Now that we do not know exactly where the hon. leader of the opposition stands with regard to his motion, we will proceed to discuss the question whether or not we have the constitutional power to pass this Bill. AVith regard to this question of constitutional powers, we must not forget one thing: Section 91 of
the British North America Act determines what are the powers of the federal parliament ; section 92 deals with the powers of the local legislatures ; section 93 deals with the powers of the local legislatures in regard to education, but at the same time gives the federal parliament a certain control over that subject; section 95 places some subjects, like agriculture, under the control of both "the provincial legislatures and the federal parliament. Now, it has been asserted time and again that this legislation is an infringement upon provincial rights. I say with regard to education that it is not a question of provincial rights. It is not a question whether the province will have an absolute right or not, such as it has in regard to the matters embodied in section 92 ; but it is purely and simply a question of minority rights. It is a question whether the minority shall enjoy the rights and privileges which are guaranteed by the constitution or rights and privileges which they may acquire under the constitution.
Now, have we the power to pass the Bill now before us ? I say, without the least hesitation, .that we liav^ that power. I am not going to dwell on that question at great length. I hope my hon. friend the Minister of Justice will have occasion to take part in this debate, and he is certainly in a better position than I am to discuss that question ; but I may be permitted to say a word or two upon it. What says section 4 of the Act of 1871 ? It says :
lishment, make provision for the constitution and administration of any such province
The section does not stop there. It does not say, as section 146 of the British North America Act of 1867 does, that the provinces shall be admitted subject to the provisions of that Act. Section 4 of the Act of 1871 says that so long as the Territories remain territories the parliament of Canada will have absolute control over them ; but under section 2 the parliament of Canada has also the right to create provinces in those Territories, to give constitutions to those provinces, and to provide for the passing of laws for the peace, order and good government of such provinces.
Mi-. BRODEUR. Certainly. If there is legislation which is going to bring peace and order, and which should be dealt with by this parliament, the present is that legislation. I am glad that my hon. friend has drawn my attention to that point. Now, Mr. Speaker, in 1875 this parliament passed a law providing that Catholic and Protestant minorities in the Northwest should have the right to establish such schools as they thought fit. There was no objection to that law ; why ? Sir John Macdonald was then the leader of the opposition in this House, and why did he not object to the establishment of separate schools in the Northwest ? Because he remembered the promise he had made in 1869 to those minorities. He remembered that he, Lord Strathcona and the imperial government and Archbishop Taclie had promised that the rights of the minorities in the Northwest should never be disturbed ; and, faithful to his word, he did not object to that legislation, and the rights of the minorities were preserved. In 1880 this parliament re-enacted most of the law which was passed in 1875. My hon. friend from East Grey (Mr. Sproule) was then in the House, and I see by the Debates of that day that he made a speech-not on that question ; oh, no ; but he made a speech on some other question which was brought up on the same day on which the Bill was under consideration. Let us see what was declared in that Bill. Section 9, which was a new section, provided :
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.
The parliament of Canada has absolute power over the legislation of the Territories; there Is no doubt about that. Now, what does section 2 of the same Act say ? It says :
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 if such estab-
The Lieutenant Governor in Council, or the Lieutenant Governor, by and with the advice and consent of the legislative assembly, as the case may be, shall have such powers to make ordinances for the government of the Northwest Territories as the Governor in Council may, from time to time, confer upon him ; provided always, that such powers shall not at any time be in excess of those conferred by the ninety-second and ninety-third sections of the British North America Act, 1867, upon the legislatures of the several provinces of the Dominion.
AVhen this matter was up before, I remember that the hon. leader of the opposition asked me if this was a re-enactment. I have looked into the question since, and
I find that it was not a re-enactment. I find that that section was enacted in 1880, and the hon. member for East Grey (Mr. Sproule), who to-day claims that the rights of minorities should not be protected, did not rise and protest against the incorporation of such a law in our statutes.
When the hon. gentleman asked me before in reference to that, I said that I had no recollection of it. I said that I was not then as familiar with the British North America Act as I am today, and I did not know the purport of many of the clauses of that Act; so that enactments bearing upon it might be passed in this House without my knowing anything about them. But when the question was brought before the House in such a way that I understood it, I always opposed such an enactment. In support of that statement, I need only mention the fact that when Mr. Dalton 'McCarthy moved a resolution with regard to one of the clauses of the Act of 1875, I both spoke and voted in favour of his motion, and what were the reasons I gave for doing so ? I said that while Sir John Thompson says we' shall have power to give the Territories any kind of constitution we like when we come to form them into provinces, and while other members think the same, the tendency of members, especially lawyers, was to have great regard for precedents, and when we come to that time the very fact that the minority may have enjoyed those rights for a number of years will be quoted as giving them vested rights, which it will be held we have no moral right to take away from them. As I did not want to have that claim made, I voted against it.
There is a great difference then between the position taken by the hon. gentleman in 1880 and the position he now takes, before the introduction of these Bills. In 1880 when a Bill was passed by this Parliament containing this section 10, which I shall read so that there may be no misunderstanding, he made no protest against it. My hon. friend says he does not know constitutional law, but this clause 10 Mr. BRODEUR.
speaks for itself and may be understood even by one who is not versed in constitutional law. It is as follows :
When, and so soon as any system of taxation shall .be adopted in any district or portion of the Northwest Territories, the Lieutenant Governor, by and with the consent of the council or assembly, as the case may be, shall pass all necessary ordinances in respect to education, but It shall therein always be provided that a majority of the ratepayers of any district or portion of the Northwest Territories, or any lesser portion or subdivision thereof, by whatever name the same may he known, may establish such schools therein as they think fit, and make the necessary assessment and collection of rates therefor ; and, further, that the minority of ratepayers therein, whether Protestant or Roman Catholic, may establish separate schools therein, and that in such latter ease, the ratepayers establishing such Protestant or Roman Ca'holic separate schools shall be liable only to assessment of such rates as they may impose upon themselves in respect thereof.
My bon. friend says be did not understand that section, and that is why he did not protest against it; but this session, before the Bills were even introduced, and consequently before he could have seen the educational clauses, he started an agitation against them.
Mr. 'SPROULE. Will my hon. friend allow me to correct him ? I am not aware of having said that I did not understand that clause. I do not know that I was in the House at the time it was passed. It certainly was not brought to my notice.
Will my hon. friend allow me to be responsible for what I do say ? 1 said I was not as familiar with the clause of the British Nortfi America Act then as I am to-day. I did not say that I did not understand it.
I suppose my hon. friend was then able to read that clause 10, and understand it. and I presume that when it spoke of separate schools, he knew what it meant, and when it spoke of the i rights of minority he must have known what it meant. He did not then object. He did not then say a word against that clause 10 of the Act" of 1880 establishing separate schools. He did not protest that it was in violation of the British North America Act. He had a speech to make that day on some other question, but on that question he had not a word to say. This session however, before the Bills to establish these new provinces were introduced, and consequently before he could have known what clauses they contained regarding education, he started an agitation against them.
The hon. gentleman must be aware that when the same question was brought up by the late Mr. Dalton McCarthy and discussed in this House, I took part in that discussion and stood exactly where I stand to-day. I then condemned, as I do now, the principle of taking the question of education out of the control of the provinces.
I do not want to continue the discussion longer with my hon. friend. I suppose, however, we can agree that his position to-day would perhaps be more consistent, if he had taken a firmer stand in 1880. I am not complaining. I am glad, however, to note that to-day he is giving to his duties a little more attention than he was then giving them. Perhaps the change of government may have something to do with the change in his position.
My hon. friend, the leader of the opposition, said the other day that the Northwest Territories became entitled in 1870 to the provisions of the British North America Act with regard to education. II am not sure that I could accede to that legal proposition, but if there be any doubt that the minprity acquired certain rights in 1870, there can be no doubt that section 93 of the British North America Act was applied to the minority in the Northwest Territories by the Act which we passed in 1880. Well, since 1880 the minority have acquired some rights and privileges. They got some ordinances passed in connection with education ; and I am glad to say that the legislation which was passed in 1883, and which gave to the minority in the Territories the full measure of their rights and privileges, was prepared by two of toy colleagues, one of whom is the Minister of the Interior (Mr. Oliver). My hon. friend, the Minister of the Interior, was then a member of the territorial assembly and one of those who passed this legislation giving the minority the full measure of justice and the full measure of their rights. Whether the minority acquired those rights in 1870 or whether they acquired them by the legislation of 1880, there is no doubt that in 1880 separate schools were established, and there is no doubt that the minority have since been enjoying these rights in the Territories. Why then to-day, when we are constituting these Territories into provinces, should we not carry out the provisions of the^ law as embodied in the constitution of 1875 and in the British North America Act ? My hon. friend, the leader of the opposition says that section 93 of the Confederation Act should apply to these Territories when
they entered confederation in 1870. Well, if it does, the rights which the minority have since acquired can be protected by this government. The rights which they have acquired since their entry into confederation in 1870 can be and should be protected by this government. We certainly have the right to legislate in that sense. I suppose my hon. friend will not dispute that we have the right to pass remedial legislation. Well, if we have the right by remedial legislation to give to the minority their rights and privileges, why should we not do that when we are giving these new provinces a constitution V
No, we are simply embodying in the constitution of these new provinces what we would have the right to give them by a special Act. If we can pass remedial legislation to secure these people in their rights, why should we not do that immediately when we are constituting those provinces ?