Historical Overview of Language Rights in New Brunswick (Part 1)

* For Part 2 of this series, "Richard Hatfield: The '70s and the Recognition of Collective Rights", click here.

New Brunswick has been an officially bilingual province since 1969, at least on paper. Indeed, after more than 50 years of official bilingualism, although we cannot speak of a failure, we must face the fact that the linguistic equality provided for in various constitutional and legislative texts has not become reality. This is why I believe the time has come to take stock of the province's language management and to discuss the difficult implementation of the Official Languages Act and of the constitutional provisions that guarantee New Brunswickers’ right to receive services from government in the official language of their choice, anywhere and at any time. The time has come to ask whether there is the political will to take the necessary measures to achieve this equality or whether this project is nothing but a myth.

In my next texts, I intend to provide an overview of the history of language rights, discussing the contributions of successive provincial governments to their implementation. This seems essential to me, because more than 40 years of involvement in these issues have taught me that the public is not generally aware of the history of these rights and can become victim of historical revisionism as to what really happened.

Part I - The Robichaud Years: The Birth of Language Rights in New Brunswick

Canadian Confederation did not provide any specific protection for New Brunswick's Acadian community. The only provision concerning language in the 1867 Constitution Act is section 133, which provides for the existence of a burgeoning bilingualism at the federal level and in Quebec. It provides, among other things that:

- everyone is free to speak either English or French in the debates of the House of Commons and the Senate and in the Legislature of Québec;

- the minutes, records and journals of the Parliament of Canada and the Québec Legislature must be prepared in both English and French;

- the Acts of Parliament and of the Legislature of Québec shall be printed and adopted in English and French;

- English and French may be used in any pleading or process before the courts of Canada and Québec.

No other province agreed to be bound by this provision, with the exception of Manitoba, which, when it entered Confederation in 1870, agreed to a similar provision...but that is another story.

Section 133 did not apply to the Acadian community of New Brunswick, because the province did not see fit to subscribe to it. However, on June 12, 1867, a petition signed by 173 Acadians was tabled in the Legislative Assembly. The signatories asked the Assembly to publish its debates in both French and English and requested that government public notices be published in both languages. This petition was not acted upon. In 1874, a resolution with the same objective was again introduced and it too was defeated. The message was clear: the French language has no place and is not welcome in the Legislative Assembly of New Brunswick.

Although Acadie in New Brunswick experienced a social and political renaissance in the years following Confederation, it was not until the 1960s and the election of Louis J. Robichaud, the first Acadian elected Premier, that the Acadian presence in the province finally received legal recognition. During this decade, Acadie lived through what I have described as a "noisy evolution", compared to the "quiet revolution" of Québec.

Those who, like me, lived through this era will recall that during the 1960s, Canada was going through a crisis fuelled by tensions between the Anglophone and Francophone communities. The Royal Commission on Bilingualism and Biculturalism described the situation in the following terms:

The previous discords did not seriously threaten the foundations of the state. The current crisis is of a different order. Never before, except perhaps among a few individuals and groups, has there been a feeling that the principles upon which the existence of the Canadian people is based were at stake

This time […], the facts of the situation are complex and difficult to define because of their interdependence. There is not just one sector of Canadian life that is being challenged; the essential is threatened, that is to say the will to live together, at least under current conditions.

What is at stake is the very existence of Canada. What kind of country will it be? Will it survive? These questions are not mere hypotheses of theorists; they are being posed by communities. And other groups are aggravating the situation by refusing to ask the same questions [1].

In New Brunswick, the situation was hardly any better. Despite the fact that the Acadian population made up one-third of the provincial population, it still did not have the right to address the provincial government in its language, to have a trial in French, to manage its school system, and, in many cases, to receive an education in French.

In 1960, Louis J. Robichaud was elected premier by defeating the Conservative government of Hugh John Flemming. With Robichaud came a wave of reform through the provincial administration because of the financial and economic difficulties experienced by certain regions of New Brunswick. Although it may be difficult to argue that language was the main factor underlying these regional differences, it cannot be totally dismissed as an explanation. Several county councils were no longer able to meet their obligations of providing social, health and education services. The province was struggling with increasing urbanization and a constant exodus of the rural population to urban centres. This phenomenon lead to an increase in the demand for services from municipalities. People were calling for improvements to the education system and to health and social programs. But municipalities and county councils no longer had the financial resources to meet these demands.

The root of the problem was an unfair tax system that tended to favour the English-speaking - and wealthier - regions in the south of the province. Financial resources depended on the taxation of property and individuals, a system administered by the county or municipal government. To meet their obligations, poorer counties raised tax rates, but the taxpayers, given their precarious economic situation, were unable to pay the new taxes. That meant that the county council could not offer citizens a quality education system, nor the social, justice and health services that were its responsibility. The illogical consequence of such a tax system was that the poorest regions of the province had to bear a higher tax rate than the richest regions!

An in-depth reform of the tax system was therefore needed, and quickly. On March 8, 1962, the Robichaud government created a Royal Commission on Finance and Municipal Taxation, chaired by Edward Byrne, a Bathurst lawyer. The commission's work would form the basis of the Equal Opportunity Program. The mandate given to the Commission by the government was considerable: to identify "relevant facts, issues and legislation relating to public or municipal fiscal matters within the Province of New Brunswick"[2].

After nearly two years of diligent work, a final report was tabled on February 3, 1964. It recommended that services to the public, such as education, justice, health and welfare, be administered and funded by the Province. Local services, such as water, sewer and firefighting, would continue to be administered by municipalities. Tax collection would be centralized in Fredericton, which would distribute budgets directly to municipalities using a formula similar to equalization. County councils would be replaced by municipal councils for areas consisting of villages, towns and cities. Unincorporated areas would be administered directly by Fredericton.[3]

However, the report was silent on the issue of language. With a centralized system of government in the very English-speaking city of Fredericton, it was clear that French-language services would be virtually non-existent. It therefore became urgent, in the wake of the Laurendeau-Dunton Report, that the Province of New Brunswick take steps to recognize the right of one third of its population to receive services in French.

The first recognition of the official status of the French language in New Brunswick dates to 1969, with the adoption of the first Official Languages Act (OLA 1969). Its adoption was preceded by two fundamental steps by the government. On March 28, 1968, the Robichaud government presented the following resolution to the Legislative Assembly:

1.declares the principle that the English and French languages are the official languages of New Brunswick;

2.reaffirms that the English and French languages have full rights of usage in all the proceedings of this assembly;

3.agrees that the government take steps with appropriate speed to provide for the printing in both English and French of all the records and proceedings of the assembly, and of the provincial statutes and other public documents;

4. agrees that the government introduce with appropriate speed such legislation as may be required to establish in New Brunswick the language regime appropriate to an officially bilingual province, and in particular to introduce such measures in relation to education, the public service and the judicial system, and

5. recommends that the government cooperate and consult with other provincial governments and with the government of Canada to coordinate linguistic programs [4].

The resolution was adopted despite the opposition of the Conservative Party, even though that Party had proposed a resolution in March 1967 to make New Brunswick officially bilingual, a resolution that was rejected by the Robichaud government. [5] The March 1968 resolution was followed by the tabling in the Legislative Assembly of a white paper, Statement on Language Equality and Opportunity,[6] which oddly stated "the government's desire to prevent the new legislation from being seen as generating new rights". [7]

Thus, the objective was to adopt an official languages act that would not confer rights! Moreover, the new Act confirmed this objective since it did not provide any recourse in the event of a violation. From the outset, the implementation of linguistic equality would not be easy; we want equality if it does not change the status quo too much!

Premier Robichaud also felt the need to specify in this declaration that it was simply a matter of ensuring "The actual achievement of equality of linguistic and cultural possibilities". [8] The declaration stated: “The government believes that our citizens in their province have every right to use French and English in all official communication with provincial institutions. The government believes that citizens of their province have the right to have provincial laws, regulations and minutes drawn up in both official languages. The government believes that citizens in their province have the right to education in either French or English at the local level where numbers warrant.” [9]

Note the use of the qualifier "where numbers warrant" in relation to the right to education in the language of the minority. The right to education in French therefore did not exist throughout the province. Moreover, the Act also recognized that this right, if it existed, could be exercised in bilingual schools and even in "bilingual" classrooms! In order to be educated in French, you had to either go to classical colleges, as my brothers did, where fees were charged, or live in totally francophone communities. Even when education in French was possible, textbooks were often only available in English. My sister, who wanted to take a secretarial course, offered only in English in Bathurst, had to go live with my grandparents in Nigadoo, a French-speaking village 20 kilometres from Bathurst, to take her course in French… but with English textbooks.

For my part, I studied in these "bilingual" schools: Cross Road School, which later became Notre-Dame School, in Bathurst West, and Sacred-Heart School and Monsignor Leblanc High School in downtown Bathurst. In the case of the latter two, we can even speak of English-language schools that "accommodated" Francophones. Some courses were offered only in English and many textbooks were also only available in English.

I have always been fascinated by the fact that Francophone students in these bilingual schools learned English quickly, while our Anglophone friends did not learn French. I have often said that one day in September 1961, at the age of 5, a unilingual Francophone, I crossed the street on my way to school and in the late afternoon, I came home speaking English. In a minority setting like Bathurst in the 1960s, you did not learn English, you caught it, like the flu.

The first truly French-language school where I set foot opened its doors in 1972. However, the initial plan was also to make École secondaire Népisiguit a bilingual school. We had to fight to stop that project. I'll come back to that in my next text, on the Hatfield years.

So, on April 18, 1969, the Government of New Brunswick adopted the Official Languages Act of New Brunswick. The concerns of the Anglophone community were so great with regard to this new Act that Premier Robichaud felt the need to reassure them by stating that this bill in no way threatened the rights enjoyed by the citizens of the province: "Individually, everyone has the right to be and to remain unilingual"[10].

The most extremist element in the English-speaking community, the Canadian Loyalist Association, the forerunner of the Confederation of Regions and the People’s Alliance of New Brunswick, published a letter in English-language newspapers addressed to Premier Robichaud:

“The Canadian Loyalist Association wishes to congratulate you on the masterful manner in which you have deceived the people of New Brunswick and Canada by leading them to believe that New Brunswick has two official languages. Your senseless, degenerate and ruinous official language act is one of the worst evils anyone ever tried to perpetuate on the citizens of this province [11].”

The content of this letter continues to resonate today in the speeches of some provincial politicians.

Not all the provisions of the 1969 OLA came into force in the year it was passed. The government had chosen to begin by applying the general principles, postponing implementation of other provisions. Those sections that would result in little change came into force in 1969, with the majority of the Act coming into force between 1972 and 1977[12], under the government of Richard Hatfield.

The 1969 OLA is not a revolutionary piece of legislation and, in many respects, it does not go as far as the Official Languages Act of Canada adopted the same year. Where it does stand out, however, is in its refusal to adopt the approach of the federal legislation which is that those rights apply only where there is a demand for services in the minority language.

New Brunswick could have chosen that approach to its language planning or it could have chosen an approach based on the concept of territory. Under this latter approach, the use of a language is intricately linked to the concentration of its speakers in a geographic area. Thus, services provided in the citizen's language would be provided in one or more defined regions, and nowhere else. The territorial approach therefore promotes unilingualism within a territory. It stems from the phenomenon whereby speakers of the same language tend to group together geographically, where state and language borders normally coincide. Thus, people living in the same territory would usually have to speak the same language and those who settle there would be required to use the dominant language of the territory in the public space, the use of any other language being restricted to the private space. This is notably the approach used in Belgium and Switzerland.

New Brunswick opted instead for a person-based approach. This approach focuses instead on the possibility of a minority language being used in a territory where another language is the majority. Theoretically, the individual is no longer limited in the use of his or her language by a geographic territory, but can exercise his or her right anywhere, without territorial restriction. Thus, in New Brunswick, citizens have the right, at least in theory, to use either official language throughout the province to receive services from government institutions.

Unfortunately, things are not that simple, because the notion of territoriality does not necessarily lead to unilingualism and often forces the State to consider the interests of other languages spoken on its territory. Moreover, the person-based approach is often circumscribed by regional and practical considerations: in some regions, too few speakers of the minority language make its use impossible in practice, even though it is recognized in theory. This is the case in New Brunswick, where although I have the right to use French to receive government services throughout the province, this is often not possible. Some people have wondered whether a territorial approach might not have been a better solution. Perhaps, but it is too late now to go back without creating enormous tensions. Would anglophones in northern New Brunswick accept losing the right to receive services in English? What about regions like Fredericton, Moncton and Saint John, where we have a large francophone community?

Returning to the 1969 OLA, let us say that it was, after all, rather brief and incomplete. It provided no mechanism for receiving complaints and did not assign responsibility for its implementation. Thus, although it marked a historic moment, it was clearly inadequate and seems largely deficient. As soon as it was adopted, it no longer met the needs of the minority community. Requests for its modernization were quickly presented to the government… but we would have to wait until 2012 for this to happen.

Although the 1969 OLA was a step in the right direction, it remained essentially symbolic. A symbol of great importance, I agree, but it would not be a law that would help achieve linguistic equality or which would ensure the establishment of a true official languages culture in Fredericton or elsewhere in the province. This legislation would rarely be invoked in the courts and would be little known and poorly understood by the public.

I repeat, although the 1969 OLA marks a historic moment, it remained flawed in several respects. The lack of recognition of the right to linguistically distinct institutions, the fact that the right to school governance is not recognized, the lack of recourse in the event of non-compliance with the provisions of the Act, the absence of a provision on language of work, the delays in bringing most of the sections into force, and the passivity of the Act with respect to the provision of services all attest to its limitations.

However, I would like to point out, before I am metaphorically murdered, that this legislation is still important in recognizing the rights of New Brunswick's Acadian community, and for that we must thank the Robichaud government. Although the Robichaud years did not solve all the problems, they did provide the Acadian community with better tools to combat social and linguistic inequalities.

The Robichaud government laid the groundwork for the Acadian community to begin its journey toward linguistic equality. Without Robichaud, New Brunswick would probably still have undergone major transformations, but their effects on the Acadian community might not have been the same.

Louis Robichaud profoundly shaped the development of the Acadian community not only through the Equal Opportunity program, the creation of the Université de Moncton and the adoption of the Official Languages Act, but also through the appointment of Acadians to important positions in the provincial public service, including the appointment of the first Acadian deputy minister in the Department of Education. In addition, he demonstrated that it was possible to develop a political discourse that included the Acadian community.

These were important years for the Acadian community, but they only laid the foundations - fragile foundations, I must admit – on which to build linguistic equality. I was a teenager during those years, and they greatly contributed to making me the person I am today and made me aware of my Acadian identity and the importance of language rights.

In the next text, I will discuss the Hatfield years, a worthy successor to Robichaud who also advanced some key issues for the Acadian community.

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[1] Canada, Royal Commission on Bilingualism and Biculturalism, Ottawa, Queen’s Printer and Controller of Stationery, 1965, p 127.

[2] Government of New Brunswick, Royal Commission on Finance and Muncipal Taxation in New Brunswick, Fredericton, 1963, p xix.

[3] M. Doucet, Le discours confisqué, Éditons d’Acadie, p 30 [Le discours confisqué].

[4] New Brunswick, Journal of Assembly, March 28, 1968, pp 74-75.

[5] Le discours confisqué, supra note 3, pp 39-40.

[6] Synoptic Report of the Proceedings of the Legislative Assembly of the Province of New Brunswick, 1968 session, March 28, 1968, vol II, p 709.

[7] Government of New Brunswick, Official Languages Branch, Towards Equality of the Official Languages in New Brunswick, 1982, p 272 [Bastarache-Poirier Report].

[8] Ibid.

[9] Ibid.

[10] Synoptic Report of the Proceedings of the Legislative Assembly of the Province of New Brunswick, 1969 session, vol II, April 8 1969, p 493.

[11] Le Discours confisqué, note 3, p. 39.

[12] Bastarache-Poirier Report, supra note