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Historical Overview of Language Rights in New Brunswick (Part 5)

"From Meech Lake to Charlottetown: The Long Journey to Recognition of the Equality of New Brunswick's Linguistic Communities".

In the days following the failure of the Meech Lake Accord, many questions remained unanswered. Among them, what will happen to New Brunswick's proposed resolution on entrenching the principles of the Act Recognizing the Equality of the Two Official Linguistic Communities? This resolution was intricately linked to the fate of the Meech Lake Accord. The elements of the resolution had been incorporated into that agreement. Point 6 of the agreement stated that the companion resolution, including the proposal to entrench the Act, would be adopted after the ratification of the constitutional agreement.

As a result of the failure of the Constitutional Agreement, the resolution relating to the entrenchment of the Act no longer existed. The failure of the Meech Lake Accord therefore imposed an obligation on the Government of New Brunswick to pass a new resolution, if it still wished to entrench the Act in the Constitution.

For some time, the issue was a ping pong ball between the federal and provincial governments, each accusing the other of inaction. In August 1990, the federal government said it still wanted to act on the issue, but that it was waiting for a request from Fredericton. For its part, the Province believed that the ball was now in the federal court and that it was up to Ottawa to act. The Acadian community was being tossed back and forth between the federal and provincial governments and ended up getting dizzy. The Acadian community was quite right to question the willingness of political leaders to guarantee its rights. The bill's proposed inclusion was mired in uncertainties. At the national level, the constitutional situation remained very confused, and in New Brunswick the political situation was complicated by the arrival of a new player on the political scene.

On September 23, 1991, a general election was held in New Brunswick. This election would radically change the province's political landscape. For the past four years, Frank McKenna's Liberal government had led the province unopposed. On the eve of the election, all indications were that the 1987 scenario might well be repeated. The polls placed the Liberals at over 60 per cent in voting intentions. Some Liberal strategists said, a few days before the election, that they expected to win all the seats again, or in a worst-case scenario 56 or 57 of 58 seats.

There was every indication that they were right. The Conservative Party, which had changed leaders twice since the last election, was still reeling from its 1987 election defeat and had not been able to rebuild its strength. The New Democratic Party, despite having a capable and dynamic leader, did not have a favourable political tradition. There remained the Confederation of Region (CoR) party, considered by many to be marginal and whose sole raison d'être was its anti-bilingualism stance, but it would become a conduit for English-speaking New Brunswick’s opposition to the language issue.

The CoR was the unknown factor in this election. It remained relatively unpopular in the polls, which led many to say that it would suffer the same fate as other third parties that came before it. Yet there were signs that should have served as a warning. In the 1988 federal election, the CoR received 16,700 votes in the Miramichi district. In addition, at its public meetings held throughout the province, it attracted crowds of 200, 300, and even 400 people who came to applaud the anti-Francophone diatribes of its leaders.

After the votes were counted on the evening of September 23, 1991, there was no surprise: Liberals were returned to power with a comfortable majority, having won 46 of the 58 seats in the Assembly. The Conservatives elected three members, including one francophone, Jean Gauvin. The New Democrats succeeded in electing their leader, Elizabeth Weir, in Saint John.

Why then, on this September evening, did we have the feeling that something fundamental had changed in New Brunswick? The CoR, the party that was said to be marginal and stillborn, who had been given little importance, elected eight MLAs and would form the official opposition in the next legislature. In addition, it won the support of nearly one-third of the Anglophone population and placed second in many ridings, including my hometown of Bathurst, a supposedly bilingual city in the heart of Acadie!

On election night, the Acadian community received a resounding slap in the face that still reverberates in our collective subconsciousness. Immediately after the election, the community’s anger manifested itself in a sharp rise in the number of SANB members. In a few months, its membership increased from 6,000 to about 20,000. The Acadian community seemed to believe that a SANB membership card would be sufficient to correct the situation. As if they wanted to exorcise the evil in this way.

This collective anger would later give way to a sense of guilt. In its collective consciousness, some in the community began to question its approach: "Maybe we are responsible for what happened. We wanted to go too fast. Let us establish a dialogue with the English-speaking community so that they can get to know us better." A sentiment whose resonance can still be felt today.

New Brunswick's Acadie, which was unable to give political force to its discourse in the 1970s, was stunned by the determination of the Anglophone community, which did not hesitate to say loud and clear: "Enough is enough! »

Some tried to interpret the CoR phenomenon by saying the support it obtained was a protest vote or that its strength was due to the disorganization of the Conservative Party. This reasoning does not explain everything. While it is true that a majority of New Brunswickers support the concept of bilingualism, it must also be accepted that many New Brunswickers are opposed bilingualism, especially the concept of duality, not only among anglophones, but also among some francophones. We still see this today. Unfortunately, more and more of them refuse to understand that justice and fairness requires that the province respect the rights of a third of its population.

The situation created by the emergence of the CoR presented New Brunswick's Acadian community with reasons to be concerned. Any hesitation by political authorities in addressing language issues would be a source of concern. The CoR succeeded in slowing down the province's linguistic development, and the effects of its short presence on the political scene are still felt today, not only through the People’s Alliance, but also in the hesitations of the traditional political parties to tackle the language issue head-on.

As the CoR’s presence began to be felt in Fredericton, the constitutional debate continued. Following the death of the Meech Lake Accord, the provinces and the federal government were once again looking to find another constitutional solution.

Several provinces, including Quebec, had already created their own constitutional commissions. In the fall of 1991, the Canadian government announced its proposals in a report entitled "Building Canada's Future Together". In New Brunswick, Premier McKenna appointed his commission on September 10, 1990 with the mandate to make recommendations for the renewal and strengthening of the Canadian federation.

After months of study and consultation, the provincial commission submitted its report on January 14, 1992. It is interesting to analyze the chapter of the report entitled "Partnership in New Brunswick" that deals with the language issue. It is clear from the outset that expanding duality was not one of the options selected by the commission. The Commission recognized that "access to separate institutions may be necessary and justified" in certain contexts. Education is one of these contexts: "The Commission recognizes the fundamental importance for minority language communities of access to publicly funded and managed educational institutions." The Commission was simply repeating what is already in section 23 of the Canadian Charter of Rights and Freedoms, which has existed in New Brunswick since the late 1970s.

The Commission also accepts that separate institutions may be necessary in the cultural sector, citing the example of community centres, but there is no question of extending duality to other sectors as proposed in the Bastarache-Poirier report. The following statement is even more revealing of the Commission's intentions: "It should be understood that access to separate institutions should not apply to the machinery of government; in other words, duality should never be extended to the administrative machinery of the provincial government. »

Finally, the Commission recommends that:

"the Constitution be amended to include a provision recognizing the equality of status, rights and privileges of the English and French linguistic communities in New Brunswick and that this equality include the right to distinct educational institutions and to the cultural institutions necessary for the protection of these communities. »

Following the tabling of the Commission's final report in January 1992, a Select Committee of the Legislative Assembly was mandated to consult with the citizens of the province on the proposals that were set out. During the hearings, Acadian organizations once again asked for the entrenchment of the Act Recognizing the Equality of the Two Official Linguistic Communities.

The Select Committee’s report was finally tabled and adopted by the Legislative Assembly on April 7, 1992. The report endorsed the recommendations of the provincial Commission. Thus, with respect to the equality of linguistic communities, the Select Committee of the Legislative Assembly recommended the wording proposed by the Commission.

The day after the Select Committee report was tabled, Premier McKenna stated in an interview with the Telegraph Journal that recognizing the equality of the two linguistic communities in the constitution will not lead to greater duality. He confirmed that the language of the proposal adopted on April 7 was deliberately drafted in such a way as to avoid imposing an additional financial burden on the province: "We're determined to entrench the equality of the two language communities, but we're concerned that it [will] not become a matter which would be subject to constant legal interpretation. »

He went on to explain the government's intention in introducing the resolution: to maintain and protect the status quo. There is no question of using the new provisions to allow for judicial evolution of the rights of linguistic communities. As journalist Don Richardson pointed out, it is ironic that McKenna's statements are similar to those made by CoR members during the debate on the adoption of the resolution. Like the CoR, McKenna wanted to ensure that entrenching it into the Constitution would not be used to force the government to accept more duality.

McKenna told the reporter that he shared some of the CoR's concerns and that is why the government was asking for the Constitution to entrench the principles of the law and not the law as a whole. He argued that the government’s legal counsel advised him that full entrenchment could lead to a situation where a court would require full duality in New Brunswick: "That's why we had to carefully circumscribe the way in which we entrench this equality - not out of lack of interest, but out of the feeling that it's more important that these questions be decided in the political arena. »

McKenna's remarks are very revealing and explain why, in the lawsuits I was involved in (oops! I'm still talking about myself, vain as I am) against the province, where section 16.1 was invoked, the province continually argued that this provision was not justiciable by the courts and that changes to the equality of communities had to be made in the political, not the judicial, arena.

It is important here to compare McKenna's comments with those of his Minister of Justice and Intergovernmental Affairs, Edmond Blanchard. Speaking to a coalition of Acadian organizations in Fredericton in early June 1992, Minister Blanchard stated: "The list of homogeneous institutions that equality guarantees is not exhaustive. On the contrary, by prefixing the enumeration with the word "including" (“notamment” in french), the law opens the door to the possibility that other institutions may be included. »

Minister Blanchard reiterated this interpretation on August 24, 1992, when he stated: "This document may evolve with time. Who knows what Acadians will need in 50 years. If the text were so restrictive that it did not allow the courts to broaden the interpretation, we would not have done our job. »

Who is right, McKenna or Blanchard? Are they giving two versions, one for the English-speaking community and one for the French-speaking community?

Premier McKenna's position is probably more consistent with the courts’ interpretation of language rights at the time. In my previous text, I referred to the 1986 trilogy where the Supreme Court stated that the courts should exercise restraint in interpreting language guarantees, since, unlike other fundamental rights, language rights stem from a political compromise. Thus, enshrining the principles of the law in the Constitution presented only a limited risk at the time, since courts relied on the political order to advance these rights.

However, the Beaulac decision, which I will discuss in a future article, would be the game-changer and would cause headaches for the Office of the Attorney General of New Brunswick.

After several months of constitutional negotiations, Canada's premiers met in Charlottetown. For the third time in less than five years, they succeeded in reaching a constitutional agreement. The Charlottetown Agreement includes a provision on New Brunswick's linguistic communities in the Canadian constitution:

“A separate constitutional amendment requiring only the consent of Parliament and the legislature of New Brunswick should be added to the Canadian Charter of Rights and Freedoms. The amendment would entrench the equality of status of the English and French linguistic communities in New Brunswick, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of these communities. The amendment would also affirm the role of the legislature and government of New Brunswick to preserve and promote this equality of status.”

The new section 16.1 of the Canadian Charter of Rights and Freedoms is taking shape. But the road to its entrenchment in the Canadian Constitution is not complete. Amid public criticism of the Meech constitutional review process, governments committed to holding a referendum to allow people to vote on the Charlottetown Accord.

The Charlottetown Accord would therefore be put to a Canada-wide referendum. Nationally, 54.3 per cent of voters opposed it and it was rejected. It was, however, approved by Newfoundland and Labrador, Prince Edward Island, the Northwest Territories and by Ontario (by the smallest majority possible, 50.1%). In Quebec, it was be rejected by 56.7% of voters. In New Brunswick, over 62% of the electorate voted Yes, with strong support in the ridings with a high concentration of Francophones, while the results were closer in the Anglophone districts with a slight advantage for the No side.

On the strength of this support, the Government of New Brunswick felt mandated to negotiate bilaterally with the federal government to enshrine the principles of the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, the only element that will have finally survived the episodes of the Meech Lake Constitutional Conferences and the Charlottetown Accord!

On December 4, 1992, the provincial government presented a resolution to the Legislative Assembly authorizing it to negotiate an amendment to the Constitution of Canada to enshrine the principle recognizing the equality of the two official linguistic communities. In an advertising campaign that explained the resolution, the government was clear about its intentions. The amendment did not imply a full entrenchment of the law and did not create more duality in the machinery of government. The resolution was adopted by the Legislative Assembly on the same day.

It will never be said that the road to constitutional recognition of the equality of linguistic communities was easy. Fredericton having finally adopted the resolution, it was now up to Ottawa to act. The resolution was tabled in the House of Commons in Ottawa on December 11, 1992, the last day of the parliamentary session. The federal government thus intended to expedite passage of the resolution. When the Speaker of the House asked for unanimous consent for the expeditious adoption of the resolution, five Members refused consent and called for a recorded division.

Under the rules of the House of Commons, however, a recorded division cannot be held on Fridays so as not to infringe on the rights of Members from remote areas who must leave Ottawa to return to their constituencies. Since unanimous consent was not obtained, the vote on the resolution was postponed until February 1, 1993. In the end, the vote was only delayed by two months, which is not the end of the world for a community that had been waiting since 1867 for its equal status to be recognized!

On February 1, 1993, the House of Commons finally proceeded to a vote: 219 Members voted in favour and 2 against. Acadie Nouvelle editorialist Nelson Landry wrote that February 1, 1993 will be remembered by many New Brunswickers as "the day the Parliament of Canada recognized for the first time in its history the equality of the two linguistic communities in a province of the country." But who still remembers it today?

On March 12, 1993, the resolution received Royal Assent at a ceremony at Rideau Hall, the residence of the Governor General. During this ceremony, which I attended, I felt I was at a family celebration where I was not welcome. New Brunswick's politicians, "converted for a day" to the virtues of linguistic equality, were present in large numbers and congratulated themselves on the work they had accomplished. But where were the Acadian groups that first put forth the idea of recognizing this equality in the Constitution? Some of these representatives were present, but their contributions to the realization of this project were never highlighted.

Nevertheless, we should be happy, because the equality of New Brunswick's two linguistic communities had been recognized in the Canadian constitution! Is New Brunswick's Acadian community finally equal? Only time will tell, but allow me to say that in 2021, we are far from a clear answer to that question and we seem to be moving further away from this objective.

In the next text, unless by then I am banished from the province for my "indecent and conceited" remarks, I will address the following themes: the Beaulac and Charlebois decisions, the amendment of the Official Languages Act and ... Bernard Lord.

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