House of Commons, 3 May 1905, Canadian Confederation with Alberta and Saskatchewan



WEDNESDAY, May 3, 1905.

The SPEAKER took the Chair at Three o'clock.



Mr. BERGERON asked:
1. Is it the intention of the government or of the Department of Militia to abolish or to reduce the staffs of ofiicers in the militia (cadres de milice) established by His Excellency the Governor General in Council, on the 23rd February, 1904 ?
2. It so, why and when will that change be effected ?
3. What will be done with the officers and non-commissioned ofiicers appointed to complete the staffs that were established on the 22rd February, 1904 ?
4. Is it the intention of the government or of the Department of Militia to create a reserve for each militia corps ?
5. If so. what regulations will govern such reserve ?
Hon. Sir FREDERICK BORDEN (Minister of Militia and Defence) :
1. It is not the intention to reduce the cadres of officers of the militia, but it is the intention to separate into two lists officers and non-commissioned oflicers actively employed and those whom it is proposed should, in the event of field operations, be detailed for work at the base or in raising reserve units.
2. The change is being made in the best interests of the service, and will take immediate effect.
3. They will constitute the corps of reserves, and will be borne upon a separate list to those actively employed. It is hoped that when the central camp of instruction has been established facilities will be given for the instruction of all officers and noncommissioned oflicers in this list in their military duties.
4 and 5. Yes. The regulations are now under consideration.


Mr. LEFURGEY—by Mr. Ganong—asked:
1. Has any new contract been entered into between the Steam Navigation Company and the government for the conveyance of mails and passengers in summer between Prince Edward Island and the mainland ?
2. It so, what is the date of such contract. its conditions and its terms of duration ?
3. Does it provide. for two trips per day between Sum-menside and Pointe du Chéne ?
4. Is the government aware that two trips are considered necessary in the interests of the Island, and is implied in the terms of union as to communication ?
Hon. Sir WILLIAM MULOCK (Postmaster General). This is a question concerning the Department of Trade and Commerce, and that department has sent me the following answer :
1. Strictly speaking. no; as the present contract does not expire until December next. although an understanding has been arrived at for a continuation of the service on condition that during next season a new and larger boat is to be placed on the route.
2. Answered by No. 1.
3. Answered by No. 1.
4. Answered by No. 1.


Rt. Hon. Sir WILFRID LAURIER (Prime Minister). I have to inform the House, Mr. Speaker, that I have just received a telegram informing me of the death of Mr. Sutherland, Minister of Public Works. I have to say to the House that personally in losing Mr. Sutherland I lose one of the truest friends I ever had, and I know that the House loses one of its most valued members. I will meet, I am sure, the feelings of the House if I endeavour to say that the House should express its sympathy in its bereavement in some suitable manner, and I do not know that that can be done in any other way than by the House adjourning to attend his funeral. Therefore, I will move that when this House adjourns to-morrow it stands adjourned until Monday next, so as to permit members to attend the funeral of Mr. Sutherland.
5317 MAY 3, 1905
Mr. R. L. BORDEN. I rise, Mr. Speaker, for the purpose of supporting the motion which my right hon. friend the Prime Minister has made. The emotion which the right hon. gentleman has displayed has indicated to the House more eloquently than even his eloquent words could have done the very great loss which he feels he has sustained on this occasion. Let me say on behalf of this side of the House that all of us join most sincerely in the deep sympathy which I know every gentleman on the other side feels for the family of Mr. Sutherland in their bereavement, and especially for the Prime Minister of this country, whose true and valued friend Mr. Sutherland has been so many years. I had the privilege of knowing that gentleman when I first came into panliament in 1896. He was then an old member of parliament and I a young and inexperienced member. I always met at his hands the greatest kindness and cordiality. Afterwards, in my later acquaintance with public life, I met him on many trying and difficult occasions, particularly the occasion when he and I were members of a committee two years ago, to which was entrusted the duty of making a redistribution of the seats in the province of Ontario. And although there was a certain feeling at that time which might have led to some display of temper on the one hand or the other, I can say, with grateful recollection, that Mr. Sutherland and I, at the conclusion of a very difficult and trying investigation. parted just as good friends as we were when that began. I repeat that on this side we extend our most cordial and heartfelt sympathy to the bereaved family of our late friend and to hon. gentlemen opposite, who, by his death, have sustained so great a loss. We on this side realize fully the loss which the House and the country have sustained. In. the death of Mr. Sutherland Canada has lost a public man. not only of great experience. but, as I have always believed, of very great executive ability indeed. I feel that I have the hearty sympathy and support of every gentleman on this side of the House in the words I have uttered and in my support of the motion of the right hon. gentleman.
Motion agreed to.


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?
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.
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.
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. HAGGART. He is begging the question.
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.
Mr. SPROULE. I think an explanation is due to the Minister of Justice.
Some hon. MEMBERS. Sit down.
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. FITZPATRICK. Mr. Speaker, I think I have provoked an explanation.
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.
Mr. FITZPATRICK. Mr. Christopher Robinson said:  
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.  
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. R. L. BORDEN. You look pretty guilty.
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. R. L. BORDEN. That is the Haultain 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   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.
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. R. L. BORDEN. Did not he withdraw that later on ?
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:
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.
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.  
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.  
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 [...]


Canada. House of Commons Debates, 1875-1949. Provided by the Library of Parliament.



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