The SPEAKER took the Chair at Three
o'clock.
PROVINCIAL GOVERNMENT IN THE
NORTHWEST.
House resumed adjourned debate on the
proposed motion of Sir Wilfrid Laurier for
the second reading of Bill (No. 69) to establish and provide for the government of
the
province of Alberta, and the amendment of
Mr. R. L. Borden thereto.
Hon. CHARLES FITZPATRICK (Minister of Justice). Mr. Speaker, much has
been said and much more written since this
Bill was first introduced which. in the inter
5318
est of peace and harmony, aye, which, in the
interest of truth and justice, might better
have been left unsaid and unwritten. I
hasten to add that, having followed closely
the debate in this House and heard or read
all the speeches, I must admit at once that,
due allowance being made for the heat and
exagerated language which appear to be inseparable from our political debates, with
perhaps two or three exceptions, no speech
has been made here which could offend the
ears of even the most sensitive among us.
I must of necessity, Mr. Speaker, take up
at some length the attention of the House
to discuss those things which. in my judgment, are material and important. I will
therefore not waste any of your time or of
mine in answering the idle vapourings of
those who, for reasons which I have never
been able to understand, invariably seize
with avidity on every opportunity that offers
to sow the seed and fan the flame of racial
and religious discord in this country. Faithful to the best traditions of their party,
some of the Conservative newspapers have
been fair and just in their criticism of this
Bill. Others, unmindful of their obligations
to the public, and substituting personal
abuse for argument, deliberately misrepresenting the purposes and object of this legislation.
have not hesitated to appeal to the
lowest and the vilest passions of our depraved human nature.
I shall not attempt to follow them in the
path on which they have chosen to enter.
Those of them who are worthy of consideration I will leave to the punishment which
must inevitably come in the hours of calm
reflection and sober second thought.
I will only say that the record of the
Catholic Church and of its clergy is writ
large on every page of the history of the
world, and ot' the history of this country
in particular. and so long as the spirit of
loyalty to our institutions, and so long as
the spirit of self-sacrifice and devotion ot
duty are held in esteem among us, so long
will the names of Catholic priests and
prelates hold foremost places on the
honour roll of Canada. It is not necessary to go over nhe ground already
covered by my eloquent friend from Labelle
(Mr. Bourassa). but let me mention the
names of Jogues, Lallemant and Brebeuf,
French Canadian Catholic martyrs who, in
the early days of our history gave to the
world examples of the noblest courage that
ever steeled the heart of man, that of giving
testimony unto death for the convictions of
the soul.
As I listened a few days ago to the admirable speech of my friend for East Middlesex
(Mr. Elson). when he told us that he was
a native-born Canadian. that there was 110
portion of the earth in which he felt so much
interest asin that which is bounded by the
outer boundaries of Canada, that there were
no people who lived and moved and had
their being upon the face of the globe in
5319
whom he felt so much interest as in those
persons who are Canadians and who at least
live on Canadian soil, the thought occurred
to me. how much more truly does the sentiment he so eloquently expressed apply to
the
Canadians of French origin who have never
known any other country, whose traditions,
associations and every hope for the future
are connected exclusively with Canada.
Those who wish really to understand the
meaning of patriotism, should listen to the
French Canadians singing their national
anthem, the opening words of which are:
'O Canada, mon pays, mes amours.'
I have heard it assigned as a reason to
justify the active interest Ontario is taking
in this question, that the present population
of the Northwest is made up, in large part,
of the overflow of the cradles of that province. That is true, but if we must be
mindful of the present needs and of the
future prosperity of those who have entered into the possession of that great heritage,
where it is said that men may measure their plough furrows by the mile and
then at the end look out over a sea of
golden grain reaching out to the horizon,
should be altogether unmindful of the
religious convictions, the wishes and desires, aye, even the prejudices, of those
men
the heroism and enterprise of whose ancestors made the present possession of those
lands by Canada possible. I am reminded
here of what George Brown said during the
federation debates when this question of the
acquisition of the Northwest was being considered:
It has always appeared to me that the opening up of the Northwest ought to be one
of the
most cherished projects of my honourable
friends from Lower Canada. During the discussion on the question for some years back
I
had occasion to dip deep in Northwest lore—
into those singularly interesting narratives of
life and travels in the Northwest in the olden
time, and into the history of the struggles for
commercial dominancy in the great fur-bearing
regions. And it has always struck me that the
French Canadian people have cause to look
back with pride to the bold and successful part
they played in the adventures of those days.
Nothing perhaps has tended more to create
their present national character than the vigorous habits, the power of endurance,
the aptitude for outdoor life, acquired in their prosecution of the Northwest fur
trade. (Hear,
hear.) Well may they look forward with
anxiety to the realization of this part of our
scheme, in confident hope that the great northwestern traflic shall be once more opened
up to
the hardy French Canadian traders and voyageurs.
Who were the men who, in the long ago,
sailed up the broad bosom of the mighty
St. Lawrence, discovered 'Lake Superior,
penetrated to the shores of Lake Winnipeg
explored the banks of the Saskatchewan,
founded Fort La Corne. Fort Bourbon and
Fort La Jonquiere. and first stood within
the shadow of the Rocky mountains?
5320
I shall not pursue this matter further.
Let me say that two great streams of race
and descent met in Canada, and well may
the world be challenged to point to a nobler
lineage. Protestant England and Catholic
France have been rivals on many fields,
and throughout many ages, but taken together their record of achievement, whether
in pepace or war, entitles them to a front
place among the nations of the earth. And
let us not forget that each has given of its
best and at its noblest blood to cement the
nationhood of Canada. Providence has
placed the two nations here, side by side,
we must of necessity live together, and
let us live in peace and work in harmony
for the best interest of our common country.
A retrospective glance at the history previous to 1870, of that portion of Rupert's
Land and of the Northwestern Territories
for which we are now legislating may possibly enable us better to understand the
position they now occupy and the nature
and extent of our obligations towards the
people of those lands. On May 22nd, 1670,
a charter was granted incorporating 'The
Governor and Company of Adventurers of
England, trading with Hudson bay.' By
this charter the company secured the sole
trade and commerce of all those 'seas,
straits. bays, rivers, lakes, creeks, and
sounds in whatsover latitude they might
be that lay within the straits now
called Hudson straits together with all
the lands and territories upon the countries. coasts and confines of such seas, buys.
&c., that were not then actually possessed
by or granted to any of His Majesty's subjects or possessed by the subjects of any
Christian prince or state.' The area covered
by this grant has been frequently discussed, but it is not to my knowledge that
the confines of the grant have ever been
accurately defined. In addition to the grants
to exclusive trade and to the soil, the entire legislative, judicial and executive
power
was vested in the company. And let me
here observe that two French Canadian
gentlemen, Messrs. Radisson and De Groseil, first discovered the overland communication
between Canada and Hudson bay,
and with these gentlemen originated the
idea of the Hudson Bay Company. In
1749, an unsuccessful attempt was made
in the imperial parliament to deprive the
company of its character for non-user. The
company had at that time four or five forts
on the coast of Hudson bay, and in its service about 120 men. After the cession of
Canada in 1763, numerous fur traders spread
over the same country, and finally these individual speculators combined into the
Northwest Fur Company of Montreal. I
need not refer to the settlement effected in
that country under the auspices of Lord
Selkirk, but I would like to refer to the
license granted in 1821 to the Hudson Bay
Company and the Northwest Company,
which two companics were then amalgamat
5321
MAY 3, 1905
ed. That license, which was for 21 years,
gave to these two companies the monépoly
of the trade in regions lying to the west
and northwest of the Hudson Bay Company's grant. That is the origin of this
intrusion by the Hudson Bay Company upon
the country that was then known as the
Indian country, and that has become known
as the Northwest Territories. In 1830, the
Hudson Bay Company acquired an those
trading rights for itself by arranging with
the Northwest Company, and obtained a
new license for 21 years. Those who are
interested in pursuing this inquiry further,
I would refer to the report made in 1857 by
Chief Justice Draper, to a committee of the
British House of Commons then charged
with the duty of investigating this question
of the title of the Hudson Bay Company,
and to the more detailed report prepared by
the Commissioner of Crown Lands of that
time, Hon. Jos. Cauchon. In Mr. Cauchon's
report we find the first evidence of a desire
on the part of Canada to acquire these Territories. In that report we find it stated
:
That it would be difficult to conceive that it
would be adverse to the interests of the country or of the community if the Indian
Territories were incorporated with this province.
That is, with the old province of Canada.
For ten years thereafter a continuous correspondence was maintained between the
Colonial Office and the Canadian parliament upon the subject of the opening up of
the western country, and providing by legislation for its welfare and good government.
Then we find that in the confederation
debates, the subject was pursued further,
and Hon. George Brown stated that:
When recently in England I was charged 'to
negotiate with the imperial government for
the opening of the Northwest Territories.
On motion of Hon. A. T. Gait, Minister of
Finance in Canada, the Quebec conference
resolved :
That the communications with the northwestern territory and the improvements required
for the development of trade of the great west
with the sea-board are regarded by this conference as subjects of the highest importance
to the confederation.
During the confederation debates it was
made evident that the construction of the
Intercolonial Railway and the opening up
of the west with an improved canal system had been decided upon by the conference
as being works devolving upon the
confederation at an early date, and these
propositions met with general approval in
the legislature.
Then in the order of time, the next provision we find with reference to the Northwest
Territories, is contained in the British
North America Act, section 146 of which
provides for the admission of Rupert's Land
and the Northwestern Territories into the
union upon such terms and conditions as
5322
are expressed in petitions to be presented
by the Houses of parliament of Canada.
And here, Mr Speaker, I will ask the close
attention of the House. It is to be observed
that the terms on which the provinces of
Prince Edward Island and British Columbia
entered the union require the assent of such
provinces to be embodied in addresses from
their respective legislatures, as well as
the assent of the Dominion to be expressed
in an address from the Dominion parliament. But the terms and conditions on
which Rupert's Land and the Territories
entered the union, as well as their constitution, depend solely on the terms and
conditions to be set forth in the address
from the Houses of parliament of Canada.
In 1867, on the 17th of December, in pursuance of the terms of this section 146, an
address of the Senate and House of Commons of Canada was prepared based on a
resolution that had been passed the day
previous, from which address I venture to
make a few extracts. This address set out
in the first place that it would-
(a) Promote the prosperity of the Canadian
people and conduce to the advantage of the
whole empire ii the Dominion of Canada were
extended westward to the shores of the Pacific
ocean.
And next.
(b) That the welfare of a sparse and widely
scattered population of British subjects of European origin already inhabiting these
remote
and unorganized territories would be materially
enhanced by the formation therein of political
institutions bearing analogy as far as circumstances will admit to those which exist
in the
several provinces of the Dominion.
I attach much importance to that paragraph, contained in an address presented
by the House of Commons of Canada under
the terms of section 146 of the British North
America Act. 1867, asking that these Territories should form part of our Dominion,
and draw special] attention to the fact that
the imperial authorities are therein asked to
cause these Territories to be joined to the
Dominion, the Dominion undertaking on its
side to give to them political institutions
'bearing analogy as far as circumstances
will admit to those which exist in the several provinces of the Dominion.'
Then further on in the same address I
find this paragraph:
And that we do most humbly pray that Your
Majesty will be graciously pleased, by and with
the advice of your most honourable Privy Council, to unite Rupert's Land and the Northwestern
Territory with this Dominion and to grant
to the parliament of Canada authority to legislate for their future welfare and good
government.
As will be seen by these addresses, the
imperial authorities were moved to unite
Rupert's Land and the northwestern territory by Order in Council to the Dominion
of Canada.
5323
COMMONS
These addresses were received in
England by an intimation of Her Majesty's willingness to comply with their
prayers and that intimation was coupled
with a statement to this effect:
That the law officers of the Crown advise that
the requisite power of government and legislation could not be tnansierred to Canada
without an Act of parliament, on account of the existing charter of the Hudson bay.
.
The result was that the Rupert's Land
Act, 1868, was passed to enable Her
Majesty to do with respect to Rupert's
Land what was in contemplation by virtue
of the provisions of section 146 of the British North America Act, and I would like
to point out here immediately that Manitoba
did not come into confederation, as has
been generally supposed by virtue of the
provisions of section 146, but that it came
in by virtue of the provisions of the Imperial Rupert's Land Act, 1868. There are
two sections of that Act of 1868 which are
deserving of consideration. The first is
section 2 which provides that:
For the purposes of this Act the term ' Rupert's Land' shall include the whole of
the
land and territory held or claimed to be held
by the said governor and company.
That is to say, the governor and company
of Hudson bay. It was intended that Rupert's Land should be held to include only
what the company was supposed to be entitled to under and by virtue of the
extraordinary charter to which I referred a moment ago. but Rupert's Land is
defined here as meaning all that land which
they held or pretended to hold; hence the
necessity for my referring, as I did a moment ago, to the license of 1821. Section
5
of the same Act (Rupert's Land Act, 1868)
says that:
It shall be competent to Her Majesty, by any
such Order or Orders in Council as aforesaid.
on address from the Houses of the parliament
of Canada, to declare that Rupert's Land shall,
from a date to be therein mentioned, be admitted into and .become part of the Dominion
of
Canada ; and thereupon it shall be lawful for
the parliament of Canada, from the date aforesaid, to make, ordain, and establish
within the
land and territory so admitted as aforesaid, all
such laws. institutions and ordinances.
Etc., as it may deem desirable.
The result was that in 1868 Sir
George Cartier and Hon. Mr. McDougall
were sent to England to carry on the
negotiations which had been opened by
the Colonial Secretary with the Hudson
Bay Company for the acquisition of the
territory to which I have just referred;
and in 1869, on the 21st May, new resolutions were passed by this House with respect
to Rupert's Land and a new address
was presented, so that you must in dealing
with Rupert's Land and Manitoba look at
the terms of the address of May 1869 and
not at those of the first address. The Hud
5324
son Bay Company having proposed to surrender their country to the Dominion of
Canada this proposal was submitted to His
Excellency the Governor General in Council
on July 5th, 1869, and met with his approval. The result was that on November
19, 1869, a deed of surrender was signed,
and on June 22, 1870, almost two years
after the first address had been presented.
the Rupert's Land Order in Council was
passed. I Wish to draw attention to the
terms of that Order in Council which contains among others this provision :
It is hereby ordered and declared by Her
Majesty, by and with the advice of the Privy
Council, in pursuance and exercise of the
powers vested in Her Majesty by the said Acts
of parliament, that from and after the 15th day
of July, 1870, the said Northwestern Territories
shall be admitted into and become part of the
Dominion of Canada upon the terms and conditions set forth in the first hereinbefore
cited
address, and that the parliament of Canada.
shall from the day aforesaid have full power
and authority to legislate for the future welfare
and good government of the said territory.
That provision of the Order in Council
disposes of the Northwestern Territories
and then it is further ordered :
And it is further ordered that without prejudice to any obligations arising from the
aforesaid approved report, Rupert's Land shall
from and after the said date be admitted
into and become part of the Dominion of Canada upon the following terms and conditions.
It is not material for my argument to
refer to these terms and conditions, but it
will be seen—and for the accuracy of debate it is important that we should understand
all that occurred up to the time these
Territories and Rupert's Land came in—
that Rupert's Land was dealt with under
the terms of the second address of May,
1869, and that the Northwestern Territories
were brought in under the terms of the first
address of December, 1869.
In anticipation of the passage of this
Order in Council of June, 1870, 32-33 Victoria, chapter 3 was passed in 1869; that
is the Act which makes provision for the
administration and government of Rupert's
Land and the Northwest, and in 1870 on the
12th of May. 33 Victoria, chapter 3 was assented to. and that is the Manitoba Act.
Doubts having been expressed as to whether or not certain provisions of that Act
were within the sphere of the authority of
the parliament of Canada it was decided to
submit the Act for approval to the imperial
authorities, and I desire to examine some
of the provisions of that Act and also to see
what were the doubts expressed at that
time. Let me, in the first place, draw special attention to sections 2, 22 and 30
of
the Manitoba Act.
Section 2 applies the provisions of the
British North America Act to Manitoba, except so far as these provisions may be
varied by that Act. Section 22 is what is
5325 MAY 3, 1905
called the educational clause and contains
provisions in some respects wider in their
scope than section 93 of the British North-
America Act. Section 30 has reference to
the ungranted land which remained vested
in the Crown. Now, Mr. Speaker, I have
drawn the attention of this House especially
to these three sections of the Manitoba
Act, and I have drawn the attention of
this House to those three sections because
these section contain almost in terms those
provisions of the Act now under consideration, which are especially attacked, and
in
connection with which the doubt has been
expressed as to our power to constitutionally
deal with this Bill. Let us look at
the origin and history of these sections. Bear first in mind, that the Manitoba Act
which contains the provisions I
have just mentioned was drafted by Sir
John Macdonald the father of confederation, then Attorney General of Canada,
and it was introduced by him into this
House and subsequently passed through
the Senate at a time when the men
who were most familiar with the scope of
the provisions of the British North America
Act, when the men who had discussed that
Act section by section, line by line, word
by word, were all either in this House or
in the Senate. I have searched the debates of that day in vain for one word
said in criticism of any of these three sections. There is not one word to suggest
even that this parfliament was
not competent to pass such legislation.
To set that question at rest, because it is
of some importance, I have made an analysis of the debates which will be found in
'Hansard' of 1870, pages 1287 and following. If those who are interested in this
question consult 'Hansard' they will find
that Sir John Macdonald introduced the
Act, and he said among other things:
The proposition of the government is that the
people of the province shall be represented in
the senate by two members until the province
shall have a population at the decennial census
of 50,000, &c.
Then Mr. Mackenzie spoke at page
1296, and he was followed by Cartier;
then Mr. Macdougall intervened, then Mr.
Ferguson, then the Hon. Joseph Howe, then
again Sir John Macdonald, then Mr. Wood,
then Mr. Harrison, then Mr. Mills, then
again Mr. Macdougall and then again Sir
John Macdonald; and it will be found that
not one of these gentlemen ever referred
to the question as to whether or not it
was competent for this parliament to pass
these sections. There was not a single
voice in this House raised in protest against
the action of the government at that time
with respect to the Manitoba schools. I
know it is said, that we cannot derive any
advantage from an examination of the
Manitoba Act because that Act was not in
reality passed by this parliament. It is
5326
said that, while it is admittedly true that
such legislation was put through this House
because of a doubt that had arisent it was
found necessary to refer the Act to the imperial parliament, and it is said that consequently
we have to examine it absolutely in
the same way as if it had been an Imperial
Act. Let us see what occurred in that
connection. After the Act was passed here
it was thought necessary to refer it, I admit. When it was referred, was any
doubt suggested with respect to the right
of this parliament to pass the three clauses
in question? Those who are interested in
this aspect of the case can see Sir John
Macdonald's report—he was then Minister
of Justice—printed at page 9 of Hodgins'
collections. It will be there found that Sir
John Macdonald said:
A question was raised as to the power of
parliament to pass the Act and especially those
of its provisions which give the right to the
province to have representation in the Senate
and House of Commons of the Dominion.
That was the only point with respect to
which any question was raised as to the
validity of the legislation. But, Sir John
Macdonald goes on further and he says :
Under these circumstances, as a question as
to the constitutionality of the Act of the Canadian parliament has been raised, and
as a
doubt may cause grave disquiet in the Territories which have been or may hereafter
be
added to the Dominion, and in order also to
prevent the necessity of repeated applications
to the Imperial parliament for legislation respecting the Dominion, the undersigned
has
the honour to recommend that the Earl of Kimberley be moved to submit to the imperial
parliament at its next session: first, confirming the Acts of the Canadian parliament,
33
Vic., chap. 3, the Manitoba Act, as if it had
been an imperial statute and legalizing whatever may have been done under it according
to its true intent. Second—
To this clause of the report I Wish
specially to draw the attention of the
House:
Second, empowering the Dominion parliament
from time to time to establish other provinces
in the Northwestern Territories with such local
government, legislature and constitution as
the Dominion parliament may think proper, provided that no such local government or
legislature shall have greater powers than those
conferred on the local government and legislatures by the British North America Act,
1867;
and also empowering it to grant such provinces
representation in the parliament of the Dominion, the Act so constituting such provinces
to
have the same effect as it passed by the imperial parliament at the time of the union.
Now, Mr. Speaker, it has been said that
no argument can be drawn from the Manitoba Act because the Manitoba Act was
passed subject to a doubt which was
expressed with respect to its validity, and
that it was necessary to get a confirming
Act from the imperial parliament. Let us
see how far the doubts then expressed
5327 COMMONS
well founded. When this Act
went to the imperial authorities it was
necessary to introduce legislation; it was
necessary to introduce the Act of 1871,
known as the doubt removing Act.
And, when this Act of 1871—the British
North America Amendment Act—was introduced it was necessary to explain its
provisions, and it was necessary especially
to explain why the imperial parliament
was interfering. Earl Kimberley made
that explanation on the second reading of
the Bill—I quote from imperial ' Hansard'
of 1871, page 1171. He explained that the
Act he was introducing:
Was intended to remove doubts which had
been cast upon the validity of certain Acts of
the Canadian parliament. The Act of the Confederation of the North American provinces
gives power to the parliament of Canada to
establish provinces and territories admithed or
thereafter to be admitted into the Dominion of
Canada, but an Order in Council was necessary.
Here is the point I want to make. The
law oificers of the Crown in England were
naturally consulted about the Act, and
what did they say ? The law oflicers of
the Crown were of the opinion:
That these Acts (the Manitoba Acts) were
valid, but doubts having been expressed the
Canadian parliament has addressed the Crown
for an Act of the imperial parliament confirming their validity.
There is the opinion of the law oflicers
of the Crown in 1871, expressed at a time
when the ink was scarcely dry on the Act
of 1867, which had been passed by the same
parliament. And who were these law officers? They were Sir Robert Collier and
Sir John Coleridge; these were the men
who in 1871 expressed the opinion that the
parliament of Canada, even without the
Act of 1871, had the power to pass sections
2, 22 and 30 of the Manitoba Act. I think
that I am fortified by that opinion and may
fairly claim the right to set it up against
some of the opinions that have been quoted
against me in this House, and more especially by the editors of some newspapers
who apparently profess to be so well versed
in constitutional law.
Let me draw your attention to the fact
that when section 22 of this Manitoba Act
was enacted for the special protection
of the minority in Manitoba, there
was no word of criticism in this House
or in the great newspapers of those days—
then the 'Globe' was edited by George
Brown, no word raised against the action
of the government which at that time was
seeking to give to the minority of
Manitoba the very guarantee with respect to
education which we' are now trying
to give to the minority of the Northwest
Territories. Surely it will not be argued
that there was no word of protest raised
at that time because it was then thought
that Manitoba was to be a French preserve.
5328
How are we to explain the difference between the spirit shown in those days and
the spirit shown in these ? Was there any
question then among the great men of Canada, the men who had made confederation,
of manacles, of shackles, of invasion of provincial rights? Father Richot had been
consulted; Archbishop Taché had been summoned from Rome. Was there at that time
any denunciation or any suggestion of improper interference by the Roman Catholic
hierarchy ? Why the contrast between those
days and these? Surely it will not be suggested, in this country of broad and tolerant
men, in this age of enlightenment, in this
twentieth century, when we hear on all sides
advanced the doctrine of the universal
brotherhood of man, that there are things
which Sir John Macdonald might do in 1870
and which are not permitted to Sir Wilfrid
Laurier in 1905.
Now, without the Act of 1871 what position would we be in to-day ? Under the
Order in Council of 1870 we were authorized
to legislate for the future welfare and the
good government of the territory. Could we
to-day have given to that territory provincial
status ? I say that it is not only doubtful,
but it is almost certain that we could not.
We have no authority to deal with the Northwest. Territories as we dealt with Manitoba
under the Act of 1868. That
Act was limited exclusively in its application to Rupert's Land. Could the
King to-day, pass an Order in Council under the provisions of section 146 ?
Undoubtedly not. A delegated power once
exercised is exhausted; every lawyer knows
that; and the right to legislate by Order in
Council under the provisions of section 146
was a right delegated by the imperial parliament to Her Majesty, and once exercised
that power was exhausted. Could we do it
under the Order in Council of 1870 ? Undoubtedly not, because there is another principle
of law which is equally certain with
the one to which I have just referred: delegatus delegare non potest. Therefore, it
is
necesary for us to find authority for our
action in the present instance within the
four corners of the Act of 1871. That Act
in section 4 provides:
The parliament of Canada may from time to
time make provision for the administration,
peace, order and good government of any territory not for the time being included
in any
province.
It is under that section that we have legislated since 1871 for the Northwest Territories.
These words, 'peace. order and good
government,' have received a judicial construction by the highest court in this land.
They were construed against myself by the
Privy Council in a case from which I will
read an extract—the Reil case, which is reported in Appeal Cases, volume 10, page
678. Their Lordships of the Privy Council
say:
5329
MAY 3, 1905
The first point is that the Act itself under
which the petitioner was tried was ultra vires
the Dominion parliament to enact. That parliament derived its authority for the passing
of
that statute from the imperial statutes, 34 and
35 Vic., c. 28, which enacted that the parliament of Canada may from time to time
make
provision for the administration, peace, order
and good government of any territory not for
the time being included in any province. It
is not denied that the place in question was
one in respect of which the parliament of
Canada was authorized to make such provision,
but it appears to be suggested.that any provision differing from the provisions which
in
this country have been made for administration, peace, order and good government cannot,
as a matter of law, be provision for peace,
order, and good government in the Territories
to which the statute relates, and further, that
if a court of law should come to the conclusion that a particular enactment was not
calculated as a matter of fact and policy to secure
peace, order, and good government. that they
would be entitled to regard any statute directed
to those objects, but which a court should think
likely to fail of that effect, as ultra vires and
beyond the competency of the Dominion parliament to enact.
Their lordships are of opinion that there is
not the least colour for such a contention. The
words of the statute are apt to authorize the
utmost discretion of enactments for the attainment of the objects pointed to. They
are
words under which the widest departure from
criminal procedure as it is known and practised in this country have been authorized
in
Her Majesty's Indian empire. Forms of procedure unknown to the English common law
have there been established and acted upon,
and to throw the least doubt upon the validity
of powers conveyed by those words would be of
widely mischievous consequence.
Now, sir, we are not legislating at the
present time under the provisions of section
4 of the Act of 1871. We are legislating
under the provisions of section 2 of the same
Act, where we find exactly the same words
as are used in section 4. Section 2 reads:
The parliament of Canada may, from time to
time, establish new provinces in any territories
forming for the time being part of the Dominion of Canada, but not included in any
province thereof, and may at the time of such
establishment, make provision for the constitution and administration of any such
province,
and for the passing of laws for the peace, order
and good government of such province and for
its representation in the said parliament.
These words, in the opinion of the law
lords, absolutely authorize ' the utmost discretion of enactment', to quote the expression
used by Lord Halsbury, the present
Lord Chancellor. Let us look again at section 2 of the Act of 1871.
Mr. FITZPATRICK. I do not think that
the law officers of the Crown in England
begged the question in 1871—Sir Robert Collier and Sir John Coleridge. Let me say
here that the construction of a statute is
5330
no great secret. A statute is intended
purely and simply to give effect to the intention of the legislature which enacts
it;
and as a rule the legislature uses ordinary
plain English words in grammatical form,
and the words in a statute are to be construed in the same sense as they would be
in ordinary conversation. That is the intent of the law. Let us read the section
fgain and see what mystery there is in
it :
The parliament of Canada may, from time to
time establish new provinces... and may.
at the time of such establishment, make provision for the constitution and administration
of any such province.
Can words be clearer? What is there
ambiguous about these words ? I hold that
section 2 expressly gives power to the parliament of Canada to establish new provinces
in any of the Territories forming
part of the Dominion, but not included in
any province thereof, and for the passing
of laws for the peace, order and good government of any such province, and its representation
in parliament. Bear in mind
that this Act was passed at the request of
the Canadian government, and remember
what I read a moment ago from the report
of the late Sir John Macdonald, in which
he asked that the Act be passed and said
that it was the desire of the Canadian parliament to be empowered from time to time
to establish other provinces in the Northwest Territories, with such local government,
legislatures and constitutions as it
might deem fit to give them. That was the
request made by the Canadian parliament,
and section 2 is one of the provisions of the
law which was passed in answer to that
request.
It seems to me that there is another argument to be drawn from this. The Act
of 1871 not only contains the provision
which I have just read—and bear in mind
the circumstances under which it was passed—but it also contains a provision to confirm
the Manitoba Act, that is to say to confirm an Act which contains these clauses of
which I spoke a moment ago, among which
are the educational clause and the clause
with respect to the ownership of public lands.
The imperial authorities, having had notice
from the Canadian parliament that it construed its powers to mean that it had the
right to deal with these two questions in the
way in which it had dealt with them, confirm what the Canadian parliament did and
give it power to go on legislating on similar
lines in the future. It seems to me impossible to find a case in which the intention
of the imperial parliament to give this
parliament the power to do in a case like
the present which is in all fours with the
Manitoba case what was done by the Manitoba Act could be more dearly expressed.
This Act, the British North America Act
of 1871, marks a long step in advance of
the powers which the Dominion parliament
5331 COMMONS
at that time enjoyed. The Act of 1867 provided only for the establishment of four
provinces and their union into one under
the name of the Dominion, and for the extension of the Dominion by admission into
it of other parts of British North America.
But by the Act of 1871 new powers
are either granted or confirmed to the Dominion parliament: First, to administer the
Northwest Territories as such without giving them the rights or the status of provinces;
second from time to time to establish new provinces and at the time of such
establishment to make provision for the
constitution and administration of such
provinces. Now, observe that the words
of section 146 of the British North America
Act of 1867 'Subject to the provisions of
this Act' do not appear in section 2 of the
Act of 1871. The words 'may make provision for the constitution and administration
of any such province' are not restricted or qualified by any thing in this section
contained, and are as broad and comprehensive as words can be for the purpose of
enabling this parliament to frame a constitution for any province it may deem expedient
to establish. I am not unmindful that
in the last paragraph of the Act of 1886 it
is said :
This Act and the British North America Act,
1867, and the British North America Act, 1871,
shall be construed together, and may be cited
together as the British North America Acts,
1867 to 1886.
Does that mean that you are to give
effect to clauses in any one of the Acts,
that are obsolete ? Or does it mean more
than this ? That you are to read all
the Acts together, so as to give each
section in each Act its full eflect in order
that it may have its complete operation ?
These words in section 146 'subject to the
provisions of this Act' have their meaning
and their place in that section. What occurred with respect to that section ? The
imperial parliament passed the British
North America Act of 1867, not merely,
as an Act is passed under ordinary circumstances, to give effect to the intention
of the legislature, but to give effect likewise to a solemn compact entered into between
three distinct and separate political
entities; and when that Act was passed,
provision was made that by exceptional
legislation—that is to say by Order in Council—Her Majesty was empowered to bring
other provinces into confederation and to
allow other provinces to be carved out of
the Territories. Therefore it was of prime
importance that in that provision authorizing Her Majesty to exercise these exceptional
powers, under these exceptional circumstances, a restriction should be put
upon the exercise of those powers, and
that Her Majesty should be told: You can
bring in new provinces, you can carve out
new provinces in. these Territories, but you
shall do it subject to the Act we have
5332
passed. There are reasons for these words
in these circumstances; but when the imperial parliament in 1871 delegates these
powers to the Dominion parliament, to be
exercised by that, parliament absolutely and
for all time, just as they would be by the
imperial parliament, we are acting, not
under the provisions of an Order in Council.
but under the authority of an imperial Act.
I am not quite sure that there are many
members in this House who have observed
a subsection of section 2 of the Act of
1886, upon which I do not care to lay much
stress, but upon which, if I had a weak
case, if I had a case which was not super-
abundantly proved otherwise, I might lay
considerable stress. Section 2 of the Act of
1886 contained this extraordinary provision : '
it is hereby declared that any Act passed by
the parliament of Canada, whether before or
after the passing of this Act, for the purpose
mentioned in this Act—
The purpose was the representation of the
province in the parliament of Canada.
—or for the purpose mentioned in the British
North America. Act, 1871, has effect notwithstanding anything in the British North
America
Act of 1867.
That is to say, the imperial authorities in 1886 declared, in anticipation, that
any Act passed under the authority of the
Act of 1871 shall be valid and effective.
What could be the object of such legislation ? I do not require to rely upon it;
but it seems to me, as I said a moment
ago, that if I wanted to indulge in a little
hair-splitting, I would find here all the
comfort I require.
Chapter 16 of the statutes of 1871,
and chapter 5 of the statutes of 1872,
were passed to provide for the government of the Northwest Territories.
And finally, in 1875, an Act was passed
which may be very correctly described in
my opinion, as the constitutional Act of the
Northwest Territories. That Act was
amended on several occasions and consolidated in 1880 and again consolidated in
1886. In 1888 and in 1894 other Acts were
passed which gave to the Territories practically local self-government and what is
their position to-day ? In order that there
may be no doubt about that I will read an
extract from the letter written by Mr.
Hauitain to the Prime Minister (Sir Wilfrid
Lanrier) and published in the Ottawa 'Citizen' of March 13th last:
The new territories have for a number or
years been under one government and legislature performing most of the duties and
exercising many of the very important powers of
provincial governments and legislatures. There
has never been any suggestion that the territorial machinery was in any way inadequate
for
the purposes for which it was created.
In a word, it is admitted on all hands that
at present time the Territories have already
been granted nearly all the legislative
5333 MAY 3, 1905
powers that can be given under any other
constitution—where they at present fall
short may be briefly stated as follows:
1. Limitation of the power to amend the
constitution to a power to deal with elections simply.
2. The withholding from the Territories
the power to borrow money.
3. The retention of the power to deal
with the public domain.
4. For the absence of authority to establish such public institutions as hospitals,
asylums, &c.
5. No power being given to take, cognizance in any way Whatever of public undertakings
other than such as may be carried
on by joint stock company.
6. The assumption by the Dominion of the
duty of administering criminal justice in the
Territories.
Now, Mr. Speaker, we are called upon
to add the little that is necessary in order
to give full autonomy to these Territories.
The first question to be considered is : Has
parliament the power to legislate for these
new provinces in the manner proposed?
And the second question is: Are the provisions tor the establishment of these new
provinces fair and reasonable in view of
the conditions now existing in those Territories ? I will not repeat what I have
just said about the Act of 1871. But it has
been suggested that the provisions of the
British North America Act apply automatically to the new provinces. What that means,
I must confess, I am somewhat at a loss to
understand. I think I heard it suggested by some that our authority in this parliament
is limited to the making of a declaration that the territory affected is a
province, and then the provisions of the
British North America Act would be applicable. Is that what is meant by saying that
these provisions apply automatically ? This might be possible with respect
to those provisions that apply to all the
provinces. But what of the others ? There
are provisions that apply to Quebec, there
are provisions that apply to Ontario, there
are provisions that apply to Ontario and
Quebec, there are provisions that apply to
New Brunswick, there are provisions that
apply to New Brunswick and Nova Scotia;
and there are some provisions that apply to
all the provinces. Which of these would
apply here ?
Let me here again lawyer-like appeal to
precedent. Those who drafted the British
North America Act and who may be supposed to have best understood its provisions,
were called upon, very shortly after they
had drafted the British North America Act
to draft the Manitoba Act. How did they
proceed? Section 2 of the Manitoba Act
is practically section 2 of this Bill. That
is to say, in the Manitoba Act you find a
section declaring provisions of the British North America Act applicable to Mani
5334
toba. If these provisions apply automatically
where is the necessity for this section? The
same thing applies to Prince Edward Island
and to British Columbia. When British
Columbia came into confederation, in 1871,
those who are curious enough to look into
the details of this matter will find, in the
Order in Council provision is made which is
practically in terms identical with the section of this Bill. And the same thing
applies to Prince Edward Island. In all
these cases the terms of the British North
America Act were applied to the new provinces, except so far as they may be varied
or amended by the statute or the Order in
Council.
Then it has been argued that the provisions of the British North America Act may
be made applicable, but we have not the
power to alter or vary the terms of the
British North America Act. Here again I
appeal to precedent. If we have no power
to vary the British North America Act
why did they insert in the Manitoba Act,
in the Prince Edward Island Order in Council, and the British Columbia Order in Council,
a provision that the sections of the
British North America Act would be applicable to these provinces except in so far
as
they may be varied or altered by the Act
or by the Order in Council ? If we are in
error, it seems to me, we have ample precedent for our error. On that branch of
my argument, the conclusion I come to is,
that we have the power to give to these
provinces such a constitution or administration as this parliament deems it expedient
to give. But the most that can be
said in favour of those who take the contrary view—and it has not been said so far
as I am aware—is that inasmuch as the
British North America Act, 1871, provides
that the parliament of Canada may from
time to time establish ' provinces,' the word
'provinces' as so used must be interpreted
having regard to the meaning of that word
in the British North America Act, 1867, and
therefore the province so established must
be an institution corresponding generally
with the provinces whose constitution is
fixed in the British North America Act.
Admitting, for the sake of argument, that
that is so, it can only require that the new
provinces shall be constituted, as to correspond in powers with the other provinces
so far as, with regard to any subject or
class of subjects the power: of all the
provinces are the same. I might labour the
point indefinitely and not get much further
on. In addition to the quotations from Sir
John Thompson made by the leader of the
opposition, I would refer to a further statement by that gentleman which will be found
in ' Hansard ' of July 16th, 1894, page 6130.
It will there be found that Sir John Thompson, one of the greatest constitutional
lawyers among the many eminent men who have
filled the position that I now occupy, held
clearly and distinctly that the constitution
5335 COMMONS
of the provinces which are now being created is to be settled by this parliament exclusively.
That there may be no doubt
on that subject, perhaps I had better read
an extract from the 'Debates.' Sir John Thompson
 said, in answer to Mr. McCarthy:
The hon. gentleman's argument, of course,
was that if this system—
That is to say the school system of the
Territories.
—were allowed to stand until provinces are
created, we should, by force of the British
North America Act be unable to withdraw that
system, and that it would be riveted on the
provinces. As has been shown by the hon.
member for Bothwell, the provisions of the
British North America Act relate only to the
provinces which were entering into the union
at. that time, and to the provinces which were
named in the last section of the Act as entitled
to be admitted into the union, and have no relation whatever to the provinces which
are to
be created out of the territorial district of the
country. That is clearly seen when we come
to the British statute of 1871, which, for the
first time, conferred the power on this parliament to create provinces out of our
territories,
and. as the hon. Minister of the Interior has
said, enables this parliament to decide what
the constitution of those provinces shall be.
We claim, therefore, that the constitutional
system which was established with regard to
schools and with regard to language in 1876,
ought to be maintained for the same reasons as those which dictated its creation,
and that this condition of affairs should last,
at least. while the affairs of the territories are
under the control or this parliament. What the
constitution of the future provinces shall be, in
view of the pledges which have been referred
to, or in view of any other set of circumstances,
will be for parliament to decide when it decides to create those provinces.
Now it seems to me that some consideration should be given to this opinion expressed
by so eminent a man, absolutely
in line with the opinion on which the government are now acting. Now, as against
the views I have expressed, the opinion of
another very eminent man has been quoted,
that of Mr. Christopher Robinson. I make
bold to say that there is no man in this
country who occupies a higher position.
not only as a lawyer but as a man.
than Mr. Christopher Robinson. The
worthy son of a distinguished sire, he
embodies in his person all the best traditions of the noble profession to which
so many of us belong. I have given evidence of my respect for Mr. Christopher
Robinson, on many occasions, the most important being when I recommended him as
chief counsel for Canada in the Alaska
boundary case. Now what does Mr.
Christopher Robinson say—rather, not what
does he say, but what is he reported
to have said?—because we have not yet
got what he said, we have not been favoured even with the questions that were submitted
to him.
5336
Mr. SPROULE. I think an explanation
is due to the Minister of Justice.
Mr. SPROULE. If I am not permitted
to make an explanation, if the hon. gentleman will not, out of courtesy, permit me
to make an explanation, I will sit down.
Mr. SPROULE. I said that a word of
explanation was due to the Minister of
Justice. He requested me to hand to the
House the questions that were submitted
to Mr. Christopher Robinson, and I told him
I would endeavour to get them and supply
them to him. When I wrote for them the
answer which I received from Mr. Macpherson, the gentleman through whom I
was acting, was to this effect. that the
questions had not been considered as they
were presented, but rather as having regard to the purport of the Bill. I should
have handed that answer to the Minister
of Justice, but I did not do so because I
thought it would not meet the intention
that he had in asking for the question.
Mr. FITZPATRICK. There is absolutely
no harm done, I have absolutely no complaint to make against the hon. member
for Grey (Mr. Sproule). Now let us see
what Mr. Christopher Robinson said. We
have the positive opinion of Sir John
Thompson, now let us see what Mr. Christopher Robinson said, as I find it in
'Hansard':
The right of the Dominion parliament to impose restrictions upon the provinces about
to
be formed, in dealing with the subject of education and separate schools, is, I think,
not
beyond question.
Mr. SPROULE. May I be permitted to
say one word here? The Minister of Justice used the expression 'What Sir Christopher
Robinson is reported to have said.'
I here hand to the hon. gentleman the
paper which Mr. Christopher Robinson
signed with his own hand.
The right of the Dominion to impose restrictions upon the provinces about to be formed,
in
dealing with the subject of education and separate schools, is, I think, not beyond
question.
This would require more consideration than I
have been able yet to give it, and must ultimately be settled by judicial decision.
I am
asked, however, whether parliament is constitutionally bound to impose any such restriction,
or whether it exists otherwise, and I am
of opinion in the negative. It must be borne
in mind that I am concerned only with the
question of legal obligation. What the parliament ought to do or should do in the
exercise
of any power which they may possess, is not
within the province of counsel.
5337 MAY 3, 1905
I do not really think it is worth while
for certain newspapers in this country to
quote the opinion of Mr. Christopher Robinson, and say that his opinion is that, on
this important constitutional question, there
can be no doubt the government is wrong.
I am not aware that this government considers that it is bound constitutionally to
impose any restrictions; but I am aware
that this government believes that in equity
and in good conscience it ought to enact
section 16 of the Bill.
Now for the present I will follow the
example of the leader of the opposition,
and deal exclusively with two features of
this Bill; first, the question of the land,
and second, the educational provisions. Let
me draw the attention of the House to this
fact that the leader of the opposition, careful lawyer as he undoubtedly is—in his
presence I will not say more—does not go
beyond this :
May I not further suggest that even if there
were any danger—and I do not think there is—
it would be the task of good statesmanship to
have inserted if necessary, a provision in this
Bill with regard to free homesteads and the
prices of those lands, and obtain to it the consent of the people of the Northwest
Territories?
That is to say, we are to give them all
the lands with a string tied to them. That
is so far as my hon. friend would care to
go.
Mr. R. L. BORDEN. No, the hon. gentleman is hardly doing me justice. I said
in the first instance that it would be a proper policy to hand the lands over to the
control and administration of the provinces;
then I said if the government declined to
do that on account of a reason that has
been suggested by the Prime Minister, I
thought at least that might have been done
which the Minister of Justice has just
quoted.
Mr. FITZPATRICK. I stated my hon.
friend's opinion so far as I could gather
it. I do not wish to misrepresent him, because I have had my own experience in
reading my own speeches. I understood
him to say that we had power to retain
some control over these lands while granting them to the legislatures of the provinces.
Mr. R. L. BORDEN. In order to make
myself perfectly clear, I would like to say
a word—I do not want to interrupt my hon.
friend, for I know how difficult it is to
make a consecutive legal argument with
constant interruptions, those who have
practised in courts have had some experience of that. What I meant to say is
simply this, that I thought the lands ought
to be handed over, but if we are to concede
the principle that the government do not intend to hand them over, then in that case
the best thing to do was that which I sug
5338
gested. I did not intend at the time to
deal with the question of legislative power.
I may say besides to the Minister of Justice that I think the question of the lands
stands so far as legislative power is concerned on a somewhat different basis from
that of the educational clauses.
Mr. FITZPATRICK. In dealing with the
lands I refer to section 109 of the British
North America Act which is made applicable exclusively to the original provinces by
name, and applicable to each of the provinces in which the lands were vested at
the time of confederation. At the time of
confederation the lands referred to in section 109 were the property of the provinces
that were coming into confederation. In
the present instance the lands are vested in
the Sovereign in the right of the Dominion and we would require a divesting Act to
part with them. If this Act were simply
silent the public domain would remain in the
Crown, where it now is. Here again we have
the authority of precedent. In the Manitoba case the same principle was applied and
as has been explained by the Minister of
Finance (Hon. Mr. Fielding) and other
speakers, that principle was never departed
from, notwithstanding the repeated and urgent requests of Manitoba. I shall not weary
the House with a repetition of the answers
given by former governments to the requests of Manitoba for the control of their
lands. Incidentally I may say, however,
that this question was under consideration
in the Swamp Lands Case in the Privy
Council in 1904. Honourable members will
remember that under a Dominion statute it
is provided that all Crown lands in Manitoba which are shown to the satisfaction of
the Dominion government to be swamp
lands shall be transferred to the province
and inure wholly to its benefit and use.
The government of Manitoba claimed that
they were entitled from the date of the
statute to the profits on each parcel of lands
which had eventually and after a process of
selection been transferred. The Privy Council held that the lands did not inure to
the
benefit and the use of Manitoba until they
were transferred.
The fruits or produce new in dispute arose
while the administration of the lands was with
Canada, and have been duly applied to Canadian uses.
That is to say, while Canada was administering the public domain in Manitoba and
the Territories in such a way that the profits
arising therefrom inured to the benefit of the
Dominion. Something might be said in
favour of the principle that these lands
should be administered in such a way that
the profits arising therefrom would inure
to the province or territory in which the
lands are situated, but in the Privy Council
the question arose incidentally and there
it was not even suggested that the Dominion
5339 COMMONS
had no title to these lands or that they
should have been origimally transferred to
Manitoba. Constitutionally it seems to me
that our right to deal with these lands in
the way we are dealing with them cannot
be seriously questioned. Â
It must not in addition be overlooked that
when the Territories became part of the
Dominion they had no revenue, and in addition to the payment of ÂŁ300,000 sterling
to extinguish the Hudson Bay Company's
rights, Canada had immediately to assume
the whole burden of government without
any compensation in the way of revenue
except such as it derived from the sale of
public lands. I would not wish to repeat
what has already been said. as the subject
will require to be more fuily considered in
committee but it seems to me that not only
under the provisions of the constitution, not
only for the reasons urged by the hon. member for Brandon (Mr. Sifton) with respect
to
immigration, not only for the reasons set
forth in the different Orders in Council prepared by preceding governments, but because
the people of Canada . have been
obliged to incur all these liabilities with respect to these Territories, that we
have not
only the right but we have the duty to
retain the possession of these lands. Perhaps incidentally I might mention that in
the debates on confederation the question
was considered, and it is gratifying to see
that the Hon. George Brown, discussing the
question of immigration, pointed out the inconvenience that would result from a separate administration and a different policy as
between the government of the Dominion
and the provincial governments, and he practically went upon the lines that are being
urged here in support of the government's
position.
Now I come to the crucial point, the
education provisions, section 16. And here,
Mr. Speaker, I have to stand humbly before
the House, perhaps in a penitent mood, and
to make the admission that I drew that
clause. Apparently there are few in this
House who do that clause honour.
Mr. FITZPATRICK. I look pretty guilty
but I do not look nearly so guilty as I feel.
I drew it with my own hand, clause by
clause, line by line, word for word. It is
one of the two clauses of the whole Act for
which I am personally responsible. The
other is the clause that has reference to the
Canadian Pacific Railway contract. I will
not now say any thing, as I fear I have detained the House long enough. on the amended
clause. That I shall be prepared to
deal with and to justify when it is moved in
Committee.
Now. if I have succeeded in establishing
my first point. namely, that this parliament
has the power to insert in this Bill the provisions contained in section 16 with respect
5340
to education, the next question to be considered will be. are these provisions under
all the circumstances fair and reasonable,
and in view of the pledges given and of the
legislation passed by this parliament is there
a moral obligation to enact this clause ? My
principle, if I have a principle in politics,
is to hold sacred my covenants. There is
to use the words of the Privy Council in the
second Manitoba case, a 'parliamentary compact' made with the people of the Northwest
and I want, so far as it is possible to
do it, to hold sacred my covenants and to see
that compact observed. We are told that
the provinces were not consulted about this
Bill and especially about this provision of
the Bill. Let me say that as far back as
1900 the territorial government drew Bill
and submitted it for the consideration of
the government, to which they expected
parliamentary sanction would be given. I
have here in my possession a Bill drawn in
1902 which they submitted to the government and in which I presume they caused to
be inserted all the provisions which they
desired to have in their new constitution.
What is there in that Bill?
Mr. FITZPATRICK. The Haultain Bill,
yes, the Bill of 1902. This Bill will be
found in a return which was brought down
last year or the year before and annexed to
it there is a memorandum explaining each
one of the provisions. What does that Bill
say in section 2? And bear in mind that
section 2 of that Bill is almost in terms
section 2 of the Bill now under consideration
of this House. Section 2 of the Bill presented to us by the people of the Northwest
Territories contains this provision:
That on and after the first day of January,
1903, the provisions of the British North America Act, 1867, except those parts thereof
which are in terms made, or by reasonable intendment may be held to be especially
applicable to or to aflect only one or more but not the
whole of the provinces under that Act composing the Dominion, and except so far as
the
same may be varied by this Act.
Rather suggestive that they think we
have the right to vary the terms of the
British North America Act.
Shall be applicable to the province of.... in
the same way and to the same extent as they
apply to the other provinces of Canada, and as
if the province of ....had been one of the provinces originally intended by the said
Act.
What does that mean ? The provisions of
the British North America Act; do they include section 93, the educational clause,
or
if it was not their intention that that section should be made applicable to them
why
did they not except it ? Now we have more
than that. Mr. Haultain in the letter I
have mentioned says:
5341 MAY 3, 1905
With regard to the question of education generally you are now aware that the position
taken by us was that the province should be
left to deal with the subject exclusively, subject to the provisions of the British
North
America Act, thus putting them on the same
footing in [this respect as all the provinces of
the Dominion except Ontario and Quebec.
To properly appreciate what this means,
let us see what is the position of the other
provinces of the Dominion with respect to
education, and I will make bold at once to
make this statement: that there is not today in the whole Dominion of Canada a
single province which has the power to legislate exclusively with respect to education—
not one province in the Dominion of Canada.
The distribution of legislative power by the
British North America Act, as between the
provinces of the Dominion, is made in sections 91, 92 and 93 of that Act. Section
91
enumerates the power of the parliament of
Canada, and enumerates the matters coming
within the classes of subjects over which
the exclusive legislative authority of the
parliament of Canada extends. Section 92
enumerates the classes of subjects in respect
to which the legislature of each province
may exclusively make laws ; and section 93
deals especially with legislation respecting
education, and provides ; what ? :
In and for each province the legislature may
exclusively make laws in relation to education—
Does it stop there ? No, it goes on to say-:
—subject and according to the following provisions.
Can there be any doubt now as to whether
or not the provinces have the right to deal
exclusively with education. If it was intended that the province should have exclun
sive legislative jurisdiction with respect to
education, why not have included that subject among the classes of subjects enumerated
in section 92, and assigned exclusively
to the provinces ; or, why not have eliminated all reference to the subject of education,
which, in that case might have been included
under the heading ' property and civil rights
in the province' under section 92; again
under ' matters of a merely local or private
nature in the province.' Either of these two
enumerations would include education. The
answer is, that parliament intended to deal
with this difficult question so as to make
exceptional provisions differing according to
each province ; and my argument is that by
section 93 of the British North America Act,
1867, the power of each province to make
laws in respect to education is expressly
limited: First, the right to denominational
schools which any class of persons has by
law in each province at the union must be
preserved. That is quite clear. Second:
where in any province a system of separate
or dissentient schools exists by law at the
union, or is thereafter established an appeal
shall lie to the Governor General in Council
5342
from any act or decision of any provincial
authority affecting any right or privilege of
the minority. And third: The powers,
privileges and duties conferred in Upper
Canada upon separate schools and school
trustees of the Roman Catholics, are extended to the dissentient schools of Protestants
and Roman Catholics in Quebec.
These limitations not only provide expressly exceptional provisions for different
provinces, but also in effect, so far as there
were denominational schools at the union,
established as many different systems as
there are provinces. By the Manitoba Act
there are different provisions, and the limitations so far as denominational schools
are
concerned is expressed in even broader terms
than in section 93 of the British North Am- '
erica Act. Nobody doubts that Ontario, that
Quebec, that Nova Scotia and New Brunswick are provinces, notwithstanding this diversity
in matters of education. It has
never been suggested that Manitoba is not
a province, although further exceptions as
to education have been introduced in her
case. It cannot reasonably be argued that
in creating a new province the Dominion is
bound to make its powers with regard to
education corresponding to those of any
particular one of the older provinces. And,
if we are obliged to make them correspond
to any particular one of the older provinces,
to which shall we make them correspond ?
All the provinces are treated alike, mark
you, Mr. Speaker, with the single exception
of Quebec, with respect to which province
there is an express limitation placed upon
its powers in the interest of the Protestant
minority.
It is a complete error to imagine that the
right to separate schools in Ontario is
created by the British North America Act;
that right is merely preserved by that Act,
and there is no exceptional provision for
Ontario. The conditions applicable to Ontario are those applicable to New Brunswick,
to Nova Scotia, to Prince Edward Island and
to British Columbia; the difference being
that at the time of confederation the Catholics of Ontario had rights and privileges
with
respect to their schools by law in the province, and they did not have these rights
in
some of the other provinces. Again I repeat:
there is not in the whole Dominion of Canada to-day a single province that enjoys
an
exclusive right to legislate with respect to
education. Then, why in the name of provincial rights can we justly be called upon
to give to these new provinces a power
which no other province possesses ? Let me
quote on this point the opinion of their
Lordships of the Privy Council in the second Manitoba School Case. Here is what
their Lords'hips say, page 279 of the Manitoba School Case, 1894, edited by the Canadian
government :
Before leaving this part of the case say their
Lordships, it may be well to notice the argument urged by the respondent: that the
con
5343
struction which their Lordships have put upon Â
the second and third subsections of section 22 of
the Manitoba Act is inconsistent with the
power conferred upon the legislature of the
province to exclusively make laws in relation
to education.
The argument is fallacious, say their Lordships, the power conferred is not absolute
but
limited, it is exercisable only subject and according to the following provisions.
Further on at the foot of the same page,
dealing with the same subject their Lordships say :
It must be remembered that the provincial
legislature is not in all respects supreme within the province. Its legislative power
is strictly
limited. It can deal only with matters declared to be within its cognizance by the
British North America Act as varied by the Manitoba Act.
Their Lordships do not seem to take fright
at the suggestion that the British North America Act should be varied.
In all other cases legislative authority rests
with the Dominion parliament.
Now. Mr. Speaker, here is what their Lordships go on to say:
In relation to the subjects specified in section 92 of the British North America Act.
and
not falling within those set forth in section 91,
the exclusive power of the provincial legislature may be said to be absolute.
That is to say, when they exercise the
powers conferred by section 92. Brit their
Lordships continue to say :
But this is not so as regards education which
is separately dealt with and has its own code
both in the British North America Act and in
the Manitoba Act.
There we have it, on the authority of the
Privy Council, that there is no power under
the British North America Act vested in
any province to deal exclusively with matters of education. I am quite aware that
the terms of section 22 of the Manitoba Act
differ somewhat from the terms of section
93 of the British North America Act, and
the differences are pointed out in the report
of the same case. at page 270 ; but the principle is the same. As was stated by their
Lordships of the Privy Council. the argument that power is conferred on the legislature
of any province to exclusively make
laws in relation to education is a fallacious
one. The power conferred is not absolute,
but limited. It is exercisable only—to use
the words of section 93—' subject to the following provisions.' I repeat that it is
neither absolute nor exclusive.
In this view of the law, let us examine
section 16. Dealing with the Territories as
the other provinces had been dealt with
my intention was to declare section 93 applicable, and I beg those who do me the
honour of listening to me to take note that
a special provision would not have been
necessary, that section 2 of the Bill would
have been sufficient were it not that diffi
5344
culty might have arisen from the use of
the word 'province' in section 93, and because of a doubt which was suggested as
to the meaning of the words ' at the union.'
Section 93. which would be applicable under
section 2 of our Bill, reads:
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.
My difficulty was with respect to the
words 'province' and 'at the union.' My
view was that it was possible that these
might be construed as applicable exclusively
to a province, and could not be made applicable to these Territories as brought in.
and my firm determination was that there
should be nothing left to uncertainty, so
far as my responsibility went. My object
was to make section 93 applicable, and my
object was also to avoid a repetition of the
Manitoba difficulty. I wanted to perpetuate
the existing conditions, with which everybody in the Territories professes to be satisfied.
Now, if you take section 16 and read
it in the light of that declaration. how would
the law be with respect to these Territories?
It would read as follows:
In and for each province the legislature may
exclusively make laws in relation to education,
subject and according to the following provisions :
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 territory at the time
of the passage of this Act.
I would have made section 93 applicable
to the Territories as if they were provinces,
and as if they were provinces at the time
this Act comes into effect, that is to say, on
the 1st of July next.
Mr. HAGGART. Would that cover rules
and regulations made under the ordinances ?
Mr. FITZPATRICK. My hon. friend is
more familiar with that question than I
am. because he had to consider them in
1894 under Sir John Thompson. I shall
unfortunately be obliged to discuss that
later on when I come to the amendment.
My intention was to continue the conditions
existing at the present time. I had in mind
the letter written by Sir John Macdonald
to a member of the Manitoba legislature.
which was quoted here a few days ago by
my hon. friend from Cornwall (Mr. Pringle),
and which is printed in the opening pages
of the Manitoba School Case by Krilbbs.
in which Sir John declares that it was the
intention of the government in 1870 to give
to the minority in Manitoba the right to
separate schools—to give them full and
ample protection with respect to their
5345
MAY 3, 1905
schools. I knew that was the intention at
that time, and I also knew that the Act,
drafted under these circumstances, was
submitted for consideration to their Lordships of the Privy Council; and they felt
it to be their duty to declare that the man
who drew that Act, the draughtsman of
that day, had failed to carry out the intention of the legislature. I made up my mind
that the draughtsman of to-day, so far as
his limited light allowed him to go, would
make no such mistake. Their Lordships,
in the Manitoba school case, said:
It was not doubted that the object of the 1st
subsection of section 22 was to afford protection to denominational schools, or that
it was
proper to have regard to the intent of the
legislature and the surrrounding circumstances
in interpreting the enactment. But the question which had to be determined was the
true
construction of the language used. The function of a tribunal is limited to construing
the
words employed; it is not justified in forcing
into them a meaning which they cannot reasonably bear. Its duty is to interpret, not
to enact. It is true that the construction put by
this board upon the 1st subsection reduced
within very narrow limits the protection
afforded by that subsection in respect of de
nominationaI schools. It may be that those
who were acting on behalf of the Roman Catholic community in Manitoba, and those who
either framed or assented to the wording of
that enactment were under the impression that
its scope was wider, and that it afforded protection greater than their Lordships
held to be
the case. But such considerations cannot properly influence the judgment of those
who have
judicially to interpret a statute. The question
is. not what may be supposed to have been intended, but what has been said.
I meant to say what I intended. Perhaps incidentally it may interest the House
to know that at the time the Manitoba
School Act was passed, and at the time
these difliculties arose in Manitoba, the imperial authorities thought proper when
they
were called upon to give military assistance
to the Dominion of Canada to fix the terms
upon which they would give the assistance
asked for. The imperial authorities of that
day, to their credit be it said, faithful to
the traditions of the imperial parliament,
the mother of parliaments, the parliament
of that people who have always held sacred
their covenants, acting through their representative, Lord Granville, sent to the
Governor General of Canada a cablegram on
the 5th of March, 1870, which reads as follows :
The proposed military assistance will be
given if reasonable terms are given to the Roman Catholic settlers, and if Canadian
government enable Her Majesty's government to proclaim transfer simultaneous with
movement of troops.
They were prepared to give the assistance asked for at that time by the Canadian government
on condition that reasonable terms should be given to the Roman Catholic minority.
The assistance was accepted in
5346
the terms stated, and to give effect to these
terms the Manitoba Act was passed. and
we all know the result. This is a sad
Chapter in the history of Canada.
Dealing now with section 16, I would like
to say that the second paragraph in that'
section was added—although in my judgment absolutey unnecessary—because it was
thought advisable to re-enact the provisions
of section 11 of the Act of 1875. This was
for the purpose of making it quite clear
that this parliament was merely carrying
out a solemn promise already made. That
very paragraph was intended to give legislative sanction to the conditions now existing
with respect to grants in aid of education. At the present time these grants are
dependent upon an annual vote of the legislature, and it was not clear to me that
the
annual grant made by the legislature gave
to those who benefit by it a right or privilege within the meaning of section 93.
And I thought that if separate schools are
to exist, they should be made effective for
the purposes for which they were intended
and should be placed, to use the words of
Mr. Balfour, in a position in which they
can effectively play their necessary and
inevitable part in the scheme of national
education. I have given you now, Mr.
Speaker, the whole secret of section 16.
Where now are the shackles, the manacles,
the invasion of provincial rights? What
are we doing? I say that in the future
it would be a serious reflection upon the
people of the Dominion if the solemn promises made in 1875, repeated in 1880, and
oft repeated since were not carried out.
It is unnecessary for me to go over what
occurred in 1875. That will be found in
the debates of the Senate and the House of
Commons when the Bill was introduced.
All that has been gone over repeatedly, but
let me draw attention to a fact not yet mentioned, namely, that a year later, in 1876,
the Keewatin Bill was introduced by Mr.
Mackenzie. and from the Bill clause 11
of the Act of 1875 was omitted. On being
asked for an explanation, Mr. Mackenzie
spoke as follows:
The Bill is only temporary in its character.
Section 11 refers only to the Act of last session. The laws established by this Bill
are
those in force at the present moment in the
Northwest Territory—neither more nor less. The
Act of last session proposed the creation of a
municipal system and conferred practically all
the powers of self-government as a province.
I: is only when such powers are exercised that
the clause in question comes into operation.
After some discussion, Mr. Blake said:
The Act of last session has not yet been put
in force. At present all the Territories of
the Northwest are governed from Manitoba.
The Act of last session proposed, and I think
rightly proposed, a system which gave rudimentary representative institutions coincidentally with its going into effect. The Bill of this
session takes off a very small portion of the
enormous territories of the Northwest for the
5347 COMMONS
particular purpose which my hon. friend the
premier clearly explained. . . If this territory is annexed to Manitoba the laws of
that
province relating to schools will apply to it.
If reannexed to the Northwest Territories,
clause 11 of the Act of last session will apply.
Mr. Mousseau said this clause seemed to empower the government of the new province
to
repeal clause 11 of the Act of last session
securing separate schools to the Northwest
Territory. He wished to know if this was
the case.
Hon. Mr. Blake said that the 11th clause of
the Northwest Territory Act was not yet in
force, and would not apply to any of these
Territories until the Act was proclaimed. It
was a. clause which could only come into force
practically in connection with a system of taxation, no provision for which was made
in this
portion of the Territories so long as it remained under this form of government. The
future of these Territories would be either one
of two things—they would be annexed to Manitoba or they would be detached from Keewatin
and reannexed to the Northwest. In either
case the rights of the minority would be protected. There was no intention on the
part of
the government to depart from the general
principle of the 11th clause. If the Territories
were attached to Manitoba they would be subject to the laws of that province; if to
the
Northwest they would come under the 11th
clause of the Act of last session.
Sir JOHN MACDONALD. If I understand it,
by simply proclaiming the Act of 1875 this 11th
clause will come into force.
Hon. Mr. MACKENZIE. Certainly.
In 1875 there was, my hon. friends will
remember, the discussion of which I have
just spoken on this clause 11. There was
again a discussion in 1876 on the Keewatin
Act, and it seems to me a sad commentary
on our boasted progress in the direction of
nation building to find that the clause
introduced in 1875, which received the practical approval of both political parties
and
of the press of both parties in the country
cannot be re-enacted to-day. We do
not seem to have gone very far on
the road towards nation building, when
we cannot do to-day, what we could
do in 1875. I do not know that it is
necessary for me to remind the House of
that extract from the ' Mail ' of April, 1875,
which was quoted by my hon. friend from
Richelieu (Mr. Bruneau), in which the
Mr. Brown, said: .
We fear that Mr. Brown is no better lawyer
than his friend Mr. Mackenzie. We do not
doubt that Senator Miller took the correct
view when he said that the clause referred to—
namely, clause 11—by Mr. Brown applied only
to the provinces which were in the union at
the time the Act was passed.
And here are the important words:
Every one may see how fortunate a thing it
would have been if the school question had
been put on a stable basis in New Brunswick.
and if by the Northwest Act the government
should have prevented future burnings on educational matters in the great new country
5348
which belongs to us in the far west, they will
have done a good work indeed. We cordially
endorse their action in this matter.
That appears to have been the policy of
the Conservative party, in those days, and
certainly it was a policy worthy of the best
traditions of that party. I have not said
anything of the character of the schools
in the Northwest nor of my personal
preference with respect to a system
of education. My duty was simply to
give effect to a system which was introduced in 1875 in the Territories and which
has been established and improved by the
free will of the people of those Territories.
It has been suggested that the Territories
wish to rid themselves of this incubus of
separate schools, and we have been referred
to a resolution that was passed by the Territorial Assembly in October 1889, asking
that a humble address be presented, praying that an Act be passed to repeal subsection
1 of section 14. True such a resolution was passed in 1889, but let me draw
attention to a resolution which was passed
in 1890, the following year. In that year
the following resolution was passed :
Moved by Mr. Richardson, seconded by Mr.
Brett, that whereas on the 29th October, 1889,
this House passed the following resolution, viz:
Resolved, that an humble address be presented to His Excellency the Governor General
in Council, the Senate and the House of
Commons praying that an Act be passed
amending the Northwest Territory Act by repealing subsection 1 of section 14 after
the
word 'education' in the second line.
And whereas such address was duly presented
by way of memorial passed on the 6th November, 1889,
And whereas no action has been taken on the
subject by the parliament of Canada;
Therefore, be it resolved that this House reaffirm the vote as taken on the said 29th
October, 1889, and respectfully request that the
said memorial as above mentioned shall receive careful consideration by the parliament
of Canada at its next session and that a copy
of this resolution be forwarded to the Secretary of State.
With time and consideration came wisdom. That resolution was put to the House
and how did it result ? Six voted in favour
of it, and 15 against it. And there this
agitation with respect to the repeal of the
provisions of the Act having reference to
separate schools ended, and we have heard
nothing of it since. And of course, the
present Prime Minister of the Northwest
Territories, Mr. Haultain, voted against the
resolution and in favour of maintaining the
present condition. But that is not all ; we
have something even more recent. We have
heard quite recently about the extension
of the Manitoba boundaries and the desirability of extending those boundaries has
been dwelt upon. And in that connection
we have heard references more forcible than
polite to a gentleman who is supposed to
have been in some way connected with
5349 MAY 3, 1905
that matter, notwithstanding his formal
denial. But what has that to do with the
school question of the Northwest ? I shall
be asked. Let the draw attention to the
fact that as recently as 1901 a joint debate
took place at .Indian Head, in eastern Assiniboia, between Mr. Roblin and Mr. Haultain
upon this very question of the extension of the Manitoba boundary. Mr. Roblin
put forth the reason why the people of that
little place should declare themselves to be
in favour of the extension of the boundaries of Manitoba, at the expense of the
Northwest Territories, Mr. Haultain, on the
other hand, arguing against the proposition and seeking to convince the people that
it was to their interest to remain in the
Northwest Territories and that the boundaries of Manitoba should not extend westward.
And what, Sir, were the reasons
given by Mr. Haultain to induce them to
resist the blandishments of Mr. Roblin
and to oppose the extension of the Manitoba
boundary ? The joint debate is reported in the Regina 'Leader' of January 20,
1902, and Mr. Haultain's argument is
summed up in these words: 'Good roads.
Railways. Schools. Water.' Referring to
the school question, he says :
With the school system you are fairly well
contented. so I need not dwell upon the subject.
I said a moment ago that I expressed no
opinion as to the relative merits of public
and separate schools. Not because I entertain any doubt myself as to the proper
system of education, or as to the necessity
for religious teaching in our schools; not
because I do not believe in the voluntary
school, for, undoubtedly I do believe in
that school, because I think that school is
the only school consistent with absolute
freedom of conscience for which I have always stood. As for the common school,
bringing all the children together, so that
there may be uniformity, I have very little
to say. My view has been that the individual ought to be developed. I do not
want uniformity any more than I want
monotony—both stand practically in the
same light, so far as I am concerned. I
believe in the development of the individual
as I believe in the doctrine of self-help.
Perhaps, later on, I may have occasion to
say a few words more about that doctrine.
I argue that what was said and done in
1875, what was said and done in 1876, and
in 1880, and 1885, and 1894, puts upon this
parliament the imperative obligation to give
effect to the promises and pledges then
made. In 1875, Hon. George Brown, when
section 11 of the Act of the Northwest Territories of that year was up for consideration
said :
The moment this Act passed and the North-
West became a part of the union, they came
under the Union Act, and under the provisions
with regard to separate schools.
5350
It is true that Hon. George Brown was
not a lawyer, but he had taken a prominent and important part, a part, perhaps,
second to that of no one else in the confederation debates, and he must be presumed
to have understood the meaning of the
British North America Act. He said that
if the Act of 1875. which contained section
11 guaranteeing separate schools to the minority in the Territories, were allowed
to
continue until the Territories came into the
union, then those schools became part of
their constitution. Not only was that the
view held by Hon. George Brown, but
Mr. Dalton McCarthy, in 1894, speaking of
the clause relating to separate schools,
which he wished to have repealed, said:
Now, we insist by the clause of the Act of
1875, which has been included in the various
consolidations of the legislative powers of the
Northwest Territories which have been made
from time to time, that they shall have separate schools, and it we continue insisting
that
that system shall prevail up to the time we
create provinces in the Northwest, then the
application of this clause of the first subsection
of section 93 of .the British North America Act,
to which I have referred, rivets for all time
upon the new provinces the system of separate
schools.
Therefore we have the opinion of Hon.
George Brown, confirmed by that of Mr.
Dalton McCarthy, that if the system of
separate schools exists in the Territories
at the time when they came into the union
as provinces, that system becomes part of
their constitution and we cannot interfere
with it.
Mr. FITZPATRICK. Possibly. But it
seems to me that I have gone several times
through all the debates on that subject and
do not recall reading any withdrawal on
his part. It may have escaped my attention—
Mr. FIELDING. Does the hon. gentleman (Mr. R. L. Borden) mean in the same
debate ?
Mr. R. L. BORDEN. Yes, a little later
on. Speaking purely from recollection, in
answer to Sir John Thompson, he did withdraw it.
Mr. FITZPATRICK. I saw that part.
It is not a withdrawal—at least, that would
not be the construction I would put upon it.
Some days ago, the work of Mr. Clement on
the constitution was quoted by the leader
of the opposition against the position of
the government. Mr. Clement, of his own
motion, without being solicited wrote to
me on March 10th. in a letter in which he
inclosed a typewritten document headed
'The Legal position of a new province as
to education, in which he deals with this
question. He says in part:
5351
COMMONS
1. The federal parliament cannot create a
new province with an area or legislative power
greater or less than that assigned to the original provinces by the British North
America
Act.
2. follows that section 93 of the British
North America Act—the clause defining the
legislative jurisdiction of the provincial assembly over education—must, proprio vigore
and
without possibility of amendment by federal
legislation be operative in any new province
immediately upon its creation as a province.
3. Therefore, if there should be at the time
when a new province is established which is,
in my opinion, the meaning of the words 'at
the union' in section 93, any right or- privilege
in respect to denominational schools existing
by law there, such right or privilege shall be
protected by section 93.
Now, Mr. Clement, without hesitation, declares in the same sense that Mr. Dalton
McCarthy did, namely, that if there are
separate schools in existence in the Northwest Territories at the time these Territories
come into the union—that is to-day
these separate schools are entitled to the
constitutional protection afforded by section 93. There is the opinion of Mr. Clement.
who was quoted against me the other
day by the leader of the opposition.
May I now deal for a moment with the
amendment of my hon. friend the leader
of the opposition? I have attempted to
make the position of the government absolutely clear, would it not now proper
for us to know exactly what the position
of the leader of the opposition is? Is it
the intention of the leader of the opposition
to ignore existing conditions. and public on
gagements resulting from the legislation of
the past in this House. and the speeches
made in explanation and support of them ?
Is it his intention to say to the Roman
Catholic minority of the Northwest Territories that they should not have that protection
that other minorities in all the
provinces of the Dominion now have ? I
have read the amendment naturally with
care, and I must confess that l have been
at a loss to understand exactly his position
on that point.
Now I will deal with one or two of the
minor criticisms that have been offered
against this legislation. It has been made
a matter of reproach to the government
that we did not declare our policy on this
school question before the last election.
Our policy, the policy of the Liberal party,
was absolutely clear. it was not necessary
for us to make any declaration; our policy
was to follow the law in the letter and in
the spirit; our policy was to give eifect to
the legislation introduced in 1875 by the
great leader of the Liberal party, the Hon.
Alexander Mackenzie and supported by
Edward Blake. to give effect to that
policy by our legislation. What about the
opposition? Did they declare their policy
on this question when they went up and
down the country discussing the question
5352
of autonomy for the Northwest Territories ?
Did they declare what their policy was
with respect to separate schools? I have
yet to learn that they did. But I think
it would have been somewhat embarrassing
to them to do it. in view of the spectacle
we have had in this House during the last
few weeks. They would have had one
policy for Ontario and another policy for
Quebec; and as to the policy in the other
provinces, I leave it to the imagination of
each one to conceive what it might have
been.
Now another criticism that has been made
is that Mr. Sifton was not consulted about
this Bill. Mr. Speaker, I have little to add
to what I have already said incidentally on
that subject. I can say now that Mr. Sifton handed to me personally a draft Bill
as prepared by those who represented the
Northwest Territories, and that on that
Bill were notes written in his own handwriting with respect to this question of
schools. which I understood is the only
question that we differed about. I have
the notes here, which I will read:
Make memo of present provisions in law relating to the Northwest Territories as to
public
schools and provisions in other constitutional
Acts.
Beyond that, I never had a conference
with Mr. Sifton, beyond that, he is in no
respect responsible for section 16 of this
Bill. Now I have endeavoured at all times
to shut my eyes and to close my ears to
the idle chatter which we hear in the
streets; I have endeavoured at all times to
ignore the professional maligner who goes
about for the purpose of endeavouring to
create disturbances between friends. So
far as I am concerned—I speak out openly,
I have nothing to hide. nothing to be afraid
of, either here or outside—I say that the
honest differences that have existed. if any
have existed, between Mr. Sifton and myself with respect to this Bill, are differences
which any two self-willed and perhaps
rather strong-minded men might have.
But they have never extended beyond that.
and any man who says they have, any man
who, either in this House or out of it, says
anything to the contrary, says what he
knows to be untrue.
Now there is another point to which I
wish to refer. A criticism has been offered as to the composition of the subcommittee
that was appointed by the government to confer with the representatives of
the Northwest Territories with respect to
the provisions of this Bill. I would like to
say that it is somewhat embarrassing to
answer the charge that a man should not
be Minister of Justice, or form part of
that committee because he happens to be
a Roman Catholic. The Prime Minister was
a member of that committee. Was it improper thnt the Prime Minister should be
a member of this important subcommittee?
5353 MAY 3, 1905
Is it proper that the Secretary of State, the
official channel of communication between
thls government and the government of the
Northwest Territories. should be a member
of that committee? Is it any crime in him
that he should be a Roman Catholic? Was
it proper that the Minister of Justice should
be a member of that committee? I am
technically responsible for the drafting of
this Bill. Was it not right that I should
have an opportunity to consider the representations of those who were the delegates
of the people of the Northwest Territories,
in order that I might know how to draft
the Bill ? I won't say that it is not my fault
that I am a Roman Catholic, because it is.
That sort of criticism, it seems to me, may
well be described as the small change of
parish politics.
Now a reference has been made to an
opinion expressed by me long ago about
the elementary schools in Quebec. I did
criticise the elementary schools in Quebec,
because I thought they were bad. I told
the people who were interested, and upon
whose votes I depended for my election,
that I thought their schools were bad and
they ought to improve them. They have
set about improving them. But let me
draw the attention of the House to this
fact, that the elementary schools I criticised
are not the clerical schools of the province
of Quebec, they are the schools that are
under control of school trustees, which
trustees are elected by ratepayers—those
are the schools that I criticised. The clerical schools of the province of Quebec
are the
colleges of that province where the Catholic
members from that province were in large
part educated; and without saying anything in favour of the system of education
in the province of Quebec—you have heard
some of our French colleagues from that
province speak in this House, and may I
not say of the school system that produces
the men who represent that province, and
the men who made these speeches: Justificata est Saipientia e fillis suis.
Now, Mr. Speaker, after having apologized
for trespassing so far on the attention of
this House, I want to say a word in praise
of the calm and dignified attitude in the
present circumstance of the people of the
province of Quebec, that much maligned
province which was said to be so deficient
and backward in the cause of education.
Take the facilities for higher education
offered by Laval University, and you shall
find that the blessings of a liberal education
are brought within the reach of a poorer
class of people in the province of Quebec
than is probably the case in any other country in the world. There are no great endowments
to make fees a matter of slight
consequence. but the spirit of self-sacrifice
is abiding tradition within its walls, and
its doors are open to all-comers because its
professors are content to work for a mere
pittance.
5354
On the other hand, nowhere has private
wealth recognized its public duties with
greater generosity than in that province.
It is not necessary to recall in the presence
of the members of the Canadian House of
Commons the names of the men whose benefactions have endowed McGill University
with the revenues of a principality.
We must all admit to-day that the hammer
stroke that drove home the last rivet in the
last rail in the line which now unites the
west and the east with a band of iron did
something more than complete one of the
greatest engineering feats of the kind. It
put an end to the old era in which Canada
was a mere geographical expression for a
number of sundered and mutinous and sometimes squabbling provinces, and it gave to
the conscious nation what it shall ever show
in the face of trial—a backbone of steel.
This scheme originated in the province of
Quebec and was carried to a successful completion by men from that province. I shall
not attempt to forecast the future, or to
say what fate Heaven holds in store for the
people of the Northwest Territories—a people so blessed in the past, and so greatly
expectant of the morrow, and so truly the
heirs of the best that the old world had to
give. The earth and the riches thereof is
stretched out before them, inviting them to
the work of developing to the utmost the
resources of their great inheritance, and the
task may well oecupy the noblest energies
of their children and of their children's
children.
But if they look back to the small beginnings of Canadian history they shall see that
fidelity and constancy have been the conspicuous qualities in the characters of both
the great stocks from which the Canadian
people are mainly derived.
It may, therefore, be inferred without rashness that they are not likely to run after
strange fads, but rather to stand in the
ancient ways, true to the principles of justice and fair-play, and not likely to be
driven
by stripes or attracted by even the most
brilliant stars as I have heard it sometimes
suggested; but instead thereof, a free and
contented people, to work out their destinies
in these young provinces under the benign
influence of the generous, equitable principles of the Canadian constitution.
At six o'clock, House took recess.
After Recess.
The House resumed at eight o'clock.
Mr. S. BARKER (Hamilton). Mr. Speaker, in the remarks I am about to make I
hope I shall be able to avoid everything
which may have the appearance of what
some hon. gentlemen opposite call intolerance. I may say that I have never yet
heard one remark from a member on this
side of the House that deserved such an
epithet. I am glad to be able to say that
5355
COMMONS
not very many hon. gentlemen opposite have
taken that line in this debate, but there are
some gentlemen who have seemed unable
to make allowance for honest difference of
opinion, or to understand that gentlemen
on this side of the House may advocate
national schools without inflammatory intention and without being firebrands. It
has been some relief to us, that of those
who have made such charges the majority
are not from the province of Quebec as
perhaps we might naturally have expected
to find them. If we had heard some such
remarks from hon. gentlemen from that
province we might perhaps have made some
excuse for them treating the matter
somewhat hotly from their point of view.
But these remarks have been rather from
the members from other provinces, and I
have noticed that they have come from some
gentlemen on the other side of the House
from whose records in the past few years
we might have expected that they would
have been inclined to be silent on such a
subject. When I listened to some of these
gentlemen casting such epithets across the
floor and charging hon. gentlemen on this
side with being firebrands, I was reminded
of the old Jacobite toast :
'Down with the Pretender ; God save the
King ;
But which is Pretender and which is
King ?
God save us all, that's a different thing.'
I do not propose, Mr. Speaker, to discuss
the question of religious education. If I
did so I should be disposed to deal with it
not as a question of creed or race. I do not
see why it should be a question of creed.
The feeling in favour of religious education
in the schools is not confined to any one
church. In the Church of England, especially in the old land, there is a very strong
feeling in favour of religious education ; I
venture to say there is quite as earnest and
strong a feeling on that subject among the
clergy of the Church of England as there
is on the part of the clergy of the Roman
Catholic Church. There is surely a great
deal to he said in favour of it. Is there
anybody who will deny that even in this
prosperous land and in perhaps every province of it, there are thousands upon thousands
of parents utterly incompetent and
unfit to give to their children teaching in
the most rudimentary elements of Christianity ? There are many parents who
are utterly indifferent to religion, and
there are others whose unfortunate
circumstances prevent them doing what
otherwise they might be willing to
do. Well, Sir, sometimes we hear
as regards the children of these parents,
the rather light remark : Why not send
them to the Sunday schools. But the
classes of people to whom I allude are just
those who will not send their children to
the Sunday schools so careless and indifferent are they. Those children then cannot
5356
receive any religious education there, and
is it to be wondered at that zealous men
who believe it is their calling and duty to
find the children where best they can to
impart religious instruction to them, are
glad to seek them in the only schools where
such children can be compelled to attend.
Under these circumstances it is neither
just nor fair to scoff and sneer at those
who feel so strongly upon this subject. But,
at the same time there is a great deal to
be said on the opposite side of the question
and whether we are in favour of national
schools or in favour of religious teaching
in the schools, we surely ought be able to
discuss our difference fairly and to avoid
charging each other with intolerance or
bigotry because we take one side or the
other.
In my opinion the question of religious
education or separate schools is not at all
for this parliament: the question lies, in my
judgment, solely with the people of the provinces who are immediately concerned.
Moreover, I agree fully with the hon. member for South Toronto, when he said that
it is in the true and lasting interests of the
minority that the matter should be left to
the people of the new provinces. I believe
that separate schools should exist by force
of law only when that law emanates from
the people among whom it is to be enforced.
If the people themselves grant the right,
let it be so and let the privilege be maintained. But if this parliament should impose
such schools on the provinces, it is
in human nature to resist and obstruct.
and you will find that that which a free
man will give of his own accord he will
never grant under compulsion. I might
quote on this subject the great writer, Macauley, who has said :
There are two ways to govern a people; one
by public opinion, the other by the sword.
The right hon. the Prime Minister appears to distrust the people of the west and
he is forging a sword with which to
coerce them. He has in this Bill, most
carefully prepared, and to a great extent
carefully concealed, a sword that will be
more dangerous to the freedom of the
people of the new provinces than ever the
coercion Bill was to the people of Manitoba.
I commend to the right hon. gentleman the
language of his Finance Minister, showing
what Catholics enjoy in Nova Scotia where
there is no separate school law. The Minister of Finance told us in most glowing
terms how happy were the circumstances
in Nova Scotia, where Catholics and Protestants live in harmony, and without
compulsion of law but exercising goodwill and freedom among themselves.
have a system of separate schools far better—according to his description—than any
we know of in any province in this Dominion where separate school laws exist. I
would also commend to the Prime Minister
5357 MAY 3, 1905
the language used by his Minister of Inland Revenue, when that gentleman in
speaking of the wisdom of trusting to the
generosity and fair-play of the people, he
applied that in answer to a supposed argument that this law could not be enforced
and he said : You may trust to the generosity, and it is wise to trust to the generosity
and fair-play of the people. Well, if that
be so, why not trust the people of the west.
Does the Minister of Inland Revenue suppose that he is going to approach this people
with any hope of success when he only
half trusts them ?
Is he likely to get a people to treat him
with generosity when he goes to them with
a clenched fist and in effect says to them, I
ask you to do this, but if you do not do it,
I will make you do it? That is the sort
of trust the hon. gentleman seems to wish
to indulge in.
As I have said, I propose to confne my
remarks to the educational feature of the
Bill, and I think it is well to consider at
the very outset what is the real basis of
the constitution as regards education. The
subject of education is wholly dealt with in
section 93, and its subsections, of the British
North America Act of 1867. In my opinion
that section was intended to be a fnal and
conclusive settlement of all controversies on
the subject of education in this Dominion.
It was intended to put an end once and
for ever, if possible, to such wranglings and
bickerings as had been so hurtful to the
old Canadas and their peoples. The methods
laid down to accomplish this may not have
been in every respect and to the minds of
some men the very acme of wisdom and
statesmanship ; but they certainly were the
result of the earnest and loyal efforts of
the best minds of that day, and they are
the law, and as such should cheerfully and
in all loyalty be respected even though
there are here and there some men who
may see what they would like to have
otherwise. I do not wish to be understood,
Mr. Speaker, as in the remotest degree
questioning the wisdom of that Act of 1867,
in any particular, nor as finding fault with
any clause or word in section 93. That
clause dealt with a dfficult subject in, as I
believe, a most comprehensive manner, and
it would be most presumptious in me or I
think in any man of the present day to
say that he could have suggested any better
method of accomplishing what was accomplished by that section. The men of that
day were old and practical statesmen, full
of experience, alive to every danger, to
every difficulty, and to every obstacle in the
path of the aspirations of a people who,
whatever their differences of race or creed,
had in clear view a great Canadian nationality, one, undivided and inseparable. They
endeavoured to lay down a basis, a guiding principle, as to education generally, and
as regards separate schools in the various
5358
provinces. They endeavoured to do this.
in my opinion, not only for the four original
provinces of the confederation, but for
other provinces which should come in, and
for new provinces which might be created
out of Territories taken into the union. In
my opinion, provision was made, and wisely
made, for every province, no matter when
or how it should become a province. Once
it became a Province, however, the law
as laid down in section 93 and its subsections at once applied. We fnd running
through section 93 and its subsections one
clear principle, that education is a subject
for provincial legislation—that in no way
whatever is education under any circumstances a subject for Dominion legislation
except by way of appeal under the remedial
clause. That is the principle throughout
the whole clause and the subclauses. Read
the main clause, and read every subclause,
and you will see nothing but that from beginning to end. The provincial power in
reference to education, it is true, contains
certain restrictions and conditions, but
these conditions always relate to provincial
status; they relate to no other status
whatever; and it is quite clear that if any
one or more subclauses do not apply to a
particular province, that does not confer
any jurisdiction upon the Dominion parliament. The only effect is that the province
can exercise power without being hampered
by such subclauses. I therefore contend
as a necessary result that parliament can
neither legislate as to education, except in
case of. appeal, nor can it add to or detract
from or vary in any way the conditions on
which provinces have authority to legislate. We have questions bandied back and
forth across the House as to what some
particular gentleman of the legal profession
thinks about the application of a certain
clause. But why ask such questions ? The
answer may be right or it may Ibe wrong.
We can neither make it right nor make
it wrong. If a subclause does apply in a
particular case, we cannot prevent it applying. If a clause of its own strength does
not apply, we cannot by any Act of this
parliament make it apply. We have no
authority to interpret. Therefore why
should we do more than apply the law as it
is? Apply the British North America Act,
and you thus apply section 93 subject to
its subclauses; and that would mean that
wherever one or more subclauses did
effect a particular province, it took its
powers of legislation subject to such
subclauses alone. The rule established was that a province should have,
full power, subject only to this, that what
in the exercise of its own representative
functions it once gave, that it could not
take away. As to Territories, I may point
out that while the British North America
Act. 1867. deals with both provmces
and Territories, section 93 and its sub
5359 COMMONS
clauses are strictly confined to provinces.
Now, I ask, was this accidental ? I say no.
That Act was contested and scrutinized in
every line. If I recollect aright the British
North America Bill was printed fve times,
and on every occasion it was thoroughly scrutinized and contested. There were men
on
both sides of the question. Quebec was
strongly represented by men who had the
interest of separate schools at heart. I
think it is not too much to say that those
gentlemen would have given a very careful
attention to everything that might possibly
affect the rights of their friends in the
Territories; and yet, with all that care
and oversight, there is not one word put in
section 93 or its subsections relating to Territories; and why? For the very reason,
the principle, that runs through the whole
of section 93 and its subclauses ; because a
territory has no representative; it has no
power; it could not bind itself. A province
could pass laws and could repeal or alter the
laws, but they wanted to lay down the rule
that a province having once given privileges
in the nature of separate schools or religious education, should be debarred from
ever withdrawing them, or, where they had
the power of repeal, as in some cases they
had, and to repeal, or amendment, the privileges so granted should be affected,
or if by any act of authority, they
should be affected, then in such cases
the Dominion should have the power
to grant remedial laws. But no such
application of the principle is made to a
territory or to anything that occurs during
the territorial period. There is no pretense
from first to last that anything done on
behalf of a territory by the Dominion shall
bind it when it becomes a province. There
is an absolute exclusion of everything relating to the territorial period from section
93 and its subclauses. But it is quite
clear to my mind that the moment any province is either united, or established, at
once the law as to education comes into
operation; and as to that province section
93 and its subclauses apply, though it may
be that under the conditions only one of the
subclauses may apply to the particular province, and that only on the happening of
future events.
I think it may be useful, even after all the
discussion we have had, if I should refer to
the circumstances in which the several provinces stood at the time of confederation,
and how this clause 93 and its subclauses
affected them. The four original provinces
in confederation were the two Canadas,
and New Brunswick and Nova Scotia. Ontario and Quebec (the two Canadas) were in a
different position from
any other. Both those provinces had,
in the exercise of their legislative functions, by-laws of their own legislature established
separate schools. It was therefore
considered right and just that those who had
acquired, by the free will of the people of
those provinces, certain privileges with re
5360
gard to education. should not afterwards
bedeprived of them.
Section 93, the main clause. which confers
the power on all provinces. is in these words:
In and for each province the legislature may
exclusively make laws in relation to education,
subject and according to the following provisions.
Then, comes the first subsection, which is
the strongest and most effective of all the
subsections, for a statute passed contrary
to it is null and void.
(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.
Clearly, that section applied to both Ontario and Quebec because such rights or
privileges existed in those two provinces at
the union, and it has such effect that if any
attempt were made by either Ontario or
Quebec to repeal or impair those rights or
privileges that attempt would be ultra vires
and the law would be null and void. That is
the special feature of that subsection. and
that is an important thing to bear in mind
when we come to consider what my hon.
friend the Minister of Justice is proposing
with regard to these new provinces, because
it is that section, altered for the occasion.
which he uses and applies to them.
The second subsection of section 93 I
need not read, because it applies in its very
terms to the provinces of Ontario and Quebec alone.
The third subsection is as follows:
(3) Where in any province a system of separate
or dissentient schools exists by law at the
union or is thereafter established by the legislature of the province, an appeal shall
lie to
the Governor General in Council from any Act
or decision of any provincial authority affecting any right or privilege of the Protestant
or
Roman Catholic minority of the Queen's subjects in relation to education.
That clause also applied to Ontario and
Quebec, and was intended to protect the
minority in those provinces against any attempt to impair by any act or decision of
authority, the privileges they had been
granted.
The fourth subsection is simply a remedial
clause, which enables this parliament, in
the case of an appeal under subsection 3 to
do justice in the premises. Â
So you see that, as regards Ontario and
Quebec, section 93 of the British North
America Act of 1867 and all its subsections
apply, but the other two provinces of Nova
Scotia and New Brunswick were in a different position. Neither of those had denominational
schools at the time it entered
confederation. Therefore, subsection 1 could
not possible apply and never can apply
to either of them. They have not established separate schools to this day, so that
subclauses 3 and 4, in fact none of the subclauses have come into operation with regard
to them ; but one part of subsection 3
5361 MAY 3, 1905
will come into operation the moment either of those procinces hereafter grant separate
schools and afterwards, by any means, attempt to interfere with the privileges so
given. Thus you find the full protection of all the subclauses afforded those two
provinces of Ontario and Quebec. And the protection of 3 and 4 is fiven to the other
two provinces.
But the Act contemplated that three
other provinces should be brought in,
and these would be in; a different
position from New Brunswick or Nova
Scotia. These three provinces were
British Columbia, Prince Edward Island
and Newfoundland. I need not deal
with Newfoundland, as it has never come in
yet, but Prince Edward Island and British
Columbia were in this position. They were
not, like New Brunswick and Nova Scotia,
coming at once into confederation. It might
be that before they did come in they would
pass separate school laws; and, in that
case, they would be in the position of Ontario and Quebec, and come into the union
with school laws already in existence. Then,
in my judgment, the whole of the four
clauses would apply to them just as they
apply to Ontario and Quebec. But they
might come in and afterwards pass such
laws. and then the subsections 3 and 4
would apply. So that, as to all these provinces the greatest care was provided for
every possible interest and for every variety
of condition as to the province, consistent
with this principle, that no province was
bound to anything with regard to education,
there was no limitation of the general
power under section 93, which was not the
result of its own free action.
In addition, it was contemplated that we
should take in the Northwest Territories,
but there is not a word in this section about
the Territories. However, in my opinion,
whenever a territory in the Dominion is
erected into a province, the provisions of the
British North America Act with regard to
education, as affecting a province, will immediately apply according to the circumstances.
Thus if we establish Alberta as a
province in July next, subsection (1) cannot
apply, because the terms of that subsection
are not applicable to the case, and we have
no authority to change the British North
America Act to make it fit any special case.
The territory was taken into the union in
1870. We are establishing it as a province
in 1905. The words of subsection (1) do not
provide for such a case, and however reasonable it might be, we cannot make them applicable.
But if after attaining its provincial status, Alberta should pass laws creating separate
school privileges, it will be
bound by the general rule, and having thus
of its own will granted the privilege, anything it may do thereafter to affect it
will
subject the province to the remedial operations of subclauses 3 and 4. There is
nothing in the whole Act from beginning to
5362
end to show that there was any intention
or thought in the mind of any person that
anything that might be done in the Territories, under the authority or dictation of
this Dominion, should bind or affect them
as regards section 93 after they became a
province. So it seems to me that throughout that statute the most careful provision
was made for every privilege conceded by
a province through its own legislature. As
to such privileges, and those only the minority was protected.
A good many hon. gentlemen opposite
have endeavoured to argue that the territory
is in some way bound by what has taken
place in the last 30 years, that rights
granted by this Dominion should be regarded as if granted by the Territories in the
free exercise of representative institutions
and that when a province comes into being
it should be restricted and bound by what
this Dominion has done. Well, Mr. Speaker,
I look upon it in this way.
These Territories are in the union; they
have been in the union since 1870. From
the moment they entered the union they
were entitled to the rights and privileges
of the British North America Act, but they
had no power to exercise those rights until
they attained the provincial status. The
moment they attained that status they would
be able to act and to bind themselves; but
until then they were not bound by anything
that might take place. It seems to me that
the Territories were very much in the same
position as a young man who is entitled to
an estate with the right to enter into
possession when he is twenty-one years
of age—he is always possessed of his
property, it is his and he is entitled
to it, but he cannot exercise his rights
with regard to it until he has attained
manhood, he cannot even detract from his
own rights, cannot encumber his property,
but the moment he comes of age he attains
all power to do with his property as he
chooses. So it is with a territory. The
territory until it arrives at maturity, cannot
speak for itself or act for itself, and it is
contrary to the very principle of the Act we
are dealing with to hold it down to what has
been done without its own consent. Now,
hon. gentlemen opposite wish to treat these
Territories as bound by subsection 1, that is
to treat them as a province now entering
the union, on the 131: of July, 1905, with
laws as to education in force. Well, if subsection 1 applies, why not say so ? Why
not
apply it and let us see how far they are
bound by it ? But could there be any
stronger evidence of the fact that it is not
applicable than the care the Minister of
Justice has taken to alter the section to fit it
to the facts ? If the hon. gentleman thought
that the subsection 1 really did apply, he
would only have to say: 'Subsection 1 applies to the province.' This is a very small
subsection, though a very powerful one. It
has only thirty-one words. The hon. gentle
5363 COMMONS
man takes out nine words, and for these he
substitutes thirty-six words and says: There
is subsection (1) of the British North America Act. And it is done so gently. Why,
he
simply says that Nos. 29 and 30 of the ordinances shall be the basis of that section,
and that the union shall be assumed to have
taken place on the 1st of July, 1905— a union
that took place thirty-five years ago. He
changes the date of union simply in order to
enable him to say that there are separate
schools in existence on the lst of July, 1905,
while if he said that the union was on 1st
of July, 1870, he would have had to admit
there were then no separate schools.
There is a feature of this change to which
I desire to call special attention. When the
hon. gentleman succeeds in getting his new
subsection 1 made the law as to Alberta and
Saskatchewan, these two provinces will be
in a different position from any other province in the Dominion that has entered since
confederation, and also from New Brunswick and Nova Scotia. I think the Minister
of Justice will not deny that. Alberta and
Saskatchewan, the moment this law comes
into operation, will not have the same freedom as others; they will be more strictly
bound than Prince Edward Island, Nova
Scotia, New Brunswick, Manitoba or
British Columbia. And I will explain why.
If any one of these provinces should hereafter
choose to pass a separate school law and
later on find that law objectionable and desire to amend it in a way that would affect
some privilege previously granted, what
would be the remedy of' those aggrieved ?
Such a province might be quite willing to
enact a separate school law knowing that it
had the right to repeal that law, and knowing
that the risk it ran through that repeal is
that there might be an appeal to this Dominion parliament for remedial legislation,
and it might be willing to take that risk of
what this Dominion would do. But what will
be the case with Alberta and Saskatchewan?
They are put in the position of being bound
by subsection 1 to retain all the provisions
of ordinances 29 and 30 which give any privilege to the minority. Any Act they might
pass to curtail one single privilege granted
under ordinances 29 and 30 would be ultra
vires. It would not be necessary to come
here for a remedial law; but the cabinet,
sitting in chambers, would disallow the
amending Act and put an end to it. It is a
much more skilful system of coercion than
was ever attempted upon Manitoba. There
is no question as to the effect of it. If I
am wrong, I should be glad if the
Minister of Justice will correct me
now. I doubt if there is an hon. gentleman
on the other side of the House who ever
believed that in approving of the proposed
amending clause he was changing the whole
basis of the law and putting Alberta and
Saskatchewan in a worse position than any
of these provinces to which I have referred.
The right hon. Prime Minister (Sir Wilfrid
5364
Laurier) is absent, but had he been here, I
would have asked him how it happened that
when he explained this Bill he did not point
out to the House this very material change
he proposes in the condition of these provinces from that of the other provinces I
have mentioned. I am not aware that the
First Minister said one word upon that subject. I doubt whether any hon. gentleman
on the other side understood that the law
was being so changed that it would be ultra
vires for Alberta or Saskatchewan to pass
any law to alter any privilege under ordinances 29 and 30. Why, fancy the position
of these provinces. Here, for example, is an
ordinance providing for the formation of the
Board of Education. That board must have
exactly five members, of whom three must
be Protestants and two Roman Catholics.
The province cannot alter that, but it must
have always three Protestants and always
two Roman Catholic on this Board of Education, or one party or other may say that
their rights are being invaded. You must,
for all time, have neither more nor less. The
Minister of Justice was just about right
when he said that he intended to have no
doubt about the position. I think there can
be no doubt of it.
Now the Minister of Justice went through
the several addresses. I do not intend to
follow him at any length, but in order that
i may state clearly my point of view, it
is necessary that I should follow him very
shortly. Under section 146 of the Britsh
North America Act, provision was made for
taking in provinces and territories. There
was this distinction between taking in a
province and taking in a territory. A province was to be taken in upon an address
of the legislative assembly of the province
and of the two Houses of this parliament.
But inasmuch as a territory had no legislature, it was provided that a territory
should be taken in on an address of this
parliament alone. Well, in 1867 the two
House of Parliament did address Her
Majesty and ask that the Territories should
be taken into the union. The hon. gentleman went on to read an Act of 1868
and other matters, at some length, but
I do not see that they have any bearing
whatever upon the question that we are
discussing; probably his object was to give
an historical narrative of what took place.
The fact was that after the address of
December, 1867, there was delay owing to
the negotiations pending to buy out the interests of the Hudson Bay Company, That
caused delay, but in course of time the
purchase was made, and again in 1869
our address was renewed. I will read
a word or two from that address. It
prayed :
That under section 146 of the British North
America. Act, 1867, and the provisions of the
imperial Act, 31 and 32 Vic., Rupert's Land and
the Northwest Territories might be united in
the Dominion as prayed for by and in the terms
5365 MAY 3, 1905
and conditions contained in
December, 1867.
On the 23rd of June, 1870, an imperial
Order in Council was passed, and as was
pointed out by the leader of the opposition,
that Order in Council has all the effect or
an imperial Act of parliament, by virtue of
the British North America Act. Now that
order recited the Act of 1867 which provided for the admission of Rupert's Land
and the Northwest Territories into the
union on terms and conditions expressed in
the address, subject to the Queen's approval
and to the provlsions of the British North
America Act. The order enacts that from
and after the 15th day of July, 1870, the
Northwest Territoiries shall be admitted into
and become part of the Dominion of Canada upon the terms and conditions set
forth in the address. Now what could be
more distinct than that Order in Council,
which is virtually an Act of the imperial
parliament ? On the 15th day of July, 1870,
the Northwest Territories became part of
the union; and yet we are told that that
union has not yet taken place. In order to
effect the purpose of applying subsection 1
to the new province the minister has, as I
have already stated, been compelled to treat
the day of union as of the lst day of July,
1905. To show that not only in Orders in
Council, but in our own statutes, the fact
was recognized that these were in the union,
let me refer to the Manitoba Act that the
hon. gentleman cited, and 1 think these
words will leave no doubt as to what was
the opinion of the Dominion parliament:
     On and from and after the day upon which
the Queen, by and with the advice, &c., under
the authority of the 146th section of the British North America Act, 1867, shall by
Order in
Council in that behalf, admit Rupert's Land
and the Northwest Territory into the union.
So it seems to me that under no circumstances can there be any question that the
Territories were in the union on the 15th of
July, 1870.
Now, Mr. Speaker, the next Act of the Dominion parliament of any importance in this
matter is the imperial Act of 1871; and I
propose to say a few words on that subject,
because a great many hon. gentlemen opposite, and the Minister of Justice himself,
rely
upon that Act as their authority tor doing
what perhaps under no other Act could he
attempted. The contention is that under
section 2 of this imperial Act of 1871 we can
do just as we please, we can give these provinces any constitution we see fit. If
they
are correct in their contention, we can upset
the whole constitution of the Dominion ; we
can, in the opinion at" some ministers, as was
brought out in a question yesterday, take
the Post Oifice Department and the Customs
Department from the Dominion and hand
them over to the province; we can take
away the power over property and civil
5366
rights in the province and hand that power
to the Dominion.
First of all, I will call attention to what
has been often so said, that the Act of 1886
declares that the Acts of 1867, of 1871 and
1886, shall be construed together. In other
words, you are to read the three Acts as if
they were all in the one statute. Well, put
the clauses of the Act of 1871 into the Act
of 1867, and will any one say that they in
the least affect or alter, the general provisions of the latter Act, or affect in
any way
the distribution of legislative powers between the Dominion and the provinces ?
Let us see what the Act of 1871 says :
Whereas doubts have been entertained respecting the powers of the parliament of Canada
to establish provinces in territories admitted, or which may hereafter be admitted
into
the Dominion of Canada, and to provide for the
representation of such provinces in the said
parliament, and it is expedient to remove such
doubts and to vest such powers in the said parliament :
That is the preamble of the Act. Now,
take clause 2, which the hon. gentleman
thinks enables this parliament to override
the British North America Act of 1867 :
The parliament of Canada may from time to
time establish new provinces in any territories
forming for the time being part of the Dominion of Canada, but not included in any
province
thereof. And—
Here are the words which hon. gentlemen treat as of such vast importance:
And may, at the time of such establishment,
make provision for the constitution and administration of any such province, and for
the
passing of laws for the peace, order and good
government of such province, and for its representation in the said parliament.
Now, Mr. Speaker, if any interpretation
can be put upon that section short
of one which empowers the upsetting
of the whole fabric of the constitution of
the Dominion, surely that limited interpretation should be given to it. What is the
meaning of making 'provision for the constitution and administration' of the provinces.
I suppose the hon. gentleman knows
that in the Bill now before the House there
are some eight clauses making provision
for the constitution of this province, clauses
7 to 14. The legislature of the province
cannot be elected or convened until a constitution is provided. First of all it is
essential that some authority should decide
whether there is to be one house or two
houses, an assembly only, or an assembly
and a senate. Somebody must settle how
many members there shall be in the local
legislature and must provide those various
details which are found in clauses 7 to 14
of Bill 69 with which we are dealing. That
is what is intended by providing for the
constitution of a new province. Without
such provision the provincial legislature
could never get to work, there would be no
5367 COMMONS
legislature, there would be no means of
creating or electing a legislature. The
representation of the province in this parliament had to be settled. All these are
constitutional details relating peculiarly to the
particular province, and in no way affecting
the relations of the provinces to the Dominion. Such provisions were necessary to
constitute a province, but does it follow because you must make such provisions to
enable a province to set up housekeeping, to
get to work. that that necessarily involves
a power to upset the whole basis and foundation of confederation as to relations between
the provinces and the Dominion?
Surely not, and the Minister of Justice
surely knows that not only do we give
them merely such a constitution as I
have described, but that at the very first
meeting of the new legislature they can
themselves amend what we so give, and if
they please can make a new constitution.
This is not a matter of opinion, it is settled
by statute. Let me read section 92 of the
British North- America Act, 1867.
In each province the legislature may exclusively make laws in relation to matters
coming within the classes of subjects next
hereinafter enumerated, that is to say :
1. The amendment from time to time, notwithstanding anything in this Act, of the constitution
of the province, except as regards
the office of Lieutenant Governor.
That shows clearly what in the Act of
1871 is meant by provision for the constitution of a province. It means simply authority
to so constitute the province that it may
elect a legislature and have a working and
administrative organization. There is no
foundation for the extravagant notion that
this parliament, for the purpose of establishing one or two provinces out of the
Northwest territory, was given power to
overturn the whole scheme of confederation
as regards legislative powers. You might
as well say that under section 92, subsection
1, the province could upset the distribution
of legislative power under the British North
America Act as to say that this parliament
can do so under the Act of 1871.
The Minister of Justice went on to read
the next part of clause 2 of the Act of
1871 :
—and for the passing of laws for the peace,
order and good government of such province.
The hon. gentleman actually read this as
if this parliament were to make such laws
for the peace, order and good government.
I have quoted the whole section, and it
means only that we are to make provision for a constitution and to make provision
for the passing of laws by the new
legislature. I think the hon. gentleman
knew that as well as I do.
By the fourth section of the Act of 1871,
provision is made for the temporary government of the Territories by this parliament.
That is a distinct clause and gives
this parliament authority to make laws
5368
during the territorial period and until a
province is established. In this case the
territorial period has been 35 years; and
of course it was essential to provide for administration for the time being.
Section 4 reads:
4. The parliament of Canada may, from time
to time, make provision for the administration,
peace, order and good government of any territory not for the time being included
in any
province. Â
What does that mean? Is it not perfectly
clear that this is a temporary provision to
enable this parliament to make laws for
the territory until such time as the province to be created shall have power to
make laws for itself. What more ?
Not for the time being included in any province.
The moment the Territories or any portion of the Territories is established as a
province, our temporary authority ceases.
We could only bind them for and during
that interim period, a period in which they
have been governed very much as a Crown
colony is governed.
We sitting here, by the voice of parliament, and frequently only by the voice of
the cabinet, told them what the laws was to
be and they had to obey during the territorial period. To say that a people so
governed, having no voice in the laws
that apply to them, should be bound for
all time by what we commanded them to do,
seems to me to be absolutely absurd.
There is a further matter in connection
with the Act of 1871, that I call attention
to. When that Act was passed enabling us
to establish provinces in the territory, that
territory was already part of the Dominion,
and was entitled to all rights and privileges
as provided in the British North America
Act. Surely it cannot be contended that as
to a Territory so entitled, this parliament,
in the absence of most explicit words in
that Act of 1871 can pretend to any authority to take away any right or impose any
obligation. In every way you look at it
the intendment of that second section was
to enable us to simply organize new provinces, so that they might pass laws, and
administer their affairs. In support of my
contention that it was never contemplated
that we should be given power to subvert
the constitution, I quote from the Hon. Mr.
Blake, who speaking in 1869 said :
It is perfectly clear on great and obvious
principles that the basis of union settled by
the British North America Act is not capable
of alteration by this parliament.
What language could be stronger than
that ? There you have the declaration of
as eminent a lawyer as ever sat in this
House, that the whole scope of the British
North America Act indicated that parliament should have no power to alter its
terms; and yet under an authority to constitute provinces in the Territories we are
to
5369
MAY 3, 1905
suppose that all that was changed and that we obtained power to subvert that which
Mr. Blake said was not capable of alteration.
The first step as regards education in
the Territories was the Dominion Act
of 1875, section 11. and it was followed by Territorial ordinances passed
in obedience to that Act. Neither the
Act of 1875, nor any of the early
ordinances—at all events those that it
is claimed the minority rely upon—neither
the Act nor the ordinances were the result
of the will of the people of the Territories. From first to last the people of the
Territories had nothing to do with it ; they
were never consulted. The Act of 1875,
was passed by this parliament, and the
ordinances were passed by the Lieutenant
Governor and two or three gentlemen who
formed his executive, all appointees of this
government. These gentlemen passed ordinances that, it is contended by some, must
apply for all time not only to the Territories, but also to the provinces when
created. The Hon. Mr. Dewdney, sitting up
there in 1884, with a couple of gentlemen,
his executive, wrote out 177 clauses of ordinances in obedience to the dictates of
the
Ottawa government, and forsooth, the people
of these Territories are never to be able
to improve or alter their school system. I
have read section 4 of the Act of 1871,
which enabled us to pass the Act of 1875.
The Act of 1875, did not give permission even to the Lieutenant Governor in
Council to pass laws as to education; it
said not you ' may ' create separate schools,
but you 'shall' create separate schools. That
was the beginning of it, and because the
Dominion appointed officers up there—who
probably would have been dismissed if they
did not obey—because they passed these ordinances we are now told that the people
of
the Territories passed them. And today,
when constituting two provinces it appears
we must work such ordinances into their
laws. and discreetly alter subclauses of the
British North America Act of 1807 so that
provincial Acts may be disallowed if they
prejudice any privilege in ordinances 29 and
30.
Let me read clause 8 of the Act of 1875
to show the kind of government that was
exercised over this territory supposed to
be controlled by the free will of a tree people. Clause 8 says :
The Governor General in Council may, by
proclamation from time to time, direct that
any Act of the parliament of Canada or any
part or parts thereof, or any one or more of
the sections of any one or more of such Acts,
shall be enforced in the Northwest Territories
generally or in any part or parts thereof to be
mentioned in the proclamation.
That was the same Act of 1875. which dictated the school laws to the Territories,
and
is it to be supposed that a people governed
under such provisions as that were a free
people exercising their will upon education
5370
or anything else? Surely such a contention is absurd. There is a word or two
from Mr. Sifton that I can quote on that
subject. 0n the 24th of March last the conversion. gentleman in announcing his conversion
to the amendments used these words :
From my standpoint I say, inasmuch as
the Northwest Territories are not a free com.munity, inasmuch as the ordinances passed
are ordinances passed under a limited power,
therefore when they come into the family of
provinces we ought not to apply to them the
principle of observing the status quo, because
the status one was not brought about by their
own unlimited powers.
With regard to the ex-Minister of the
Interior, it will not be forgotten that he
resigned his portfolio rather than accept the
original Bill. As member for Brandon, three
weeks later. he accepted it on the assurance
that clause 16 would be struck out and the
proposed amendment substituted. Now, I
understand his explanation to be that under
clause 11 of the Act of 1875—clause 16 of
the Bill is in substance the same—Orders
in Council were passed giving sectional control of separate schools, Catholics controlling
one set and Protestants the other; that these
ordinances were amended by later ones,
which did away with sectional control;
that on one occasion Sir John Thompson, as
Minister of Justice, had declared a certain
later ordinance ultra vires ; and that he, the
member for Brandon feared, he would not
say actually that. it would be so, but apparently he feared that if the amending ordinances
were ultra vires, the original ordinances would stand good, and so we would
have the old clause of 1875 and the old
ordinances giving Catholics control of Catholic schools, thus establishing for all
time
what he believed, according to his experience in Manitoba, to be a bad system.
That I understood to be his argument, an argument based on the ordinances, because
there is not a word
in the Act of 1875 giving more than a
right for Catholics to have a school separate
from Protestants, and vice verse. I
have just read what he said on that point.
Now, I propose to show, first, that by the Act
of 1875 no right to religious teaching in the
schools was given ; second that if clause 16
remain in the Bill, that in itself would have
conferred no such right—that it went on
further than the clause of 1875 ; third,
that ordinances 29 and 30 are to-day in
force, and contain all] and more than
clause 16; fourth, that under the original Bill ordinances 29 and 30, even as
they are, could have been amended by the
legislature of the new province. Section 15
of the Bill provided that every ordinance
should remain in force until altered by the
legislature of the new province; therefore
if the Bill had been left as it was first drawn
by the Minister of Justice ordinances 29 and
30 would have been subject to repeal or
amendment by the new legislature; fifth [...]
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