Petition for Disallowance by Mgr. Taché [April 7, 1890]
[Note from the editor: Disallowance is a provision found in the Constitutional Act, 1867, by which the federal government has the right to cancel or veto any provincial act it deems fit. Such a right vested in the federal government is in violation to the ordinary principles of federalism, where both levels of government are deemed to be sovereign, each within its sphere of jurisdiction. All provincial acts must be sent to the federal minister of justice who has one year to exercise the veto power. Once disallowed, the provincial law is null, void, inoperative. It is thus a quick way to get rid of a provincial law. This power was frequently used in the early decades of Confederation, especially by Macdonald, to keep provincial government in check and insure a measure of supremacy for the federal government. By the end of 1890, the federal government had already disallowed 64 provincial acts, including two from Manitoba in that year.
In pressuring the federal government to disallow the Manitoba legislation, archbishop Taché had no success. Disallowance had become very controversial. Increasingly the people of the various provinces rallied behind their provincial government against federal interference with local affairs. In this respect, there were some long standing battles, several of these involving the two western provinces, notably Manitoba. Over 68% of the instances of disallowance between 1867 and 1890 involved the two western provinces, and Manitoba alone accounted for 36% of the cases. There had been some epic battles between Ottawa and Winnipeg over railway legislation. There was developing the view that Eastern interests, through the federal government, were grabbing the resources of the West without any concern for the rights of the people of the West (See L. Wilson, "Disallowance: The Threat to Western Canada", in Saskatchewan Law Review, Vol. 39, No. 1 (1974-75): 156-182). On this score, disallowance of provincial legislation, always a risky political proposition for the political party in power in Ottawa, would be especially damaging in Manitoba, particularly for a popular measure such as the Manitoba school legislation.
Furthermore, the attempt of D'Alton McCarthy to have the Jesuits' Estate Act disallowed in 1889, and his subsequent failure, undermined the capacity of the federal government in the Manitoba case. How could the federal government, that had just refused the request of infuriated protestants, a year later turn around and disallow the Manitoba legislation because Catholics were now displeased? In truth, there was a great deal of difference between the Jesuits' Estate Act and the Manitoba school laws. While religious groups were displeased with both legislations, only the Manitoba Acts had prejudicially affected the rights of somebody else. Protestants did not like the Jesuits' Estate Act but the Act did not hurt them, far from it. By contrast, the Manitoba legislation hurt Catholics. These distinctions were lost in the heat of passion in 1890. Bishop Taché will be convinced by others, and reluctantly will agree with them, that disallowance should not be sought. He risked, if pressing for disallowance, to loose the useful support of protestants such as W. F. Luxton of the Manitoba Free Press.
Disallowance would also have killed the Manitoba legislation that evidently many Manitobans wished to have. Would it have been right for the federal government to safeguard the rights of the minority by denying the will, indeed the rights, of the majority? The objective of the federal government was to try to safeguard the rights of the minority while not denying those of the majority. Disallowance was not a good tool to achieve that.
There was a last reason to reject disallowance as the answer of Adolphe Chapleau to the request for disallowance by bishop Laflèche shows. Chapleau, the most prominent Quebecer in the federal cabinet, warned Laflèche that disallowance was dangerous for the rights of the people of Quebec: a protestant majority could always impose its will on a catholic Quebec.
Thus, for better or for worse, disallowance, the quickest possible remedy for the ills of the minority, was progressively abandoned.]
GOVERNMENT HOUSE, WINNIPEG, 10th April, 1890.
SIR, - I have the honour to transmit herewith the Memorial and Petition to His Excellency the Governor General in Council, of the Catholic Section of the Board of Education in and for the Province of Manitoba, signed by His Grace the Archbishop of St. Boniface, as President of the Catholic Section of the Board of Education, and by T. A. Bernier, Esq., Superintendent of Education for the Catholic Section, making certain representations upon and praying for the disallowance of two Bills passed during the Third Session of the Seventh Legislature of this Province, which were assented to by me on the Thirty-first ultimo, said Bills being intituled :
" An Act respecting the Department of Education " and
" An Act respecting Public Schools."
I have, &c.,
JOHN SCHULTZ. (signed)
The Honourable the Secretary of State, Ottawa.
To His Excellency the Governor General in Council :
The Petition of the Catholic Section of the Board of Education in and for the Province of Manitoba, doth hereby most respectfully represent; That
Whereas previous to and at the time of the union there existed by practice in the territory, which now forms the Province of Manitoba, a system of denominational schools.
Whereas the maintenance of such system was made a condition of the union by clause 7 of the Bill of Rights upon which such union was negotiated.
Whereas, thereafter the Legislature of the Province of Manitoba has established a system of denominational schools which has been in existence since the union up to this year without being questioned or complained of.
Whereas the existence of such a system of denominational schools by practice previous to and at the time of the union, and by law since the union, has created rights and privileges in matter of education to Catholic and Protestant denominations alike.
Whereas a part of the protection afforded to all by clause 93 of the British North America Act, 1867, it has been enacted by clause xxii of the Manitoba Act, that:
"XXII. In and for the Province, the said Legislature may exclusively make laws in relation to education, subject and according to the following provisions :
" (1) Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law or practice in the province at the Union.
" (2) An appeal shall lie to the Governor General in Council from any act or decision of the Legislature of the province, or of any provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education; "
Whereas two bills respectively intituled "An Act respecting the Department of Education." "An Act respecting Public Schools," have been adopted by the Legislature of the Province of Manitoba, at the session closed on the 31st day of March, A.D. 1890, and whereas such legislation has prejudicially affected the rights and privileges of the Catholic minority of this Province with respect to Catholic schools, inasmuch as by said Acts the said Catholic schools of this Province are wiped out.
The Catholic section of the Board of Education in and for the Province of Manitoba, most respectfully and earnestly pray His Excellency the Governor General in Council, that said last mentioned Acts be disallowed to all intents and purposes, and your petitioners will ever pray.
ALEX., Archbishop of St. Boniface, O.M.I.,
President of the Catholic Section of Board of Education.
T. A. BERNIER,
Department of Education for the Catholic Section.
WINNIPEG, 7th day of April, 1890.
OTTAWA, 26th April, 1890.
The undersigned, respectively Members of the Senate and House of Commons of Canada, fully endorse the contents of the present memorial, and earnestly join in the prayer therein contained.
M. A. GIRARD, Senator.
A. A. LARIVIÈRE, M.P. for Provencher, Man.
Source: Canada, Sessional Papers, 54 Victoria, 1891, No. 63
© 2000 Claude Bélanger, Marianopolis College