May 2, 1905

CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

No, but the application by him of what I said.

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LIB

Louis-Philippe Brodeur (Minister of Inland Revenue)

Liberal

Mr. BRODEUR.

I understood the hon. gentleman to say that my quotation was not correct.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

Not at all.

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LIB

Louis-Philippe Brodeur (Minister of Inland Revenue)

Liberal

Mr. BRODEUR.

I say that if my hon. triend's contention be correct, namely, that section 93 of the British North America Act applies to the Territories on the date of their acquisition by confederation in 1870, then the rights they have acquired since 1880 coaid be preserved under that same section 93.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

I would not agree with that proposition, as I understand it.

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LIB

Louis-Philippe Brodeur (Minister of Inland Revenue)

Liberal

Mr. BRODEUR.

I want to deal for a moment or two with an argument which was made the other day by the hon. member for North Toronto (Mr. Foster).

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CON

Frederick Debartzch Monk

Conservative (1867-1942)

Mr. MONK.

Will my hon. friend allow me to put him a question before he leaves that part of the subject 7 If, as he contends, section 93 of the British North America Act applies absolutely to the new provinces, can we, under the proposed amendment before us, vary that section 93 ? He will remember that under the proposed amendment we eliminate subsection 1 of section 93- a very important clause-and substitute a new section. Have we power to do that ?

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LIB

Louis-Philippe Brodeur (Minister of Inland Revenue)

Liberal

Mr. BRODEUR.

I bare not tbe least thought that we have power to do it. But section 2 of the Act of 1871 provides not only for giving a constitution to the Northwest, but also for passing laws to preserve law and order in that portion of the country. If we have the right to pass laws to maintain peace and order within these provinces, I say we certainly have the right to vary section 93 as we have done.

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CON

Frederick Debartzch Monk

Conservative (1867-1942)

Mr. MONK.

Then, section 93 does not apply absolutely if we have the right to vary it?

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LIB

Louis-Philippe Brodeur (Minister of Inland Revenue)

Liberal

Mr. BRODEUR.

It does apply, but we have the right to change it, which is a different proposition.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

With the hon. gentleman's (Mr. Brodeur's) permission, I would like to ask a question in order that I may understand his argument. Does he mean that the Act of 1871 is broad enough to permit us to provide, in a Bill such as that we are now discussing, that the customs or the post office, for example, should be within the legislative control of the new provinces?

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LIB

Louis-Philippe Brodeur (Minister of Inland Revenue)

Liberal

Mr. BRODEUR.

I do not think so ; and for this simple reason-that the address presented by this parliament asking for the passing of this Act of 1871 expressly asked that the powers of the federal parliament should not be encroached upon by the legislatures.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

Then does the hon. gentleman (Mr. Brodeur) say that we could take any subject confided to the provincial legislatures by section 92 and transfer it to the authority of this parliament, when creating the new provinces ?

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LIB

Louis-Philippe Brodeur (Minister of Inland Revenue)

Liberal

Mr. BRODEUR.

Yes, that is my opiniou. Because the rights given under section 92 are broad enough to even cover that. And we have to do it; we actually are doing it in the case of the lands. My hon. friend from Jacques Cartier (Mr. Monk) discussed that question the other day, contending that we had not the right to change the law with regard to the lands. I do not know whether the leader of the opposition (Mr. R. L. Borden) is of the same opinion. I think we have the right to dispose of the question of lands as we are doing.

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CON

Frederick Debartzch Monk

Conservative (1867-1942)

Mr. MONK.

Is my hon. friend (Mr. Brodeur) of opinion that we could take, for instance, exclusive jurisdiction over the subject of agriculture?

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LIB

Louis-Philippe Brodeur (Minister of Inland Revenue)

Liberal

Mr. BRODEUR.

I think so. Now, I must deal for a minute or two with a subject which was not brought before this House, but was discussed in an address by my hon. friend from Labelle (Mr. Bourassa) at a meeting held in Montreal some time ago, and also in a letter which he wrote to Mr. MONK.

La Patrie.' My hon. friend said that our Bill may protect the rights of the minority as to separate schools, but that the Catholic public schools would not fall under the constitutional enactment. The hon. gentleman (Mr. Bourassa) relies simply on subsection 1 of section 93. Confining our attention to that subsection we find that, perhaps, his argument may have some weight. But I think that in order to have a proper understanding of the subject we should not confine ourselves to that subsection, but should also consider the effect of subsections 3 and 4. In his letter to ' La Patrie,' he forgot to quote the first part of the amendment moved by the leader of the government (Sir Wilfrid Laurier), which is as follows :

Section 93 of the British North America Act, 1867, shall apply to the said provinces with the substitution for subsection 1 of said section 93 of the following subsection :

Section 93 of the British North America Act includes two different things ; Subsection 1 deals with powers which the minority enjoy in regard to separate schools at the union, and subsections 3 and 4 provide for remedial legislation, and concern not only separate schools but any rights and privileges which any minority may acquire with regard to education. Now, let us see section 93. Subsection 3 provides :

Where in any province a system of separate or dissentient schools exists by law at the unio-n 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.

We see that this subsection is much broader than subsection 1. Subsection 1 simply protects the minority with regard to separate schools. But, under subsection 3 not only the rights of the minority with respect to separate schools are protected, but all the rights of the minority in relation to education. So it comes to this,- if the legislature of the Northwest, after the Bill has been passed, should try to prevent the minority in any section of the province establishing schools to give education satisfactory to them or to use the French in these schools, there would he occasion to discuss the advisability of pressing remedial legislation and exercising the power of disallowance of the Act. So, I think the argument of my hon. friend from Labelle is not a very strong one.

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LIB

Joseph Henri Napoléon Bourassa

Liberal

Mr. HENRI BOURASSA.

Would the hon. gentleman (Mr. Brodeur) permit me? I did not hear the beginning of his argument in reply to the remarks I made in Montreal. But I understand that he contends that,. according to subsection 3 of section 93, there would be an appeal to the Governor in Council, and therefore an opening for

remedial legislation, in case the legislature of one of the new provinces should deprive the Catholics of any rights they may possess in relation to education outside the subject of separate schools. But I presume that he agrees that under subsection 1, is the only one under which the minority could come before any tribunal to have a law that encroaches upon these rights declared null. The proposed amendment deprives them of the right to ask for anything except protection of their rights in separate schools- I am not asking the hon. gentleman to express any view on the subject, but, in view of the history of the last thirty years I have come to the conclusion that while remedial legislation, so far as the Catholic minority' are concerned, may exist in the letter of the law, it does not exist in fact. Anything that is not legally granted to minorities so that they may come before the tribunal and get a remedy of their grievance is no protection of their rights.

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LIB

Louis-Philippe Brodeur (Minister of Inland Revenue)

Liberal

Mr. BRODEUK.

I do not quite agree with my hon. friend. I have always believed that every legislature in this country must be supposed to carry out the law with a certain degree of honesty and rectitude. Perhaps my hon. friend will not agree to that, but I may say this, that any law that might be passed in this parliament, if the provincial authorities did not try to carry it out according to its terms, that law would be of no effect, even if drafted by the ablest men you can find in this country. I say we must always rely to a large extent upon the honesty and rectitude of the legislatures. I know very well, Mr. Speaker, that in the province of Ontario, in spite of the law which now protects the minority in their rights, any provincial government could defeat the effect of that law without passing any legislation which would be declared illegal or unconstitutional under section 1. My hon. triend knows very well that the same thing could be done in the province of Quebec with regard to the Protestant minority. But I repeat, we must have some faith in the rectitude and in the honesty of provincial legislatures. Moreover, Mr. Speaker, why should we say that the rights of a minority are not sufficiently protected when the minority itself does not even complain of what has occurred since 1892 ? In 1892 an ordinance was passed by the Northwest legislature by which the rights of the minority were to a considerable extent curtailed. The minority came before this government for relief, and the government refused to disallow the ordinance. My hon. friend from Beauhar-nois (Mr. Bergeron) said the other day that the government refused to disallow that ordinance because it was too late ; and also, because Mr. Blake had made a motion by which the government could not disallow that ordinance. I suppose my 166

hon. friend will not make that contention to-day ?

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CON

Joseph Gédéon Horace Bergeron

Conservative (1867-1942)

Mr. BERGERON.

Mr. Blake was speaking about the Manitoba Act.

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LIB

Louis-Philippe Brodeur (Minister of Inland Revenue)

Liberal

Mr. BRODEUR.

No, about the Northwest. My hon. friend, in discussing the Northwest ordinances, said that they could not be disallowed because Mr. Blake had secured the adoption by the House of Commons of a certain motion which prevented the government from acting.

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May 2, 1905