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Debates of the Senate (Hansard)

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Debates of the Senate (Hansard)

2nd Session, 35th Parliament,
Volume 135, Issue 28

Monday, June 10, 1996
The Honourable Gildas L. Molgat, Speaker

THE SENAT)

Monday, June 10, 1996
The Senate met at 8:00 p.m., the Speaker in the Chair.

Prayers.

SENATORS' STATEMENTS

The Late Grand Chief Harry Allen

Tributes

Hon. Paul Lucier: Honourable senators, I rise to pay tribute to Mr. Harry Allen, Grand Chief of the Yukon First Nations. Mr. Allen passed away suddenly at St. Paul's Hospital in Vancouver on Saturday afternoon, June 8.

I had known Mr. Allen personally for many years; he played hockey on a team I coached some 35 years ago. He was an excellent hockey player and starred in the senior men's league, although he was only a teenager. Mr. Allen went on to dedicate almost his entire adult life to working for his people. He was Chair of the Yukon Indian Brotherhood and later represented the Yukon First Nations at the national level as Vice-Chair of the Assembly of First Nations.

Last summer in Dawson City, I had the pleasure of attending the Yukon First Nations general assembly and seeing Mr. Allen acclaimed as Grand Chief. The trust and affection displayed by the assembly towards Mr. Allen was a sight to behold.

Honourable senators, the aboriginal people of Yukon and Canada have lost a great friend, but so have those of us non-aboriginals who depended on Harry's strong, steady, reasonable leadership to help implement the land claims agreement legislation passed in this Senate only two years ago.

I am sure you all join me in extending our condolences to his wife Doris, his sons Marlon and Steven and the members of his family. He was a great man and we will miss him.

Equality Rights for Visible Minority Groups

Hon. Donald H. Oliver: Honourable senators, in the mid-eighties, four groups were targeted by the federal government as needing legislative help if they were to achieve some measure of equality of opportunity. Those groups consisted of women, aboriginal peoples, the disabled and those belonging to the visible minority community in Canada. Having observed the progress made by each of those groups over the past number of years, I had suspicions that not all of the groups were moving towards the goal of equality at the same speed.

Honourable senators, I believe that governments at all levels have effectively promoted access awareness and other programs for the disabled. While perhaps some members of the Canadian aboriginal community might disagree, we seem to be moving at a reasonable pace towards self-government. This is especially true in Manitoba where pilot projects are under way.

In August 1995, the federal government produced, under the direction of the Honourable Sheila Finestone, Secretary of State for the Status of Women, an impressive book entitled "Setting the Stage for the Next Century: The Federal Plan for Gender Equality."

My feelings about lack of progress involving visible minority groups were unfortunately confirmed recently. The results of an internal study done with visible minority employees at the Department of Cultural Heritage of the federal government illustrate that equality of opportunity is still an elusive goal. Over 40 per cent of those questioned believe their career development has been hindered because they are members of a visible minority group. Those reporting on the results of the survey stated:

We believe that the very fact that more than 40 per cent of the respondents feel that being a visible minority employee has hindered their career development and were prepared to discuss the issue and provide examples, is sufficient evidence to suggest that this is an issue to be addressed.

Many of the complaints related to the lack of promotion, with colour seeming to be the only reason. Many had been given "acting positions," but when it came time to fill the positions permanently, the person from the visible minority community was passed over.

Some of those who elaborated on the responses to the survey spoke of an institutional bias against the promotion of visible minority employees, especially into management and supervisory positions. They made suggestions on how conditions could be improved. They said that people in the workplace must be sensitized to the issues of racism, and that cross-cultural training should be provided for managers. They felt that many of those working in the human resources department, including managers, do not know what it is like to be a visible minority employee.

Honourable senators, the federal government must set the example for others as a model employer. It must review carefully the findings of this survey, because I believe they apply to other departments as well.

Equality of treatment and equality of opportunity are guaranteed by the Charter of Rights and Freedoms and every human rights statute in Canada. However, equality will only be a dream for members of Canada's visible minority community so long as there is overt discrimination in federal government departments.

ROUTINE PROCEEDINGS

Pearson International Airport Agreements Bill

Report of Committee

Hon. Sharon Carstairs, Chair of the Standing Senate Committee on Legal and Constitutional Affairs, presented the following report:

Monday, June 10, 1996

The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its

NINTH REPORT

Your Committee, to which was referred Bill C-28, An Act respecting certain agreements concerning the redevelopment and operation of Terminals 1 and 2 at Lester B. Pearson International Airport, has, in obedience to the Order of Reference of Thursday, May 30, 1996, examined the said Bill and now reports the same with the following amendments and observations:

1. Page 2, clause 3: strike out lines 1 to 3 and substitute the following:

"3. The agreements are hereby declared to have no legal effect after December 15, 1993."

2. Page 2, clause 4: strike out lines 7 and 8 and substitute the following:

"hereby declared to have no legal effect after December 15, 1993."

3. Page 2, clause 5: strike out line 19 and substitute the following:

"declared to have no legal effect after December 15, 1993."

4. Page 2, clause 7: strike out the heading before clause 7 on page 2 and lines 25 to 39 and substitute the following:

LIABILITY

7. (1) In any action or proceeding that is based on or is in relation to

(a) the Request for Proposals,

(b) the negotiations that followed that Request,

(c) any agreement,

(d) any advice or services provided to Her Majesty in relation to any agreement, or

(e) any thing done by the Government of Canada in relation to the announcement of the cancellation of any agreement,

and that is instituted before or after the coming into force of this Act by anyone against Her Majesty in relation to any agreement, relief shall be granted only by way of an award of damages in accordance with section 8.

(2) In any action or proceeding that is instituted before or after the coming into force of this Act and that is based on or is in relation to any matter referred to in any of paragraphs 9(1)(a) to (e), no relief may be granted against any minister or any servant

5. Page 3, clause 8: strike out lines 4 to 7 and substitute the following:

8. (1) In any action or proceeding referred to in subsection 7(1), an award of damages may be made only in respect of claims that

(a) relate directly to Terminals 1 and 2 at Lester B. Pearson International Airport; and

(b) are recoverable by law against Her Majesty.

(2) In any action or proceeding referred to in subsection (1), no award of damages shall be made in respect of

(a) a loss of profit by a claimant or anyone else, or an amount based on the loss of future revenue the payment of which was contingent on the execution and continuation of an agreement;

(b) any fee paid for the purpose of lobbying a public office holder, within the meaning of subsection 2(1) of the Lobbyists Registration Act, in connection with any agreement;

(c) any investment in any company or partnership controlled by one or more partners of T1T2 Limited Partnership, or by the controlling entity of that partner or those partners, that resulted in a change of control of that company or partnership;

(d) any claim for loss of value of any share, partnership interest or investment; or

(e) non-compensatory, punitive, exemplary or aggravated damages.

6. Page 3, clause 9: Delete clause 9 and renumber the subsequent clauses accordingly.

7. Page 3, clause 10: Delete clause 10 and renumber the subsequent clauses accordingly.

OBSERVATIONS

The Progressive Conservative members of the Committee cannot support the Government amendments at this time. They feel that the amendments proposed by the Government are contrary to the principle of Bill C-28, and therefore, should have been the subject of a new bill introduced in the House of Commons. In addition, they feel that legislation which would have a direct impact on a trial should not even be considered, much less agreed to, while the trial is in progress. The Progressive Conservative members also deplore the fact that the Minister of Transport, who is the sponsor of Bill C-28, was unable to appear before the Committee and give testimony on the subject-matter of the bill.

Respectfully submitted,

SHARON CARSTAIRS
Chair

The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

On motion of Senator Carstairs, report placed on the Orders of the Day for consideration at the next sitting of the Senate.

Internal Economy, Budgets and Administration

Seventh Report of Committee Presented

Hon. Colin Kenny, Chairman of the Standing Committee on Internal Economy, Budgets and Administration, presented the following report:

Thursday, June 6, 1996

The Standing Committee on Internal Economy, Budgets and Administration has the honour to present its

SEVENTH REPORT

Your Committee has examined and approved the following budget presented to it by the Standing Senate Committee on Foreign Affairs for the proposed expenditures of the said Committee with respect to its special study on Canada-European Union Relations for the fiscal year ending March 31, 1997:

Professional and Special Services $ 7,700
Witnesses Expenses $ 1,600
Courier Services $    500
All Other Expenditures $     200
Total $10,800

Respectfully submitted,

COLIN KENNY
Chairman

The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

On motion of Senator Kenny, report placed on the Orders of the Day for consideration at the next sitting of the Senate.

QUESTION PERIOD

Foreign Affairs

U.S. Cuban Liberty and Democratic Solidarity Act-Lists of Canadians Denied Access to United States-Government Position

Hon. Donald H. Oliver: Honourable senators, I have a question for the Honourable Leader of the Government in the Senate. I believe the United States government intends to publish today a black list of Canadians who will be refused entry into the United States because they work for companies that trade with Cuba. Can the minister please advise what steps the Canadian government is taking to keep control of this list?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, the Minister of Foreign Affairs and the Minister of International Trade have been very outspoken in recent weeks about their concerns surrounding the Helms-Burton Act. I cannot give him an answer as to what they may have said today, but I can assure him that the Canadian government takes a very strong view of such actions against Canadians and will be conducting itself accordingly.

Human Rights

Establishment of Senate Committee on Affirmative Action-Request for Answer

Hon. Donald H. Oliver: The Honourable Leader of the Government in the Senate will recall that many honourable members on this side of the house, including Senator Kinsella, Senator Andreychuk, Senator Ghitter and myself, have asked about the possibility of establishing a standing committee or a special committee in the Senate on human rights.

The minister was to take the matter under advisement and respond to us in due course. The first question was put more than 12 months ago. Can she bring us up to date on where that initiative now stands?

Senator Berntson: You are going to look at it soon?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, a number of us are looking at possible changes in the committee structure, including the possible addition of more than one special committee. I can assure you the question has not been forgotten.

Human Resources Development

Removal of Child Care Funding Previously on Offer to Provinces-Government Position

Hon. Gerald J. Comeau: Honourable senators, I would like to bring up another broken promise from the Red Book. This one concerns the government promise to spend $720 million to create 150,000 child care spaces by the year 1998.

Following the election, the amount was redirected to upgrade and expand existing spaces rather than create new ones. We now learn that the government has chopped this commitment down from $720 million to $250 million and that the funding could be linked to the overall changes to the Unemployment Insurance Act.

Could the minister please confirm whether or not this is the plan being proposed by her government, that is, to aim child care funding at workers rather than at children?

Hon. Joyce Fairbairn (Leader of the Government): No, I cannot, honourable senators. I am aware of the stories in the media. Over the last several months, the Minister of Human Resources Development has been in communication regularly with his provincial counterparts. The proposal that was put forward last fall has not been supported by the majority of provinces, and the minister is working on a new proposal. No final decisions have been made yet.

Honourable senators, I really cannot go any further other than to tell my honourable friend that a consensus is very much desired by the federal government on this issue because, in spite of my honourable friend's lead-in to the question, this government cares a great deal about the issue of child care.

First Ministers Conference

Child Care Funding Issue-Possibility of Appearing on Agenda-Government Position

Hon. Gerald J. Comeau: Honourable senators, could the minister confirm whether this item will be one of the items discussed at the first ministers conference next week?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, the information on the first ministers conference agenda was just released a short while ago. Social issues will be discussed in the afternoon session on Friday. I cannot indicate at this point whether child care will be specifically raised at that time. I will be very frank with my honourable friend. I have not as yet read, line by line, the letter of invitation to the premiers.

Goods and Services Tax Harmonization Issue-Possibility of Appearing on Agenda-Government Position

Hon. Gerald J. Comeau: Honourable senators, last week my colleague Senator Forrestall raised the question of the GST. Will this item also be on the agenda at the first ministers conference next week?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, regarding the question of harmonization, I think I indicated to Senator Forrestall that it will be discussed at the finance ministers conference. I would be surprised if it did not find its way into the first ministers' meeting, but I will have to read the invitation first.

Hon. J. Michael Forrestall: Honourable senators, I have a supplementary question. It seems that the leader is speaking from a briefing text she has in front of her. Is she prepared to table that? I am sure it contains information that would be of interest to all members.

May I also ask the minister, as I note her perusing it, whether or not she finds any suggestion that the question of the GST and harmonization is included?

(2020)

Senator Fairbairn: Honourable senators, at present, this is in the form of a press release. It is a letter from the Prime Minister to the premiers.

As I was very frank with Senator Comeau, I will also be very frank with Senator Forrestall. I have not read it completely yet, but I will be pleased to get a clean copy of this letter and I will table it.

Immigration

Granting of Entry Permits to Applicants with Criminal Records-Government Position

Hon. A. Raynell Andreychuk: Honourable senators, my question is to the Leader of the Government in the Senate. Mr. Marchi, when he was in charge of immigration, allowed into Canada at least 394 people who were convicted of crimes that carried maximum sentences of over 10 years. In addition, more than 1,500 people with special entry permits had been convicted of lesser offences, but, nonetheless, criminal offences.

Senator Lynch-Staunton: They are all federalists!

Senator Andreychuk: Could the minister advise the Senate whether the RCMP agreed with the minister when these people were allowed into Canada, or were the RCMP siding with the ministry when these people were initially denied entry?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I cannot answer the latter part of my honourable friend's question. However, I will make inquiries.

First, although we would love to have him in this chamber, Mr. Marchi is not here yet. At any rate, I think my honourable friend is aware that permits are issued with great care and under humanitarian and compassionate grounds. In some of these categories, the numbers have decreased by a considerable amount in recent years because of the care that is and has been used not only by this administration but also by the one before us.

I am advised that the majority of individuals who have been issued permits and would have been in the category of having had "previous convictions" were those involved in minor, non-violent offences such as traffic violations. I will try to get more information for my honourable friend. I have read the stories, too, and I would assume that they are exaggerated.

Senator Andreychuk: I have a supplementary question. My concern is that immigration officers are given guidelines concerning the reasons for entry. In other words, how a person becomes an immigrant to Canada is spelled out in guideline form for immigration officers. The RCMP are involved at that point to determine whether they are appropriate and acceptable candidates from a security point of view. Did Minister Marchi, at this juncture, overrule the RCMP when they said that these people might be security risks or would threaten the safety and security of citizens in Canada?

If you will be replying on this point, I have another supplementary question. The government seems to be zeroing in on a problem of safety in Canada. It is saying that it is somehow related to our Young Offenders Act or our Criminal Code, when the safety and security of Canadians should be set in a framework and a policy that assures our security in Canada, and part of that is our immigration process.

To what extent is the Minister of Justice looking into the immigration policies and practices and to what extent do they contribute to the difficulties that we as Canadians are experiencing over and above looking at the Young Offenders Act?

Senator Fairbairn: I will add those questions and comments to the inquiries that I will make on behalf of the honourable senator.

Transport

Monitoring of Increase in User Fees at Ports-Government Position

Hon. J. Michael Forrestall: Honourable senators, I have a brief question for the Leader of the Government. Inasmuch as the new port fees have already caused widespread concern among the users of significant ports in Eastern Canada, can the minister indicate to us, first, whether any studies were carried out with respect to the impact of the substantial increases in user fees prior to their being implemented?

I have not heard of this happening, but can the minister tell me whether or not the government asked the Canadian Coast Guard or Transport Canada to rationalize or justify the user fees already being charged under the old regime? It would be interesting to know whether the product that is delivered to the user is sufficiently improved to warrant any increase.

Finally, how closely is it being monitored? If it is being monitored and the government finds that there is a potential for serious impact on significant ports - and, indeed, on all ports throughout Canada - does the government have any contingency plans to introduce changes to the regulatory fee structure?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, there are a lot of important questions contained in the statement of Senator Forrestall, and I will have all of them followed up.

Delayed Answer to Oral Question

Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, I have a response to a question raised in the Senate on March 20, 1996, by the Honourable Senator Comeau, regarding the decision to delay purchase of replacement helicopters.

National Defence

Search and Rescue-Decision to Delay Purchase of Replacement Helicopters-Government Position

(Response to question raised by Hon. Gerald J. Comeau on March 20, 1996)

The Sea King remains a safe helicopter in spite of its age. Of the referenced incidents, none was considered life threatening, not all were mechanical, and any action taken by the aircrews as a result of a system malfunction was strictly precautionary, in accordance with standard operating procedures. The accident in April 1994 was the result of a ruptured fuel line which was unrelated to the Sea King's age. The accident was attributed to a design problem with the routing of engine fuel lines which has subsequently been corrected.

The Government remains committed to replacing the Sea King as stated in the 1994 Defence White Paper. The need to replace the Sea King is the result of its approaching the end of its operational life. Maintaining the Sea King is a labour intensive and expensive process whereas, modern helicopters, because of technological advancements since the days of the Sea King's design, require considerably less maintenance.

Answers to Order Paper Questions Tabled

Canadian Mint-Media Coverage for Two Dollar Coin

Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 2 on the Order Paper-by Senator Kenny.

Department of Intergovernmental Affairs-Purchase of Vehicles-Percentage of Alternative Fuelled Vehicles

Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 7 on the Order Paper-by Senator Kenny.

Department of Solicitor General-Purchase of Vehicles-Percentage of Alternative Fuelled Vehicles

Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 12 on the Order Paper-by Senator Kenny.

Department of Agriculture and Agri-Food-Purchase of Vehicles-Percentage of Alternative Fuelled Vehicles

Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 15 on the Order Paper-by Senator Kenny.

Department of Citizenship and Immigration-Purchase of Vehicles-Percentage of Alternative Fuelled Vehicles

Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 20 on the Order Paper-by Senator Kenny.

Department of Industry-Purchase of Vehicles-Percentage of Alternative Fuelled Vehicles

Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 24 on the Order Paper-by Senator Kenny.

Department of Public Works and Government Services-Purchase of Vehicles-Percentage of Alternative Fuelled Vehicles

Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 26 on the Order Paper-by Senator Kenny.

Department of Agriculture and Agri-Food-Number of Vehicles and Number of Alternative Fuelled Vehicles

Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 33 on the Order Paper-by Senator Kenny.

Department of Citizenship and Immigration-Number of Vehicles Operated by Department-Number of Alternative Fuelled Vehicles

Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 34 on the Order Paper-by Senator Kenny.

Department of Transport-Number of Vehicles Operated by Department-Number of Alternative Fuelled Vehicles

Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 38 on the Order Paper-by Senator Kenny.

Department of Fisheries and Oceans-Number of Vehicles Operated by Department-Number of Alternative Fuelled Vehicles

Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 39 on the Order Paper-by Senator Kenny.

Department of Intergovernmental Affairs-Number of Vehicles Operated by Department-Number of Alternative Fuelled Vehicles

Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 40 on the Order Paper-by Senator Kenny.

Department of Human Resources Development-Number of Vehicles Operated by Department-Number of Alternative Fuelled Vehicles

Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 42 on the Order Paper-by Senator Kenny.

Department of Natural Resources-Number of Vehicles Operated by Department-Number of Alternative Fuelled Vehicles

Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 44 on the Order Paper-by Senator Kenny.

Department of Labour-Number of Vehicles Operated by Department-Number of Alternative Fuelled Vehicles

Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 45 on the Order Paper-by Senator Kenny.

Department of the Solicitor General-Number of Vehicles Operated by Department-Number of Alternative Fuelled Vehicles

Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 49 on the Order Paper-by Senator Kenny.

Department of Foreign Affairs-Number of Vehicles Operated by Department-Number of Alternative Fuelled Vehicles

Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 52 on the Order Paper-by Senator Kenny.

ORDERS OF THE DAY

Civil Air Navigation Services Commercialization Bill

Second Reading

Hon. Raymond J. Perrault moved the second reading of Bill C-20, respecting the commercialization of civil air navigation services.

He said: Honourable senators, at the outset I should like to provide some general background for Bill C-20, the Civil Air Navigation Services Commercialization Act. Canada's air navigation system, known in aviation circles as the ANS, is a vast sprawling system of technology and human operators which grew out of the need to support an aviation system converting from military to commercial objectives following World War II. It had become evident that if commercial success were to be achieved, flights would have to be made possible in virtually any weather conditions. This meant that a system of ground-based navigational aids and a means of monitoring and controlling air traffic would have to be implemented across the country. At the time, the only organization with the resources needed to create and operate such a vast system was the Government of Canada.

The ANS today is one of the largest such systems in the world. It has responsibility for the control of air traffic in Canadian air space and the western half of the North Atlantic Ocean. It comprises 7 major area control centres, 44 airport control towers, 86 flight service stations at smaller airports and approximately 6,400 employees. This is a major operation.

(2030)

There are literally thousands of electronic navigational aids installed from one end of the country to the other. With the exception of major military bases, where the Canadian forces provide their own services, ANS services in Canada have been provided for over 50 years by the Department of Transport.

The air navigation system provides air traffic control and flight information services, aviation weather services and navigational aids that ensure the safe and efficient passage of air traffic in this country.

Bill C-20 provides for the transfer of Canada's civil air navigation system from Transport Canada to the not-for-profit corporation NAV CANADA. Air navigation services provided by the Department of National Defence will not, however, be included in the transfer. The Canadian air navigation system has been well managed by Transport Canada for more than 50 years. I have provided a brief chronology with respect to that history.

This government-run system is coming under increasing pressure to meet the demands of technology and to respond to the needs of its users. This bill contains the government's resolve to commercialize the nation's air navigation system in order to increase its flexibility and efficiency without compromising safety. We are all concerned that, above all, airline services be safe. There have been too many recent disasters to take any comfort in mere generalizations with regard to safety.

In order to operate and maintain the air navigation system at arm's length from the government, a new entity had to be created. As a result, NAV CANADA was incorporated under Part II of the Canada Corporations Act in May of last year. Extensive negotiations have led to an agreement to transfer the air navigation system to NAV CANADA. It has been agreed that NAV CANADA will pay the government $1.5 billion for the system. This will contribute to the government's ongoing deficit reduction efforts. I know that honourable senators will welcome that information.

The transfer of ANS assets and employees is to take place 60 days after Bill C-20 receives Royal Assent. However, this transfer is dependent on NAV CANADA's being able to raise the negotiated sale price and meeting other conditions precedent.

In transferring the air navigation system, the government will ensure that NAV CANADA receives all of the assets required to provide air navigation services. Included in these assets are all lands and equipment, as well as any other items required to ensure the safe delivery of operations. NAV CANADA will be the sole provider of air navigation services in Canada, with the exception, as I noted previously, of the Department of National Defence.

NAV CANADA will be responsible for providing all of the air navigation services that Transport Canada currently provides. You may well ask how this will be done. As a regulator, Transport Canada will ensure the safe provision of these services. New safety regulations have been developed for this purpose. These regulations have been drawn up specifically for the commercialization of the air navigation system and will be in place before the transfer date. The emphasis is again on safety.

The regulations will be monitored and applied by Transport Canada in the same way as air carrier regulations are currently. NAV CANADA will be required to operate an internal safety management program, also in the interests of safety. NAV CANADA will be required to maintain the services which are currently provided by Transport Canada. In addition, the Aeronautics Act, which establishes the regulatory framework to maintain aviation safety, will always take precedence over Bill C-20.

Honourable senators, the government no longer needs to operate the air navigation system to ensure that it provides safe and efficient service. That being the case, this change is highly desirable. Ensuring the safety of the system was once seen as justification for government control and management. However, that view cannot be supported in the face of Canadian research evidence and international experience.

What role will Transport Canada play in the future? Transport Canada will provide oversight to the air navigation system ensuring NAV CANADA's regulatory compliance. This role will provide Transport Canada with the ability to ensure the maintenance of service levels in the interests of safety. Again, the emphasis is on safety.

In an effort to ensure the smoothest possible transfer of the civil air navigation system to NAV CANADA, the air transportation tax will be continued for two years after the transfer. Transition payments will be made to NAV CANADA during that two-year period and will be roughly equivalent to the amount raised by the air transportation tax. That will provide NAV CANADA with financial stability and will allow the corporation time to implement user charges.

NAV CANADA will run the air navigation system according to accepted business principles. This means, for example, that NAV CANADA will purchase hardware according to the needs of their customers and not in response to pressure of any kind, political or otherwise. This is progress.

This, honourable senators, is a quick look at the future of Canada's civil air navigation system. I would like briefly to outline the human resources aspect of the deal.

When the concept was first developed, there was concern on the part of the employees, and quite understandably so. Where would they fit in this picture? What role would they play? Would they be sacrificed to some allegedly higher purpose?

Almost miraculously, a tripartite memorandum was negotiated among the nine employee bargaining agents, Transport Canada and NAV CANADA in September of 1995. That memorandum ensures that collective agreements will continue. Bargaining agents will have successor rights under NAV CANADA until new agreements have been reached.

All employees who have been designated as transferring to NAV CANADA will, I am pleased to say, receive a job offer from NAV CANADA to continue in their current position and at their current rate of remuneration. Pensions, benefits and leave banks will all transfer to NAV CANADA with the employees. The human resources negotiations were carried out with the principles of equivalency and seamlessness in mind. The agreement reached with NAV CANADA provides employees with a smooth transition to the private sector with the same working conditions, pay and benefits as they currently enjoy.

In terms of a regulatory framework for the future, Bill C-20 lays out NAV CANADA's powers and obligations in a clear and concise manner. Under Bill C-20, NAV CANADA will, for example, provide public notice of changes in service or facilities that will affect a significant group of users. In addition, new or revised charges must be justified by NAV CANADA, and those affected must be given time to respond. Users will have the right to appeal new or revised charges if they have not been approved by the Minister of Transport during the first two years after transfer. Grounds on which appeals may be made will be tightly defined and the process will be speedy. Appeals of new charges will be heard by the National Transportation Agency.

The bill establishes that the regulation of service charges will be based on self-regulation by NAV CANADA. As it has been established as a not-for-profit corporation, revenues generated by NAV CANADA may not exceed what is required to provide air navigation services.

This is an example of user pay. The people who benefit from this navigation service are expected to pay their share of keeping the operation vibrant, healthy and responsible. As has been shown by international experience, the overall cost of providing these services should drop as business principles take hold, and regulations are reduced to the minimum required for safe and efficient operations. If it is possible, for example, to achieve certain economies as a result of an efficient operation, that will be reflected in lower fees to the air carriers and those who benefit from these services. The object is not to make profit and divert it for some other purpose.

(2040)

Bill C-20 will ensure that services currently being provided to remote or isolated communities will continue by NAV CANADA. The bill also outlines the process which would involve provincial and territorial governments should NAV CANADA wish to propose service cuts in the future. This organization cannot move unilaterally to reduce services in some of the remote cities in this country. There are ways to appeal any suggested action of the kind, which is why the local, territorial and provincial governments are very much involved in making that basic and important decision.

Because of NAV CANADA's national stature, and according to established practice, the Official Languages Act will apply as if NAV CANADA were a federal institution. The bill also provides that NAV CANADA must maintain humanitarian and emergency flights in the event of a work stoppage.

Honourable senators, the government is focusing on the modernization of the Canadian transportation system. Commercializing the air navigation system is a key part of this strategy. Initiatives such as the commercialization of federal airports, ports and harbours, the commercialization of ferry services, the conversion of Transport Canada's motor vehicle test centres to contractor-operated facilities, and the sale of Canadian National are part of the same overall plan that sees the air navigation system moving out of government operations.

Some may ask if this is pioneering on the part of Canada. Canada is not the first country to commercialize its air navigation system. In the last decade, countries such as Australia, Germany, Ireland, South Africa and New Zealand have commercialized their air navigation systems in some form. They are working well.

However, Canada's commercialization strategy breaks new ground by moving directly from government to the private sector without any intermediate steps as has been the case with some of these other countries. This has caused other countries to take notice. It ensures that Canada is setting the pace internationally.

The decision to use a not-for-profit corporation was made by an advisory committee composed of major associations, bargaining agents and all those associated with the industry. This committee had representatives from the systems, from users, from unions and from other stakeholders. This advisory committee studied a number of different models, and arrived at the conclusion that the not-for-profit model best fits the circumstances in this country.

NAV CANADA has a board of directors with representatives from user associations, unions and government, as well as independent board members. This structure ensures that a wide range of views are represented. Because of this, users will now be able to determine how the system will operate.

Commercializing the air navigation system is one of the largest initiatives of its type undertaken by the government. It has proven a model of cooperation between the public and private sectors. It has also provided a visible demonstration of the government's commitment to get out of providing service that the private sector can provide better. It also shows that this government is serious about reducing expenditures and thereby reducing the load on the Canadian taxpayer. This is a good deal for Canadians.

In summary, taxpayers will receive a $1.5 billion contribution to deficit reduction. Industry will benefit from a safe and efficient system that is responsive to their needs. Users will benefit from a cost-effective operation. Employees will continue to have the opportunity to contribute professionally in a challenging new environment. Their future is not being held at risk. NAV CANADA will benefit from this deal by having the opportunity to operate as one of the world's most respected air navigation systems.

I hope that senators on both sides of this chamber will join together in supporting this bill and the continuing initiative of the government to get out of the day-to-day operation of the transportation business, so that it can better focus on the safety and efficiency of our great transportation system.

Hon. Gerry St. Germain: Honourable senators, I should like to pose a couple of questions to the honourable senator. Does the honourable senator know when this initiative was first taken? Was this move initiated by the previous government, or was it first taken by the present government?

I am encouraged to hear the honourable senator speak like a Conservative when he says so clearly that it is best to have the private sector do things in place of the government.

My question is not a trick question. I ask it as a private aircraft owner and a private and commercial pilot. I presume there will be user fees for the take-off and landing of aircraft, as well as for the utilization of airports and their services, such as the filing of flight plans and requests for weather reports. At the present time, we who fly airplanes pay a great deal in taxes. We pay fuel taxes and other taxes that relate to the aircraft that we fly and own.

Many young people are attempting to enter the field of flying. However, it is a costly process. If you want your son or daughter to take up flying, it costs thousands of dollars. It costs well over $50,000 to obtain a commercial pilot's licence.

Will any consideration or guidance be given to NAVCAN to allow it to mitigate increases in user fees for private pilots or for people learning to fly, by way of reducing taxes or doing something else in that regard? The honourable senator will recall that years ago there was a subsidy provided to those who wished to obtain a private pilot's licence. Fortunately, some of us received our licences in the Royal Canadian Air Force.

Will there be any concession in that area for young pilots and private pilots who are generally strapped for cash at all times?

Senator Perrault: Honourable senators, I certainly welcome Senator St. Germain's observations. He is an old pilot. It is said that there are old pilots and bold pilots, but that there are no old, bold pilots. It is good to see that the senator has survived in good health for all these years.

May I suggest, honourable senators, that the senator has advanced an interesting idea. The task of educating young people to enter the profession of flying and to make certain that they develop into some of the best pilots in the world is a commendable objective. If the honourable senator wishes to develop some ideas in that direction, I undertake to bring his suggestions to the attention of the Minister of Transport. I know that the Leader of the Government in the Senate will be pleased to lead that initiative, and I would be very supportive in that regard.

I also suggest that the honourable senator may wish to attend the committee hearings with respect to this bill. It is to be hoped that this matter will be referred to the Standing Senate Committee on Transport and Communications, where ideas such as those enunciated by the honourable senator can be heard.

Hon. J. Michael Forrestall: Honourable senators, I am pleased to join in the debate tonight. Since Senator Perrault was casting back over his career, I know that he is well aware of some of the trials and tribulations of parliamentary secretaries.

(2050)

To answer Senator St. Germain's question, I remember discussing this item at one point at approximately 12:30 or 1:00 in the morning, well within the mandate of the previous government - all of which has absolutely nothing to do with the necessity and urgency of getting on with the next step in streamlining Transport Canada's services to its users, both national and foreign.

As many of you will be aware, the privatization of the air navigation services had its beginnings back in 1992, when the Royal Commission on National Passenger Transportation recommended to the government that they convert the air navigation system from the Department of Transport to another organization, either an independent institution or a separate Crown corporation.

As a result of this directive, the government entered into a series of consultations and negotiations which led to the creation of NAV CANADA. Bill C-20 provides the legal means to transfer the ANS from Transport Canada to this non-profit corporation.

The air navigation system is the system that ensures that aircraft move safely and efficiently. The word "efficiently" is most important. It is time indeed in commercial aviation in Canada that pilots had some control in that sense. The system includes, as Senator Perrault has indicated, air traffic control, navigational aids, and flight information including weather briefings for pilots.

NAV CANADA will pay the federal government $1.5 billion for the air navigation system. In addition, those employees who work in ANS at Transport Canada will be offered positions with NAV CANADA, at least in the short term, given that once the sale is completed there are no additional financial or other guarantees provided by the government. In other words, as soon as ANS becomes self-sufficient, as soon as they are out from under the air transport tax, which is an excise tax, as soon as they are self-sufficient financially, there are no guarantees. While it is a good deal for the unions, we will have to wait to see just how good a deal it is down the road.

Although we generally support this legislation in principle, there are a number of concerns with respect to Bill C-20 that I hope will be given further consideration when the bill arrives at the Standing Senate Committee on Transport and Communications.

One of the biggest concerns relates to the important matter of safety, as was stressed on at least five or six different occasions by Senator Perrault in his opening remarks. Despite the fact that Transport Canada will continue to be responsible for the safety standards of the ANS, there remain concerns that the department itself may be unable to uphold these standards, particularly with the ever-increasing pressures from the airline industry to ease up on certain regulations.

This was a major concern raised by Captain Richard Sowden, chairman of the tactical and air safety division of the Air Canada Pilots Association, when he appeared at the House committee which studied Bill C-20. I should like to quote directly from the captain, because he illustrates precisely the questionable level of safety standards that are currently imposed. Senator St. Germain will understand, if others do not, precisely what is being said here.

To be quite frank, as an individual charged with flying passengers from take-off to touch-down with complete safety on a miserable night in high winds and with limited visibility, the terms "adequate", "undue", and "reasonable" do not engender a high level of comfort in me, nor in the members of our association.

Those terms are taken directly from the act.

I ask senators to be concerned about that, and a number of us will very definitely be concerned about it when the matter gets to committee. The matter is too important, as Senator Perrault has said, to let such vague terms remain in the act. I should hope the government would take notice of that and find better language. It is a question of language, but it is also substantive. "Adequate safety." What is that? "Undue"? What is that? "Reasonable"? What is that?

The issue here is the lack of clearly defined benchmarks to determine what amounts to a reasonable safety standard or a proper safety structure within NAV CANADA. Canadians should be able to fly at ease, knowing that the safety requirements of Transport Canada that will now be applied to NAV CANADA are more than "adequate."

According to the Air Canada Pilots Association, we may be travelling with a somewhat false sense of security. A case was cited in the House committee, and I refer to it because many of you will not have had the time or the opportunity to read the minutes, but it was the matter of pilots being on duty for 17 hours in a given day, when the standard is 14-hour days. If our safety standards at Transport Canada allow for these extensions due to weather conditions, et cetera, one cannot help but wonder how we can have confidence in the system. I believe this is one issue that must be examined further in the committee, and I look forward to that discussion.

In this particular regard, the problem lies not in Bill C-20 but in the fact that the Aeronautics Act was written some 60 years ago and should be brought up to date. It is archaic. I am aware of no other piece of legislation on the books dealing with safety that is 60 years old. Surely we can bring it up to date. Surely we can do something about that. Surely this is an express concern to which we must react and act upon.

Another concern relates to the automated weather observation system and the role it plays in this new arrangement. It is my understanding that Environment Canada will be purchasing this faulty, useless equipment from Transport Canada, and will, in turn, provide the service to NAV CANADA. I am deeply troubled by the prospect of anyone using the AWOS. It is not an efficient or effective system. When the Standing Senate Committee on Energy, the Environment and Natural Resources travelled to both coasts to study AWOS, the stories we were told were frightening and scary, to say the least.

Claims by Transport Canada that the environment department is working to solve the problems in AWOS are, quite frankly, not very comforting. Even the new chairman of NAV CANADA, John Crichton, admitted that there are some real problems with AWOS. For that reason alone, I believe the entire system should be scrapped or at least put on the shelf until such time as it is perfected and demonstrated to be accurate. How many times have we been told that it is better to have no information than to have faulty information? However, that is what AWOS provides.

AWOS is the system that, under this act, we will rely on for basic weather information. We must examine this issue in our committee. I cannot stress enough the importance of this issue, because, as Senator Perrault has said, safety must be paramount in this discussion. We do not need the troubles that are facing New Zealand and Australia. It must be clear. "Adequate" is not a bench-mark description of anything.

(2100)

Before I conclude my remarks, honourable senators, I wish to touch upon an issue that Senator Perrault dealt with, and that is the question of revenue. The air transport tax is an excise tax, and only the government can collect excise taxes, except those successful revenuers, distillers of vision, and those who are able to reap great benefits.

However, the air transport tax is unique because, unlike all other taxes, the air transport tax does not revert to general funds or to general revenue. By a special provision it goes to the general revenue account, but an amount equal to that raised is then transferred to Transport Canada for the purpose of the air navigation system. Transport Canada uses these funds to help pay for the costs of the air navigation system in Canada.

Honourable senators, there is an expectation that costs will be reducible and that efficiencies can be built in, having regard to safety. However, at the present time, be under no illusion about cost. The present air transport tax just helps to pay the cost; it does not pay it in full. We must be careful in that regard.

We on our side welcome the presence of this bill in committee where we might have a closer look at it. There is some time between now and our anticipated date of adjournment. I hope that we can examine closely some of these matters, and I hope the government, inasmuch as it must bring forward at least one amendment, might be persuaded to do so. From my reading of this bill, it is my understanding that it must go back to the House of Commons because the drafters, presumably, forgot to say when it would come into force, or under what circumstances. Some traditional provisions have been left out. We look upon that as a fortuitous error, and hope that we will be able to persuade members of the government party that perhaps some of the language that gives us concern - words such as "adequate" and "undue" - might be changed to more positive words that will lend comfort, when the matter is before us.

Honourable senators, here we are marching forward, and we are moving in the right direction. It is right that we go this way and not the way of Ireland, Germany, Australia or New Zealand. This is the way to go. Make the break and make it clean, but do everything possible now to ensure safety; do everything possible to assure pilots that they can take off on a dark, foggy, stormy night; do everything possible so that they can deliver the souls on board to a destination of the travelling public's choice; do everything possible to put them safely on the ground because of good legislation and good law, not bad law.

Motion agreed to and bill read second time.

Referred to Committee

The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?

On motion of Senator Perrault, bill referred to the Standing Senate Committee on Transport and Communications.

Newfoundland

Changes to School System-Amendment to Constitution-Motion in Amendment-Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Fairbairn, seconded by the Honourable Senator Stanbury:

Whereas section 43 of the Constitution Act, 1982 provides that an amendment to the Constitution of Canada 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;

Now therefore the Senate resolves that an amendment to the Constitution of Canada be authorized to be made by proclamation issued by His Excellency the Governor General under the Great Seal of Canada in accordance with the schedule hereto.

SCHEDULE

AMENDMENT TO THE CONSTITUTION OF CANADA

I. Term 17 of the Terms of Union of Newfoundland with Canada set out in the Schedule to the Newfoundland Act is repealed and the following substituted therefor:

"17. In lieu of section ninety-three of the Constitution Act 1867, the following 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

(a) except as provided in paragraphs (b) and (c), schools established, maintained and operated with public funds shall be denominational schools, and any class of persons having rights under this Term as it read on January 1, 1995 shall continue to have the right to provide for religious education, activities and observances for the children of that class in those schools, and the group of classes that formed one integrated school system by agreement in 1969 may exercise the same rights under this Term as a single class of persons;

(b) subject to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools,

(i) any class of persons referred to in paragraph (a) shall have the right to have a publicly funded denominational school established, maintained and operated especially for that class, and

(ii) the Legislature may approve the establishment, maintenance and operation of a publicly funded school, whether denominational or non-denominational;

(c) where a school is established, maintained and operated pursuant to subparagraph (b)(i), the class of persons referred to in that subparagraph shall continue to have the right to provide for religious education, activities and observances and to direct the teaching of aspects of curriculum affecting religious beliefs, student admission policy and the assignment and dismissal of teachers in that school;

(d) all schools referred to in paragraphs (a) and (b) shall receive their share of public funds in accordance with scales determined on a non-discriminatory basis from time to time by the Legislature; and

(e) if the classes of persons having rights under this Term so desire, they shall have the right to elect in total not less than two thirds of the members of a school board, and any class so desiring shall have the right to elect the portion of that total that is proportionate to the population of that class in the area under the board's jurisdiction."

Citation

2. This Amendment may be cited as the Constitution Amendment, year of proclamation (Newfoundland Act).

And on the motion in amendment of the Honourable Senator Doody, seconded by the Honourable Senator Kinsella, that the motion be not now adopted but that it be referred to the Standing Senate Committee on Legal and Constitutional Affairs.

Point of Order

Hon. Marcel Prud'homme: Honourable senators, I wish to draw to your attention that during Senator Doody's second reading debate on Term 17, it was understood that, with leave of the Senate, Senator Doody had tabled the three letters. Later on in the debate, I stated that I trusted the three letters put forward by Senator Doody would not merely be tabled, because tabling letters does not mean honourable senators will have time to read them. I asked that they be appended to the proceedings of that day so that senators would have a complete picture of what was being said. All honourable senators agreed. However, senators later called me to ask where the letters were. The letters apparently were not appended to the Debates of the Senate for the last sitting of the Senate.

Honourable senators, these letters are at the centre of the debate that took place last week. Senator Doody read from some letters extensively, and people want to know more.

It was understood that the letters were tabled. However, that is not the complete picture. Members wishing to prepare themselves in the days to come should have a complete picture. These three letters are at their disposal. They should be able to read them to have a complete picture, and perhaps Senator Doody could again indicate that he would like those letters appended to the proceedings of today.

Hon. C. William Doody: I agree with the honourable senator. After I asked that the three letters be tabled, it was suggested by Senator Prud'homme that they be appended as part of the proceedings, although I do not see it recorded as such. My memory tells me that that is so, and there seemed to be a concurrence. No one objected.

These are three very important documents, honourable senators, and I think that it would be in the interests of everyone if they were appended as part of the proceedings of today's debate.

The Hon. the Speaker: It is your proposal, Honourable Senator Doody, that these letters be appended to today's proceedings?

Senator Doody: That is my wish.

The Hon. the Speaker: Is it agreed, honourable senators?

Hon. Senators: Agreed.

(For text of documents see appendix p. 606.)

(2110)

Hon. Anne C. Cools: Honourable senators, I rise to speak to Senator Doody's motion to refer the resolution amending the Constitution in regard to Term 17 of the Newfoundland Act, 1949, to the Standing Senate Committee on Legal and Constitutional Affairs for consideration and examination.

I would thank those who have spoken in this debate, and I especially thank Senator Doody for bringing the motion. It is my intention to speak to the motion and not to the substance of the resolution itself. I will leave that for later.

The Newfoundland Act, 1949, is the Act by which Newfoundland and Labrador entered the Confederation of Canada. Term 17 is that section which deals with education in that province, specifically the operation of separate schools and school boards, mainly the funding for school construction, the authority over the hiring of teachers, and funding for school operating costs. Term 17, Newfoundland Act, 1949, reads as follows:

In lieu of section 93 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.

Term 17 was a critical element in Newfoundland's entry into Canada, and represented a profound attempt to preserve a particular way of life and a particular reality. This proposed constitutional amendment is before us because the Government of the Province of Newfoundland and Labrador has asked for the federal government's intervention. That province's government chose therein not to respond locally and provincially, but rather to invoke the will of the majority as embodied in the Parliament of Canada. It appears that the Government of Newfoundland and Labrador is unable or unwilling to reach the appropriate agreement with the church organizations involved in education in the province which would render constitutional change unnecessary.

The Government of Newfoundland has adopted the position that the current system is not economically feasible and, further, that the quality of education for children in the province is dependent on this amendment. The Premier of Newfoundland, the Honourable Brian Tobin, in a letter to senators dated May 24, 1996, stated:

...education reform in Newfoundland and Labrador must be allowed to proceed. It is imperative that in these times of rapidly declining enrolment and increasingly scarce resources, the current complex system with its duplication of school boards, administrative offices, schools and transportation systems be fundamentally redesigned for educational excellence and fiscal responsibility. The children of the province deserve no less.

The premier's actions married the need for educational reform with this constitutional amendment. The outcome of this proposed amendment and its effect on the rights of other minorities in the rest of Canada is a matter for investigation and study.

The Newfoundland government asserts that this amendment will effect educational reform in the province of Newfoundland and Labrador, claiming that the proposed constitutional amendment will permit legislative reforms that will streamline denominational school boards, making them interdenominational. It will diminish the role of the church in the operation of the school boards and transform most schools from denominational to interdenominational.

However, Senator Doody, in his remarks on June 6, 1996, posed the issue differently, saying:

...the basic, central, core issue that is at stake here...is minority rights - minority rights which have been enshrined in the Constitution of Canada by Term 17 of the Terms of Union of Newfoundland and Labrador.

Senator Doody's view is supported by many groups and individuals in Newfoundland and across the nation at large. Many Canadians are similarly concerned. They have raised concern as to the effects of such an amendment on the Constitution and on the lives of all Canadians.

The Most Reverend James H. MacDonald, the Roman Catholic Archbishop of St. John's, in his letter of January 30, 1996 to Prime Minister Chrétien, wrote:

As you are aware from prior correspondence with you, our Roman Catholic people in Newfoundland strongly believe that their constitutional rights to have their children educated in Catholic schools will be eliminated under this proposed amendment to Term 17.

It is our belief that Premier Wells and his Government have created the impression that under the proposed revision of Term 17, Roman Catholic schools similar to those that currently exist will be permitted to exist provided that numbers warrant. We suspect that this may be an important reason why the Government you lead may be willing to amend Term 17. We believe that this impression is clearly erroneous and that the amendment to Term 17 will make the total elimination of our schools inevitable.

Honourable senators, the Roman Catholic Archbishop of St. John's has said that this amendment will make the total elimination of Roman Catholic schools inevitable.

His Eminence Emmett Cardinal Carter also expressed his views on the subject, in a letter to the Prime Minister on May 21, 1996. Cardinal Carter wrote:

You and your colleague, the Minister of Justice, have been urged to encourage Newfoundlanders to reach a satisfactory solution without the need for a constitutional amendment.

When I received the news that an agreement for the reform of the system of education in Newfoundland had been reached between Premier Tobin's government and the leaders of the denominational school system I was pleased, especially upon learning that the changes do not require an amendment to Term 17 and would avoid the setting of a precedent dangerous to minority rights across Canada.

I now understand that Premier Tobin insists on the amendment to Term 17 despite the agreement and that you are prepared to oblige him. I am disappointed, like many Canadians, because I took you at your word that the Liberal Party is a party of principle and a champion of minority rights. The precedent that would be set on this issue would have far-reaching political consequences for our nation.

Honourable senators, these archbishops and the Conference of Catholic Bishops and the Archbishop of Ottawa, Marcel Gervais, claim that Roman Catholic education and the Roman Catholic Church are at risk. Moreover, the Pentecostal Assemblies are similarly concerned.

Reverend Roy D. King, the general superintendent of the Pentecostal Assemblies of Newfoundland, expressed this in a letter to Prime Minister Chrétien on January 30, 1996:

Premier Wells has attempted to assure the people of Newfoundland that the revised Term 17 will still preserve religious education in schools and will permit the continued existence of Pentecostal schools where numbers warrant. There has never been any doubt in our mind that the proposed revision of Term 17 will not permit our schools to continue to exist let alone guarantee that our schools would have the right to remain in existence....

Our greatest fear is that the proposed new Term 17 would be placed before the Parliament of Canada for consideration and passage without any opportunity to be heard at the provincial and federal levels through committee hearings. Such a circumstance would constitute the most dramatic alteration of constitutional rights in this country in the complete absence of due process given that the right to be heard is a fundamental principle of our democracy.

It is imperative that this resolution be referred to a Senate committee so that they may be heard.

The Roman Catholic Church and the Pentecostal Church, in a document entitled "Response of The Catholic Education Council and The Pentecostal Education Council to Government of Newfoundland and Labrador Backgrounder Newfoundland Referendum to Amend Term 17," dated March 10, 1996, inform us that their legal counsel, Colin K. Irving of the firm of McMaster Meighen in Montreal and Michael Harrington of the firm of Stewart McKelvey Sterling and Scales in St. John's, are of the following opinion:

While paragraph (b)(i) of the draft new Term 17 may seem intended to reaffirm the existing right of the classes to the establishment and maintenance of their own denominational schools, that concept is illusory because the constitutional amendment proposed by the Provincial Government would make the exercise of that right "subject to provincial legislation" and such provincial legislation, with no constitutional restrictions, could be designed to make the exercise of that right extremely difficult, if not totally impossible.

A right which can be frustrated so easily is in effect no right at all, and not an acceptable substitute for the rights presently enjoyed by classes of persons in Newfoundland and Labrador.

In his remarks in moving this motion on June 6, 1996, Senator Doody, stated:

The people of Newfoundland and Labrador feel they have the right to have their children educated in schools that reflect the virtues, ethics, values, and culture with which they are comfortable. This minority right, agreed to by the representatives of the people of Canada and by the representatives of the people of Newfoundland, was placed in the Constitution of Canada so that it would be safe from the whims and vagaries of legislators.

(2120)

In 1949, Term 17 was placed in the Constitution precisely because constitutions are intended to be resistant to change. Moreover, the Constitution is intended to be beyond the reach of premiers and provincial legislatures.

Honourable senators, the Senate has a parliamentary duty to the citizens of this country to conduct a thorough committee examination of the implications and ramifications of this proposed constitutional amendment on the lives of Canadians in Newfoundland and across the country. The Senate has a duty to hear those who are concerned about this proposed amendment, and to give them an opportunity to present their concerns for national consideration.

Newfoundland and Labrador is a unique province with a unique history and community fabric. As senators, we must be diligent that issues such as minority rights and religious freedoms are balanced with the community's interest in administrative and financial efficiency. The Roman Catholic Church and the Pentecostal Church's position must be heard by senators in committee. The Senate committee must carefully study the impact of this proposed amendment on minority rights, particularly minority rights to education and their language and religion.

Honourable senators, these issues are very complex and deserve proper attention. We have a duty to give this matter the time and attention that it deserves. The Government of Newfoundland states that educational reform is not possible without this amendment. The churches, on the other hand, not only state that educational reform is possible without this amendment but that it is necessary without a constitutional amendment.

I support the motion in amendment moved by Senator Doody and seconded by Senator Kinsella that this resolution be referred to the Standing Senate Committee on Legal and Constitutional Affairs for study and consideration.

Senator Prud'homme: Honourable senators, I have a question. At the end of his speech last week, the person whom I consider to be a real champion of minority rights in this country, a former premier of New Brunswick, said not only should this matter be sent to committee, but also that he was ready to propose that the committee travel to Newfoundland. I would agree that we vote money for the committee to do so.

Of course, I am talking about Senator Robichaud. He felt strongly that the one place to which this committee should envisage travelling was Newfoundland, in order to hear the concerns of the people of Newfoundland. Many of them are calling and saying, "We would love to be heard, but we do not have the money." I am not suggesting in any way, shape or form that we should travel across Canada on this issue but, since it is Newfoundland that is affected, and in order to give Newfoundlanders a fair hearing, I hope that honourable senators will agree with Senator Robichaud that this committee should also look into the possibility of travelling to Newfoundland at least once.

Senator Cools: Senator Prud'homme, thank you for your statement. The person to whom you are directing your question is Senator Robichaud. I think the point is well taken and well intended, but I am speaking to the motion as Senator Doody has placed it on the Order Paper. I am not proposing an amendment to his motion.

Senator Prud'homme: I realize that.

Senator Cools: However, I am mindful that we have here with us the chairman of the Standing Senate Committee on Legal and Constitutional Affairs. I am also mindful of the fact that the committee is master of its own proceedings.

[Translation]

Hon. Gérald-A. Beaudoin: Honourable senators, I am happy to hear that Senator Doody, who comes from Newfoundland, has suggested that Newfoundland's resolution be referred to the Standing Senate Committee on Legal and Constitutional Affairs for further consideration. I am equally happy that the Leader of the Government in the Senate, Senator Fairbairn, has already announced that she would agree to the resolution being referred to the Legal and Constitutional Affairs Committee.

[English]

Clearly, it is the bilateral formula of amendment of section 43 of the Constitution Act, 1982 that applies in this case. The Senate may say yes or no, or may suggest amendments.

[Translation]

It is true that, under the 1982 Constitution Act, the Senate has only a suspensive veto. But the second chamber can and must have a say in the matter. This is the reason we have a bilateral formula, which has been used on several occasions since 1982, namely in 1987 by Newfoundland, in 1993 by New Brunswick, and again in 1993 by Prince Edward Island.

[English]

The Senate is a house of second sober thought which represents the regions of Canada and, to a certain extent, the minorities.

[Translation]

Term 17 is the equivalent in Newfoundland of section 93 in several other provinces.

[English]

In both cases, however, Term 17 and section 93 refer to classes of persons. Term 17 is particular to Newfoundland, and does not apply to other provinces.

[Translation]

It should be pointed out that denominational rights are collective rights. There are only two kinds of collective rights in the Canadian Constitution which have been recognized as such by the Supreme Court of Canada. They are native rights and denominational school rights.

The case of Newfoundland can set a precedent with regard to denominational rights. We will have to be very precise and make the appropriate distinction in every case.

[English]

What about linguistic rights? How can they be changed? If it is in one province, the bilateral formula of amendment may be used, according to section 43 of the Constitution Act of 1982. For general use in Canada, the unanimity rule, according to section 41, would come under that category, as would the federal part of section 133 of the Constitution Act of 1867 and the federal part of sections 16 to 22 of the Charter of Rights of 1982. For section 23 of the Charter, it is at least the 7-50 formula.

Thomas Jefferson, the great apostle of democracy in America, has written that nothing is unchangeable except the inalienable rights of man. Of course today we would say the inalienable rights of the person.

In the Canadian context, denominational rights are very important, although they do not exist in all provinces, and they also concern minorities. The right to denominational school is maintained in the resolution of Newfoundland. By the resolution of Newfoundland, certain rights or powers of administration are transferred from some classes of persons to the legislature of that province. Is this reasonable? Is this acceptable? Is the right to administer an integral part of denominational rights? Is it necessary to protect the denominational schools? That is the question. This is what should be studied completely in the legal committee.

[Translation]

Must permission be obtained from one class of persons or from one church to limit the administration of a denominational right and, if so, what is the procedure?

I wonder about our constitutional amendment process. As far as denominational rights are concerned, must we go further? Must we add a referendum? Amending formulas are there to be used, are they not?

The Newfoundland referendum was not necessary at all! We tend to resort to referendums a lot in Canada. It seems like we want to add them de facto to the amending formula. That is wrong, according to me. We have already made that mistake at the federal level. Maybe they are doing it also in several other provinces. I say, and I repeat, that the referendum is not part of the amending formula.

In its famous decision in the Mercure case, the Supreme Court said in 1988 decision that Saskatchewan was bilingual in 1905, according to its constituent act. The province seems to have forgotten about that because it passes its legislation in English only.

The Supreme Court added that Saskatchewan could bypass bilingualism by passing a piece of legislation to amend its internal Constitution; Saskatchewan did just that. It brushed aside bilingualism by adopting a bilingual act.

The French-speaking minority was not happy, far from it. The Supreme Court did not say the province had to get permission from the minority, the francophones in that case. It seems that all that needs to be done is to abide by the terms of the amending formula. The rights of a minority were dismissed. It could be done legally.

I raise that point because it is part of the great debate before us today. It is not an easy one. I respect both points of view. There will be very good arguments on both sides. Naturally, the Senate will have to decide. I refer to linguistic rights because Mr. Duhamel said he feared that if we accept that resolution, it could be dangerous for French-speaking minorities in Western Canada. I am impressed by that very sound argument. Let me come back to the legal aspect of the question. We have before us a constitutional amendment. It is not only a legal matter. It also affects other areas. The legal aspect of it is very simple. It is the bilateral formula that applies. Term 17 is very clear. The Senate may choose to say yes or no, or to amend it.

So, what about the Blaikie case - Bill 101 in Quebec - and the Forest case - Section 23 of the Manitoba Act? The Supreme Court decided these two sections were not only part of the internal Constitutions of Manitoba and Quebec, but also part of the Constitution of Canada. Is it sufficient protection? First, that was before the 1982 Charter. I doubt the Supreme Court would act differently today. It would come to the same conclusion.

[English]

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An amendment to the provincial part of section 133 of the Constitution Act, 1867 and to section 23 of the Manitoba Act would require at least the bilateral amending formula. In that sense, the problem may come before us in the area of linguistic rights as it comes before us today in the area of denominational rights.

[Translation]

In Quebec, many people - I do not know if it is a majority - want to change the school system while maintaining denominational schools. In that respect, the situation in Quebec and Newfoundland is similar. When we vote later today, we must consider Quebec's case, which could arise within a year or two. We do not know what the future holds. We cannot totally separate Newfoundland's case. I come back to history. Surely, such a constitutional amendment raises an important issue.

Chief Justice Duff of the Supreme Court of Canada said in 1938 that section 93 was part of the federative pact. There is no doubt that Term 17 is part of the terms of union of Newfoundland with Canada and, in this sense, part of a federative pact as far as this province is concerned. In conclusion, if we want to amend Term 17, we must do so after a thorough examination.

[English]

In my opinion, the Legal and Constitutional Affairs Committee should hear from experts when it studies this issue. Clearly, there are two theses with respect to this matter, and I have the greatest respect for both. However, it is only after such a study in the committee that this house, which, according to Cartier, Macdonald and many others, is here to protect the regions and the minorities in Canada, may decide which way to vote.

Hon. Jerahmiel S. Grafstein: Honourable senators, I should like to ask a question of the honourable senator. It may sound curious because I have not had an opportunity to study this issue. The senator proposes the ability of the Senate to amend this resolution. By what power do we have the right to amend a resolution coming to us in the way it has and under this particular section? What would be the consequences of such an amendment?

Senator Beaudoin: Honourable senators, this is not the first time that we have had a resolution before this house. As far as I can remember, the Meech Lake Accord was before us in the form of a resolution. At that time, it was adopted by the House of Commons but refused by the Senate.

We may amend this resolution, or we may say "no" to it. As the honourable senator knows, section 47 provides this house with a suspensive veto. If such a veto is used, the resolution would go back to the House of Commons at the latest six months after the decision of the House of Commons. If the House of Commons adopts the resolution a second time, it then becomes the law of the land.

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Hon. Lowell Murray: Is the Honourable Senator Grafstein suggesting that this resolution is a seamless web?

Hon. Phillippe Deane Gigantès: We leave that to you. Seamless webs are a Tory error.

Honourable senators, perhaps Senator Beaudoin will allow me to ask a question of him?

[Translation]

You have raised the spectre of the language issue and you have related this issue to Quebec. In Quebec, French is the language of the majority. It is therefore unthinkable, in my opinion, to use section 43 to repeal the rights of francophones regarding their mother tongue in Quebec. Would you not agree?

Senator Beaudoin: Each time there is a bilateral constitutional amendment, as is the case now, the Senate must assume its responsibilities. My intention this evening is to set out the parameters. That is what I want to do. People will make up their own minds, there is no doubt of that.

Legally, we have the right to pass this resolution. We need only follow the amending formula. I have full respect for this point of view.

Others will say that care must be taken, because you cannot look at the case of Newfoundland in isolation. Other amendments could arise in two years affecting denominational schools in Quebec. One day, perhaps other provinces will invoke the same process to exclude French at the provincial level. Who knows? French and English are given absolute protection at the federal level because, under section 41, unanimity is required to remove them - and that is not for tomorrow - so they are protected.

In some provinces, and I cited the Mercure case in 1988, there was no bilateral protection; there was unilateral protection. The province used it to remove French from the legislation. In Manitoba and in Quebec, the Supreme Court said that could not be done unilaterally. Many jurists believe that it can be done bilaterally, just as we can do for Newfoundland in the case of education.

We must, however, make a distinction between language rights and denominational rights. I make a distinction. These rights are different. You will not stop people from wondering about that.

I say that, in legal terms, the Court has not imposed anything except the amending formula. Perhaps this responds to Senator Grafstein's question. The Court has said that the Constitution can be amended if the amending formula is followed. That is all.

Some senators will say that we can say yes and that it is perfectly legal. That is obvious! Nobody is questioning that. Others will say that minority rights may be affected.

We have to be careful when we amend an area of the Constitution like this. The French language is specifically protected in Quebec, Manitoba and New Brunswick. That is clear. It is not so well protected in the other provinces. It is protected federally by the unanimity rule. I personally have no fear. We can make comparisons. It does not change the way I will vote on this resolution.

Senator Gigantès: Without prejudicing the way I will vote in any way, I must say you have just given a fine illustration, Honourable Senator Beaudoin; I respect you a lot, and consider you to be extraordinary.

The Hon. the Speaker: Are you asking a question or making a speech?

Senator Gigantès: With these discussions, are you not raising spectres which will frighten people? You will say: Yes, but here, when we do this we endanger that, or we endanger something else. I am alarmed, as I said the other day. Are you alarmed by the headlines this may give rise to? There are journalists, less versed in the law than you are, who will be looking for evidence of conflict.

Senator Beaudoin: First of all, I was raising no spectres, on the contrary.

As I have said, I respect the two points of view, and the people will decide.

The purpose of my speech is to explain in what legal and constitutional context this discussion is taking place.

I never had it in mind to stir up any spectres. It is not like me, quite the opposite. You were alarmed, then?

Senator Gigantès: Yes.

Senator Beaudoin: Did you listen carefully?

Senator Gigantès: Yes, very carefully.

Senator Beaudoin: I am sorry that you were alarmed.

[English]

Hon. William J. Petten: Honourable senators, I should like to begin my remarks on this historic resolution by saying how much respect I have for those who have taken part in debating this important matter particularly over the past four years. I know that everyone involved in the discussions concerning the amendment to Term 17 has addressed this issue with deep conviction.

In speaking strongly in favour of this resolution, I do not deny the sincerity of others. My chief concern is the same as that of all other senators - we want to ensure the best possible opportunities and the best possible future for our children and grandchildren. I want to guarantee that students in Newfoundland and Labrador have a chance at the best possible education.

However, I wish to see more money spent on education and not on bureaucracy. Unfortunately, under the current Terms of Union of Newfoundland with Canada, my province has an education system that is very complex. Even though Newfoundland and Labrador has a population of fewer than 600,000 citizens, we have 27 school boards. We are now the only province presently prohibited from having interdenominational public schools.

The province is required to spend money on substantial duplication of buildings, transportation and administration. That means less money to spend on teaching our young people. This may be an oversimplification, but I have to do it at any rate. Students are bused from point A to point C, passing point B along the way. Point A is for the amalgamated school students going to point C. They pass B, the other denomination, in the middle. If that makes sense, it is beyond me.

Last September, the people of Newfoundland and Labrador voted to change the system. They voted without any campaigning or pressure by the provincial government. The decision of the voters was unanimous and endorsed by all political parties in the Newfoundland legislature. Last week, Premier Tobin came to Parliament accompanied by the Leader of the Opposition and the leader of the NDP. They unanimously asked Parliament to pass the resolution before honourable senators today. They pointed out that an amendment to Term 17 is absolutely essential for making necessary improvements to Newfoundland's educational system.

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This resolution is critical to achieving educational excellence in my province. Only when this resolution passes will the people of Newfoundland and Labrador have the mechanism in place to plan and implement the next school year. Only with the passage of this resolution will the people of my province be able to get on with the nuts and bolts of educational reform.

It is important to state that this resolution provides for both denominational and non-denominational education, and it would give all the children the right to attend their neighbourhood school. It will provide for interdenominational schools that are open to all children.

Honourable senators should not misunderstand me. This resolution will not solve all the educational challenges facing Newfoundland and Labrador, but it will give the people of the province the tools to meet these challenges. It will give the people the opportunity to provide a first-class education for all our children and grandchildren.

The people of Newfoundland and Labrador are ready to move forward. We are ready to pull together and work together. While having real respect for those who oppose this resolution, I believe that the time has come to amend Term 17. The time has come to allow Newfoundland and Labrador to reform its educational system. The time has come to put the emphasis on what is best for our children.

Honourable senators, I urge you to give speedy passage to amending the terms of union of Newfoundland with Canada. I urge you to pass this resolution which meets the needs of today and the hopes of tomorrow. I would be happy to see this resolution go before a committee, and the quicker we get it to committee the better.

Hon. Finlay MacDonald: Honourable senators, I have a question for Senator Petten. I thought that an agreement had been struck in the province of Newfoundland which would permit the reforms of which the honourable senator has spoken without the necessity, to which he refers as the "absolutely essential necessity," of the amendment. What happened to that agreement? I understand it is still in force and, as a matter of fact, to be effective July 1. What went wrong?

Senator Petten: Honourable senators, nothing has gone wrong. I think what is being referred to is a working document, and that cannot be put in place until we amend Term 17. That is my understanding.

Senator Prud'homme: Honourable senators, I wrote out my question so that it would be clear and so that I would not waste time.

Can a majority impatient for results, in this case change to Term 17, trample upon a minority group protected by the Constitution via a perceived highly democratic tool called a referendum?

Senator Petten: Minorities rights, in my view, are not being trampled upon. The people of Newfoundland, in majority in a referendum, agreed to this change. In the legislature of Newfoundland, all parties unanimously supported it.

I was at a reception in Newfoundland on Friday which was attended by approximately 700 people. Many people spoke to me, and obviously I spoke to many people. I did not mention the subject, but they did. The people with whom I spoke, without exception, wanted this resolution passed. They said, "We will look after it down here, but you fellows do what you are supposed to do; pass it and get it back to us."

Senator Doody: Honourable senators, I have a question of my honourable friend. It is strictly for the record.

I think in the early part of my friend's comments he spoke about the electorate unanimously agreeing to this resolution. I do not believe that that is correct.

The legislature agreed unanimously. The electorate were quite divided. I believe 28 per cent of those eligible to vote agreed to the proposition; 54 per cent participated; and 52 per cent of those who voted agreed that this should take place. It was far from unanimous. In fact, in those areas of the province which are predominantly Pentecostal or Roman Catholic, the figures would show the majority were very strongly opposed to this resolution.

For the sake of the record, perhaps my honourable friend would like to say that it was not a unanimous vote of the electorate but rather a unanimous vote of the legislature.

Senator Petten: Honourable senators, I certainly did not intend to mislead you.

Senator Doody: I know that, and that is why I asked the question.

Senator Petten: I meant to say, and if I did not say it previously I will say it now, that the legislature, duly elected by the people of Newfoundland, unanimously agreed to it.

Senator Doody: Agreed.

On motion of Senator Ottenheimer, debate adjourned.

Private Bill

Queen's University at Kingston-Second Reading

Hon. Lowell Murray moved second reading of Bill S-8, respecting Queen's University at Kingston.

He said: Honourable senators, the bill before us is to amend the Charter of Queen's University at Kingston. The bill is comprised essentially of two amendments. The first deals with the composition of the university's board of trustees. In addition to the usual people found on these boards, the chancellor, the principal and so forth, it is proposed to add two faculty members, two students, and two staff as full voting members. According to section 12 of the present charter, faculty and staff are explicitly excluded from membership on the board of trustees, and this will be repealed if Bill S-8 is passed into law.

The second amendment calls for the removal of section 19 of the university's charter, which reads as follows:

The university shall continue distinctively Christian and the trustees of the university shall satisfy themselves of the Christian character of those appointed to the teaching staff. Laymen shall be eligible to any position in the university.

In the pluralistic age and society in which we live, not to mention the Charter, age and society in which we live, this provision, which dates back to 1912 and was preceded by provisions requiring staff to make a declaration of faith suitable to the Presbyterian Church, to understate the case, is inappropriate today.

The chairman of the board of trustees has assured me that the proposed changes have the full backing of the university's faculty, staff, and students, as well as the board of trustees.

Before getting into a discussion of these amendments, I should like to take a moment to outline briefly the history of Queen's University in order that honourable senators can better appreciate the changes we are being asked to adopt.

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Queen's University traces its roots back to the 1830s and the desire on the part of the Church of Scotland to establish a university where students could obtain a secular and/or theological education along the lines of the Presbyterian faith. In 1839, a draft bill was drawn up to incorporate "Saint Andrew's College." This was subsequently changed to the "Scottish Presbyterian College." Still later, under the impetus of Legislative Councillor William Morris, whom the Dictionary of Canadian Biography calls a "champion of the Church of Scotland in the Canadas," the name was changed once again, this time to "Queen's College at Kingston." Morris insisted on the name Queen's because he wanted it made clear that the proposed college was to be considered equal to King's College of Toronto, which was affiliated with the Church of England and which, as we know, was later renamed the University of Toronto. Moreover, Mr. Morris was not insensitive to the desire of his compatriots that the Scots be considered equal to the English everywhere in the British Empire - I would say at least equal.

In January 1840, Morris shepherded the Queen's bill through the Parliament of the United Province of Canada. The object of the Act was "the education of youth in the principles of Christian religion and...their instruction in the various branches in science and literature." The act established a board of trustees comprised of 15 laymen and 12 clergymen, all in full communion with the Church of Scotland. While the first principal of Queen's was to be named by the church, subsequent principals and professors would be named by the board of trustees. No religious test was required for any students except those studying theology, but lay professors and trustees were obliged, as I mentioned earlier, to subscribe to a declaration of faith approved by the Church of Scotland.

Before the bill could become law, Governor General Lord Sydenham voiced his disapproval of the idea of using the name Queen's without the consent of the Crown; in this case, Queen Victoria. Faced with this vice-regal opposition, the movers of the bill changed its title to "An Act to establish a College, by the name and style of the University at Kingston." This was adopted in February 1840. In the meantime, Mr. Morris convinced the Church of Scotland synod to petition Queen Victoria to approve the name Queen's and to grant a royal charter. After numerous delays, this was achieved at a cost to the university of 700 pounds.

On October 16, 1841, Queen's received its charter. Six months later, on March 7, 1842, Queen's College at Kingston opened for business with two professors and some dozen students.

Having obtained a legal right to exist, Queen's turned to the more arduous task of survival - a task no easier a century ago than it is today. Barely two years after opening, Queen's became caught up in the first of a series of disasters that would test the grit, courage and character of its leaders. In 1844, the reverberations of what was known as the Great Disruption made their way to Canada. For those of you less familiar with Presbyterian Church history, the Great Disruption was the schism between supporters of the powers and privileges of the state and the wealthy within the Church of Scotland and those in favour of a complete separation of church and state. A direct result of the schism was that Queen's lost one half of its student population, and at least six students left for greener theological pastures elsewhere.

In 1867-68, disaster struck once again when the government decided to withdraw all funding to Queen's, forcing it to begin fending for itself. If this was not enough, in that same year of 1868, the university's bank failed, thereby reducing Queen's investments by two-thirds. This was a terrible blow and until well into the 1880s, there was continued talk of amalgamating Queen's with the University of Toronto.

By the turn of the century, it had become clear that if the university was to survive, it would have to have access to provincial funding. This meant transforming itself into a non-denominational institution. This was achieved in 1912.

Over the ensuing eight decades, including two world wars and a Great Depression, Queen's continued to grow and prosper. Today, 155 years after its founding, it has some 17,000 students in five faculties, 10 schools, and one affiliated college. It has over 1,000 faculty and an annual operating budget of close to $184 million, and can boast of some 70,000 graduates from over 100 countries.

Honourable senators, Queen's is the only university in Canada governed by federal legislation. In other words, when it wishes to amend its charter, it must come to Parliament. Since Confederation, it has done so on seven separate occasions. The reason Queen's is regulated by federal statute is closely related to its possession of a royal charter. Royal charters are the oldest form of incorporation in countries based on the British legal system. They are issued by virtue of the Royal Prerogative powers independent of any parliamentary body. The monarchy's monopoly over incorporation was broken following the revolution of 1688 as parliamentary bodies in England developed greater powers, among them the ability to create corporations by statute.

When Queen's sought to amend its charter for the first time in 1874, it was thus confronted with a choice. It could return to London to see the Queen, or it could apply to the appropriate parliamentary body in Canada. Its finances being what they were, the university wisely chose to make its representations in Canada. The problem was to which parliamentary body was it to turn; to provincial legislatures which had constitutional authority over education or to the federal Parliament because the university possessed a royal charter?

Queen's chose to apply to the provincial legislatures, those of the former province of Canada: Quebec and Ontario. As it turned out, however, it made the wrong decision. I will not take honourable senators through all of the legal history. The legal case which settled the question for Queen's was directly concerned with the disruption and later reunification of the Presbyterian Churches in Canada between 1844 and 1874-75. The Judicial Committee of the Privy Council was called upon as the final Court of Appeal to rule in the case of Dobie v. the Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada. The board had been incorporated by the United Province of Canada in 1859. It had its corporate existence and rights in what later became the provinces of Ontario and Quebec.

The Judicial Committee of the Privy Council, in 1882, ruled that the 1859 statute remained in force and could not, after 1867, be modified or repealed by Ontario or by Quebec, or by both provinces acting together, but only by the Parliament of Canada.

The authorities at Queen's quickly saw that their royal charter was in the same position as the temporalities board, and in 1882, two bills were introduced to Parliament giving retroactive effect to the by then defunct Ontario and Quebec statutes. Both were adopted with a minimum of debate. This happened very shortly after their lordships at the Judicial Committee of the Privy Council had rendered their decision, and it is surmised that Principal Grant, that great figure in the history of Queen's University, had leaned on his good friend John A. Macdonald, who by that time was Prime Minister of Canada, to get a validating statute through the Parliament of Canada.

Queen's turned again to Parliament in 1889, in 1906, and in 1912, each time somewhat loosening the ties between religion and the management of the university. The debate in 1912 centred on the attempt by the Presbyterian Church to maintain some semblance of religious influence at Queen's. The provision concerning the Christian character of the teaching staff, which Bill S-8 would repeal, was apparently a compromise reached after much debate.

Following passage of the 1912 act, there were three further amendments, in 1914, 1916 and 1961. Each was administrative in nature and none produced much debate.

Honourable senators, the initiative to amend the Charter of Queen's University is, of course, entirely at the discretion of the university. However, speaking for myself, I must say that the university's desire henceforth to be described not as an institution based on Christian principles but as a simple institution, gives me pause to reflect for just a moment on the immense role played by the church in the development of education in this country.

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For much of our history, the different churches in Canada took on the responsibility of educating the young. For over 350 years, priests, ministers, nuns, pastors, rabbis and laymen and women from all faiths have, in varying degrees, dedicated themselves to shaping the minds and intellects of generations of youth. In Quebec, the Catholic church founded parish schools, seminaries, colleges and universities such as Université Laval, the oldest university in North America. In the west, Hudson Bay chaplains and Catholic and Protestant missionaries began the task which was then taken over by settlement schoolmasters, and later by teachers and professors.

In other parts of the Canadas, the churches worked unceasingly to bring education to the people. They built Sunday schools, and they helped establish a variety of primary and secondary institutions, many of which, like Kings-Edgehill School, St. John's Ravenscourt, and Upper Canada College, survive to this day. The also, of course, founded universities: the Catholics at St. Francis Xavier, the Baptists at Acadia, the Methodists at Mount Allison and the Presbyterians at Queen's, to name but a few.

On an individual level, ministers such as Alexander Forrester in Nova Scotia and Edgar Ryerson in Ontario played central roles in establishing systems of public education in their respective provinces - systems that while secular, were not unmindful of the importance of Christian values. Complete secularization was never achieved, and for those choosing to retain a greater religious presence in their education curricula, separate or denominational schools offered - and still offer - an alternative.

I do not, of course, wish to suggest the churches alone were responsible for the development of education in this country, although in some areas that is definitely true. Nor would I argue that all of those involved acted from clear or altruistic motives. They were, all after, only human, and open to the pull of class, party, nationality and religion. In fact, denominational disputes lay at the heart of the founding of more than one institution. Overall, it cannot have been an easy task, and for it, I think we owe the churches a large debt of gratitude and remembrance.

Honourable senators, all of this brings me to the last point I wish to make today, and that is to underline briefly the important role Queen's has played, and continues to play, in Canadian political and public life. Queen's counts among its alumni men and women from all parts of the political spectrum. The influence of Queen's has also been felt in the federal civil service. As many of you are already aware, the university has furnished a number of individuals who, together, exercised an extraordinary influence on the process which saw the civil service in this country transform from the sometimes amateur and often disorganized collection of individuals into the highly professional public service we know today.

Honourable senators, the group of individuals responsible for this remarkable feat was relatively small. It included such people as Adam Shortt, O.D. Skelton, Clifford Clark and W.A. Mackintosh. However small in number, the influence of this group was felt throughout the entire civil service. Individually and collectively, these men were academics and intellectuals. Their importance, I think I would be correct in saying, lay not so much in what they accomplished, which was considerable, but in the attitudes and professionalism they brought to their work, and which they imparted to their colleagues and through them to the civil service as a whole. They were, in a very real sense, the founders of the modern public service.

To conclude, honourable senators, the proposed amendments are completely in line with those adopted in previous years. All of these have sought to secure the efficient management of the university as well as to ensure that Queen's reflects, as much as possible, the society in which it functions. I trust you will support passage of this bill and its referral tonight to the Standing Senate Committee on Legal and Constitutional Affairs.

Hon. John B. Stewart: Perhaps Senator Murray would consider a question?

Senator Murray: Certainly.

Senator Stewart: Perhaps I misunderstood the honourable senator. I think I heard my honourable friend say that Queen's University is the only university in Canada founded by a royal charter. He may have said that it is the only one which still operates on the basis of a royal charter. The reason I raise this question is that in 1754, King's College was established in the city of New York by a royal charter. When those colonies announced that they were free and independent, that charter was conveyed to Nova Scotia. The college was continued there as King's College, based on that royal charter. The question is, does King's College in Nova Scotia still operate on the basis of a royal charter, or has that been supplanted by some other legal basis?

I want to raise this question, honourable senators, because I am sure that the son of our former colleague Senator Godfrey would want to correct us if we put our foot even slightly wrong on this point. If Senator Murray is not prepared to deal with this important point tonight, I will be patient.

Senator Murray: Honourable senators, the point that I made in my speech was that Queen's is the only university in Canada governed by federal legislation. I did not go so far as to say - because I did not know - whether Queen's was the only university in Canada governed by a royal charter. Senator Stewart has pointed to the case of King's College. Whether the legal authority for King's College has passed to some other body, I do not know, although I suspect that there would be an act passed under the authority of the legislature of Nova Scotia governing King's College. According to a legal opinion sought within the last day or so, any act of the Ontario legislature, for example, that purported to deal with the governance of universities in Ontario, boards of trustees and so forth, would be inapplicable to Queen's because Queen's is governed by federal legislation.

Senator Stewart: That is the point. As I understood the argument, because Queen's was based on a royal charter, it could not be dealt with by the legislature of the Province of Ontario. I am wondering why the same line of argument would not apply in the case of King's College in Nova Scotia, which was founded on a royal charter. How could a statute of the legislative assembly of Nova Scotia intervene upon a royal charter? It is a question we can ask at a more appropriate time.

Senator Murray: Legislation relating to Queen's was passed through the Parliament of the United Province of Canada, with Mr. William Morris, the legislative counsellor, as its sponsor. The judicial committee of the Privy Council said that it was still in force, that only the Parliament of Canada could modify it or repeal it, and that could not be done by Quebec or Ontario, or even both of them acting together.

Hon. Philippe Deane Gigantès: Would the Honourable Senator Murray obtain more information on this point? These little details make the Senate bearable, and we would be very grateful if you could tell us tomorrow.

Senator Murray: I could bury my honourable friends with detail on this subject, believe me, and I will obtain it. I have documents here on the governance of Queen's University. I have a consolidation of the laws relating to Queen's University prepared by two extremely eminent constitutional authorities, Professor Letterman and Professor Watt together. I have another one prepared by the late principal Mackintosh, and I have still another by the recent dean of law at Osgoode Law School, just to name three, but there are more.

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Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, I want to thank Senator Murray for the very thorough manner in which he supported this legislation. It is not my intention to read all of the documents to which Senator Murray referred. There is one here encompassing some 48 pages regarding the governance of Queen's University, but given the hour, I will spare honourable colleagues my reading of this.

I want to note that the Queen's University itself has petitioned the Senate asking for changes, the changes that Senator Murray has described. Obviously, this is something that the university wishes to have done. The examiner of petitions has filed his report with the Senate. This assures us that the proper procedure has been followed in bringing this private bill forward.

Finally, I have been assured by the acting law clerk and parliamentary counsel, Mr. Mark Audcent, that the bill is in proper legislative form.

On the basis of these facts, I have no difficulty in agreeing with Senator Murray that the bill should receive second reading expeditiously. It should be sent to our the Standing Senate Committee on Legal and Constitutional Affairs where those with an interest in the proposed change to the charter of Queen's University will have an opportunity to make their views known at that time.

Senator Murray: Honourable senators -

The Hon. the Speaker: Honourable senators, if the Honourable Senator Murray speaks now, his speech will have the effect of closing debate on second reading of this bill.

Hon. Senators: Hear, hear!

Senator Gigantès: On a point of order, does he promise to give us an answer tomorrow? I hope the closing of the debate does not mean that he gets away from his promise to give us an answer to that interesting detail.

Senator Murray: I promise to have the documents photocopied and sent to my honourable friend.

Honourable senators, I move that this bill be referred to the Standing Senate Committee on Legal and Constitutional Affairs.

Honourable Senator Carstairs, who chairs that committee, has indicated that the committee is sitting during this week, dealing with various other pieces of legislation and that she would try to find time during the week to accommodate this bill. I would undertake, of course, to bring the necessary witnesses from the university and their counsel before the committee. To do that, we would need to waive a rule which requires a one-week intervention between second reading of a private member's bill and its consideration by a committee. That would be rule 115.

After I move that the bill be referred to the committee, I will then seek leave to have rule 115 suspended. I have a long list of precedents where the Senate has waived that rule. I hope I can count on the cooperation of honourable senators in that respect tonight.

Honourable senators, I move, seconded by the Honourable Senator Beaudoin, that Bill S-8 be referred to the Standing Senate Committee on Legal and Constitutional Affairs.

The Hon. the Speaker: We must, first of all, give it second reading.

Hon. Marcel Prud'homme: Honourable senators, I have a question on the matter raised by Senator Murray regarding leave of the Senate.

The Hon. the Speaker: That is not before us at the moment.

It was moved by the Honourable Senator Murray, seconded by the Honourable Senator Beaudoin, that this bill be read the second time.

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Motion agreed to and bill read second time.

Referred to Committee

The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?

On motion of Senator Murray, bill referred to the Standing Senate Committee on Legal and Constitutional Affairs.

Motion to Suspend Rule 115

Hon. Lowell Murray: Honourable senators, I move, seconded by the Honourable Senator Beaudoin, with leave of the Senate, that rule 115 be suspended with respect to Bill S-8, respecting Queen's University at Kingston.

The Hon. the Speaker: Is leave granted?

Some Hon. Senators: Agreed.

Hon. Marcel Prud'homme: Honourable senators, the very able chairman of that committee is present, as is Senator Murray. We should not go so hastily to the point of giving consent to dispense with the one-week time frame, and also to sending this bill for a one-day hearing in the committee. We should reflect on that, because a precedent will be created for another university which I recently visited in New Brunswick. They may like to change their charter, and I want to see the precedent which we will create. I simply want to ensure that I will have sufficient time to read all of this.

Aside from that, I am more than happy to give consent to suspending rule 115.

Hon. Eymard G. Corbin: Honourable senators, I have a question for Senator Murray.

It seems to me that the purpose of rule 115 is to accord an opportunity to anyone opposed to the proposal to be given sufficient notice and time to make plans to appear before the committee. Senator Murray did say that there are precedents where this rule was laid aside.

I also note that the House of Commons rule calls for a delay of only 24 hours before the committee begins its study.

For our own edification, could Senator Murray, if he has it handy, give us a precedent so that we can make a judgment with respect to the opportunity of foregoing the prescribed delay?

Senator Murray: One can never be sure that everyone who has an interest in this matter has been heard. I do repeat what I said earlier, that the entire university community - faculty, staff, students, trustees - have been consulted and are in agreement specifically with the changes that are being made. Apart from one change respecting what I would consider an employment bar by reason of religion which must be removed, the other changes deal with who may sit on the board of trustees.

I should also point out that, by our rules, the petition preceding this bill must be advertised four weeks running in the Canada Gazette and, I believe, the same number of weeks in the Ontario provincial Royal Gazette and in the local newspapers. There has been more than adequate notice.

(2230)

As for precedents for waiving the rules, I have been provided with a list of them as follows: April 29, 1969, page 817; June 17, 1969, page 914; December 17, 1969, page 164-165; March 10, 1970, page 270; May 25, 1971, page 298; March 22, 1972, page 74; April 2, 1974, page 57; July 21, 1975, page 480; December 11, 1975, page 641; April 11, 1978, page 362; November 12, 1980, pages 513-14; December 9, 1980, page 637; and June 22, 1981, pages 13, 17 and 18.

Motion agreed to.

Internal Economy, Budgets and Administration

Sixth Report of Committee Adopted

The Senate proceeded to consideration of the sixth report of the Standing Committee on Internal Economy, Budgets and Administration (budgets of committees) presented in the Senate on May 30, 1996.

Hon. Colin Kenny moved the adoption of the report.

Motion agreed to and report adopted.

First Ministers Conference

Press Release, Agenda and Correspondence Tabled

Leave having been given to revert to Tabling of Documents:

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators I should like to put on the table the press release and correspondence concerning the first ministers meeting and its agenda, which I undertook to do for Senator Forrestall earlier.

I should now like to table, in both official languages, the texts of letters sent by the Prime Minister to the premiers, territorial government leaders and to aboriginal leaders concerning the agenda of the first ministers conference June 20 and 21, 1996.

The Special Senate Committee on the Cape Breton Development Corporation

Notice of Motion to Extend Date of Final Report

Leave having been given to revert to Notices of Motions:

Hon. Lowell Murray, for Senator Rompkey, gave notice that on Tuesday, June 11, he will move:

That, notwithstanding the Order of the Senate adopted on April 25, 1996, the Special Committee of the Senate on the Cape Breton Development Corporation be authorized to present its final report no later than June 28, 1996 and that the Committee retain all powers necessary to disseminate and publicize its final report until July 6, 1996.

[Translation]

Transport and Communications

Committee Authorized to Meet During Sittings of the Senate

Hon. Lise Bacon, pursuant to notice of Thursday, June 6, 1996, moved:

That the Standing Senate Committee on Transport and Communications have power to sit at 3:30 p.m. on Tuesdays and Wednesdays for the duration of its study of Bill C-20, An Act respecting the commercialization of civil air navigation services, even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.

Motion agreed to.

[English]

The Senate adjourned until tomorrow at 2 p.m.

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