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THE AMENDMENT TO TERM 17 OF NEWFOUNDLAND'S
TERMS OF UNION WITH CANADA: STATEMENT
BY THE HONOURABLE STÉPHANE DION
OCTOBER 27, 1997
Introduction: A Section 43 Amendment
Mr. Speaker, today I have the pleasure of
introducing a resolution to authorize a bilateral amendment to Term 17 of
Newfoundland's Terms of Union with Canada.
Newfoundland's Terms of Union form part of the
Constitution of Canada. Section 43 of the Constitution Act, 1982 provides for an
amendment to the Constitution of Canada in relation to any provision that
applies to one or more, but not all, provinces. Such an amendment may be made by
proclamation issued by the Governor General under the Great Seal of Canada,
where so authorized by resolutions of the Senate and House of Commons and of the
legislative assembly of each province to which the amendment applies.
On September 5, 1997, the Newfoundland House of
Assembly unanimously adopted a resolution authorizing certain amendments to Term
17 of its Terms of Union, which will only apply to Newfoundland. The amendment
will have no legal application or effect on education or denominational
minorities in other provinces. In keeping with established practice, the Speaker
of the Newfoundland House of Assembly conveyed to the Clerk of the Privy Council
a certified copy of the resolution, which was received on September 8, 1997.
Our role and responsibility as parliamentarians
is to consider the proposed amendment and to decide whether to approve it. As I
have already indicated on several occasions, Mr. Speaker, the Government of
Canada supports the proposed amendment, which will allow Newfoundland to proceed
with major reforms to its education system.
Following many years of rancorous and divisive
debate in Newfoundland over the role of the churches and religion in education,
it is the Government's view that the proposed amendment strikes a workable
balance. In Newfoundland, the proposed amendment appears to enjoy a high level
of consensus, including a reasonable degree of support from affected minorities.
The Government bases its assessment in part on the House of Assembly's unanimous
endorsement of the amendment resolution, and on the results of the provincial
referendum in which 73% of voters approved a proposal to reform the education
system.
Nevertheless, the Government of Canada is of the
view that any attempt to alter entrenched minority rights should be marked by
processes that are fair and thorough. To this end, the Government is striking a
special joint committee to examine Newfoundland's resolution to amend Term 17.
It is our belief that the hearings will help to enhance public input and
understanding of the proposed amendment.
Moreover, the committee's work will aid
Parliament in making its independent assessment on the facts of the case and on
the merits and appropriateness of the proposed amendment.
The Proposed Amendment to Term 17
Mr. Speaker, as you and our colleagues will
recall, this is the second time in less than two years that Parliament has been
asked to consider an amendment to Term 17 of Newfoundland's Terms of Union.
While this situation may seem unusual, the Constitution does not set any limits
on how often legislatures may seek constitutional amendments. It is up to
Parliament and the provincial legislature to which the amendment applies to
determine the appropriateness of each proposed constitutional change.
To understand fully the circumstances which have
given rise to this second amendment proposal it is necessary to briefly review
the provisions of Term 17. It is also helpful to reexamine the extensive efforts
that have been made over the past seven years to reform the education system in
Newfoundland.
In lieu of section 93 of the Constitution Act,
1867, constitutional authority for education in Newfoundland was set out in Term
17 of the province's 1949 Terms of Union with Canada. Term 17 granted six
denominations the right to operate their own publicly-funded schools. In 1987,
Term 17 was amended to extend denominational school rights to the Pentecostal
Assemblies. These seven denominations operated four separate schools systems:
the Integrated School System (Anglican, Presbyterian, Salvation Army and United
Church), the Pentecostal Schools System, the Roman Catholic School System and
the Seventh Day Adventist Schools System.
In 1990, the Government of Newfoundland and
Labrador appointed Dr. Len Williams, a former teacher, principal and president
of the provincial teachers' association, and current university professor, to
chair a Royal Commission on educational reform. The Commission was asked
"to obtain an impartial assessment of the existing education system and to
seek an appropriate vision for change."
The 1992 Report of the Williams' Royal Commission
recommended the reorganization of the education system in Newfoundland and
Labrador to permit government to administer the system in a more efficient
manner. The Commission proposed the creation of a single
"interdenominational" school system encompassing the four separate
denominational systems in operation at the time.
Initially, the Government of Newfoundland sought
to achieve this change through non-constitutional negotiations with
denominational leaders. When nearly three years of discussions failed to achieve
an agreement, the Government of Newfoundland sought educational reform through a
constitutional amendment to Term 17 of its Terms of Union.
But the amendment that Newfoundland sought, and
which was authorized by this House and proclaimed by the Governor General on
April 21, 1997, represented a compromise. The amendment would not have
eliminated all single denominational schools. The amendment was designed to
provide the Newfoundland House of Assembly with additional powers to organize
and administer public education through a system of
"interdenominational" schools, while retaining the rights of Roman
Catholics and Pentecostals to "unidenominational" schools under
certain conditions. These conditions were to be set out in provincial
legislation that was equally applicable to all schools, either unidenominational
or interdenominational.
However, the attempt to legislatively implement
the new Term 17 under a revised Schools Act was successfully challenged in the
Newfoundland Supreme Court. On July 8, 1997, Mr. Justice Leo Barry granted
representatives of the Roman Catholic and Pentecostal churches a temporary
injunction halting the entire educational reform process. In Justice Barry's
view, the new Schools Act favoured interdenominational over uni-denominational
schools. Therefore, he found that a trial judge would likely find that the
legislation was contrary to the amended Term 17, which required that
interdenominational and unidenominational (i.e., Roman Catholic and Pentecostal)
schools be given equal treatment.
As even Mr. Justice Barry acknowledged and
anticipated, the injunction resulted in a "significant disruption" for
teachers, principals and students who had been reassigned to different schools
on the basis of the new schools legislation. It also resulted in the reopening
of some schools and the re-hiring of some teachers who had been laid off
following certain school closures and redesignation. For the Government of
Newfoundland, and citizens who thought the divisive education debate was behind
them, the injunction raised many questions and a great deal of uncertainty about
the future structure of the school system.
The Government of Newfoundland filed an appeal,
but did not pursue the matter. Instead, on July 31, 1997, Premier Tobin
announced in a province-wide telecast that he would hold a referendum on
September 2 to secure a mandate to amend Term 17 once again. Premier Tobin
explained that for five years the provincial government, school boards, the
teachers' association, the churches, parents and students, "have all been
engaged in what seems to be a never ending debate about how to reconcile the
need for reform of our education system with the rights of the denominations in
the education system."
While not referring specifically to the
injunction blocking educational reform, Premier Tobin argued that: "During
the last five years, we've seen every attempt to reconcile these two
ideas...education reform and denominational rights end in more confusion and
more conflict."
Consequently, Premier Tobin decided to go to the
people once again to seek a mandate for an amendment to Term 17. The purpose of
that amendment, which we are asked to consider, is to create a single, publicly
funded and administered school system. The brief text of this Term 17 amendment,
which only contains three clauses, is plain and clear and states that:
- In lieu of section ninety-three of the
Constitution Act, 1867, this section 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 shall provide for courses in religion that are not specific
to a religious denomination.
- Religious observances shall be permitted in a
school where requested by parents.
Support for the Proposed Amendment
The proposed amendment, which constitutes a major
restructuring
of Newfoundland's education system, is supported by a substantial majority of
the province's population and enjoys a fair degree of support from affected
minorities.
In addition, the House of Assembly gave the
resolution unanimous
approval on September 5.
In considering this amendment, the Government has
sought to ensure that its process is thorough and gives due respect to affected
minorities. You will recall, Mr. Speaker, that the issue of minority rights was
not central to the Government's consideration of the previous Term 17 amendment.
The old Term 17 granted certain rights to seven denominations representing 95%
of the population. However, following the amendment to Term 17, the Integrated
Group (Anglican, Presbyterian, Salvation Army and United Church) became one
majority class of persons comprising 52% of the population. The Roman Catholics
became a sizable minority of 37%. The Pentecostals are a minority of 7%.
Given this amendment's impact on minority rights,
a mere 50+1 referendum majority would not have been sufficient nor adequate in
measuring the degree of consensus among affected Roman Catholics and
Pentecostals. But the referendum did not result in a narrow majority: it was an
overwhelming majority of 73%, which provided evidence of minority support. The
proposal carried in 47 of Newfoundland's 48 electoral districts
Voter turn-out was 53%, but given the high
probability that opponents of the education reform proposal were most likely to
vote, the results send a clear message that there is substantial support for
this amendment.
Analysis indicates that in heavily Roman Catholic
areas, the proposal was supported by a majority. The St. George's Bay region,
which is 74% Roman Catholic, voted 59% Yes. The Avalon Peninsula, which is 48.5%
Roman Catholic, voted 72% Yes. Coincidentally, the Burin Peninsula is also 48.5%
Roman Catholic and it also voted 72% Yes. Approximately 75% of all Roman
Catholics in Newfoundland and Labrador reside in these three regions.
It is difficult to assess accurately the exact
degree to which members of the smaller Pentecostal community supported the
proposed amendment. However, in the four electoral districts where Pentecostals
are most heavily concentrated, the resolution carried with majorities of 57% to
64%.
Moreover, on September 5, the four members of the
Pentecostal
faith who sit in the Newfoundland House of Assembly, and represent districts
with significant Pentecostal populations, joined their colleagues in unanimously
supporting the resolution to amend Term 17.
Indeed, in assessing the proposed amendment,
Parliamentarians should accord due respect to the fact that all of the members
of the House of Assembly voted in favour of the resolution to amend Term 17.
This included all Catholic and Pentecostal members who had campaigned for the No
side and voted No in the provincial referendum.
The overwhelming support the amendment received
in the referendum and the House of Assembly represents a clear consensus that
appears to include a reasonable measure of support from the affected minorities.
Parliament should interpret this as a clear signal that the population of
Newfoundland and Labrador wants to proceed expeditiously to reform its education
system in a manner that is fair to all.
The Merits of the Proposed Amendment
In the midst of the confusion that resulted
following the injunction halting the implementation of the 1997 Term 17
amendment and after years of debate over educational reform and the role of the
churches, Newfoundlanders want to move on. And the results of the referendum and
the unanimous vote of the House of Assembly indicate that they feel the proposed
amendment strikes a fair and workable balance that allows reform to proceed.
"The proposed" Term 17 clearly states
that education is a matter of exclusive provincial jurisdiction. However, the
amendment will not take religion out of the schools. The new Term 17 contains a
mandatory provision that guarantees that "courses in religion" must be
taught and "religious observances" must be "permitted in schools
where requested by parents."
Correspondingly, the Term will not require
children to attend religious observances or classes if their parents object.
This interpretation is supported by the legal opinions of two eminent lawyers,
well-known constitutional expert Mr. Ian Binnie, and former federal justice
minister, the Honourable John Crosbie.
The Government acknowledges that the Newfoundland
and Labrador Roman Catholic bishops and the leadership of the Pentecostal church
have concerns about the new amendment. However, we feel the Government of
Newfoundland is demonstrating a spirit of openness with regard to a continued
role, albeit non-constitutional, for the churches.
In anticipation of the Term 17 amendment's
adoption, the Newfoundland Department of Education has begun setting up a
consultative process for developing the new religious education curriculum.
Although there is no requirement to do so, the Department of Education has
indicated that this process will seek representations from the province's
various denominations.
Conclusion
In the future, should another province come
forward with a proposed change to its terms of union or to section 93, it will
be up to Parliament to make its own assessment on the facts of that case and on
the merits and appropriateness of the proposed amendment. Parliament will also
wish to carefully assess whether the amendment enjoys a reasonable degree of
support from the citizens affected by it.
In the case before the House, the Government of
Newfoundland and Labrador has, under section 43, properly authorized an
amendment to Term 17 that will only apply to that province.
The Government of Canada believes that the
amendment is appropriate. We believe it enjoys adequate support from affected
citizens, including minorities. And we believe that it merits Parliament's
support and ultimate approval.
However, the joint committee and individual
parliamentarians will have to make their own assessment of this amendment, which
will allow Newfoundland to carry out necessary and long-sought educational
reforms.
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