April 13, 1905

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Mr. O. S.@

CROCKET (York, N.B.) Mr. Speaker, this question has already been so exhaustively discussed that it is very difficult for one at this stage of the debate to address himself to the subject without retreading to a very large extent ground which has already been gone over by others. But the matter is one of such deep interest in the constituency which X have the honour to represent in this House, as I believe it is of deep interest in every constituency throughout Canada, that I feel that I would be recreant to my duty if I did not at least state the views which I hold in respect to it. Let me say then at once, Sir, that I am in full sympathy with the establishment of self-government in the Northwest. I think that the time has come when that great and rapidly developing portion of our country, comprising as it does that great fertile belt which is the hope of our future, is entitled to provincial autonomy, not the mock autonomy which is provided by this Bill, but a real, genuine autonomy which will enable the new provinces to govern themselves independently in matters of provincial concern and place them upon a footing of equality with the other settled portions of this confederation. It is because this Bill which is. now before the House, while purporting to grant such autonomy, so restricts and circumscribes the legislative powers which are granted as practically to destroy their value and to make the whole scheme of the government a delusion and a sham that I am opposed to the measure as it stands and intend to vote for the amendment which has been moved by my hon. friend the leader of the opposition (Mr. R. L. Borden). I think, Mr. Speaker, that this House has never had a more striking illustration of a misnomer than is exhibited by the application to this Bill of the name ' autonomy.' I think the Bill would be more accurately described if it were to be called a restriction rather than an Autonomy Bill. The autonomy which it embodies is, to my miud, very much of the same character as the permission which a timid and considerate mother gave to her daughter who asked to be allowed to go out and swim to which request the mother rel-plied : *

Yes, my darling daughter,

Go hang your clothss on a hickory limb

And don't go near the water.

The right bon. leader of the government (Sir Wilfrid Laurier) in introducing this measure declared, I think, that he was presenting to the Northwest the crown of complete and absolute autonomy. The hon. member from Prince Edward (Mr. Alcorn) who addressed the House yesterday very aptly described the crown, when he stated it was a crown from which the generous donor had plucked its most valuable jewels.

Now, Mr. Speaker, in the province of New Brunswick, and I venture to say that this remark can be applied to most of the other provinces of the Dominion if not to all, there are no two more important departments of government than the Department of Crown Hands and the Department of Education; there are no two subjects of more vital local provincial concern than education and the administration of public lands. Any yet we find that under this Bill the ownership and control of the public lands is absolutely withheld from the new provinces, while with respect to education the legislative power of the new provinces is so restricted as to make the educational systems which are to be imposed upon these new provinces, not the will and creation of the people of the new provinces, but the will and creation of this parliament; an external body which has no interest-no direct interest at any rate in the subject-and no responsibility whatever to the people of the provinces upon which these systems are to be imposed. In the first place, speaking on the subject of the public lands, I wish to refer to section 109 of the British North America Act, which says:

All lands, mines, minerals and royalties belonging to the several provinces ot Canada, Nova Scotia and New Brunswick at the union, and all sums then due or payable for such lands, mines, minerals or ^royalties, shall belong to the several provinces of Ontario, Quebec, Nova Scotia and New Brunswick in which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the province in the same.

It will be seen from this section, that the original provinces of the confederation were given the ownership and control of their public lands. The hon. member from Jacques Cartier (Mr. Monk) in his speech the [DOT]other night cited a series of judgments of the Judicial Committee of the Privy Council which show that the title to the public lands in Canada vested in the King in right of the provinces. The hon. member (Mr. Monk), referred particularly to the case *of the Attorney General of British Columbia vs. the Attorney General of Canada, in which it was decided that the title to the public lands in that province vested in the King in right of the province, notwithstanding that British Columbia was not specifically named in the section which I have read and was admitted subsequent to the formation of confederation. These cases 144)

prove conclusively that under the terms of the British North America Act the title of the lands in this country is vested in the King in right of the province. But hon. members on the other side of the House suggest that the lands in the Northwest Territories having being purchased by the Dominion of Canada from the Hudson Bay Company that alters the case. I submit, Mr. Speaker, that this makes no difference whatever, and that the lands vest in the King regardless of whether they are acquired by purchase or by conquest. The title in the lands of this country does not vest in this government as a government or in this parliament as a parliament, but thej vest in the King in the right of the provinces as has been decided by the Privy Council in the cases to which I have alluded. We have had quite a recent judgment of the Judicial Committee of the Privy Council in the Attorney General of New Brunswick vs. the liquidators of the Maritime Bank, in which it was laid down that the lieutenant governor in the province represented the Crown just as fully and effectually as the Governor General does in the federal sphere. We have in these cases the authority that the title to these lands properly vests in the Lieutenant Governor representing the King in right of the provinces ; but it is not necessary to refer to these authorities to establish the proposition that the title is in the province and not in the Dominion. We have in section 19 of this very Bill the admission that the provinces are entitled to the lands. Section 19 says:

In as much as the public lands in the said province are to remain the property of Canada, there shall be paid by Canada to the said" province annually, by way of compensation therefor, a sum based on the estimated value of said lands, &e.

The Bill itself therefore contains the admission that the provinces are properly entitled to these lands. But aside altogether from the legal question as to the title of these lands, I submit that every consideration of public policy, public interest and public convenience supports the claim that these lands should be in the hands of the provincial authorities. Iu the first place, the administration of these lands is directly a matter of local and provincial concern; it is the people of the provinces who are chiefly interested in the administration of these lands ; it is their interests that are chiefly affected. If the lands are wisely and efficiently administered it is they who profit and benefit; if the lands are unwisely and inefficiently administered It is they who suffer. That being the case, 1 submit that the administration of these lands should be iu an authority responsible to the people who are interested. If these lands are retained by this government, as is proposed in the Bill, we may have th? federal author-| ity administering the lands in a most inefficient and most unwise manner. It is

453S-

the people of the province who will suffer, and yet they are without a remedy, because so long as this government can command the support of a majority of the members from Ontario, Quebec, British Columbia, New Brunswick, Nova Scotia and Prince Edward Island the people of the Northwest Territories must simply grin and bear it. These members, representing these other provinces, have no'direct, immediate interest whatever in the administration of those lands, and no knowledge of the local conditions and requirements. That seems to me to be a conclusive reason why these lands should be vested in the government of the Northwest Territories and not in this parliament.

The only pretense that has been set up, so far as I have been able to discover, for withholding the ownership and control of those lands and no knowledge of the local was suggested by the right hon. the premier in introducing this Bill. He said:

It the lands were given to the new provinces, the policy of either one of them might differ from ours and clash with our efforts to increase immigration. It might possibly render these efforts nugatory.

/That is the reason which has been assigned by the premier for withholding from the proposed provinces the lands to which they seem, in law and upon grounds of poliey, to be entitled. In connection with this matter of immigration. I wish to refer to section 95 of the British North America Act, which deals with the question of agriculture and immigration. It is this :

In each province the legislature may make laws in relation to agriculture in the province, and to immigration into the province ; and it is hereby declared that the parliament of Canada may from time to time make laws in relation to agriculture in all or any of the provinces, and to immigration into all or any of the provinces ; and any law of the legislature of a province, relative ito agriculture or to immigration, shall have effect in and for the province, as long and as far only as it is not repugnant to any Act of the parliament of Canada.

It will be seen by that section that the original provinces of the Dominion were entitled and are entitled to make laws in reference to immigration, as they are entitled to make laws in reference to agriculture, although this parliament has also the power to make laws in reference to the same subjects if it sees fit so to do. But the point I wish to make is that, under the terms of the Bill now before the House, and under the section which I have quoted, the new provinces in the Northwest will occupy precisely the same position in reference to immigration as do the original provinces of the confederation. Why then should there be a difference made with respect to the public lands ? The original provinces of confederation, and all the provinces of this Dominion, except, I believe, the province of Manitoba, have control of the public lands ;

Topic:   QUESTIONS.
Subtopic:   APKIL 13. 1905
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CON

Oswald Smith Crocket

Conservative (1867-1942)

Mr. CROCKET.

and yet the only reason which the Prime Minister has advanced for withholding from the new provinces the ownership and control of the public lands is that it might interfere with the policy of this government in reference to immigration. The section to which I have referred shows that the relations of this parliament to the new provinces in the matter of immigration -would be precisely the same as its relations to the other provinces of the Dominion ; and if the other provinces are entitled to retain those lands, then surely there is no reason why this discrimination should be made against these provinces in the Northwest. It is the same, I submit, with reference to immigration as with reference to the administration of the public lands. It is the province and the people of the province who are chiefly interested in immigration. If immigration flows into the Northwest Territories, it is the people of those provinces who profit by it ; and if there is an unwise policy in reference to immigration, it is the people of tlie province who suffer. So that I submit there is no reason or argument whatever in the only pretext which has been set up for withholding from the two provinces tlie .ownership and control of the public lands. The only condition which would lend any colour to that pretext is that this government is to control absolutely the subject of immigration in the Northwest Territories, and not to leave that question to the provinces in the same way as it is left by the British North America Act to the other provinces of the Dominion. So that we have the premier justifying the withholding of original power with respect to one subject by the unjustifiable withholding of it in reference to another. So much, Mr. Speaker, with reference to the question of the public lands. /

I come now to discuss clause 16 of this Bill, the educational clause ; and I desire to say, in the first place, that I am opposed to this parliament enacting that cJause, because I believe tliat this parliament has no power to do so. I think it will not be disputed that this parliament has no power whatever except such power as it derives from the British North America Act. Now. the only clause in the British North America Act which relates to the subject of education is clause 93, and under that clause, I submit, this parliament has no original jurisdiction whatever in reference to the subject of education. All the power it has is power to pass remedial legislation. I will read the clause as it is in the Act:

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.

There is certainly nothing in that subsection giving this parliament any power

"whatever in respect to education. It simply provides that nothing in any law which may be passed by a provincial legislature 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. Subsection 2 relates exclusively to Upper and Lower Canada and is not relevant, and therefore I will not read it. Subsection 3 reads thus :

Where in any province a system of separate -or dissentient schools exist 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 subsection provides an appeal to the Governor General In Council from any Act -or decision of a provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education. Before that appeal lies there must exist a system of separate or dissentient schools at the time the province was admitted to the union, or there must have been established thereafter by provincial authority, such a system and there must have been subsequent provincial legislation affecting these rights.

Then we have subsection 4 of section 93 :

In case any provincial law as from time to time seems to the Governor General in Council requisite for the due execution of the provisions of this section is not made, or in case any decision of the Governor General in Council on any appeal under this section is not duly executed by the proper provincial authority in that behalf, then and in every such case, and as far only as the circumstances of each ease require, the parliament of Canada may make remedial laws for the due execution of the provisions of this section, and of any decision of the Governor General in Council under this section. ,

# ,

It must be quite evident to any one who

examines this section with any care that there is not any original jurisdiction granted by its terms to this parliament in respect to education, that the only power that we have is the power to pass a remedial law and before we can exercise that power there must have existed iu the province at the time it was admitted to the union a system of separate or dissentient schools, or there must have been established thereafter by provincial law a system of separate or dissentient schools. There must then have been provincial legislation subsequent to that again, affecting the rights of the minority in respect to these schools. There must then be an appeal to the Governor General in Council ; there must be an order "by the Governor General in Council to the provincial authority to apply the remedy in the provincial legislature and there must then furthermore be a refusal by the provincial authority to pass the legislation

which the Governor General in Council may deem expedient and then and then only is this parliament authorized to legislate in any way with respect to education, and then as the clause says :

And as far only as the circumstances of each case require, the parliament of Canada may make remedial laws.

I think I have said that no one can read that section with any degree of care without being convinced that we have no original power. There is only one other section in this Act from which any attempt can be made to spell out any power to this parliament to legislate with reference to education. and that is section 91, which reads :

It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order and good government of 'Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the legislatures of the provinces.

It will be seen at once that if the subject of education has been assigned exclusively to the provinces under the terms of the Act that then we cannot claim under this section any power to legislate, and education is by the terms of section 93 a subject which is assigned exclusively to the provincial legislatures. Therefore we must rely upon that section and that section, only, and as I have pointed out our power there is based upon these four or five conditions precedent which I have already mentioned. That being so it may be asked where we get our authority to constitute these provinces. There is nothing in the words of the original Act of 1867 to give us that power. It is by virtue and by virtue only of section 2 of the Act of 1871 that this parliament gets the power which it is now seeking to exercise. That section is :

The parliament of Canada may from time to time establish new provinces in any of the 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 forthe peace, order and good government of such province and for its representation in the said parliament.

It seems to me that the argument of the learned leader of the opposition (Mr. R. L. Borden) with respect to this matter was absolutely conclusive, that that section must be read in connection with the Act of 1886, the last section of which provides :

This Act may be cited as the British North America Act, 1886. "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.

So that all these several Acts must be read together and construed as one Act, and the power which is granted to this

parliament by section 2 of the Act of 1871 must necessarily be read as being subject to the provisions of those Acts, and of the original Act just as the power of the Queen in Council to admit the provinces of Prince Edward Island, British Columbia, Rupert's Land and the Northwest Territories to the union under section 146 was subject to those provisions. Now it surely was not intended that this parliament which is the creature of the British North America Act and which is subject to all the limitations embodied in that Act as all the provinces of this Dominion are subject to the same limitations, it was surely not intended that this parliament, which is a creature of this Act, could constitute a- province knd give it whatever powers it pleased without reference to the terms of the Act under which this parliament itself was created. If we have any power to vary in any way, in the slightest degree, the terms of the British North America Act. then we can vary them to whatever extent we please and we could withhold from the new provinces any one of the subjects or all of the subjects which are assigned exclusively by the British North America Act to the provincial legislatures, and we could confer upon the new provinces in tne west the power to legislate with reference to any one of the several subjects which the British North America Act assigned exclusively to this parliament. It seems to me that that would be an absurd view for any lawyer to advance, and I think it is perfectly clear that the intention of the British North America Act is that in the case of the constitution of any new province, it must be subject to the terms and conditions of the Act as they apply to the other provinces of the confederation. My view is in common with the views that have been advanced not only by the leader of the opposition (Mr. R. L. Borden) who is opposing this Bill, but by other legal authorities, as for instance the hon. and learned member for Jacques Cartier (Mr. Monk) who is supporting this Bill, that we have power only to create this province and that the provisions of the British North America Act which apply to the other provinces of the Dominion then apply automatically to the new provinces. I think I shall be able to show that this is not only the view of the leader of the opposition (Mr. It. L. Borden), and of other eminent gentlemen who have been quoted in this House, but that it is really the view also of the Minister of Justice (Mr. Fitzpatrick) who framed this Bill. That hon. gentleman argued an important case in the Supreme Court of Canada in 1903. It was styled ' in re-representation in the House of Commons ' which I believe, was initiated by the province of New Brunswick, the question involved being whether in estimating the population of Canada only the population of the four original provinces Mr. CROCKET.

was to be taken into consideration or whether the population of the provinces admitted subsequently to 1S67, was to be considered in the estimate. In the course of that argument, the Minister of Justice advanced, I think, the same view that has been advanced by the leader of the opposition in this case, that the provisions of the British North America Act apply automatically to new provinces as they should be created. In the course of his argument, he dealt with section 146 and said :

Now, my. lords, it is outside the question to discuss this question as to whether British Columbia came in with the number of representatives it ought to have had under the constitution or not. That is outside the question we are now considering. But my construction of section 146 is this, that the Queen had the right by Order in Council to legislate in the way and subject to the limitations contained in section 146. The Order in Council became and had the effect of an imperial Act of parliament so long as the powers conferred by section US were exercised subject to the limitations contained in section 146. Legislation by Order in Council is an exceptional legislation and can only be exercised subject to the limitations in the power authorizing the legislation to be had. in that form. An Act of the imperial pallia-, ment might modify, alter or amend the British North America Act, might absolutely repeal the Act or alter any of the terms or provisions of it, but the Order in Council cannot do that. The Order in Council can only legislate in so far as its provisions are within the provisions of the Act, and it would not be competent with respect to the imperial Order in Council which would have for effect the altering or the amending of the provisions of the Act and under the control of all the provisions of the British North America Act, so that no Order in Council could be passed that could in ^ny way affect this section 51 of the Act.

Now, the Order in Council to which the-learned Minister of Justice was referring was an Order in Council which the section 1^6 of the British North America Act authorized the Queen in Council to pass for tlfe admission of any other British possession-in the northern part of America. Now, this parliament gets in the same way, the power to constitute those provinces in the Northwest as the Queen in Council got under section 146. So that the argument which the Minister of Justice addressed to the Supreme Court in reference to that Order in Council would apply as effectually to this matter. But, furthermore, in the course of liis argument, the Minister of Justice said, ,as will be seen ill vol. 33 of the Supreme Court of Canada Reports, p. 584 :

I have no desire 'to put forward a provincial view of this matter at all ; on the contrary, so far as the Dominion parliament is concerned, our desire and our duty is to see that the Act operates automatically without respect to consequences.

So, we have not only the authority of the leader of the opposition and the other gentlemen to whom X have referred and whose

opinions have been quoted in this House, but I think we have it clearly shown that the Minister of Justice entertains the *mie view.

Now, I think it perfectly plain that this parliament has no power to pass this legislation. But, if this parliament had power to pass it, I would still oppose it upon the ground that it is an unwarrantable, flagrant invasion of provincial rights. Education is a matter essentially of provincial concern. What right have we sitting in this House, 'representing constituencies in other provinces, to pass a law imposing upon the people of the Northwest Territories any particular system of education ? That is a matter that should be left entirely to the provincial legislatures of the Northwest. I submit that this parliament has no more right to impose upon the people of the Northwest such legislation as- this Bill proposes than the people of the Northwest Territories in their new legislatures would have to pass a similar law to be

applied to the province of New Brunswick. And we are passing a law not for this year or even for the term of this parliament for which we are here, but we are passing a law which will be binding upon the people of the Northwest for all time to come. It seems to me it is nothing short of a political outrage, a piece of tyranny for this parliament to attempt to impose such legislation for ever upon the people of the Northwest. Let me emphasize it in this way. We have here a House composed of 214 members, only 10 of whom represent constituencies in the Northwest, only 10 of whom, therefore, are responsible in any degree to the people who are affected by this legislation. The other 204 members who are to pass this law and impose it upon these people have no interest whatever in the educational system of the Northwest, no direct interest whatever, except the possible interest of seeing systems to which we have become attached in our own provinces established in the other provinces as well. I submit, therefore, that it is a most tyrannical thing for this parliament to put through such legislation as that now before us. In my judgment it is not a matter of separate schools or no separate schools ; it is a matter of provincial autonomy, provincial rights and local self-government. And it seems to me a most striking spectacle that in this controversy it happens that those who have been in this House the most earnest and the most persistent advocates of home rule for Ireland are the most determined opponents of home rule for the west. But although it is not in my view a question of separate or no separate schools, I have no hesitation in saying that personally I am convinced that the common, national, non-sectarian school system is the one best adopted to the needs and aspirations of this country. I believe that such a system, whose tendency is to blend the various elements of our population into one broad, patriotic and homogenous Canadian citizenship, is preferable to a system which is based upon the principle of separation, and which seeks, not to unify, but to separate the youth of this land into different classes according to the religious dogmas which are professed by their parents, and in order that these dogmas may be instilled into them under the auspices of the state, and whose tendency therefore is to breed antagonism and discord rather than harmony in our citizenship. I am one of those who hold that the state, which is presumed to regard all people as citizens and as citizens only, and in the eye of which all are equal, without reference to their religious faith or whether indeed they have any religious faith at all, has no right to provide for the teaching of any particular religious belief under the auspices of the state. A good deal has been said regarding the character of the schools in the Northwest, and the argument is made that these schools are public and not separate in the true sense of the term. There can be, however, in my judgment, no question about this. There can be no doubt that this Bill distinctly provides for separate schools, and it does so for the purpose of enabling religious instruction to be taught in them. That is the only object of a separate school system. There can be no doubt also that this Bill compels every municipal body, wherever such bodies may be constituted in the Northwest, to collect the taxes of Roman Catholic citizens for the support of schools which are maintained as separate schools for the propagation of that religion. The Bill also provides that the separate schools shall share in whatever money may be voted by the legislatures of the new provinces for educational purposes, including the school land fund which is payable to the provinces, under section 25 of the Dominion Lands Act, which Act sets apart two sections in every township as an endowment in aid of education and provides that the proceeds of those lands, when sold, shall be invested in Dominion securities and form a fund, the interest on which shall be paid for the support of public schools. Yet we find that this Bill will divert a proportion of that fund which was distinctly established for the support of public schools. My hon. friend the Minister of Customs argued that we ought to pass this measure because it gives what is now the law in the Territories and what has been the law a long time past. If that be a good reason why this parliament should enact the legislation now proposed in respect of separate schools, I submit that it affords an equally good reason why we should not change the law relating to this specific trust fund. The only ground upon which any invasion of provincial rights could be justified would be that there is a

constitutional obligation upon us to do so. That is the only ground upon which I would support this or any other measure which invades provincial rights. I think that the right hon. the First Minister is practically the only member in this House who has taken that position. In his speech introducing' the Bill he said :

Mr. Haultain argues that section 93 applies automatically, that this House has nothing to do but simply to admit the province ar^l immediately it 'becomes subject to section 93, whereas the position we take is while the provision is embodied in section 93, it has to be introduced legislatively by this parliament into the constitution of the Northwest Territories. . .

We have taken the ground on more than one occasion, we again take this ground and it is the ground upon which we stand in dealing with the present case, that wherever a system of separate schools exists that system comes into force and is constitutionally entitled to the guarantees which are embodied in section 93 of the British North America Act. . . .

I want to impress upon the House once more that we are acting strictly in accordance with the principles involved in the constitution of Canada. . . .

I take1 the position that the constitution certainly makes it imperative for us to respe.ct .separate schools wherever they exist.

That is the position taken by the right Mon. gentleman, and it is the only ground upon which this parliament would be- justified in interfering in any way with provincial rights. But it is a position which was almost immediately abandoned by the Minister of Finance (Mr. Fielding). It was abandoned also by the Minister of the Interior (Mr. Slfton) ; and I do not think there is another gentleman in this House who. has taken the position that there is any constitutional obligation upon us. The only way in which any constitutional obligation could be made out would be by having recourse to section 93 of the British North America Act. But surely if the minorities in those provinces were entitled to the protection only which was given by section 93, it cannot be argued that constitutionally the minority in the new provinces would be entitled to any larger or any different protection. If the provisions of this Act were to apply automatically to the new provinces, as is the contention of the hon. leader of tile opposition, then the constitutional obligation would be fulfilled. There cannot certainly be any larger or any different guarantee properly given than the guarantee which was given to the original provinces. I have alrealy read section 93 of the British North America Act and I want particularly to call attention to the first subsection to show that that subsection relates to denominational schools.

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.

Topic:   QUESTIONS.
Subtopic:   APKIL 13. 1905
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CON

Oswald Smith Crocket

Conservative (1867-1942)

Mr. CROCKET.

i

Now we have had the statement made in this House by the hon. Minister of Finance (Mr.Yielding) by the hon. Minister of Customs iMr. Paterson), by the hon. ex-Mmister of the Interior (Mr. Sifton), by the hon. the Solicitor General (Mr. Lemieux) and by the hon. member for Jacques Cartier (Mr. Monk) who is supporting this Bill, that these schools in the Northwest are not denominational schools. If they are uot denominational schools then they would not come under the terms of subsection 1 of the British North America Act. That is the ground upon which the judgment proceeded in the New Brunswick school case. That is the ground upon which the appeal of the Roman Catholics of New Brunswick failed in the New Brunswick school case ; it was because the schools in that province were not denominational schools. In an extract of tlie judgment given in that case by the Supreme Court of New Brunswick and which was confirmed by the Judicial Committee of the Privy Council, to be found at page 479 of Clements' ' Canadian Constitution,' we have these words :

The Parish School Act, 1858, clearly contemplated the establishment throughout the province of public common schools for the benefit of the inhabitants of the province generally ; and it cannot, we think, be disputed that the governing bodies under that Act were not, in any one respect or particular, denominational.

. . . The schools established under this Act

were, then, public, parish or district schools, not belonging to or under the control of any particular denomination ; neither had any class of persons, nor any one denomination- whether Protestant or Catholic-any rights or privileges in the government or control of the schools, that did not belong to every other class or denomination, in fact, to every other inhabitant of the parish or district ; neither had any one class iof persons or denomination, nor any individual, any right or privilege to have any particular religious doctrines or tenets exclusively taught or taught at all, in any such school. What is there, then, in this Act to make a school established under it a denominational school, or to give it a denominational character ?

That is the ground upon which, as I have stated, the appeal of the Roman Catholic citizens of New Brunswick failed in the New Brunswick school case. The Supreme Court held that the system was not a denominational school system. If we are to accept tlie statements which have been made in this House by those hon. gentlemen, to whom I have already alluded, that these schools in the Northwest are not denominational schools then they would not have been entitled under the terms of the original Act to any protection. Why then should we give to these schools in the Northwest Territories a protection and a guarantee which the original British North America Act withheld from the original provinces forming the confederation ? It seems to me that one or other of these views must be adopted ; either they are de-

uominatioual schools in which case they are open to all the objections which the hon. Minister of Finance and other members of the government as well as other members of this House have to a denominational school system, or they are not denominational schools in which case they are not entitled to the protection which hon. gentlemen are seeking to give them. Upon what ground, then, it may be asked, if there is no constitutional obligation upon us, should we enact this legislation and upon what .ground is It contended by those who are supporting the Bill that this legislation should be crystallized into law ? The only other ground that has been advanced is that there is a moral obligation upon us. So far as that is concerned. Mr. Speaker, I cannot see for my part that there is any moral obligation whatever upon this parliament. But, if there were any moral obligation why not leave that moral obligation to be recognized by the provincial authorities ? if there really exists a moral obligation surely we can trust the people of the Northwest Territories to recognize it. There is no justification or warrant, good, bad or indifferent, to my mind, for this parliament attempting to take the people of the Territories by the throat for the purpose of seeing that a moral obligation is recognized. If there is any let the people of the Territories recognize it and do not let this parliament transcend its powers for the purpose of enforcing it upon them.

A good deal has been said in reference to the difference that exist between the original clause 10 and the substituted clause. For my part I cannot see there is any practical difference between the two provisions. Subsection 1 of the original clause 10 reads as follows :

The provisions of section 93 of the British North America Act, 1867, shall apply to the said province as if, at the date upon which this Act comes into force the territory comprised therein were already a province, the expression ' the union ' in the said section being taken to mean the said date.

That section applies to the terms of subsection 1 of section 93 of the British North America Act, with an attempt to twist the interpretation of the word ' union ; ' tout under that section the original subsection 1 of section 93 of the British North America Act is applied. That, as 1 have pointed out, relates to rights and privileges with respect to denominational schools. If these schools in the west are not denominational schools, that original subsection 1 of clause 1C of the Bill would give the minority in the Northwest no protection whatever. Now, subsection 2 is :

Subject to the provision of the said section 93. and in continuance of the principles heretofore sanctioned under the Northwest Territories Act, it is enacted that the legislature of -the said province shall pass all necessary laws in respect of education, and that it shall therein

always be provided (a) that a majority of the ratepayers of any district or portion of the said province, or of any less portion or subdivision thereof, by whatever name it is known, may establish such schools therein as they think fit, and make the necessary assessments and collection of rates therefor, and (b) that the minority of the ratepayers therein, whether Protestant or Roman Catholic, may establish separate schools therein, and make the necessary assessment and collection of rates therefor, and (c) that in such case the ratepayers establishing such Protestant or Roman Catholic separate schools shall be liable only to assessment of such rates as they impose upon themselves with respect thereto.

This is the only provision in the original clause 16 which guarantees any rights to tiie minority iu the Northwest Territories, and the only right and privilege which it guarantees is the right to have separate schools, nothing more aud nothing less. Now, that clause is the same as the clause in the Act of 1875, which is enacted in terms in the ordinances of 1901. The substituted clause provides :

Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act under the terms of chapters 29 and 30 of the ordinances of the Northwest Territories, passed in the year 1901.

The effect of tills subsection is to incorporate into this Act, just the same as if we were reprinting them in this Bill, any provisions of the ordinances relating to rights and privileges of the minority. There is, therefore, absolutely no difference between these two provisions, the original clause of the Bill and the substituted clause accomplishing the same purpose.

iFurthermore, in connection with this subsection I want to point out this. A good many members of this House seem to have been labouring under the misapprehension that the effect of that clause is to embody all the provisions of these ordinances as they exist, the limitations and duties of the minority, as well as their rights and privileges. Now, it requires not a very close reading of that section to see that it includes only the provisions which relate to rights and privileges. If this parliament had passed the original clause as it was proposed by the Prime Minister, the legislatures of the new provinces would have had a right to legislate with respect to education in any way they saw fit, subject only to this condition-that it must always be provided by the law that there should be separate schools. I believe that, under the original section, the legislatures of the new provinces could have cut down the half hour of religious instruction, and they could have made any provisions they chose with respect to the schools, provided they maintained a school which would pass as a separate school. Under the terms of subsection 1 of the substituted clause what-

ever rights and privileges the minority have are guaranteed, but with respect to the limitations and duties and ithe liabilities which are imposed by the ordinances, there is no guarantee given to the majority.

With reference to the provision in respect of the appropriation of public moneys, there does not seem to be any difference whatever between the original provision and the substituted provision. The substituted provision is this :

In the appropriation by the legislature or distribution by the government of the province of any moneys for the support of schools organized and carried on in accordance with said chapter 29 or any Act passed in amendment thereof, or in substitution therefor, there shall be no discrimination against schools of any class described in the said chapter 29.

Now, subsection 3. of the original clause specifically mentions the Dominion Lands Act, and there was a great outcry throughout the country with reference to that. Subsection 2 of the substituted clause, although it does not mention that specifically, certainly includes it, and the separate schools will be entitled under it to their share of any moneys which are appropriated or distributed by this government. If, therefore, there were objections to the original clause 30, the same objections certainly exist to the substituted clause, because there is no difference between them. If there is any difference, I would say that it is in the direction of extending the rights and privileges guaranteed to the minority in the Northwest, because, although I do ndt intend at this late hour to refer to the different provisions of those ordinances, there are other provisions giving the minorities in the Northwest Territories certain rights. For instance, there is a provision with reference to the educational council, that that council, which is composed of five members, must always contain two members of the Roman Catholic religion. There is no provision that the other three members ^nust be men of the Protestant faith. All five may be Catholic, and two of them must be, but there is no provision that the other three must be Protestants. So that there is a right in that ordinance which will be included in the substituted provision, which was not in the original provision.

Before resuming my seat, I desire as a member of this House and a citizen of this country to enter my protest against what has transpired in reference to the shaping of this legislation behind the backs of the constitutional representatives of the people. I refer to the conferences which have taken place with reference to the educational clauses of the Bill between the Prime Minister and Monseigneur Sbarretti, the ablegate and representative of the Pope. Far be it from me, Mr. Speaker, to utter any words which would even be capable of being misconstrued into an expression of disrespect either with reference to the person-Mr. CROCKET.

ality of the eminent gentleman who lias-come to this country in the capacity referred to at the instance of the Prime Minister and other gentlemen sitting on the other side of the House or with reference either to the great church of which he is the representative. I have no doubt that Monseigneur Sbarretti is a gentleman of the highest character and intellectual attainments, and I feel sure that he was doing what he conscientiously believed to be his duty as the emissary of His Holiness in this country. The criticism, which I make in reference to the matter, is not of him or of the church he represents, but of the Prime Minister, who as such is presumed to represent the whole electorate of this country -Roman Catholic and Protestant alike-and who, presumed in his public, representative capacity, to know no creed, has violated his duty by recognizing in the interest of a particular church a power, which is not recognized by our constitution, and which is wholly foreign to our system of government. The people of this country have a right to insist, and, I think, will insist that in no affair of state shall the premier or government of this country take counsel with or accept dictation from any foreign ecclesiastical power, be that power Roman Catholic or Protestant, and I have no hesitation in saying that if the Prime Minister has taken counsel with the Papal ablegate, as has been charged and re-charged in tills House without contradiction as to what educational laws shall be imposed upon the new provinces in the Northwest while ignoring two of his most influential constitutional advisors and the premier of the Territories upon which the legislation is to be imposed, he has committed an offence against our constitutional government which the people will not soon forget. They have probably forgotten, as the right honourable gentleman seems himself to have forgotten his lofty, high-sounding- professions of 1896 when, as leader of the Liberal party then in opposition, he moved the six months' hoist to the Manitoba Remedial Bill, but they will. I venture to predict, not so readily forget this affair of 1903.

I am here

-said the right lion, gentleman as Mr. Laurier, democrat to the hilt and leader of the opposition in 1896-

representing not Roman Catholics alone,

but Protestants as well, and I must give an account of my stewardship to all classes. Here am I, a Roman Catholic of French extraction, entrusted by the confidence of the men who sit around me with great and important duties under our constitutional system of government. I am here the acknowledged leader of a great party composed of Roman iCatholics and Protestants as well, in which Protestants are in the majority, as Protestants must be in the majority in every part of Canada. Am I to be told, I, occupying such a position, that I am to be dictated the course I am to take in this House by reasons that can appeal to the con-

sciences of my fellow Catholic members, but which do not appeal as well to the consciences of my Protestant colleagues.

' No ' lie answered as leader of the opposition in 1896, but in 1905 as Prime Minister of Canada, representing not a party, but the entire electorate of the country. Homan Catholics and Protestant alike, as I have said, witli thirteen or fourteen constitutional advisers, he sits silent in this House when he is told not once, or twice but many times across the floor of parliament that he has been advising, not with Roman Catholic priests, who are citizens of the country and whose right to participate in the administration of public affairs the same as other citizens is not denied-was not denied by him in 189G-but whose alleged attempts to dictate to him as leader of the opposition in 1896 he professed to resent-but advising with an Italian ecclesiastical envoy, who is not a citizen of this country, who is himself a foreigner and who is here to represent an ecclesiastical power which is not recognized by our constitution-who neither in his personal nor representative capacity is entitled to any voice whatever in the government of this country. In the light of this latest development I beg to remind the right hon. gentleman of his eloquent and patriotic words of 1896, which I have quoted, and I beg in the same light also to commend them to the members of this House and to the people of this country.

Mr. BRUNEAU moved the adjournment of the debate.

Motion agreed to.

On motion of Mr. Fielding, the House adjourned at 11 p.m.

Friday, April 14, 1905.

Topic:   QUESTIONS.
Subtopic:   APKIL 13. 1905
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April 13, 1905