Paula Simons of the Edmonton Journal has written an interesting post to the E.J. blog (http://blogs.edmontonjournal.com/2014/12/07/schooled-bill-10-and-a-brief-history-of-minority-rights/), about Alberta’s Bill #10 (2014) and the history of separate school education in Alberta. By and large, I share her perspective: the history is inaccurate and not helpful.
The immediate issue is a proposal by the P.C. Government (in Bill #10) that nominally allows for the formation of “Gay/Straight Alliances” (G.S.A.) by students in Alberta schools, but allows the school board to forbid such student organizations. One of the arguments in favour of the provision is that it ‘sustains’ the reasonable local autonomy of school boards. A second argument is that the provision is a necessary concession to separate school boards in Alberta, which have constitutional rights that are (somewhat) impervious to changing/current social conditions. (Basically, it is argued, the P.C. government had to do what it did.)
On Friday, December 5th, the Premier announced that the Bill would not be proceeded with, and that the government would introduce new legislation to deal with the contentious issue, in the New Year. The announcement is welcome. In order that the successor Bill may be better than Bill #10, the issue and the arguments should be considered and discussed in the meantime.
This post is the first of two that will deal with argument #2 — that the government did what it did because of the constitution, so any legislation must satisfy constitutional tests: beyond that (it is said) there is no point in further discussion.
In order to understand the constitutional position of separate school education in Alberta it is helpful to revisit our history. The Edmonton Journal blog post was correct to make that point and wrong (by both inclusion and omission) in outlining the history.
Canada acquired “Rupert’s Land and the North-Western Territories” (the relevant name at that time) in 1870 and, in anticipation of the acquisition, had adopted An Act for the temporary Government of Rupert’s Land and the North-Western Territory when United with Canada in 1869. The legislation included a provision that new forms of government within the Territories should be as nearly as possible like those already in existing in other Canadian provinces. (This proved particularly relevant in regard to education.)
The first Act to amend and consolidate the Laws respecting the North-West Territories was adopted by the federal government in 1875 (not 1885, as stated in the E.J. blog post). Section 11 of the 1875 legislation explicitly created the option of separate school education for the religious minority, whether Protestant or Roman Catholic. The provision predates the Riel Rebellion (and Riel’s trial and execution). The provision has nothing to do with western politics and everything to do with central Canadian politics.
Basically, we have separate school education in Alberta because the British won the Battle of the Plains of Abraham (in 1759) and in the Treaty of Paris (1763) made a settlement that was intended to encourage the loyalty of French-speaking Catholics in Quebec.
A century later (1863 – 1867) the Fathers of Confederation institutionalized systems of education for each of the original provinces, essentially confirming what was in place in each province at the time of Confederation. (The same provision said that later entering provinces would continue the form of education they practiced at the time of entry.) Ontario and Quebec carried forward dual systems (of public and separate schools for the religious minority). New Brunswick and Nova Scotia had no experience with separate school education, and such was not imposed on them (and they have no separate school education to this day).
When Canada acquired Rupert’s Land and the North-Western Territories in 1870 the settlement pattern was very much up in the air, and of concern to only two provinces — Ontario and Quebec. Ontario was the political agent of anglophones and Protestants: Quebec was the political agent of francophone and Roman Catholics. Each hoped for the best and feared the worst in terms of which population would ultimately dominate the settlement of the west. For both, the sensible thing to do, and the only course that made acquiring the Northwest Territories politically feasible, was a guarantee that if the “other side” ultimately dominated the settlement, the minority would be able to educate its children in its own schools. (In the federal Parliament, representatives from New Brunswick and Nova Scotia had no practical interest in the far west, and acquiesced in what Ontario and Quebec negotiated.)
The 1875 legislation certainly created the option of separate school education, but probably did not constitutionally protect it. (The same Act provided that both French and English could be used in the Territorial Assembly: that provision was done away with in 1877 with no suggestion that a constitutional guarantee was being usurped. Similarly, the Manitoba “schools question” [of 1890 and later] turned on the Province of Manitoba ending previously existing separate school education in that province. While the constitutional question was certainly argued, the Government of Manitoba rode it out.)
The Manitoba schools question did frame the later debate about the creation of Alberta and Saskatchewan as provinces, in 1905. If it had not happened earlier, this is the point at which separate school education was embedded in the constitutions of Alberta and Saskatchewan. The Territorial Assembly was opposed to embedding separate school education in the constitution of either province. Sir Fredrick Haultain (government leader in the Territorial Assembly) is on record protesting this direction/outcome. Sir Clifford Sifton (Minister of the Interior and Laurier’s western lieutenant) resigned from Cabinet in protest over the imposition of a constitutional guarantee for separate school education on a population whose locally elected representatives did not want it. Sifton came from Manitoba and believed that the new provinces should be able to make their own way with education, as Manitoba had done.
Laurier’s dilemma was that he represented a Quebec riding and Quebec had a strong presence in his government. The political mood in Quebec was very sour and fragile after the Riel Rebellion and the outcome of the “schools question” in Manitoba. Laurier’s judgement, strongly influence by the political intervention of clergy, was that, in order to hold on to Quebec, he had to guarantee minority religious rights in the west.
Alberta and Saskatchewan have separate school education because it was imposed as the outcome of central Canadian power politics played out between 1896 and 1905. The seed had been planted in 1759.
All of this begs the question, if separate school education is entrenched in the constitution is any outcome but one even possible, regardless of what may be desirable? The answer is that there are doors that may be opened and/or closed. Separate school education is not immune to an end. Separate school education is not immune to reasonable limits. In the course of considering what is desirable, we need to be aware of what is possible.