GOVERNMENT ORDERS

CONSTITUTION AMENDMENT

(1530)

Mr. Dennis J. Mills (Broadview-Greenwood, Lib.): Mr. Speaker, just before question period I tried to make the point that the speech in the other Chamber of Senator Kirby's was something I thought all of us in this House should take a look at.

For those who have not had the benefit of reading his remarks I would like to take a couple of minutes and read an excerpt of his speech:

Honourable Senators, in 1867 this institution, the Canadian Senate, was set up specifically to safeguard minority and provincial rights. The issue in this debate is about minority rights. It is about the removal of a vested constitutional minority right. Section 93 of our 1867 Constitution, which is the equivalent of Term 17 for Newfoundland, was put in our Constitution specifically to protect minorities. There is no doubt about that fact.

In 1867, the Roman Catholic minority in Ontario was looking at a Protestant majority. Section 93 was put into the Constitution so that Ontario Catholics would be empowered to set up their own separate school system. Ontario Roman Catholics could have got that same power from a provincial statute. But statutes are subject to change by the provincial legislature. So, instead, section 93 was put into the Constitution. It was put there specifically to take the power to change the system away from the hands of the legislature. The exact same can be said of Section 22 of the Manitoba Act, Section 17 of the Saskatchewan and Alberta Acts, and Newfoundland's current Term 17.

To get around these facts, proponents of the proposed Amendment to Term 17 have made the argument that minority rights are not being effected in this case. They argue that a strong constitutional guarantee continues to exist for religious minorities to operate their own schools under the proposed Amendment to Term 17. They point to the language of the proposed amendment that says schools established, maintained and operated with public funds shall be denominational schools.

But the right to have a publicly funded denominational school under the proposed Term 17 comes under the words ``subject to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operations of schools''.

What does this mean? It means that the grant of a constitutional right to establish a denominational school in the new proposed Term 17 is subject to the laws established solely by the provincial legislature.

In other words, it would be possible for the Newfoundland government to pass legislation making it practically impossible to have a denominational school and there would be no recourse to the courts for the minorities currently protected by Term 17. The rights granted them in 1949 would be extinguished. In essence, the constitutional guarantee given to them at the time of the union with Canada would cease to exist.

The courts could only say to the aggrieved minority that yes, they do have the right to establish their own schools but it is subject to provincial legislation. The only inquiry after that is whether or not the provincial legislation in question is ``uniformly applicable to all schools''. In the case that it is, courts could not help the aggrieved minority.

Are constitutional rights of any permanence or do minorities only possess them at the pleasure of the current provincial legislature? Let me set out my views on these questions.

I believe that a basic purpose of a constitution is to establish and protect rights, not diminish them. That is an axiom that any first year law student learns. I know this because even though I am not a lawyer myself, I frequently lectured law school students on the Constitution.

While it is true that no rights exist in isolation from other rights, we look to the courts to balance them, not to provincial legislatures or indeed even to the Parliament of Canada acting alone. I can only conclude that the intention of the Newfoundland legislature in keeping the power under the proposed Amendment to term 17 to unilaterally change the education system in Newfoundland is at some point in the future the legislature may decide to exercise it.

I want to be careful to say that I do not want to imply any ill will on the part of the Newfoundland legislature. I am only emphasizing the assumption that lies behind all exercises in constitution making. Simply stated, we have constitutions so that no party to a constitution can ever act unilaterally or arbitrarily.

For us to vote in favour of the proposed Amendment to Term 17 then, simply because the legislature of Newfoundland wants it, would be a gross abrogation of our duties as senators. We have an important part to play in this process and I am not willing to rubber-stamp this proposal simply because the Newfoundland legislature wants it.

Therefore, I reject the proponents third argument, that the Parliament of Canada, and we as Senators, have only a rubber-stamp role to play with respect to the rights of minorities in Newfoundland.

Senator Kirby goes on. I believe that his argument has been made in my judgment in such a way that we in this House have a responsibility to really look at this closely. In light of that and in light of the vote in the Senate I would like to table and move an amendment. I move:

That the motion be amended in the schedule entitled ``An amendment to the Constitution of Canada''

(a) by adding the words ``where numbers warrant'' immediately before the word ``any'' in subparagraph (b)(i) and;

(b) by adding the words ``determine and'' immediately following the words ``observances and to'' in paragraph (c)

Mr. Mills (Broadview-Greenwood): Mr. Speaker, in conclusion, I appeal to this House that we consider this amendment because if we pass term 17 as it is currently on the floor of the House, we may eventually have a legislature in the province of Newfoundland that we do not feel as comfortable with as the current government. We might then one day be faced with a situation that could not work in the favour of minorities in that province and not be as reasonable. At the same time I would argue that we would also be setting a precedent that could be used in other provinces across Canada. As we know, these rights, as many have said, are part of what brought this country together, those rights that were enshrined in the Constitution.

I would appeal to members to consider that in our vote later on today.

(1540)

[Translation]

Mr. Eugène Bellemare (Carleton-Gloucester, Lib.): Mr. Speaker, I have a few comments to make on the speech by my colleague from Broadview-Greenwood.

It is both a duty and a pleasure for me to support the proposals by the member for Broadview-Greenwood, modifying the federal government motion to change term 17 of the agreement which brought about Newfoundland and Labrador's joining with Canada in 1949.

At that time, the Constitution had been modified to enable Newfoundland and Labrador to join Canada under certain conditions. Term 17 gave Newfoundland the right to have denominational schools.

Canada is made up of minorities, religious minorities, linguistic minorities, racial minorities. The Constitution protects the rights acquired by those minorities, and those acquired rights must not be changed without the minorities affected consenting to the constitutional changes, I repeat, they must not be changed without minority consent.

In the early 20th century in Ontario, we had an example of regulation 17 preventing French-language education. Such a thing should never be allowed to happen again. Acquired rights are acquired rights, and the federal government has a duty to defend the rights and freedoms of individuals and communities when those rights and freedoms come under attack by the provinces.

It is true that a referendum was held in Newfoundland; 50 per cent of the voters turned out. Just over 50 per cent of the number

that voted were in favour, which represents just barely over 25 per cent of the population who voted to change minority rights.

Referendums are a dangerous thing. They make it possible for majorities to crush minorities. We saw that when the province of Quebec wanted to separate, or at least certain Quebec politicians wanted to separate Quebec from Canada, and a referendum was held.

The members of the Reform Party would like to see a referendum held to abolish bilingualism and break the country apart. They have not yet, fortunately, succeeded in getting that referendum.

The minority denominations in Newfoundland are not in favour of the federal government motion, but they would be, if it were modified as proposed by the Senate on November 27, 1996.

My colleague has read the Senate proposals, and I am in agreement with them. I appreciate the fact that the federal government saw fit to allow a free vote on the first, second and third readings of this bill the first time around.

Now that the bill has come back to us from the Senate, I trust that the government will do the same again, and I feel obliged to say that I will, once again, vote against this proposal.

[English]

Mr. Mills (Broadview-Greenwood): Mr. Speaker, I support the member's view. We hope the executive of the government will decide once again to make sure this is a free vote when it comes forward.

[Translation]

Mr. Paul Crête (Kamouraska-Rivière-du-Loup, BQ): Mr. Speaker, I had a strange feeling when I saw this bill coming back to the House of Commons. The first time, I wondered what was happening. We had debated all these points, we had already put them on the table and had voted on this bill.

It is the outcome of a referendum in a province, where there was a majority. I am told that some 50 per cent of the people voted. No one prevented the others from voting. They chose not to do so. Voting is not mandatory in Canada. So, the rule of democracy is to respect the outcome.

I therefore wondered and I am still wondering why this bill is back before us after a vote was taken, a decision was made, in this House of elected representatives and after it was sent to the Senate, whose members are not elected. The people there are appointed for all sorts of reasons, often because of their political allegiances or for other reasons. Often it is because they contributed to society in one way or another. Still, as members of an unelected House of Parliament, they will never have to answer for their actions either tomorrow, next week, next year, in five years or in ten years from now.

(1545)

The people in the other House did not have to consult their fellow citizens to see whether or not they favoured this motion. We have before us a bill passed by the House of Commons based on a referendum held in a province on specific issues, clear issues, which showed a desire for change in that province.

And now we are monopolizing the House's time in order to resolve matters that were already resolved by those elected. I would take the liberty of proposing to the Liberal majority, which only a few weeks ago voted against the abolition of the Senate, to reconsider.

Is there anything to be gained by bringing this bill back here? Especially since the other House has a tendency at the moment, with the election coming, to put more pressure on the government. The fact is that there is a strong Conservative representation in the Senate. Those who did not manage to get members elected in this House are using this as a tool. They are also making use of another tool: the people who were appointed there for various reasons, including their political opinion and their contribution to the political parties. These people are being used as a political tool, as if they represented the people, which is not the case.

Are there people in the other House who can claim to really represent the constituents of the riding they were appointed for? Can any senator today say that he was elected? There was one in Alberta, who unfortunately is not with us any longer, but the senators do not represent anyone.

The fact that they bring back amendments like these makes us wonder how this came to be. How can the senators come back to us with these amendments? What business, authority or right do they have to do such a thing?

It is important to see the implications. This House is back, debating and considering again the same issue and amendments, because the fact is that the amendment presented a moment ago by the hon. member for Broadview-Greenwood is oddly similar to the one presented the first time the issue was debated in this House.

Basically, this is what could be called a remake. The same bad arguments that did not convince us the first time around are being put forward again. After going to the Senate, they are coming back to us, forcing the government to put these things back on the table, even though a decision had already been made.

I think there are several indications that the Senate does not represent what the people want. Consider this. As elected representatives, we can expect to go before the voters in the next year. All members from Ontario should think about this. As they travel to various parts of Ontario during the upcoming election campaign, they will be able to tell the people, with their hands tied behind their backs: ``It is a shame the Pearson airport legislation died. It is

not our fault; the Senate killed it''. Really? Is this normal? Is this democratic? Is this acceptable?

Now, about Newfoundland. Even if only 50 per cent of the people participated in the referendum, the majority of them voted in favour of what was being proposed. In my mind, those who claim that this referendum was not representative enough are very dangerous people. But this should not come as a surprise from people who said the same thing about a referendum in which 93 per cent of the population participated.

I say that a referendum is an interesting weapon in a democracy. It puts important issues directly to the people, whose capacity to understand must not be underestimated. They are very capable of following the debates. Their common sense is something that must be respected.

(1550)

As regards this debate, I am tempted to say that the sooner we will be done, the better it will be. I cannot prevent MPs from expressing their views on this issue, but I want to make them aware of the fact that we are having a discussion that has already taken place in Newfoundland. This debate has certainly taken place before, because the issue had been discussed for several years among political parties. It was the subject of a referendum and referred to the House of Commons. It resulted in an amendment to the Canadian Constitution, an amendment that was supported by both the party in office and the official opposition. This is quite something.

This kind of thing does not happen every day in this House of elected representatives. Indeed, it is not every day that the official opposition agrees with the government on a bill of this nature.

In spite of this approval by the two parties representing the largest number of ridings in Canada, the two most prominent parties in this Parliament, the two parties whose role is the most official, the most necessary and the most significant, we find ourselves having to start the debate all over again because the Senate told us: ``No, even if you are the elected ones, even if you represent the public, even if you are going to call an election next year, we cannot accept that, we have to take other considerations into account, and we are therefore proposing additional amendments''.

This is a golden opportunity to show that we will not let them walk all over us. We cannot let the Senate, which costs us $43 million per year, have such power because, after all, it plays no effective and efficient role in our democracy. The Senate is just a group of lobbyists who are paid, and better paid, by the state, instead of by the private sector. In the early years of Confederation, the Senate may have made a contribution because, at the time, elected representatives may not have had the same training as they do today, and they may not have had access to the same research services either. The government did not have the same resources.

Today, when the Senate opposes a bill, we can tell that it is because of effective lobby groups that undermine the influence of voters. People should realize that to politicians, and I think this is an important point, it should be the electorate that has the most influence on elected representatives.

In the present case, the House of Commons is debating a motion which has come back from the Senate, because a bunch of non-elected individuals insisted there should be a decision to send it back to the House of Commons.

The Senate seems to be getting too big for its boots as far as this bill is concerned. Consider this. When the bill arrives in the Senate, there is already a general consensus to pass the bill. The government and the official opposition agreed on this bill. They submitted it to the Senate to fine-tune certain aspects. But now we get it back with amendments that call into question the very intent of the constitutional amendment.

I think we have to send a clear message. We must have a clear vote on this matter. We must reject the Senate's amendments. We have previously discussed items that were tabled again, for instance the amendment of the hon. member for Broadview-Greenwood. That debate has already taken place in the House.

I realize that to educate the public, we have to repeat certain arguments. That is understandable, but we must not forget that in this case it is pretty useless, because we have given a democratic body consisting of non-elected members a responsibility it should no longer have.

We should learn a lesson from this bill, the same one we learned from the Pearson airport legislation and a number of other decisions by the Senate in recent years.

Just imagine, the previous Prime Minister had to appoint 10 additional senators to be able to do in the Senate what the House of Commons had already done. That took some doing! We had to appoint additional senators to do that. Today, the Liberal government has managed to rebuild its majority in the Senate, but since they do not have a strong majority, we get situations like the one we have today.

(1555)

The solution is not necessarily to stack the Senate, but rather to do away with it. Stacking it with a Liberal majority is not the solution. Instead, it is to make sure that the Senate no longer has the possibility of overthrowing the decisions of elected members.

I believe that we, as members of the House of Commons, ought to promptly vote against these amendments, in order to ensure that the version accepted by Newfoundland in a referendum is the one respected by the House of Commons. We must, therefore, act as

soon as possible, as soon as the various parties involved have done what they have to do.

In the current system, it is true that parliamentarians have the responsibility to continue the debate, because the Senate is entitled to make this type of amendment, but this is a situation which ought to be remedied in the future.

It is my most heartfelt wish that, in the months to come, for the next election campaign, each party represented in this House will include in its platform a position which will make it possible, during the next mandate, to settle this matter of the Senate, to prevent a body made up of unelected members, a democratic organ made up of unelected members, from having the power it has at the present time. It is an anachronism, a remnant of another time, and something that does not in the least represent what a modern state will require in the years to come.

We must, therefore, resume consideration of this bill. We must ensure that the Senate's amendments are not accepted, in order to respect the wishes expressed by the people of Newfoundland.

Mr. Dan McTeague (Ontario, Lib.): Mr. Speaker, I listened with interest to what was said by the hon. member for Kamouraska-Rivière-du-Loup. I thought for a minute the hon. member was going to give us some advice on how to deal with minorities, since we are members from Ontario.

I do not know whether the hon. member of the Bloc Quebecois is up on Canadian history, especially the history of the Province of Ontario. There we also saw the abolition of the rights of francophones to be educated in their own language. I wonder whether he realizes that in 1912, Regulation 17-an ironic twist-was introduced by a Conservative government and supported by a Liberal opposition, a regulation that suspended, denied and suppressed the minority rights of francophones as far as education was concerned. It is rather ironic that history is repeating itself.

I also listened to the hon. member's comments on referendums. He thought there should not be another referendum. I would like to put the question to this member, because I think it is rather ironic and even a little hypocritical to say first of all, they are not in favour of a referendum, and then that they respect the first referendum that was held in Newfoundland. Could he explain why, because I think their position is certainly not a very wise one.

Mr. Crête: Mr. Speaker, I hope I understood the question correctly, because I never said we should not respect referendums. Quite the contrary. In 1980, in Quebec, we had a referendum. We obtained 40 per cent of the vote. We came back and worked very hard and tried to persuade people. We got as far as 49.4 per cent last fall, and we are going to suggest having another one, and that will be decided in the next election. Every time, the people decided. We never imposed decisions. We always made sure the decisions were made by the grass roots.

As for the issue of minority rights in Ontario, yes, I learned my history of Canada from the examples I was shown. When I was young, I heard a lot about Manitoba. I was told about certain decisions, as a result of which the Province of Manitoba, which should have been a bilingual province, never agreed to become one, thus altering the balance across Canada. But at the time, as far as I know, there were no referendums, not in Ontario either, although I would have liked to see the Ontario majority vote to remove the rights of the francophone minority.

We in Quebec use referendums. We never talked about rights in this way.

(1600)

Mr. McTeague: What about signs?

Mr. Crête: Mr. Speaker, I challenge any minority in Canada to come and see whether it wants to trade places with the English minority in Quebec. We are prepared to sign reciprocity agreements at any time with the rest of Canada.

No minority in Canada is treated as well as the anglophone minority in Quebec. Whether we are talking about education, health services or the courts, these services are provided in the second language, while in the rest of Canada, people have to fight to have schools where numbers warrant. Last year in Ontario they had to fight to have washrooms installed in a French school.

I think there is ample proof of a double standard. We are prepared to prove to the rest of the world that we have nothing to learn from the rest of Canada about the way to treat our minorities.

[English]

Mr. Pat O'Brien (London-Middlesex, Lib.): Mr. Speaker, I am amazed the member for Kamouraska-Rivière-du-Loup can tell us with a straight face that he is for respecting the results of a referendum.

I well remember, as do other Canadians, the night of the first Quebec referendum in 1980 when René Lévesque simply uttered ``à la prochaine fois''. In other words, he said that they did not accept the results that night, that they were going to have another referendum and another referendum. We have a term for it now in English: neverendum.

The people of Canada are fed up with the kind of approach where the separatists of Quebec, of whom the member is one, simply refuse to accept the democratic will which has been expressed twice now by the people of Quebec. They will continue to come back again and again with whatever question they need to form in

order to get the answer they want. I wonder if the member can address himself to that.

Also, the member made the point that the Senate should just simply pass this amended term 17 which the House passed recently. I was not supportive of it. To believe that is fundamentally to misunderstand the role of the Senate. We can debate here whether we should even have a Senate, whether it should be appointed or elected. I have very clear views on that. However, if anyone takes the trouble to understand the role of the Senate, it is precisely to review legislation and to refer legislation back that it feels is deficient, particularly vis-à-vis minority rights. Can the member understand that point of view?

[Translation]

Mr. Crête: Mr. Speaker, it is interesting to do a little review of history with the member across the way.

I would like to remind him that a few things happened between 1980 and 1996. There was the decision, in 1984, to send the federal Liberals packing. Quebec decided overwhelmingly to send Conservative MPs to Ottawa, one reason being that someone, somewhere, in 1982, signed the Constitution Act without the agreement of Quebec. Since that time, it has not been ratified by any Quebec government, whether led by Robert Bourassa or Daniel Johnson, and obviously not by any sovereignists.

Why was there a referendum in 1995? Because the sovereignists won the election in 1994. There was no coup d'état, nothing was imposed on anyone. We went to the people. We won the election by saying: ``If you elect us, there will be a referendum on sovereignty''.

The public gave the government this mandate. We held a referendum and obtained 49.4 per cent of the vote, with 93 per cent of the population voting. We say it again: we are going to give Quebecers an opportunity, in the next provincial election, to elect a party whose goal is sovereignty.

Mr. O'Brien: Two attempts is enough.

Mr. Crête: There is no doubt that Quebecers on the other side are in a rather difficult situation. The federal government has nothing to offer, no opportunities.

All that the present Prime Minister of Canada has managed to do, in a flagrant absence of leadership, is to pass a meaningless resolution on distinct society. He was unable to win over-

The Acting Speaker (Mr. Milliken): Your time has almost expired.

Mr. Crête: I will conclude, Mr. Speaker. I think I should have as much time as the member who preceded me. I will therefore wrap up in one minute. I will be quick.

The people of Quebec are a people that decide things democratically. We can bide our time. We do not give up easily. We will not be prevented from reaching our goal.

(1605)

As for the role of the Senate, I am told that I do not understand it. In fact, I understand it perfectly, as do Quebecers who all agree it should be abolished.

Mr. Ronald J. Duhamel (St. Boniface, Lib.): Mr. Speaker, what I would like to raise this afternoon is the key issue which, as you know, is not the Senate. We must not let ourselves get sidetracked by what the elected representatives or the appointed representatives have done. The key issue, the only one, is: What will happen if this amendment initiated by the government of Newfoundland and Labrador is adopted? What will happen to minority rights there? What is the possible impact on minority rights elsewhere?

Let us take the time to discuss this. Let us drop the questions of Senate, House of Commons, this power struggle, let us look instead seriously and carefully at what we are in the process of doing at this time. Are you, as a group, ready to suppress the rights of Newfoundland and Labrador minorities?

[English]

Before voting on the Newfoundland schools question, I urge members to consider the following carefully, extremely carefully. I know we have busy agendas and sometimes we tend to listen to people who would have us do certain things without having the time to reflect but let us reflect on this one. It has come back to us for a second look, for more study.

What is the effect of the current term 17? What is the effect of what is now in the Constitution? The current term 17 of the terms of union extends to various religious minorities in Newfoundland and Labrador the constitutional rights to establish and operate schools that reflect their particular religious beliefs and practices and the right to receive a fair share of public funds for the operation of those schools. That is what the current constitutional arrangements do.

This right is now immune from any legislative enactment which might prejudicially affect it. For Newfoundland, term 17 is the equivalent of section 93 of the Constitution Act, 1867, a section that provides a constitutional underpinning for denominational school systems in a number of other provinces. That is what we are talking about. Let us forget about the games and the power and who is going to decide what. Are we prepared to remove those rights? That is what we have got to answer.

If the proposed term 17 passes without amendment, what effect will that have on minority rights in Newfoundland? If the proposed term 17 passes without amendment, the constitutional right to establish and continue to operate minority religious schools in Newfoundland and Labrador will become, and this is so important

to remember, wholly subordinate to provincial legislation, wholly, totally, completely, unequivocally subordinate to provincial legislation. There is no example in the Constitution of Canada, none whatsoever, where a guaranteed constitutional right would be subject to provincial law. There is not one single example because when it passes through that door it is no longer a constitutional right.

A constitutional right subject to a provincial legislature is no constitutional right at all and could never be subject to the ruling of a court of law. That is what we are doing if we pass this amendment without the other amendments that have been proposed by my colleagues; ``where numbers warrant''; and the right to not only direct but to determine and direct.

If the proposed term 17 is amended in accordance with what was proposed in the Senate, what will be the effect of those particular amendments? This is so terribly important to understand as well.

The first amendment proposed in the Senate is to replace the clause ``subject to provincial legislation'' because if it is subject to provincial legislation it is no longer a constitutionally acquired protected right. The term ``subject to provincial legislation'' would be changed to ``where numbers warrant''. Surely this is fair. This term will not provide for the continued existence of separate denominational school boards. However, it will provide for schools for the separate denominations where numbers warrant.

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The minorities that have been affected have accepted less than they now have. Surely the federal government and the Government of Newfoundland and Labrador are prepared to look at this with some common sense and sensitivity. Surely they are prepared to reach out and seize the opportunity.

The amendment will ensure that parents may choose schools of their own denomination where numbers warrant. It still gives the provincial legislature a whole lot of power. The amendment would preserve the constitutional right of minority religious groups in Newfoundland and Labrador to establish and continue to operate religious minority schools subject to having adequate numbers of students.

The expression ``where numbers warrant'' is well known in Canadian constitutional law. It is the language in the education section of the charter of rights and it has already been ruled on by the courts. Such an amendment can and should be supported. The Senate amendment merely asks the government to be true to the commitment it made during the referendum, that is, the Government of Newfoundland and Labrador.

The second amendment proposed by the Senate provides the guarantee that when minority religious schools are established, the

denomination for whom the school exists will have the constitutional authority not only to direct but also to determine and direct all those matters that affect the denominational integrity of that school.

This amendment should also be supported because ``merely to direct'' could be interpreted to mean only having the power to carry out policies determined by someone else. Surely we do not want to take it all away from these groups.

The current constitutional protection for Newfoundland and Labrador schools cannot now be changed unless both levels of government, the Government of Canada and the Government of Newfoundland and Labrador, in partnership decide to do so. That is what the deal is now.

If the proposal of the Government of Newfoundland and Labrador passes, the constitutional right that I have just described becomes subject to the decision of the provincial legislature. It could be changed unilaterally by this or some other provincial government. Therefore it is no longer a constitutional right.

That is what we are in the process of doing here. We are in the process of removing constitutional rights and placing them at the whim and fancy of those who draft provincial legislation and subject to provincial legislation. Is that what members want to do? Well I do not and I will not. This is a question of the rights of minorities. The amendments proposed by the Senate have the support of the minorities but that was a challenge initiative.

The Government of Newfoundland and Labrador came forward with an amendment that was not acceptable to the minorities affected. But the minorities affected have stepped back and said: ``Let us put in the term where numbers warrant. Let us put in another clause so that we are more involved and can participate more fully. We will buy in''.

It has changed considerably. Whereas the Government of Newfoundland and Labrador was proceeding without the support of minorities, now it has the support of those minorities. It also has my support and I hope the support of my colleagues.

This is a question of the rights of minorities. Let us not fool ourselves. It is nothing more or nothing less. I oppose the changing of the constitutional rights of minorities without their consent. I would hope my colleagues would also oppose those changes without the consent of those minorities.

Surely we are not going to impose the will of majorities on minorities unless what the minority is doing is dysfunctional for the whole, and that is not the case. That is why I propose passing the original amendment with the additional amendments proposed in the Senate which are now proposed by my colleagues in the House and which are accepted by the affected minorities.

(1615 )

I want to share with the House some information of which my colleagues may not be aware. Prior to the referendum of September 1995 the Government of Newfoundland and Labrador distributed a householder across the province. I have that householder here. It is called ``The Education Referendum: A Decision on the Future of Education in Newfoundland and Labrador''. The householder discussed the main changes proposed in the amendment which was being initiated by the Government of Newfoundland and Labrador. Page 2 of the householder reads:

The new Term will not provide for the continued existence of separate denominational school boards. However, it will provide for schools for the separate denomination where numbers warrant-

Under the question of which school students will attend under the new system, the householder reiterated: ``However, parents may choose schools of their own denomination where numbers warrant''. That is in the official documentation sent out by the Government of Newfoundland and Labrador.

The other House suggests that the amendment include the phrase ``where numbers warrant''. I hope, because that same amendment has been proposed here, we will consider it seriously. We should not simply slough it off because it came from the other House. That is not the issue. It is not whether we have been elected or appointed, it is not making fun of other people, it is looking at what we are doing. By this amendment, ``where numbers warrant'', we are asking the Government of Newfoundland and Labrador to be true to the commitment it made during the referendum. That is what we are trying to do. We are trying to ensure that it remains true to that commitment.

People will ask why the member for St. Boniface is so concerned about this issue affecting the education system in Newfoundland and Labrador. It does not only concern the education system in Newfoundland and Labrador. Changing or reducing the constitutional rights of minorities without their consent is wrong. It is contrary to what we as a party have traditionally supported and what most parliamentarians have normally supported.

One of the promises Canada made to Newfoundland when it joined Confederation in 1949 was to protect denominational schools. That became term 17 of the terms of union. That promise was used to get Newfoundlanders to join Canada. Less than 50 years later it is being proposed that the promise be changed without the consent of the minorities. We have given them an opportunity, by presenting motions in this House, to do it honourably in order to respond to the needs, the aspirations, the hopes and dreams of those minorities and yet be able to go on with reform that is, no doubt, very much needed.

Surely as a government it is our role and our duty to protect these constitutionally acquired rights. Canadians are counting on the House of Commons to do exactly that.

Some will argue that there was a referendum and the people decided. This is a major issue and 52.2 per cent of the people voted. There was a 54.9 per cent response in favour. In favour of what? Here is the question: ``Do you support revising term 17 in the manner proposed by the government to enable reform of the denominational education system?''

I bet that we could go out and ask that question of Canadians today and a majority would be in favour of it. ``Do you want to improve education?'' Of course Newfoundlanders and Labradorians said yes. Why not?

Let me read that important question again. Fifty-two per cent of the people said yes to this question: ``Do you support revising term 17 in the manner proposed by the government to enable reform of the denominational education system?'' We are trying to use the results of that referendum on a fuzzy question to pretend that it was decisive and there is now a mandate to go forward.

The people of Newfoundland and Labrador accept that changes are needed in the education system. The denominational schools understand and accept that changes are needed in the education system. A constitutional amendment is not the only way to achieve a modern and effective school system.

Church representatives and the Government of Newfoundland and Labrador have already agreed on many points: the number of school boards, the funding of capital expenditures, the viability of schools and busing. These have been discussed and agreed on already without any constitutional amendment. In four days the government and the church officials were able to agree on points that had been discussed for years with the previous government.

(1620)

The framework for school board consolidation is a perfect indication of the possibility of a made in Newfoundland solution. This framework has been established for the setting up of 10 interim school boards in the provincial construction board. These changes could be validly implemented by the legislature of the province without the necessity of an amendment.

Let me talk to that more specifically, quoting an authority. In the legal opinion of Mr. Colin Irving, constitutional adviser to the Catholic Education Council: ``The Newfoundland legislation adopting the proposals just outlined would not be found by the courts to be in violation of term 17 of the present terms of union''.

We must guarantee the protection of these rights of minorities. All minorities note it is not easy to have. They need the protection of the majority for the kind of country we are going to have.

[Translation]

I personally believe that a referendum which takes away certain minority rights and allows the majority to decide is unhealthy, except if the minorities are involved in something that imbalances society and harms the majority. This, I feel, sets a dangerous precedent. What message are we sending by supporting such an action?

[English]

Why not see the implementation of provincially negotiated changes to the educational system and if subsequent to this the amendment is still deemed necessary, it could be brought forward at a later date.

Why not an amendment that would be agreed on by all parties? We have two choices here. We could postpone this and do it if it was necessary, or we could take the amendments, which is what I prefer because it has the support of those minorities, that is, ``where numbers warrant' and ``determine and direct'' and put those amendments through because they have the support of the minorities. We can now have an amendment that has the support of all parties if we stop playing games, if we stop worrying about power, if we stop worrying about whether it was the elected or les gens qui sont nommés qui vont décider.

Some people have been using the argument that the academic results of students in Newfoundland and Labrador when compared with those of other students are among the lowest in the country.

[Translation]

It is absolutely false, unhealthy, and dishonest to use such information. According to the Department of Education for Newfoundland and Labrador, and I quote:

[English]

The general level of education among all age groups in Newfoundland and Labrador has risen dramatically since the mid-1970s to where the gap with the rest of Canada has all but closed.

According to Chris Decker, former minister of education: ``The gap in higher education between our province and the rest of Canada is becoming a myth. Our university participation rates are higher than the national average. If the present trend continues, Newfoundland and Labrador will soon have education levels equal to the rest of the country''. Why is this being done?

However, if some people are still not satisfied with the performance in Newfoundland schools, the government is the one that has complete authority on curriculum, test materials, numbers of teachers, funding, teacher education and performance standards. Does it really think that this change is going to bring about a dramatic change in performance? Let's get serious.

To blame the level of education in Newfoundland and Labrador on the denominational school system is absurd and is not a valid argument.

I propose that we look seriously at the main amendment but only pass that main amendment with the other amendments that have been proposed so that the people of Newfoundland can still determine and direct what is going to happen in their schools. Surely such an amendment should have the support of the Government of Canada, the support of the Government of Newfoundland and Labrador. It has the support of the people affected.

In a sense we would be changing the Constitution but with the consent of the minorities as opposed to going forward without those other amendments that have been introduced, we will be changing constitutionally acquired rights promised to Newfoundlanders so that they would join Canada without their consent. I for one do not want to be part of that, particularly when in an official Government of Newfoundland and Labrador document it states, and I have quoted it twice today, that it will be possible for parents to choose the types of denominational schools they wish for their children where numbers warrant.

(1625)

[Translation]

I am asking my colleagues to look at this question again, to set aside what the Senate, the House of Commons, the Government of Newfoundland and Labrador have said, and to look carefully at what we are in the process of doing.

[English]

Unless we are extremely prudent, we will be taking away the constitutionally acquired rights that were promised to minorities when they joined Canada. We have an opportunity to change that. We have some amendments that would permit us to change it with the consent of minorities.

I ask my colleagues to support that common sense approach.

Mr. Ian McClelland (Edmonton Southwest, Ref.): Mr. Speaker, I listened very carefully to the impassioned presentations of the member opposite and to his colleagues. I also listened at great length to one of my colleagues who is trying to sway my decision to vote on this bill.

My position to vote in favour of the bill and support the government's position is based on my fundamental belief in the words of one of the architects of the American Constitution, Thomas Paine, who was an adviser to Thomas Jefferson. His words were that every generation has the right and the responsibility to govern for its own times and should not bind future generations any more than this generation should be bound by past generations. As a matter of fact, that was one reasons why I was so much against

the Charlottetown accord, because it bound the Constitution for all time because it required unanimity to change it.

It is the genius of the American Constitution: to change, to reflect the times.

I would ask my hon. friend opposite, given what I have just stated: the necessity of each generation to govern for its time, to have the right to do so, not to bind future generations or to be bound by past generations. The Legislative Assembly of Newfoundland and Labrador has passed this. There has been a referendum. We know it was a close one, but it was a much closer referendum that brought Newfoundland into Confederation in the first place. Those who say that it passed by a very few votes should have gotten off their butts and voted. Once a vote is done, it is done and you go on from there.

I would ask the hon. member if he would try to convince me, based on my principled position and respecting the position of the people who have already voted, how would he respond?

Mr. Duhamel: Mr. Speaker, I thank my colleague for his question and his willingness to look at the questions that have been raised today. I hope that is contagious and others will do likewise.

I understand the key point. If we make a decision today we do not necessarily have to insist that the decision is forever. I understand the possibilities of that.

However, here is what happened in 1949. Promises were made in order to attract people and to get them to join Canada. Less than 50 years later we are saying: We got you in, now it does not matter anymore if we change the rules or the promises that were made.

Second, and perhaps even more important, this is the wonderful opportunity we have been given. We passed it, it went to the other House and they said: ``Whoa, we are not happy about this. Here are some things that could be done, where numbers warrant''. That was in the official government documentation. The parents were told: ``You will be able to have your kind of denominational school where numbers warrant''.

(1630)

My colleague from Broadview-Greenwood has introduced with another colleague these same amendments: where numbers warrant; and in order to be able to determine and direct. That is the beauty of the wonderful opportunity we could seize, because we have changed from 1949. We can change from 1949 and remove those rights. We can say forget it, that it is over. Some people will argue that we have not but let them look me straight in the face when they say that. Here is an opportunity with these amendments: where numbers warrant and to determine and direct, where it would change them but would not eliminate them, would not remove them.

Surely no one is going to argue that a right that is subject to provincial legislation is no longer a constitutional right. Or at least let them stand and say to remove that constitutional right. I could live more easily with that kind of debate but the challenge that is thrown to us by quoting a well known American personality is one that is available to us today. We can move from where we were but in a sensible way and still respond fairly to everyone's needs.

Mr. Dennis J. Mills (Broadview-Greenwood, Lib.): Mr. Speaker, I would like to compliment my colleague from St. Boniface on his remarks.

The member for St. Boniface brought forth a very important point in his speech. It is the one relating to the question that was done in terms of the referendum, are the people of Newfoundland in favour of reform? It is awful that we only had just a little over 50 per cent.

I think back to the moment when the current premier of Newfoundland was sitting in this House. We all remember the great job he did with the fishnet at the United Nations. He stood in front of the platform and had the big fishnet behind him and he spoke for that little fish, the little turbot, that was being squeezed out of the system. He stood up for Canada. I would dare say that had we had a referendum at that time on the popularity of the then minister of fisheries who is now the premier of Newfoundland, we would be talking about 100 per cent. He did a great thing.

The member for St. Boniface brought this forth so well. They asked a question of all the people of Newfoundland in a referendum: Are you in favour of reforming the educational system in this province? It is strange that only 52 per cent said yes. It should have been upward of 80 to 90 per cent. This whole issue of percentages on the referendum has been glossed over.

I also want to build on the point my friend from Edmonton raised earlier. He quoted Thomas Paine, saying that every generation has a right to decide. I would like to bring to the floor of this House the words of a leader of this country who sat in front of us just a few years ago, a great constitutional leader, Pierre Trudeau. When he was repatriating the Constitution he said that it is the duty of this House, of this Chamber, not just to worry about the advantaged but to speak out for the disadvantaged, and not just to worry about the advantaged regions but to speak out for the disadvantaged regions.

We have a duty in this House to make sure that we who are the custodians of minority rights in this House, have a serious debate on this issue. We should not forget that.

Mr. Duhamel: Mr. Speaker, with respect to Mr. Paine's statement that every generation has a right to decide, we cannot take that too far. I chair the committee on aging and we are looking at how the population is changing. One of the things that was noted was the potential for intergenerational conflicts, that current generations might want to do things dramatically differently which would have an impact on others. While we have to be sensitive to that, we cannot let it run our lives totally.

(1635)

I want to go back to the point I made, which is that with the amendments that have been proposed we could respond to the rights of those minorities in a very sensible way. That is what I would ask my colleagues to look at. If members look deep down in their hearts and souls they do not want to remove the constitutionally acquired rights of minorities without their consent. Members have an opportunity to do it with their consent. I would ask all members to please concentrate on that.

Mr. John Cummins (Delta, Ref.): Mr. Speaker, the issue before us today is the extinguishment of constitutional rights of minorities without their consent. In the case of the Newfoundland resolution before us, we are given to understand that denominational schools will be protected when all it will take to eliminate that protection is a provincial statute. In other words, the constitutional guarantee is being dropped. I do not think this is the proper way to proceed.

Until now the province has had jurisdiction over matters of education subject to constitutional guarantees. Henceforth, it will be able to legislate without regard to any guarantee. In particular, the rights of a minority will be subject to the whim of the majority as they were in the referendum. The truth of this is in the statistics of the referendum. It has been established by reviewing the votes on a riding by riding basis that Roman Catholics rejected the proposed change. In effect, the majority voted to support the reform that would remove denominational schools from Roman Catholics against their will.

The issue then is: Is this resolution prejudicial to minorities? The minority observations of a report from the Senate study seem appropriate today. On page 48 of that report the question is asked: Is the resolution prejudicial to minorities? The report goes on to state:

Section 1 paragraph (b) would have the effect of placing the protection of the constitutionally protected right to establish and maintain uni-denominational schools ``subject to provincial legislation''. The establishing and maintaining of uni-denominational schools would thus, no longer be protected by Canada's Constitution. The provisions contemplated in this resolution are a major departure from the protection enshrined in section 93 of the Constitution Act, 1867; section 22 of the Manitoba Act; section 17 of the Saskatchewan Act and the Alberta Act and in Newfoundland's current Term 17. In all those sections, the power of the provinces to legislate is subject to the denominational rights enshrined in the Constitution.

Under the proposed changes the protection for denominational rights in Newfoundland would be subject to a provincial law of general application and if accepted, create a dangerous precedent.

The committee heard the testimony of numerous witnesses who requested that the resolution be amended so as to substitute in paragraph (b) the well known legal expression ``where numbers warrant'' for the present introductory words. We observe that substituting a ``numbers warrant'' test would mean that the courts would remain the ultimate guardians of the rights of the classes of persons which the section seeks to confer. This is consistent with how other minority protections are dealt with in Canada.

A second issue of concern raised by the affected classes of persons who would lose their present denominational school rights relates to the matter of who will determine and direct the programmes in the uni-denominational schools. Paragraph (c) of the proposed Term 17 resolution reads as follows: `-to direct the teaching of aspects of-'. This would effectively abrogate a present constitutional right of the people of Newfoundland. It was the view of many groups that this could be mitigated if that section read as follows: `-to determine and to direct the teaching of aspects of-'.

Without these changes it is my view that the proposed resolution would be prejudicial to the constitutionally protected rights of certain classes of citizens. Why were such rights guaranteed in the Constitution? That is a question that should be answered. In that same Senate study it was answered in a document which was tabled with the committee by Professor Patrick Monahan, a constitutional lawyer. He wrote:

It has generally been assumed that the various constitutional guarantees for denominational education in different provinces are not subject to abrogation or amendment simply because a majority of the citizens in a particular province would support such a change. Indeed, to amend or abrogate these guarantees on such a basis would be inconsistent with the very principle that led to their entrenchment in the first place. Denominational guarantees were entrenched precisely so as to put them beyond the reach of the majority sentiment in favour of abrogating the rights of a minority. Therefore, I agree that a constitutional amendment to Term 17 that is not supported by the classes of persons protected by that guarantee could be seen as a precedent that would permit other provinces to seek similar changes.

Professor Carney noted that it is not clear if either of these results were achieved. Finally, the move was an expression of the will of the majority in Manitoba that affected minority rights. However, the Privy Council, at that point in time the highest judicial

authority in Canada, found that no rights had been taken away. Professor Carney found this very reminiscent of the Newfoundland debate of today.

He stated that a compromise was arranged by Prime Minister Laurier and Premier Greenway of Manitoba which provided time for religious education and the hiring of teachers in proportion to the religious denomination of the pupils, the Laurier-Greenway compromise. However, between 1896 and 1916 there were a number of such steps towards eroding those rights, particularly the erosion of linguistic rights in 1916. Professor Carney felt that passing the proposed Term 17 would result in the same type of controversy that existed in Manitoba 100 years ago.

I have another problem with this motion. It is a significant problem which concerns the referendum. The referendum was fundamentally flawed. The question that was asked was a fuzzy one as has been noted by others. We in this House and many people in this country were especially critical of the question in the Quebec referendum for the same reason. The same criticism applies to the question which was asked in the Newfoundland referendum.

The question was: Do you support revising term 17 in the manner proposed by the government to enable reform of the denominational education system, yes or no? The question was carefully crafted to imply falsely that amendment of the Constitution was necessary to reform the educational system of Newfoundland and that was an incorrect proposition.

The question talks about educational reform and who could be against that? Who thinks that education in Newfoundland or elsewhere in this country is not ripe for reform? The question pitted this desire for change and reform against a constitutional right, a conflict which does not exist in reality.

(1645)

The second problem with the referendum question was that in order to understand the government's intentions a voter had to read and understand term 17. The language of the term was certainly far from clear. I believe that a fundamental of any referendum must be that the question asked be very clear to the people who are answering it. They must know clearly the results of either a yes or a no response. That clearly was not the case here.

If each of the denominational classes of persons protected by term 17 had voted to give up their rights no one could seriously object to the proposed amendment on the basis of principle, but that is not what happened. Roman Catholics did not vote to give up their rights, as I suggested before, nor did Pentacostals. The referendum vote was nothing more than a simple case of a majority taking away the rights of two minorities in Newfoundland. Is it any different in principle than the English voting to take away the rights of the French? I would ask the House to consider that precedent.

Promises in government literature on the referendum included the promise of ``where numbers warrant'', which is not provided in the present resolution. As was pointed out earlier, in a brochure which was distributed widely by the government, Newfoundlanders were promised that where numbers warrant schools for religious denominations would be provided, and yet there is no such guarantee in term 17 itself. That is a serious flaw which we must redress in this House. If there is a promise made in the course of a referendum debate, especially when it is a government promoted referendum, that promise should be kept. That is not the case.

There is widespread support for the motion put forward by the hon. member for Broadview-Greenwood and the amendments which were proposed by the Senate.

I would like to read a letter from the Federation of Independent School Associations in British Columbia. The Federation of Independent School Associations represents over 220 independent schools, enrolling over 50,000 students. The schools cover a wide range of philosophical and religious adherence. They include Montessori, Waldorf, special needs, Catholic, Jewish and Protestant groups, and yet they all work together co-operatively within the Federation of Independent School Associations.

I would like to quote a few paragraphs of the letter:

Even a cursory examination of the history of the formation of Canada, as a country, indicates that the basis of union of the various parts to make the whole include strong protection for the educational rights of minorities equally with those of majorities. These rights were reaffirmed in the Constitution Act, 1982 which includes the Charter of Rights and Freedoms. One of the key purposes of these documents is the protection of rights, not only of individuals, but of certain classes of people, especially if they are in a minority position.

The referendum held on September 5, 1995 to alter Term 17 of the Terms of Union of Newfoundland with Canada is an attempt to remove Constitutionally guaranteed educational rights by majority vote without the consent of those whose rights are guaranteed. If such a process is admitted, then the whole structure of Constitutional guarantees is no longer one of guarantees but a structural statement of current practice which may be overridden at some future time by majority vote as the mood of the electorate changes. It was precisely to avoid the arbitrariness of such changes that various rights are protected in the Constitution Act, particularly rights of minorities.

The letter goes on to say:

Changes to guaranteed rights should be arrived at by negotiated settlement following consultations with the parties involved. Decisions arrived at in any other way, in which rights are removed under duress, ensures that the issue will be a cause of severe dissension for years to come.

We would, therefore, request that you consider only those constitutional changes which have been negotiated to the mutual satisfaction of the parties involved. Should you, nevertheless, desire to proceed, we request that you accept the amendments to the amending proposals to Term 17 as adopted by the Senate on November 27, 1996.

We ask you, therefore, to do everything possible to see that the amended resolutions of Term 17 adopted by the Senate are introduced for debate and passage in the House of Commons.

Without the amended resolution, the constitutional right to establish and maintain denominational schools will be wholly subordinated to provincial legislation. There is no example in the Constitution of Canada where a guaranteed constitutional right would be subject to a provincial legislature. Indeed, a constitutional right subject to a provincial legislature is no constitutional right at all.

Please note the amendments of the Senate ``where numbers warrant'' and to ``determine and'', redress the imbalance the original resolution. The amended resolution is a compromise that satisfies our concerns while allowing the Newfoundland government to proceed with educational reform.

With these amendments, the government may proceed to reduce the role of the churches in governance, establish consolidated interdenominational school boards and provide for interdenominational schools where the public wishes to have them. Together, churches and government can work co-operatively to maximum educational effectiveness and operational efficiency.

It would seem to me that in this day and age when one looks at the turmoil in the educational system across this country, the drive is for more parental control. Parents want more say in how their children are educated. In what more fundamental way could that be achieved than by selecting the denominational school, a school in which they know that the values tied in that school are going to reflect their values and their beliefs?

When we look at this bill we have to look not only at that the constitutional question of minority rights and protecting minority right, but we also must look at the issue of who ultimately should be responsible for educating that child. I think the choice should be with the parent and I think there should be as many choices there as possible. I certainly support the motion of the member for Broadview-Greenwood.

(1655)

[Translation]

The Acting Speaker (Mr. Milliken): It is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for South Shore-food inspection agency.

[English]

Mr. Gerry Byrne (Humber-St. Barbe-Baie Verte, Lib.): Mr. Speaker, I am pleased to rise in the House to provide comment to the previous member's words on the term 17 amendment and the subsequent passage of it in this House.

I am pleased also to see that the hon. member is taking the constitutional obligations of the Government of Canada so seriously. The Constitution is a sacred instrument, something we cannot take lightly.

We as parliamentarians have a very strong and sincere interest in protecting all the rights of all members of Canadian society. But we are talking about a Newfoundland issue here, an issue which is affecting Newfoundlanders. I want to make a comment and bring the issue back a little closer to perhaps the hon. member's home turf and talk a bit about other constitutional obligations.

The Constitution Act, 1982 and its interpretation, subsequent to the Sparrow decision, requires that the Government of Canada respect the rights of aboriginal groups to fish for food, social and ceremonial purposes. That is a provision as interpreted by the courts of Canada that is sacred and entrusted within the Constitution.

We are talking about a Newfoundland issue. I do not want to stray off the mark here to much but I think the commentary of the hon. member is very valid because he feels, as do I, that the constitutional obligations as they are described, whether within this Parliament or within the courts, are an obligation of all members of Canadian society.

The hon. member stated very clearly that the Government of Canada has a constitutional obligation to maintain the right of all aboriginal groups throughout Canada to fish for food, social and ceremonial purposes. He also advocates that the Government of Canada has to protect that right and it has the opportunity to enter into various agreements to make sure that the enactment of that right will be maintained for time immemorial.

I will leave my commentary at that and say thank you to the hon. member for his commentary, for saying to all the people of Canada from the west coast to the east coast and central Canada, everywhere, that he feels strongly that all aboriginal groups, because of the interpretation in the Sparrow decision, have a constitutional obligation, he has a constitutional obligation to maintain the rights of aboriginals.

Mr. Cummins: Mr. Speaker, I appreciate the comments of my friend.

The issue he is raising is very important, that in any democratic society the rule of law must apply. The guarantee for the rule of law is embedded in the Constitution. If we take constitutional change lightly, as it seems to me that happened in this House when we debated this issue earlier, we are in for big problems.

Our personal security must lie in a Constitution that is strong, changeable but not easily changed. I think what we are doing here is really flirting with an ease of change that could spell trouble for us as a nation down the way.

(1700)

[Translation]

Mr. Dan McTeague (Ontario, Lib.): Mr. Speaker, I have the honour to speak in this debate, which is taking place in principle because of certain events. The issue was raised almost ten years ago when the Government of Newfoundland wanted to change the denominational school system for reasons of efficiency. This debate led to a referendum in which 29 per cent of Newfoundlanders voted in favour of a change.

[English]

While I accept the many debates that took place in the province of Newfoundland with respect to the concerns about the direction and the need for efficiency in its system, there is in that argument a sense of need as far as the fiscal element is concerned. The Government of Newfoundland and Labrador is certainly to be commended for taking this approach.

In the few days that this House has been given, many members did not have the opportunity for debate because of the speed with which this bill was passed. We had an opportunity to have the bill reviewed by members of the other place and many senators took the time to reflect and review it.

As the hon. member for Broadview-Greenwood indicated a little earlier, we should not simply dismiss their views. I think of Senator Doody, Senator Carstairs and Senator Michael Kirby who took the time to really reflect on the issue and its long term implications. These individuals had a lot to do with creating the Constitution in 1981-82.

These individuals took the time to consider the issue, because it is one that does not just stop with the interests of the province of Newfoundland. It goes well beyond that to every other province because it will no doubt have an impact on minority legislation and the question as so eloquently described by the member for Lachine-Lac-Saint-Louis, when he talked about what this is really doing in terms of the definition of enshrinement.

I believe it is important for the House to also give sober second thought, if I can use that term, to this proposal before us today.

Newfoundland has a population of some 650,000 people. I should point out that the riding of Ontario has 235,000 constituents, and there is not a single member in the House who would believe that riding should be able to imperil or subvert or overcome a question of enshrined or entrenched rights. I feel compelled to say that certain rights are indefeasible. Certain rights cannot be traded off like poker chips at a game when a poor hand is dealt.

What Newfoundland seeks and hopes to achieve with the 52 per cent of the favourable vote has far more implications than simply the concerns of Newfoundland. It has implications for the minority rights of every individual across the country. I want to talk about the historical.

[Translation]

In 1912, the Whitney government in Ontario, took away the minority educational rights of francophones. In 1890, the Manitoba government did away with the laws and constitutional rights protecting minority rights.

I believe the architects of our Constitution of 1982 had the idea of possibly protecting rights, here in the House of Commons, in case a province, for one reason or another, had a different interest.

[English]

Therefore the architects of the 1982 Constitution respected not only the House of Commons but the other House.

I need no lesson about whether or not there is legitimacy in that House because it happened to come back with a few proposals. I will discuss that in a moment. It is fair to say that whether we agree or disagree with what was done by the Senate, the reality is it is nevertheless a part of our Constitution, a part of this House.

(1705 )

We must respect that Parliament has been constructed that way until this Parliament decides to do otherwise. I need no lesson from any members on this side.

I recall what the member for Kamouraska-Rivière-du-Loup said a little earlier with respect to the fact that so many members on this side of the House had not supported the amendment to abolish the Senate. I happen to be one of those few dissenting members who did. However, that does not take away the indefeasibility and strength of the argument that has brought forth the amendment that we see here today. This proposed amendment, which is a carbon

copy of what the Senate had proposed, is a question of describing where numbers warrant.

I am a francophone Ontarian. I know a little about the dilemma of trying to protect certain rights and to provide services where those numbers are warranted. There are certainly many places in my province and in my community of Durham where the French community has been able to receive certain services in the language of its choice simply because the numbers warrant it.

I believe that what the Senate has done is provided us with a second chance at a good compromise which should not be simply eliminated because of some political sense of expediency that exists now in 1996 but opens the door to possible constitutional chaos down the road.

I do not believe that is the intention of the Government of Newfoundland. It is certainly not the intention of the good senators. It ought not to be the intention of this House to commit that kind of error.

This solemn like decision has taken the opportunity to weigh both sides of the coin, the first side being of course recognizing the fiscal constraints that exist in Newfoundland and then the flip side, the reality of recognizing at least certain denominational educational rights.

The history of this whole question I find troubling. In 1990 the Government of Newfoundland appointed the Williams commission. In 1992 that commission found that of the denominational educational groups in the province of Newfoundland almost 90 per cent of what was recommended was adopted and acceptable by all players. What are we trying to achieve in getting that extra 10 per cent that presses us to bring our country possibly to the brink of constitutional chaos?

An hon. member: Too risky.

Mr. McTeague: As my hon. colleague from London-Middlesex has said very eloquently, it is a deal that it simply too risky. It is for this reason that I think we have a golden opportunity here to review some of the wisdom that is coming from that House which has had a little longer to think about this issue.

I know, having 235,000 constituents, that one, we should not be making any changes to the Constitution that are binding. Second, we have a lot of issues that go from this House and a lot require expertise in many areas, but this is one that I do not believe this House can afford the luxury of overlooking or simply saying ``I voted for it that time and now that it is coming before us again I am going to maintain my position''. I think our ability to think these things out compels members of Parliament to reflect very carefully on the door that they are opening. This is, in my belief, the very thin edge of the wedge. I am not talking from the perspective of Chicken Little.

Instead, I believe that what we have to consider this amendment to be is something that would revoke something of a constitutional guarantee. The speed with which this amendment is about to go through must be worrisome in the context of the time it takes to prepare for admission for provinces like Newfoundland.

The parties that consented in 1949 to join Confederation had some very compelling and valid reasons. As the member for St. Boniface indicated earlier, 50 years ago is not that long ago and although I am the ripe age of 34, I know many changes have taken place. Change is a good thing in and of itself but it must be measured against the consequences that it has on all.

(1710 )

It is not good enough when we talk about the indefeasibility of the rights of minorities, which is a hallmark of the Liberal Party of Canada, to simply turn around and say ``we are going to apply some kind of utilitarian principle here, we are going to say that the happiness of the greatest number is the real reason we are here and if it goes well for the majority, so be it''. I think that is illiberal as a view.

Although we want to help the province of Newfoundland, it must look to its own people, to its own denominational churches to find a solution. It must not be allowed to open up the Pandora's box of constitutionality, the kind of constitutionality that says 250,000 people can decide by fiat or by the wave of the hand. Perhaps it is through a question they did not understand or by a question that was articulated in such a way that it left a lot of confusion at the end of the day with only 55 per cent participating. This leaves one with the impression that perhaps they did not know at the end of the day what they were voting on. Irrespective of that the reality is that number is too small to bring about the kind of disruption this amendment threatens to bring.

[Translation]

I expressed my fears earlier about minority rights. As a francophone from Ontario, I am very familiar with the situation of people who have found themselves in a position where governments, with the wisdom of the time, have deprived communities of their rights and interests. The effect of doing so is harmful and creates tensions within the country.

[English]

For many years certain religions were guaranteed certain rights. For instance, the Catholic religion in the province of Ontario was guaranteed certain rights under section 93 of our original British North America Act. Up until 1984 those rights those rights were disrespected. Catholics were treated as second class citizens. They

did not have control over their entire educational system. We righted a wrong. Is it fair for this Parliament to wrong a right?

[Translation]

In my opinion, the eloquent words of Senator Michael Kirby deserve the attention of this House. Members of all parties here must give careful consideration to the force of his argument.

[English]

In essence the argument that has been made by those who have proposed this amendment goes something like this. Newfoundland needs a new school system. The minorities affected had a chance to be heard. In the end nobody is losing much and if we go on they will still have more than their fair share, certainly as far as their counterparts are concerned. Therefore given all this, change can take place.

That kind of argument says that as long as the process is fair, the end justifies the means. I am not one who subscribes to machiavellian philosophy, but I do not believe that the end justifies the means. I believe that in a country as diverse as Canada where we have expressed time and time again the intrinsic value of minority rights, we must be careful to continue to nurture our Constitution, a living document capable of changing with changing times.

We must nurture and protect that Constitution so that it protects those who cannot protect themselves and who are concerned that as minorities they may suffer the tyranny of the majority. We know the difficulties that are encountered by so many groups in this country when we look at parliaments or governments or bodies that say might is right. If you are not on the side of hegemony, if you are not on the side of power then forget it. You have no voice. You have no future.

(1715 )

On the economic plane we are even talking today about the small voices that usually get drowned out. Big business, big labour and big government get to be heard when it comes to resolving a problem, but the new micro industries and young people coming out of our universities with new ideas are simply getting squeezed out. They do not have the traditional levers by which they can express themselves.

The same applies to the wisdom of the Constitution. Our Constitution protects people. It protects them because it believes that at one point or another, no matter who we are as Canadians, whether we live in Newfoundland, Ontario, in Ajax, Pickering or Whitby, or whether we live in British Columbia, we are all, in one way or another, a minority. The Constitution is there to protect not only our status as minorities, it is there to protect our status as individuals who are deserving of rights, rights against being prosecuted unnecessarily by the government, rights against having the rules changed midstream.

I implore the House to consider very carefully what this motion really means. In my view, and I believe in the view of many people in the House and across the country, it is a motion which opens the door, is the thin edge of the wedge, which will allow other governments with certain missions, based on rather important arguments in 1996, in 1999 or a little farther down the road, to remove delicately, softly, quietly, certain constitutional rights, certain inherent rights which we have developed over the years, rights for which many people of this country have fought and died.

I am pleased to say that the amendment which has been proposed by the hon. member for Broadview-Greenwood adopts the wisdom not of senators or politicians but of people who have actually taken the time to think, to consider and weigh that which is Canada. These are people who have said that, yes, the interests of Newfoundland in getting its financial house in order are important. However, we cannot do that by laying waste to their rights.

This amendment, ``where numbers warrant'', means that we are using a tried, tested and true method by which we are going to be able to protect individuals down the road. I believe, if the House sees fit, it will find that the wisdom of ``where numbers warrant'' allows it an excellent compromise to achieve the wishes of the people of Newfoundland and their government while at the same time letting the rest of the country breathe easily and know that their rights and the rights that we share as Canadians will not be suppressed.

[Translation]

I would ask this House to give due consideration to the remarks by the member for Broadview-Greenwood, because this is an amendment, a proposal that, in the end, gives us a way to protect ourselves properly, effectively and in keeping with our identity as Canadians.

Mr. Pierre de Savoye (Portneuf, BQ): Mr. Speaker, constitutional matters are always delicate ones. We know that things are written into the Constitution, into the constitution of any country, in order to ensure, in a way, that they remain unchanged. In fact, what is written into a constitution is aimed, in some cases, at protecting the rights of certain minorities, and in other cases, certain majorities.

In the case of interest to us here, especially after the Newfoundland referendum, we understand that what will be done will affect rights a certain minority believed were protected for ever.

(1720)

I am not taking a stand in this debate, but I would like the hon. member who has just spoken to clarify his view of this duality between permanently maintaining rights which are perhaps a bit

outmoded, on the one hand, and this constitutional guarantee which calls for the ongoing protection of minority rights, on the other.

These two points of view are contradictory, and I would like the hon. member to explain how he resolves that contradiction.

Mr. Dan McTeague (Ontario, Lib.): Mr. Speaker, I congratulate the hon. member on this good question. He addresses the dilemma that exists at the present time surrounding that question.

As I just said, I find that our Constitution is a document that evolves from day to day. It is not a document that is intended as a bottleneck, or a straight jacket. It is a document that is intended to offer limited and minimal protection to the interests and the proposals made at the time the document was signed.

[English]

The courts have played a very strong role in balancing competing rights and interests. We know that the history of this argument, of this whole episode, is one that is fraught with what appears to be governments hell bent on imposing their will, notwithstanding the fact that within the province of Newfoundland there is ample room if not ample evidence of an agreement.

[Translation]

We also acknowledge that perhaps a 52 per cent vote in favour of a question may not be enough for questions where people's rights are involved.

[English]

Fifty-two per cent voting on the rights of minorities who are themselves minorities without their consent is certainly a recipe for tyranny of the majority. The dilemma of a constitutional requirement of protection versus the democratic will of a certain number of people are two competing theories within the terms of our federalism. Yet at the end of the day the rule of law must prevail. The rights of minorities must prevail. The right to free speech must prevail. We know these as sacred values within our system.

While the question is an excellent one, the resolution cannot be found by simply adopting one side and saying: ``To heck with the Constitution. It means nothing. What we are interested in doing here is achieving 1996 fiscal expediency''.

Mr. John Cummins (Delta, Ref.): Mr. Speaker, I appreciate the comments of the member for Ontario. He has a well deserved reputation for sticking up for those who cannot defend themselves regardless of personal cost. He certainly has earned my admiration for that.

The question I have for the member is a simple one. Is the protection that he is seeking for religious minorities in educating their children any different than the protection that would be available to say linguistic minorities, or is it something far beyond that level of protection for which he is arguing?

Mr. McTeague: Mr. Speaker, I wish to congratulate the member. I did not have an opportunity to refer to his speech a little earlier. It took me as a bit of a surprise that he stated the position he had. It shows there is quite a bit of diversity in that caucus on this issue as well.

Do I see this educational issue as being a precedent, a door opening for other minority rights?

(1725 )

As I indicated to the member from the Bloc, we must always be prepared to have a Constitution that is flexible. When we have 30 million Canadians from so many backgrounds, with so many different interests, but then at the end of the day saying we believe in this great country it is going to create a bit of a problem for many of us if we are not prepared to acknowledge that the Constitution is something that must change with changing times.

I am worried about existing rights that are acknowledged by the minorities, not simply from a position of vested interest, but given the history of this amendment. Many have written us saying: ``We have a problem here. The government seems prepared to steamroller a particular issue with the help, by and with the consent of the government, through the House of Commons and through the Senate. We think that you should stop for a moment and really think about what you are doing in the context of that which we agreed to only 50 years ago''.

I respect the fact that in this House there are many members of Parliament who are a little older than 50 years so it is not really that long ago. No offence of course to the hon. whip of our party.

However, in all sincerity to the hon. member's question because it is an excellent one, I do not believe we should be moving toward rectifying new rights when we have not been able to demonstrate a guarantee that we are going to be able to defend the rights that we have already proclaimed. That is exactly the point with which I think the House must be seized.

The Deputy Speaker: Before resuming debate, a point of order from the hon. member for Sarnia-Lambton.

Mr. Gallaway: Mr. Speaker, earlier today votes were taken. With respect to votes concerning Bill C-29, I sent a note to the table officers to point out that I would be absent during those votes.

Unfortunately, the earlier two votes which were taken my name was applied for the subsequent three votes. I had asked the table officers that I not be shown as being present. I was in fact absent and I was marked present and having voted in favour. I request that I be shown as absent and therefore I would request the consent of the House to have the record correctly reflect that.

The Deputy Speaker: I am sure the consent of the House is not necessary to clarify the record in light of what the member has said. I will ask the table officers to make that clear in Hansard.

Mr. Pat O'Brien (London-Middlesex, Lib.): Mr. Speaker, I rise today-

[Translation]

The Deputy Speaker: Excuse me, but it is not your turn. As a Liberal has just spoken, it is now the Bloc Quebecois' turn. I therefore give the floor to the member for Bellechasse.

Mr. François Langlois (Bellechasse, BQ): Mr. Speaker, my apologies to the hon. member for London-Middlesex, but I believe the opposition was not among the last few members to speak, although there was no lack of debate.

My colleague, the hon. member for Mercier, always looks at things in their historical perspective. Knowing where she has come from, she knows where she is headed, and this gives me a point of departure.

I would be much happier today if, instead of taking a position, I was recognizing the result of a referendum held in Newfoundland indicating to us that the Province of Newfoundland and Labrador wanted to leave Canada, like the result in 1948, and we will come back to this. The Province of Newfoundland-then the Dominion of Newfoundland-made a decision regarding union with Canada.

In this event, it would be sufficient to recognize the result and sit down again, because the people of Newfoundland would have exercised their sacred right to self-determination, to the full constitutional destiny of their province.

Today, I am not in any way questioning the results of the September 5, 1995 referendum. A majority voted in favour of amending term 17 of the Terms of Union with Canada. A little bit of background is still necessary. What took place? What led to the establishment of terms of union between Newfoundland and Canada?

(1730)

For the benefit of those who were not with us at the beginning of this debate, a reminder that before 1949, Newfoundland was not part of Canada. Until 1933 it was an independent Dominion, like Canada, like Ireland previously, like Australia and like New Zealand, and as such part of the British Empire, which has now become the Commonwealth.

When economic problems became apparent, the responsible government of Newfoundland was suspended by an act of the Imperial Parliament, the Parliament of Great Britain, in 1933, the Newfoundland Act, 1933, 24-25 George V, chapter 2, United Kingdom.

As of 1933, the Imperial Parliament suspended responsible government in Newfoundland and appointed a commission of government to take charge of what to all intents and purposes again became a colony.

Apparently, the commission of government operated satisfactorily, and the war got the economy going again, so that in the post-war period, the people in London and the people in Newfoundland wondered whether they should maintain this commission of government, in other words, a governor without an elected legislature. The governor received his instructions from London and carried them out.

An initial referendum was held to put the question to the people of Newfoundland. Actually, a national convention was called in Newfoundland to determine the status the people wanted for Newfoundland.

This convention suggested putting two questions to Newfoundland voters: Do you wish to maintain the commission of government-direct rule from London-or do you want to go back to the status that existed before 1933, in other words, the status of a Dominion within the empire? With of course, responsible government based on the institutions that existed before 1933.

As a result of political intrigue and pressure from the Canadian government at the time and from the government in London as well, a third option was considered which had not been planned by the national convention of Newfoundland. The third option was federation with Canada.

Despite the position taken by the national convention of Newfoundland, a third option was put on the ballot in 1948, by an imperial act of Parliament. Let us recall the results of the first referendum, which was held on June 3, 1948.

There was a very respectable turnout of 88.36 per cent. In favour of maintaining the commission of government, in other words, an administration under the orders of the United Kingdom, 14.32 per cent; in favour of federation with Canada, 41.13 per cent; and in favour of the return to responsible government, in other words, to Dominion status as of 1933, 44.55 per cent. There was a majority but not an absolute majority in favour of one of the three options. The option which got the least votes was eliminated and as prescribed by law, a month later, on July 22, a second referendum was held. The question concerned only two points: Are you in favour of federation with Canada or of a return to responsible government?

This time, Newfoundland voters responded as follows: 78,323 voted in favour of federation with Canada and 71,334 voted in favour of responsible government, which in percentages works out to 52.34 per cent against 47.66 per cent. The difference is not

considerable, a difference that in other circumstances would not be worth discussing, because the figures themselves are eloquent.

(1735)

Things become more disquieting when we look at the voting by riding. In the riding of Ferryland, the turnout was 104.59 per cent; in Labrador, it was 119.44 per cent; in Grand Falls, it was 109.79 per cent; in St. John's West, it was 101.50 per cent; in St. John's East, 100.05 per cent and in Humber, it was 107.84 per cent.

This is a turnout that the hon. member for Humber-Sainte-Barbe-Baie Verte can appreciate now. However, as my colleague and friend, the member for Louis-Hébert, would say, something is wrong with democracy somewhere. They went a little bit too far.

Such that, if we look at voting excesses, a lot of ridings had a turnout of nearly 100 per cent. Something rarely seen. For example in the second referendum, it was 95 per cent in the riding of St. George's-Port-au-Port; 97.16 per cent in White Bay; 96.26 per cent in Grand Falls. That is not so bad. In the riding of St. George's- Port-au-Port, in the other referendum, the figure was 99.39 per cent. These figures are rather unbelievable.

Worse yet, however, was the discovery made since that time that London had decided, regardless of the outcome of the referendum, that there would be union with Canada. History speaks for itself; nobody gave two hoots about the people of Newfoundland.

Finally, if only to have it appear in Hansard, as the result of the figures, ambiguous to say the least, with a turnout in seven or eight ridings of more than 100 per cent, the Prime Minister of Canada, Mackenzie King, said at the time the results were released, and I quote: ``I consider such results clear and beyond possibility of misunderstanding''. That took some nerve. Fortunately, there was no live television, because the people of Newfoundland would have been hopping. In the September 5, 1995 referendum no irregularities were reported. As the result of this referendum, it was decided that Newfoundland wanted to join Canada. The terms of union had to be negotiated. There are 50 of them and they appear in the appendix to the 1985 Revised Statutes of Canada.

We are concerned here today with term 17 and it is not an easy matter to understand. I am simply going to read term 17, and even the most eminent jurists sitting in the House will not be able to give us an opinion regarding its meaning.

I will begin. I hope that the translators have the English version, because I am going to read it in French. Term 17, regarding education, is worded as follows:

17. In lieu of section ninety-three of the Constitution Act, 1867, the following Term shall apply in respect of the Province of Newfoundland:

In and for the Province of Newfoundland the Legislature shall have exclusive authority to make laws in relation to education, but the Legislature will not have authority to make laws prejudicially affecting any right or privilege with respect to denominational schools, common (amalgamated) schools, or denominational colleges, that any class or classes of persons have by law in Newfoundland at the date of Union, and out of public funds of the Province of Newfoundland, provided for education,

(a) all such schools shall receive their share of such funds in accordance with scales determined on a non-discriminatory basis from time to time by the Legislature for all schools then being conducted under authority of the Legislature; and

(b) all such colleges shall receive their share of any grant from time to time voted for all colleges then being conducted under authority of the Legislature, such grant being distributed on a non-discriminatory basis.

I do not know whether anyone can rise and explain the term on the spot. I would be prepared to take my place and ask for the unanimous consent of the House to allow such an explanation. It is obvious that, through this term, the Newfoundland legislature gave up to the various denominations its control over schools, its power to legislate with respect to matters of education.

Today, we are hearing two theories. One claims that the repeal of term 17 of the Terms of Union of Newfoundland with Canada will not affect minority rights, and the other claims that it will. There is even a third school of thought, probably the objective one, which tells us that it would appear that the conclusion of the referendum indicates that the various religious denominations, or the six main ones, appear to have given consent. Just now, in quoting the referendum figures, the hon. member for Delta attempted to demonstrate that the Roman Catholic Church in Newfoundland did not have a majority vote in favour.

I am not, myself, in a position to give any answers. I feel that a thorough examination and careful attention to the speeches made in this House will make it possible to make a more informed decision.

But some questions do remain. One condition for union is not clear. Does it affect minority rights? If so, unilateral action, without knowing whether the minorities agree to having their rights abrogated, strikes me as a disquieting precedent. If not, then all that we have to do is take the simple step of merely ratifying the consent given in Newfoundland. We need some clarification on this. I personally do not have enough information to form a firm opinion. You can understand that, when it comes to minority rights, we in Quebec are a little gun shy.

If, tomorrow morning, the government of Manitoba were to hold a referendum to do away with section 23 of the Manitoba Act, what would happen? That is the section which requires the Manitoba legislature to pass its legislation in both official languages, the one which states that the language of legislation and the language of the courts is English and French.

The 1890 Greenway laws had abrogated francophone rights in Manitoba. Only in 1979 did the Supreme Court, in the Forest decision if my memory serves me correctly, conclude that the 1890 legislation was invalid because it was unconstitutional.

Almost 100 years later, it was difficult to restore the rights of francophones who formerly made up 50 per cent of the population of Manitoba. According to the latest census, scarcely more than 12,000 people in Manitoba stated they were of French Canadian origin.

If a referendum were held tomorrow morning in Manitoba and 80 or 90 per cent of the voters were in favour of repealing section 23 of the Manitoba Act, should we adopt it with our eyes closed and again make English the only official language in Manitoba, while for 100 years, Manitoba's francophones have struggled to maintain their rights? That is a good question.

If tomorrow morning, the Government of Ontario held a referendum to repeal section 93 of the Constitution Act, 1867, concerning schools for Catholic minorities which, at the time, were also francophone minorities, would we, in the event of a positive outcome, agree to accept such an amendment? Personally, I do not think so. I think these rights should be maintained, protected and even expanded.

(1745)

There seems to be a complete lack of understanding between the people who embrace these two theories. I think it is necessary to clarify the interpretation of term 17 which, in any event, does not seem to be clear to anyone, so that we cannot really make up our minds. Once again, the question that was asked in the referendum in Newfoundland in 1995 was straightforward, but it referred to an extremely complex situation.

The hon. member for Ontario said earlier that the Constitution should reflect the changes that take place in society. I quite agree with what he said. In the case of a constitutional text like the one we have here, the Terms of Union of Newfoundland with Canada in 1949, if the present Government of Newfoundland had to renegotiate these terms and if Canada had to renegotiate them, we would not end up with the same terms, certainly not term 17 in its present form, because it does not seem to correspond with a certain social reality.

It is not up to me to find out whether it does or does not correspond with the social reality that exists in the province of Newfoundland and Labrador. It is up to the people of Newfoundland to decide what suits them. The only thing I have to check as a parliamentarian is whether minority rights, constitutional minority rights have been affected, yes or no.

If not, the question is clear. The people of Newfoundland have decided, and I do not have to check whether they were right to decide in this way. If, on the other hand, it involves constitutional rights, the rights enshrined to protect minorities from periodic changes by governments, to ensure that their rights endure, I am entitled to ask questions as to why the rights of a minority are to be changed. To my knowledge, this would be our first time in the history of Canada to legislate the rights of minorities and to limit them constitutionally. The effect of constitutional legislation respecting minorities has always been to extend protection.

I hope we come to a better understanding during this debate. I do not think this is a partisan debate. It should not become one. It is a fundamental debate on the role, on the place, of minorities within the federation and on the interpretation to be given the Canadian Constitution in general.

Let us recall that the terms of Newfoundland's union with Canada in 1949 were negotiated by the Government of Canada alone, without the provinces. The provinces were not involved in this negotiation.

Which province was most interested? The Province of Quebec, which has a common border, the border of Labrador, which was defined in 1927, with the definition being cast in stone in the terms of Newfoundland's union with Canada in 1949 and reconfirmed in the Constitution of 1982. If there is one border that is not at issue, it is the Labrador border at the moment. The Province of Quebec was not consulted.

Who protested in this House at the time? A member for the riding of Charlevoix, Frédéric Dorion, who, at the time, represented a riding along the Labrador, and consequently Newfoundland, border.

Frédéric Dorion, who later became the chief justice of the Quebec Superior Court, said in this House it was unacceptable that Quebec, the neighbouring province, was not consulted on the terms of Newfoundland's union with Canada. I understand, because had we been under the effect of the present legislation, the Constitution of 1982, which was forced on us, this procedure would not have been possible. The provinces would have to be consulted.

As we can see, the constitutional change mentioned by the member for Ontario is ubiquitous. Freezing the Constitution in an interpretation that was valid perhaps in 1949 is probably not very healthy. However, if the other alternative is to take away minority rights, I do not consider that healthy either.

I would hope that, in the course of the debate, the information and especially the understanding the members of this House may gain from Resolution No. 12 before us, will clarify this debate and enable everyone to come to an understanding in their soul and in their conscience.

(1750)

[English]

Mr. Paul Szabo (Mississauga South, Lib.): Mr. Speaker, I have a couple of brief comments and then a question for the member.

In the debate a number of issues have been raised, one about educational reform being necessary in Newfoundland and that it could be achieved only through constitutional amendment. The quality of education has not been a question here. In fact, Newfoundland has done as well or better than Ontario in a recent national survey on science and math.

The fact that there was a royal commission and that the framework agreement covered 90 per cent of the recommendations seems to indicate that there was a possibility that the province could do this.

On the issue that Parliament alone must accede to the provincial will, I guess the rhetorical question is why is it in the Constitution in the first place, if the provinces can just say do it. It really does beg the question.

There is the issue that there was a referendum. We all know the turnout was low and the plurality was also very low. When we are talking about a right that was given as part of the terms of union, it is clear that it is those who will be reliquishing their right who must have the primary say in whether that right is going to be relinquished.

The last point was that minorities had their chance because there was a process they went through. There is no question that the process was procedurally fair. But I am wondering, considering the debate in the House and in the Senate, whether today Newfoundlanders would say that they really understood the consequences of what was being dealt with.

My question has to do with the proposed amendment with regard to ``where numbers warrant''. Many members have already said that this was a phrase which was incorporated in the debate in this place, even by the justice minister in his speech on May 31, that the change to the Constitution would provide uni-denominational education ``where numbers warrant''. But that phrase was not specifically included in the legislation and, indeed, the amendment in the Senate was not passed for that. That was called for even by Cardinal Carter.

I would ask the member, with regard to the issue of ``where numbers warrant'', would the member not concede that this would be a reasonable amendment to the proposal now before the House?

[Translation]

Mr. Langlois: Mr. Speaker, I thank the member for Mississauga South for his question.

The question appears straightforward, but the answer is not. Either the amendment to Term 17 of the union of Newfoundland with Canada, or the reverse, depending on one's point of view, gives constitutional protection to the right of religious denominations or churches in matters of education in Newfoundland, in which case Term 17 should not be amended, or the proposed amendment does not infringe the constitutional rights of religious groups or groups referred to in Term 17 of the terms of union, in which case we should simply recognize the referendum.

There cannot, in my view, be any middle ground: either these are constitutional rights, in which case those affected, the minorities, must be consulted. It is not up to the majority to decide for the minority that they no longer want these rights. It must be certain that the minority knowingly gave up its constitutional rights. This is on the assumption that the constitutional amendment infringes minority rights.

The other assumption, which is just as plausible, and is supported by a number of members in the House, says: ``Term 17 of the Terms of Union of Newfoundland with Canada does not affect the constitutional rights of certain groups in Newfoundland. We therefore need only recognize the referendum and blindly ratify it''.

Like the hon. member for Mississauga South, I too will await the continuation of debate, in order to gain a greater understanding of the issue.

(1755)

[English]

Mr. Pat O'Brien (London-Middlesex, Lib.): Mr. Speaker, I am pleased for the second time in this House to speak on this amendment to term 17. I suppose in a way we might call this an amendment to term 17 revisited. I am pleased, as other colleagues of mine have said, that in effect the Senate has given us an opportunity to correct a mistake that I feel this House made, a very important and glaring mistake, last spring when it passed the requested amendment to term 17.

I will first make reference to the member for Bellechasse who just spoke, a colleague from the Bloc, who mentioned that the opposition had not had a great number of opportunities to speak today. I am pleased that he did speak prior to my remarks. I note that I have heard precious little in the way of reservations from the official opposition. I have to ask myself why that is.

At least the last member who spoke did raise the possibility that this is not the way to proceed, that there could be a matter of minority rights here. The vast majority of the members of the Bloc have simply accepted the need to pass this amendment on the slimmest of margins, on a fuzzy question put to the people of Newfoundland, in my view. I think the Bloc has its own agenda for supporting such a course.

For the sake of historical accuracy, and a s a history teacher in a former life, I would like to inform the member for Bellechasse that in 1867 Catholic minorities in Ontario were not strictly francophone. Largely they were but at that time there were many thousands of Irish Catholics who were in the province of Ontario; some of them my forebears. Just for the sake of historical accuracy I would like to inform the member of that point.

The starting point of this debate from my point of view is does the school system of Newfoundland and Labrador need reform. I will not take long on that point. I had the opportunity in October to visit Labrador. The member of Parliament was good enough to invite me to visit his riding. It is clear that the school system in Newfoundland and Labrador is in need of reform, as several colleagues have said. Anyone who has informed himself or herself about the situation knows that is the case.

There were long negotiations held to that end. In my view, just as they were about to come to fruition those negotiations were cut short. It is my position that the solution for the school system problems in Newfoundland and Labrador ought to be found or arrived at by the Government of Newfoundland, by school authorities, by the people of Newfoundland themselves with a made in Newfoundland and Labrador solution. Surely if all parties involved are parties of goodwill, and I am sure they are, this amendment requested of the House of Commons for the second time would not be necessary. I feel it is not the best solution to the situation that exists in Newfoundland today.

The member for Bellechasse mentioned that some have the view that we must just close our eyes and pass this amendment as requested. I disagree with that. Many colleagues do.

I would like to quote the Minister of Justice on May 31 when he said these words about that point: ``We ought to give great weight to the action taken by the province in question but we must not automatically pass a resolution at its request. We must form our own judgment and be satisfied that it is in the public interest to do so''.

That raises the question of the public that is being referred to. Clearly the public in question is the Canadian public from coast to coast to coast. It is absolutely incorrect and shortsighted in my view for anyone-and we have heard that argument and we may again-to say that this is strictly a Newfoundland question and nothing else, that it is not relevant to other parts of country. That is absolutely incorrect or why are we speaking on this issue in this House today, following action taken by the other place last week.

This is clearly a national issue. As soon as Parliament is involved it is automatically a national issue.

(1800)

I support the amendments made in the other place last week that have been introduced by my colleague, the member for Broadview-Greenwood today. I feel that these proposed amendments would facilitate the necessary educational reform in Newfoundland and, at the same time, maintain the existing minority rights which are so vital to the success of this nation. Either that, or we ought to go back to the negotiating table and let the people of Newfoundland solve this problem with a made in Newfoundland solution.

In my view, the question which is very important is this. What are minority rights worth if they can just simply be removed, whatever the means, without the expressed consent of the affected minorities? That point has been made several times by my colleagues, the member of Ontario and the member for Lachine-Lac-Saint-Louis. I was also very pleased to hear the comments of the Reform member for Delta earlier.

The Reform member for Edmonton Southwest quoted Thomas Paine in his remarks and made a very important point which needs to be a little more fully addressed. His point was: ``Should it not fall to every generation to govern themselves and should they not be tied by decisions of previous generations?''

With that logic, the relevant point is that this generation of minorities in the province of Newfoundland and Labrador do not support the proposed amendments to their rights. This generation is objecting. I have heard no one contest the validity of that statement. Therefore, it falls to this generation of Newfoundlanders and Labradorians and Canadians to speak on this question. The issue of minority rights is no less relevant for this generation than it was for past generations when these rights were enshrined in the terms of union by which Newfoundland became the 10th province of Canada in 1949.

It seems that it is a day to quote great Americans so let me quote a great American leader, Martin Luther King Junior, when he said that ``injustice anywhere is a threat to justice everywhere''. We can take that point and expand on it. We can say ``a threat to minority rights anywhere in Canada is a threat to minority rights everywhere in Canada''. That is exactly what is at issue for me, having researched this issue as carefully as I could and having tried to listen to all points of view on this.

As a Canadian and as a member of Parliament that is exactly what we are discussing. There is no way that I can support the removal of minority rights anywhere in Canada without the consent of that minority first.

Several colleagues have made reference to the fact that education was very carefully protected by section 93 in the original British North America Act, 1867 and was again protected in the Constitution Act, 1982 and in the 1949 terms of union by which Newfoundland became the 10th province. Anyone who does even a cursory reading of the political history of this country will know

that there has been no more divisive issue than education, whether it is in your own province of Manitoba, Mr. Speaker, whether it is in Ontario or in Quebec. Anyone who has any knowledge of our political history will know that is the case.

Indeed, my colleague from St. Boniface gave a very eloquent explanation about the threats to minority rights that this action represents. Many members feel that is not the case, it is strictly a Newfoundland issue. I am not reassured by those members and I certainly do not share that view.

It is fairly straightforward for me. The history of this nation was founded on a respect for minority rights: linguistic rights, language rights and racial rights. It is a history of which we can be proud. The future of this nation will be founded on respect for minority rights or that future will be greatly imperilled.

(1805 )

The Reform member for Delta gave a very good explanation of the severity of the Manitoba example where in the 1890s Prime Minister Laurier faced the Manitoba school crisis. I can tell him that I drew that very concern to the Liberal caucus privately a long time ago now when I stated that I did not think we needed another schools crisis 100 years after the Manitoba school crisis. Would it not be a pity if this were passed lightly, and we would look back and rue the day that we had launched another schools crisis, this time in the province of Newfoundland?

As I said earlier, those who would draw the Senate into this are exhibiting very specious logic. It is simply irrelevant. Whether the Senate belongs as a part of our system, whether it should be elected or abolished, the point is this: in this case the Senate did its job.

The appointed Senate, which is what we have in Canada, did its job. It said to the House of Commons: ``You have acted precipitously. You'd better consider that these minority rights are not being protected by your actions''. It was very important that the Senate did that. This House should do no less.

I repeat that a threat to minority rights anywhere in Canada is a threat to minority rights everywhere in Canada, and that is simply something I cannot countenance. I support the idea of inserting the phrase ``where numbers warrant''. That would allow the educational reform which is badly needed in Newfoundland and Labrador to take place. It will also protect minority rights in a way in which they are not now protected.

I am from Ontario although perhaps I have a little extra interest in this issue since my maternal grandfather was a Newfoundlander, but I certainly do not claim to be a Newfoundlander. However, this is much more than a Newfoundland issue. It is a national issue, an issue of justice, an issue of minority rights.

Many colleagues have made reference to Senator Kirby who is a Newfoundlander. His family is a prominent Newfoundland family. He has made several very good points, some of which I would like to quote: ``Therefore I reject the claim that the desired reform of the Newfoundland school system can only be achieved through a constitutional amendment. Indeed, the evidence suggests clearly that almost everything that is needed to reform the school system can be achieved without a constitutional amendment''. That is also my feeling.

Either we shelve this issue and send it back to Newfoundland to solve with a made in Newfoundland solution, or now that it has come back to this House I will, and I hope I will be joined by a majority of my colleagues in this House, on careful reflection support the idea of inserting the words ``where numbers warrant''. This would allow for the needed educational reform and would still protect minority rights.

Mr. John Cummins (Delta, Ref.): Mr. Speaker, I want to thank the member for London-Middlesex for his speech. As he knows, no one should be more grateful for the opportunity to correct the mistake we made when we passed this bill last summer than the Minister of Justice.

On May 31 in addressing this motion the justice minister said: ``We were much affected by the fact that even after the amendment there will still be denominational schools in Newfoundland and Labrador. They will still be constitutionally entrenched as an entitlement of the affected denominations-The government of the province of Newfoundland and Labrador has also tabled draft legislation by which it would be provided that unidenominational schools may be created where numbers warrant and where the parents choose that for their children''.

The justice minister seems to be suggesting that after passing the amendments to this motion there will still be a constitutional entitlement where numbers warrant. There seems to be a contradiction between the position of the government and the reality as we see it.

Could my friend from London-Middlesex comment on that and on whether the government has somehow misjudged the effects of the bill?

(1810 )

Mr. O'Brien (London-Middlesex): Mr. Speaker, I appreciate the comments and the question from my colleague from Delta.

First, I believe that all hon. members, certainly including my colleague the Minister of Justice, are weighing the issue very

carefully and that a free vote will be in their best judgment and following their conscience. I am certainly doing that and I believe all other members are doing the same.

My colleague from Delta has raised a very good point. Indeed in the minister's speech the words ``where numbers warrant'' as he has quoted are in there. I am not sure whether the justice minister was operating under the belief that was the intent, but it certainly does go along with the statement distributed by the Government of Newfoundland before the referendum in a householder sent to all the people of Newfoundland which had the exact same phrase ``where numbers warrant''.

My hon. colleagues from Delta and for St. Boniface, in citing the Newfoundland flyer, have raised very good arguments for supporting this amendment. I believe there should be no fear in supporting the inclusion of ``where numbers warrant'' in this motion.

[Translation]

Mr. François Langlois (Bellechasse, BQ): Mr. Speaker, following on my earlier comments, I have a question for the member for London-Middlesex.

Can he once again explain his point of view in this House? Why does he feel that the resolution before us infringes the constitutional rights of a class of persons in the Province of Newfoundland and Labrador?

I give notice immediately of a supplementary question, but it will be for the member for Humber-St. Barbe-Baie Verte when he speaks. I will ask him why he takes the opposite view, that the resolution before us does not affect the constitutional rights of a class of persons in the Province of Newfoundland. That will perhaps further the debate.

[English]

Mr. O'Brien (London-Middlesex): Mr. Speaker, I am the person who is answering the questions. I will not respond for my colleague from Newfoundland who was just mentioned. I think all hon. members are searching their consciences and doing what they think is best for Newfoundland and, I emphasize, for all of Canada. All of Canada is involved in this decision because of the precedent nature of what is being done.

Why do I feel that the amendment to term 17 threatens minority rights? For me, Mr. Speaker, it is as plain as the nose on your face. In 1949 the people of Newfoundland were convinced to join Canada, in part because of a guarantee of denominational schools in term 17. That minority down to this very generation has never willingly accepted the removal of that constitutional guarantee. To remove it against their will is extremely dangerous, is an injustice, and is something I cannot countenance. I hope it is something the House will not countenance.

Mr. Dan McTeague (Ontario, Lib.): Mr. Speaker, I will be very brief. I want to ask a question of the member for London-Middlesex. Subject to what the member for Delta has just said, he did not go on to make the real point that I thought might have been missing here and might be a linchpin in supporting the amendment of the member for Broadview-Greenwood.

The minister's statement of May 31 that: ``denominational schools may be created where numbers warrant and the parents choose that for their children''. He then went on to state: ``In light of all of that we concluded that this is not an instance in which minority rights are being adversely affected by majority rule''.

I believe the Minister of Justice may have been of the view that the province of Newfoundland was about to enact something to protect minority rights and therefore the Minister of Justice gave his tacit approval. Given that there may be this kind of confusion, does the hon. member not then believe that there is a possibility that maybe the House, including the government, will come to the belief that the protection of minority rights is important?

Mr. O'Brien (London-Middlesex): Mr. Speaker, it is just a few minutes ago that these words of the Minister of Justice have come to my attention. I regard them very seriously, as I know all my colleagues do.

(1815)

I share the views of my colleague from the riding of Ontario. It may well be that the Minister of Justice and the government were operating under an understanding which was based on the written statements of the Government of Newfoundland distributed to the people of Newfoundland in a householder which included the words ``where numbers warrant''. It seems logical to me that we might expect that is the intention of the Government of Newfoundland. If indeed that is the case, then the House did err last June in what it passed and we now have an opportunity which we must not let pass to correct that wrong.

Mr. Gerry Byrne (Humber-St. Barbe-Baie Verte, Lib.): Mr. Speaker, it is certainly a lively debate. It is very refreshing and interesting to have members of the same party debating an issue. It shows that the House of Commons is alive and vibrant and that the Liberal government does not take anything verbatim. It debates it internally and then puts motions on the floor to iron out good policy which is effective and in the best interests of all Canadians.

We are talking about term 17 which concerns denominational education in Newfoundland schools. I want to say first and foremost that I do not take any particular pleasure in standing and saying that change is necessary. Change means that we have to take a second look at how we do things.

I want to say to all Canadians that what we are doing here is in the best interests of all citizens. We are acting in the best interests

of citizens who want to be full partners in Canada and who want to participate in an education system which is first class, which promotes excellence and the spiritual values which they want to keep.

We are debating a particular clause in the term 17 amendment which has been put forward: ``where numbers warrant''.

I am a member of Parliament from Newfoundland. I would like to interject a bit of my own personal experience with the Newfoundland school system and the excellence which it promotes. Hon. members who have mentioned it this afternoon are quite right that Newfoundland has an education system and a desire to educate its young people which is probably above and beyond any other in the country.

We appreciate the value and the importance of a strong educational system. We also appreciate the fact that we have to make the system better. We are not prepared to put any young Newfoundlanders or Labradorians in harm's way while we go about that task.

We now find ourselves in a situation which will improve the educational system for our province. We are debating a particular section of an amendment which states ``where numbers warrant''. Let us talk about where numbers warrant.

Newfoundland has approximately 750 communities throughout the entire province, the majority of which have a population of approximately 350 to 500. Newfoundland has as part of its terms of union with Canada a section which says that denominational education is extremely important and that it will be respected. It is a value which Newfoundlanders share.

I return to ``where numbers warrant''. Here is a critical difference in what hon. members would propose versus what I would inform them. We are going to respect religious education in Newfoundland and Labrador. However, if we were to establish a religious school in every community of Newfoundland and Labrador, in all 750 communities, we would have to take into account about 15 established religions. There are a lot more religions with fewer members. I suggest they may be in the minority. There are no religious denominations which are in the minority in Newfoundland and Labrador because every educational institution, every elementary or high school is a religious school, a denominational school. There are no non-denominational schools in Newfoundland and Labrador right now. Everybody who goes to school in Newfoundland and Labrador right now goes to a religious school.

(1820)

That means there are people in Newfoundland and Labrador who profess a particular faith but because the school in their community is not of their faith, they are not receiving any religious instruction whatsoever in their faith. They are receiving generic religious instruction.

The hon. members who are presenting this amendment are prepared to say ``where numbers warrant''. Given the fact that we are entrenching religious rights in education where numbers warrant, if there is one person of a particular religious affiliation who is living in a province where religious schools, not religious education but religious schools are entrenched for everybody, it means they are proposing that a community of 350 people with 15 different religions should have 15 different schools. I think everybody in Canada realizes that there cannot be 15 schools with 15 principals and at least 15 teachers located in one community of 350 people, a community not unlike where I lived. It would create an absolutely uncontrollable financial burden.

We are talking about minority rights. It must be pointed out that everybody in Newfoundland and Labrador has to go to a denominational school whether or not they are part of that denomination because it is that denomination which established a school in their community. Whether they are Anglican or Pentecostal they have to go to that school, otherwise they will not be educated.

No one in this debate has talked about the students who have slipped through the cracks, the students who do not receive religious instruction in the faith of their choice. Nobody in the House has talked about the 50 per cent of Pentecostal students in Newfoundland and Labrador who, because they live in a community where there is no Pentecostal school, do not receive religious instruction taught by a member of their own faith. They receive the generic religious instruction.

A very pragmatic compromise has been reached which says that Newfoundlanders value religious education. We value religious instruction. A compromise has been reached that unlike today, in every school in Newfoundland and Labrador the students will be able to receive religious instruction from a teacher of the faith of their choice.

That is not the way it is today. If by fate of geography a student happens to live in a community where there is no majority of students who are members of a particular faith, as a minority in that community no religious instruction is received in the faith of the student's choice. The student would have to go to the religious school where another faith is being taught, sit there and take it in.

(1825 )

However the Newfoundland government has decided through consultation with the people that religious education is a value and a right worth preserving. That is exactly what it has done.

We have heard from some hon. members that it is a time tested philosophy that where numbers warrant we will be able to

establish denominational schools. And I separate denominational schools from religious education. Under the current motion which is before this House, religious education is preserved. What we say we do not need is religious schools per se where we establish seven or eight different institutions in one community to accomplish the same goal, educating our young people.

Not one member in this House has absorbed the fact that it comes with a significant financial burden. How does a province like Newfoundland deal with that financial burden? How does a province like Newfoundland which through the deliberations of hon. members in this House has to deal with the fact that cash transfers to the provinces are being reduced? It would probably cost about $300 million to establish schools in every community. It will be the Newfoundland government which pays that price.

A better solution is before us. It is a solution which takes into consideration the rights and the opportunities of all students in Newfoundland and Labrador to be instructed by instructors in the same religious faith as they profess, unlike today.

This issue has been held up in the other place for quite some time. It has been held up while a proposal has been put forward to make sure that French education is established in the new school system. However, as long as we debate this, we will not be able to enact the rights of French students to have instruction in the language of their choice because we are still hung up on and debating the fact that minorities are being hard done by. There are no minorities in Newfoundland. Everybody in Newfoundland and Labrador currently attends a denominational school, whether or not they are a member of that denomination.

No member in this House has spoken up and asked: What about the people who are not members of this particular denomination? How will they receive religious instruction in the future? Will they have to sit there and not participate in religious instruction of their choice as is currently going on? They are not talking about how much it is going to cost to establish a school in every community of the province. They are saying that they do not think the Newfoundland people have really thought this out, so they are going to think for them. I have not seen such an insulting point of view expressed in a long time in responsible government.

We have decided this issue. Look at the balance on how we decided this issue. We have looked at it from the point of view of the individual. We have looked at it from the point of view of all students. In the original terms of agreement when Newfoundland and Labrador joined Canada, we said that as a value our province respected religious education, not necessarily religious schools, but religious education. We do not really subscribe to the fact that we establish an institution. The denomination is what is important. The religious faith is what is important.

Under the current system every student in Newfoundland and Labrador will receive instruction in the denomination of their choice. That is sound public policy. That is respecting the rights of the individual. That is good government.

Unfortunately my time is up. In deciding on this issue, members should bear in mind that we have had a very good discussion. Good ideas have come forward and we are prepared to move on to be proud, dignified members of the Canadian Confederation. We will do so respecting the rights of individuals and respecting fiscal responsibility.

(1830)

The Deputy Speaker: There are actually 10 minutes left for questions or comments. Perhaps if the member is here next time when the matter resumes we can have questions or comments then.

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