely find that the legislation was contrary to the amended term 17, which required that interdenominational and unidenominational Roman Catholic and Pentecostal schools be given equal treatment.
As even Mr. Justice Barry acknowledged and anticipated, the injunction resulted in a “significant disruption” for teachers, principals and students who had been reassigned to different schools on the basis of the new school legislation. It also resulted in the reopening of some schools and the rehiring of some teachers who had been laid off following certain school closures and resignations. For the Government of Newfoundland and citizens who thought the divisive of education debate was behind them, the injunction raised many questions and a great deal of uncertainty about the future structure of the school system.
The Government of Newfoundland filed an appeal, but did not pursue the matter. Instead, on July 31, 1997, Premier Tobin announced in a province-wide telecast that he would hold a referendum on September 2 to secure a mandate to amend term 17 once again. Premier Tobin explained that for five years the provincial government, schools boards, teachers' associations, the churches, parents and students “have all been engaged in what seems to be a never ending debate about how to reconcile the need for reform of our education system with the rights of the denominations in the education system”.
While not referring specifically to the injunction blocking educational reform, Premier Tobin argued that “During the last five years, we have seen every attempt to reconcile these two ideas, education reform and denominational rights, end in more confusion and more conflict”. Consequently, Premier Tobin decided to go to the people once again to seek a mandate for an amendment to term 17. The proposed amendment, which we are asked to consider, is to create a single, publicly funded and administered school system. The brief text of this term 17 amendment which only contains three clauses, is plain and clear and states that:
(1) In lieu of section 93 of the Constitution Act 1867, this section shall apply in respect of the Province of Newfoundland.
(2) In and for the province of Newfoundland, the legislature shall exclusive authority to make laws in relation to education, but shall provided for courses in religion that are not specific to a religious denomination.
(3) Religious observances shall be permitted in a school where requested by parents.
This proposed amendment, which constitutes a major restructuring of Newfoundland's education system, is supported by a substantial majority of the province's population and enjoys a fair degree of support from affected minorities. In addition, the House of Assembly gave the unanimous approval on September 5.
In considering this amendment the government has sought to ensure that its process is thorough and gives due respect to affected minorities. Members will recall that the issue of minority rights was not central to the government's consideration of the previous term 17 amendment. The old term 17 granted certain rights to seven denominations representing 95% of the population. However, following the amendment to term 17, the integrated group, Anglican, Presbyterian, Salvation Army and the United Church became one majority class of persons comprising 52% of the population. The Roman Catholics became a sizeable minority of 37%, the Pentecostal are a minority of 7%.
Given this amendment's effect on minority rights, a mere 50% plus one referendum majority would not have been sufficient nor adequate in measuring the degree of consensus among affected Roman Catholics and Pentecostals. But the referendum did not result in a narrow majority: it was an overwhelming majority of 73%, which provided evidence of minority support. The proposal carried in 47 of Newfoundland's 48 electoral districts.
Voter turn out was 53%, but given the high probability that opponents of the education reform proposal were most liken to vote, the results sent a clear message that there is substantial support for this amendment.
An analysis indicates that in heavily Roman Catholic areas the proposal was supported by a majority. The St. George's Bay region, which is 74% Roman Catholic, voted 59% yes. The Avalon peninsula, which is 48.5% Roman Catholic, voted 72% yes. Coincidentally, the Burin peninsula is also 48.5% Roman Catholic and it also voted 72% yes. Approximately 75% of all Roman Catholics in Newfoundland and Labrador reside in these three regions.
It is difficult to assess accurately the exact degree to which members of the smaller Pentecostal community supported the proposed amendment. However, in the four electoral districts where Pentecostals are most heavily concentrated the resolution carried with majorities of 57% to 64%.
Moreover, on September 5, the four members of the Pentecostal faith who sit in the Newfoundland House of Assembly and represent districts with significant Pentecostal populations, joined their colleagues in unanimously supporting the resolution to amend term 17.
Indeed, in assessing the proposed amendment, parliamentarians should accord due respect to the fact that all of the members of the House of Assembly voted in favour of the resolution to amend term 17. This included all Catholic and Pentecostal members who had campaigned for the no side and voted no in the provincial referendum.
The overwhelming support the amendment received in the referendum and the House of Assembly represents a clear consensus that appears to include a reasonable measure of support from the affected minorities. Parliament should interpret this as a clear signal that the population of Newfoundland and Labrador wants to proceed expeditiously to reform its education system in a manner that is fair to all.
In the midst of the confusion that resulted following the injunction halting the implementation of the 1997 term 17 amendment and after years of debate over educational reform and the role of the churches, Newfoundlanders want to move on. The results of the referendum and the unanimous vote of the House of Assembly indicate that it feels the proposed amendment strikes a fair and workable balance that allows reform to proceed.
The proposed term 17 clearly states that education is a matter of exclusive provincial jurisdiction. However, the amendment will not take religion out of the schools. The new term 17 contains a mandatory provision that guarantees that “courses in religion” must be taught and “religious observances” must be “permitted in schools where requested by parents”.
Correspondingly, the term will not require children to attend religious observances or classes if their parents object. This interpretation is supported by the legal opinion of two eminent lawyers, the well-known constitutional expert, Mr. Ian Binnie, and former federal justice minister, the Hon. John Crosbie.
The government acknowledges that the Newfoundland and Labrador Roman Catholic bishops and the leadership of the Pentecostal church have concerns about the new amendment. However, we feel the Government of Newfoundland is demonstrating a spirit of openness with regard to a continued role, albeit non-constitutional, for the churches.
In anticipation for the term 17 amendment's adoption, the Newfoundland department of education has begun setting up a consultative process for developing the new religious education curriculum. Although there is no requirement to do so, the department of education has indicated that this process will seek representations from the province's various denominations.
In conclusion, should another province wish to propose changes to the conditions of its union or to section 93, it will be incumbent on Parliament to look at the facts and to assess the validity and appropriateness of the proposed amendment. Parliament will also carefully determine whether the amendment enjoys reasonable support from those concerned.
In the case before us, the Government of Newfoundland and Labrador duly authorized, under section 43, an amendment to Term 17 which will only apply to that province.
The Government of Canada believes the amendment is justified. We feel it enjoys adequate support from those concerned, including minorities, and we believe it deserves Parliament's support and approbation. However, the joint committee and all parliamentarians will have to conduct their own assessment of this amendment, which will allow Newfoundland to implement the necessary reforms to its education system, as it has been hoping to do for a long time.
