March 30, 1905

LIB

Armand Renaud La Vergne

Liberal

Mr. A. LAVERGNE.

X asked my hon. friend if he contended that the system of separate schools in that province was a bad one and he answered yes.

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CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. SPROULE.

I said that that system, in my judgment, was not a good one. But 1 added, in connection with the schools in the Northwest, that our light was not against the people giving separate schools if they desired to do so, but against interference with their rights to have any system they chose.

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CON

Joseph Gédéon Horace Bergeron

Conservative (1867-1942)

Mr. BERGERON.

I accept the word of my hon. friend from East Grey (Mr. Sproule) and I would remind my hon. friend from Montmagny that it could not be otherwise, as the separate schools in the Northwest are, for all practical purposes, the very same as the public schools. Now, the amended Bill of my right hon. friend (Sir Wilfrid Laurier), in my opinion, will prevent altogether the establishment in the Northwest of separate schools such as I would like to see. He perpetuates the provision of the ordinance now existing. And the hon. member for Brandon (Mr. Sifton) has declared that the schools under these ordinances are entirely public schools. Put this upon the statute-book and you prevent for ever the establishment of separate schools in the Northwest provinces. On the other hand, the position taken by the leader of the opposition (Mr. R. L. Borden) leaves it open to the provinces to establish any system of schools they desire.

Now, I fear I have kept the House too long. I had intended to speak much more briefly. But hon. gentlemen will pardon me because this is a very important question, and I hope that it will be long before we shall be called upon to speak on any such subject so delicate and so dangerous. When I am called upon to address the House again, I hope it will be on some question upon which members of the same party can agree. Still, though this is an unfortunate question, a dangerous question, I wish to

pay this compliment to my colleagues in this House, on both sides of the House- that the newspapers of the country might well take a leaf out of * Hansard ' for they will find there that every man who has spoken has been able to express his opinion frankly yet in such a way as not to hurt the feelings of any of his fellow-members. Hoping, as I have said, that we shall not have again such questions to deal with, but that we may all unite for the best interests of Canada, I am reminded of the words of Tennyson, with which I close :

Let Whig and Tory stir their blood,- There must be stormy weather;

But tor true results of good All parties work together.

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LIB

Napoléon Antoine Belcourt

Liberal

Hon. N. A. BELCOURT (Ottawa).

Mr. Speaker, will my hon. friend from Beau-harnois (Mr. Bergeron) permit me to extend to him my congratulations, and to assure him of the pleasure which I share with other gentlemen upon this side of the House, because of the fact that he will give his vote on the measure before you in support of the government of to-day. Whatever may be thought of the reasons which the hon. gentleman gave as justifying that conclusion, it is a gratification to know that, on this occasion, he will vote with us. He said that the hon. member for Labelle (Mr. Bourassai had devoted most of his speech to remarks antagonistic to the course of the government, and still concluded by declaring that he would vote with the government. I am afraid that the hon. member for Labelle has found a very ready imitator in that respect, in the person of the hon. member for Beauharnois-in fact the hon. member (Mr. Bergeroul has gone the hon. member for Isabelle one better : the whole speech to which we have just listened, has been-I say it without offence-a tirade against the government of the day. He did not say at the end how' he would vote, but X presume he will vote against the amendment.

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CON

Joseph Gédéon Horace Bergeron

Conservative (1867-1942)

Mr. BERGERON.

I may have forgotten to say that. I will not vote for the amendment.

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LIB

Napoléon Antoine Belcourt

Liberal

Mr. BELOOURT.

Then, what has been said has been well said. The Canadian national family will extend to the two new provinces in the west their hearty congratulations when, on the first of July next, they take their place in the family circle and around the family table. I hope that by that time the note of discord which has been heard in one part of this country will have ceased to sound-I believe in fact that that will be the case, and that even if it still sounds, it will not mar the chorus of pride and satisfaction with which all Canada, will extend a welcome to the two new sisters in the west, with hearty good wishes for their progress, prosperity and happiness. In discussing this Bill I do not

in tend to take up the time of the House iu referring to those features which are not the subject of contention. As to irrigation, ns to financial arrangements, as to the division of the territory into one or more provinces-as to these, there seems to be but little dispute. With your permission, I will devote the time during which you may indulge me, to treating with the main question in dispute, the question of education, and incidentally, the control of the public lands. As to the question of education, section 16 preserves, in my opinion, what we Roman Catholics hold as part of our religious faith-religious instruction in the schools. I need not say that I am a believer in that doctrine, that I am in that respect, altogether at one with the church to which I belong. And it is a gratification to me to know, and I feel fortified to know, that there are many great men, not only in this country, but in the mother country and elsewhere, not professing the religion to which I am attached, who also believe in the necessity of religious instruction in the schools. I say that section 16 is altogether justified under the letter and spirit of our constitution. I say also, and I shall endeavour to demonstrate it, that, on grounds of highest public policy, the enactment of section 16 is altogether expedient and is rendered absolutely necessary. We know the rights which are preserved by section 16. If separate schools ai'e allowed, I care not whether they are called denominational schools or whatever name may be given to them. To my mind there is nothing in the name, or very little-it is altogether in the principle, a principle which is sanctioned, admitted, and perpetuated by section 16, insisting' on the right or privilege of the minority to give religious instruction in the schools of the Northwest Territories.

This privilege is recognized and in existence to-day by virtue of the statute of 1875 and by virtue of the ordinances of 1901 which have been passed pursuant to that statute. My hon. friend the leader of the opposition devoted a large portion of his speech to demonstrate as a legal proposition that the statute of 1875 could at any time have been repealed and that it could be repealed to-day. He cited the authority of Sir .John Thompson and others in support of that, contention. I do not think that any lawyer wall dispute that. It is quite clear and must be clear to any lawyer that the Act of 1875 could have been repealed and that it could be repealed now at this very moment. But, Sir, it has not been repealed. It is in existence to-day. The ordinances which have been made in pursuance of that statute are in existence and they will be in existence on the 1st of July when these two provinces join the confederation. The effect of section 16 is to preserve and perpetuate that right upon the admission of the two new provinces. I say, that, under the letter of sections 93 Mr. BELCOURT.

and 146 of the British North America Act, that clause is not only justified, but it is necessary. The real question with me is to determine what is the right of the province at the moment it enters the union in the words of section 93. The whole question with me is determined by the fact that the right or privilege mentioned in the section exists concurrently with the creation or birth of the province as a province. The* word ' province ' in section 93 means the province, not before, but the province at the moment that it enters confederation and for ever thereafter. But before it does enter as a province it is not a province of the union and consequently if it has been admitted as a territory the provisions of section 93 have no application. The provisions contained in the British North America Act, 1867, are provisions which apply to and which regulate the relations of the provinces of the union which determine the rights, privileges and obligations of the provinces as provinces. In section 1 to section 146 of the British North America Act are contained the provisions, stipulations and agreements made between the original partners to the confederation, which are applicable to the provinces of the union and to tlie provinces of the union only. Surely it cannot be contended that the original British North America Act, 1867. section 1 to section 146, was intended to regulate and determine the relations of any part of British North America other than the provinces which agreed at that time to form part of the confederation or which later on were to lie added thereto. I repeat. Sir, that the right to be preserved is the right concurrent with and co-existent with the creation of the province or existing at the time of its entering into the union. Take section 93 and what is its plain ordinary meaning? I say, referring to the words of the section, that the word province in the section-

-Any right or privilege with respect to denominational schools which any class of persons have by law in the province at the union.

means nothing else than a province coming into the confederation as a province and not as a territory. My hon. friend the leader of the opposition, in order to make good his point, says that because the Territories had been admitted into the confederation in 1870 section 93 has no longer its application; in other words, that the provisions of section 93 must be applied as to the Territories in 1870, because, according to him, that is the date at which they came into the union. Well, I say that in order to come to that conclusion my learned and hon. friend has had to do what he charged the government with doing in this case, he has had to interpolate into section 93 a word which is not to be found in section 93. He has had to interpolate the word ' territory ' into the section which is not to be found in the. section. He has had, in fact, to substitute for the

word 'province,'which is in section 93, the word 'territory,' which is not in section 93. I think I am not doing- my hon. friend an injustice in stating- that as his argument.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

1 am not disposed to admit that my hon. friend (Mr. Belcourt) is exactly stating my argument. However, my argument is before the House and when we come to discuss this question afterwards in committee we will have an opportunity of interchanging opinions. But, I would like to ask my hon. friend one question, if he will permit me, and it is this: I would infer from what he has just said that he considers section 2 of the Bill now under discussion as being sufficient to bring into operation in the new provinces the provisions of section 93, and that these provisions would perpetuate in the new provinces the provisions of section 14 of the Act of 1875. That is the logical deduction from what my hon. and learned friend lias just. said. Am I correct in so understanding him?

.Mr. BBBCOURT. If my hon. friend will permit me as my argument develops I will give him an answer to his question, although I am not quite sure that I thoroughly understand his question. It may be that it was doubtful, if. under the original provision of the British North America Act, 1867, we could admit the Ter-[[DOT]itiories otherwise than as provinces. I am willing to go that far on the lines of my hon. friend's argument. It is doubtful with me, if tlie Act of 1871 had not been passed, whether we could have admitted the Territories except as full-fledged provinces to the union. I have not the slightest doubt that the principal reason which prompted the Act of 1871 was the very doubt to which I have referred. But the passing of the Act of 1871 has, to my mind, removed any doubt which could have existed to that effect. What is the general scheme of the Confederation Act? The general scheme of the Confederation Act, as has been pointed out by others, was to establish a national partnership between then fully independent and autonomous provinces or colonies subject only to one jurisdiction, and that was the imperial jurisdiction, whatever it may have been and which I have no doubt varied from one case to the other. But the idea of the fathers of confederation was to make an agreement-a partnership agreement I will call it-for the purpose of determining tlie conditions, the powers and the relations of these autonomous provinces, as between themselves and for the sake of creating a centra] power and enlarging the importance of their positions in British North America. They came together for the purpose of determining the conditions of thht partnership. The Act of Confederation determined what tlie relations of these autonomous provinces as between themselves and the centra] power and what their powers, rights

and obligations would be. It also provided. by section 146, that later on these portions of British North America which at that time did not come into the confederation might do so, and I say that it was the intention then, under the letter of the constitution. and that it was then provided and stipulated that if other provinces should later on enter the confederation they should come in under the same terms and conditions, and that the conditions which were made applicable to the original provinces were uniform conditions applicable not only to the original provinces but to those which might be added to the partnership later on.

It was not contemplated by tlie provisions of the British North America Act, sections 1 to 146, that there might be admitted at that time as full-fledged provinces any portion of British North America then in process of formation. It was not thought that those portions of territory in the west, which at that time had very little population except the coureurs de bois and a few stray settlers here and there, should be admitted as provinces ; it was not contemplated at that time, for instance, that there was any possibility of admitting them except as temporary portions of the confederation. 1 say that the provisions contained in tlie British North America Act, 1867, so far as they concerned the original portions of the confederation, or such provinces which might be admitted later on, are absolutely immutable ; they are unchangeable, at all events, so far as this parliament is concerned, although they might, it is true, be subject to amendment by the imperial parliament. But the Canadian parliament cannot materially alter the specific provisions of the British North America Act.

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CON
LIB

Napoléon Antoine Belcourt

Liberal

Mr. BELCOURT.

Not at all. It has been argued, and it has been stated repeatedly, that the Northwest Territories, when they came into confederation in 1870, came in subject to all the provisions of the Act of 1867. Such argument would have some foundation, as I have said, if the Act of 1871 had not been passed, but the Act of 1871, in my opinion, was passed principally in order to get over that very difficulty. It -was thought at that time, after Manitoba and the Territories had been taken in, in 1870, that the provisions of the British North America Act. 1867, were insufficient to cover the case of the Territories. There arose a doubt at that time whether all the provisions of the Act of 1867 were applicable to the Territories upon their admission. There also arose another doubt as to whether the powers of this parliament in admitting territories as such under the provisions of section 146 had not been exhausted. It was thought by some that we had exercised the power given to us by section

146 in admitting these Territories as territories, and that being so, it was doubted if it was any longer open to us, if we still had the power to admit them later on as provinces. That. I think, was the principal reason of the amendment of 1871. That was tlie principal object of that legislation, and I think it was also the principal effect of it.

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CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

If that contention is correct, what would be the effect now ? Would that statute that was passed then be sufficient to cover the case with which we are now dealing ?

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LIB
CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

I understood the hon. gentleman to say that it was thought that the power of section 146 of the British North America Act was exhausted.

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LIB
CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

That was supposed to be the reason for getting another Act from the imperial parliament. If that Act was necessary at that time, would that Act be sufficient for the present case, or would it be exhausted by the exercise of it at that time?

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LIB

Napoléon Antoine Belcourt

Liberal

Mr. BELCOURT.

I said that the Act of 1871 was passed for the purpose of allowing us to admit these provinces, on the supposition that the power conferred by section 146 had been exhausted.

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CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

I have not recently been looking at the section with tnis particular point in view, but my recollection is that the statute only provides for the case of Manitoba, and would not be sufficient to cover the new province now about to be admitted.

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LIB

Napoléon Antoine Belcourt

Liberal

Mr. BELCOURT.

It covered the case of Manitoba in so many words, but by necessary inference it covered the case of the Territories as well. The hon. gentleman must remember that when this Act was passed the Territories had been admitted into coned era tion as territories ; Manitoba had been admitted as a province, and the Act of 1871 was passed, as I have said, for the purpose of allowing us a power which it was thought we had already exercised under 146 by admitting them as territories, a power to admit them later on as provinces. I say that by inference the Act of 1871 enables us to do that to-day.

There was another reason to which the hon. gentleman also referred, that is, the provision for the control of lands under the Manitoba Act. It was thought at the time that that was possibly ultra vires, and that was another reason why the Act of 1871 was passed : but one has only to look at the preamble of the Act of 1871 to see clearly and plainly that these were the reasons that prompted that Act. The preamble reads : [DOT]

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LIB

Napoléon Antoine Belcourt

Liberal

Mr. BELCOURT.

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:

The preamble of the Act is plain, and seems to leave no question that the object of the Act was to remove the doubts to which I have made reference. Under the provisions of the Act of 1871 we have had the power ever since it was passed to apply to these Territories such provisions of the British Columbia Act as we saw fit. We have had the power to apply the original provisions of the British North America Act in whole or in part, in any modified manner that we chose, and we have had the power, as was pointed out by my hon. friend, to repeal these provisions aud, from time to time, to substitute for them other provisions of a similar or of a different nature. As far as the Territories are concerned, it must be remembered that they came iuto the confederation without any special -provisions applicable to them, that it was left to this parliament to determine, from time to time, what powers we should confer upon them. That seems to me to be absolutely justified. As I have pointed out, as every one knows, the Territories were then in their early infancy. They had a very sparse population, the whole matter was tentative ; the jurisdiction which the Act conferred on them must necessarily for manifestly obvious reasons be a tentative one; and, therefore, it was provided, under' section 2, that we might, from time to time, apply to them such provisions of the British North America Act as we should deem proper. I say that that discretionary power vested in this parliament with reference to the Territories was with reference to territories only, and not with reference to provinces. I say that under the Act of 1871 this parliament has not to-day the right to apply to any province coming into the union any but the original provisions, from section 1 to section 146, of the Act of 1867. I say that the Act of 1871 was made for the purpose only of the Territories, and cannot to-day have any application, and should not have any application whatever, when we are taking a province into confederation.-

The Act of 1871 was passed for the purpose of completing the Act of 1807 ; not for the purpose of modifying it, not for the purpose of repealing any of its provisions, but simply in order to add to the Act of 1867 provisions which it was found had been omitted from that Act. Its scope was limited, to the entry, control and government of new territories. Under the rules of construction, I submit that my argument is quite justified, because I think every lawyer in this House will agree with me that the modification of a

specific, clear, definite provision cannot be modified by another provision made in general terms to be found in the same Act or in another Act to be read together with it. All the provisions of the Act of 1871 are susceptible of application and are susceptible of interpretation apart altogether from the provisions of the Act of 1867. What better proof of that do we require than the course we have pursued for the last thirty-five years during which we have administered these Territories altogether by virtue of the provisions of the Act of' 1871. Since 1870 when these Territories came under our control, we have not governed them by virtue of the Act of 1867 but by virtue of the Act of 1871. Therefore, the Act of 1871 has not in any way modified or altered the specific provisions of the Act of 1867, and so long as these Territories remain Territories, this parliament of course continues to hold absolute jurisdiction over them. The legislation in these Territories shall be just exactly what this parliament chooses to make it; from time to time this parliament may repeal provisions previously enacted or substitute for them provisions entirely different. But when the status of the Territories is changed and they are made provinces ; when they are elevated to the dignity of provinces, then come in and are immediately applicable the provisions of tlie Act of 1867. The new provinces are entitled to all the benefits and all the provisions of the Act of 1867 ; they are entitled to all the provisions which were applicable to and which could be claimed by the original provinces of confederation. Therefore it is that I say, that when these Territories are being admitted as full-fledged partners in the original partnership of agreement, when they are admitted as full-fledged provinces of the union they are entitled to the full benefits of section 93 of the Act of 1867 and the rights or privileges referred to in subsection 1 of said section are preserved to the new provinces. Every one admits that we could have repealed the Act of 1875, that we could have modified it, and that we could have replaced it by another Act. If we had simply repealed the Act of 1875 the ordinances made thereunder by the Territories would have all been wiped out as a necessary consequence, but not having repealed the Act of 1875 the ordinances which have been enacted by virtue of that Act remain, and they will be in existence on the first of July when these provinces come into the union. It has been argued, and I am not prepared to dissent, that section 16 of the present Bill constitutes a modification of the Act of 1875. I shall not discuss whether it does or whether it does not, nor shall I say whether the modification if any is an important or an unimportant one. But the very moment it is admitted that this section 16 constitutes a modification of the provisions of the Act

of 1875, then there immediately arises the necessity for the enactment of this very section. It has been said that this section 16 of the Bill we are discussing is the result of a compromise, and that may be or it may not be the case. I admit that it is in some sense and in some respects a modification of the la-w of 1875, not a modification of the principle of religious instruction in the schools, which in section 16 is again upheld, but a modification probably in the manner in which the principle is to be applied, but the leader of the opposition has told us that because it constitutes a modification of the provisions of the Act of 1875 we are, in enacting section 16, amending section 93 of the British North America Act.

I do not think that is correct and I would like to ask my hon. friend (Mr. R. L. Borden) if he will contend that we could not to-day by a separate Bill enact the provisions of section 16.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

You mean with regard to the Territories ?

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LIB

March 30, 1905