Ki Su Kim
Section 93 of the 1867 British North America Act lays down the constitutional framework of public education in Canada. It authorizes provincial legislatures to make laws related to education in their provinces but disallows laws that infringe upon the interests of certain groups. Its impact is great. Because education is assigned to provincial jurisdiction, schools can aptly respond to diverse regional demands. In spite of such an advantage, however, the exemption of the federal government from one of the most costly responsibilities of modern states has necessitated the dependence of educational quality upon individual provinces' financial luck. Hence, regional disparity has become a nagging question in Canadian education. Moreover, provincial authorities often feel uncomfortable with the disallowance provisions which practically limit the scope for the improvement of educational services.
In this paper, I shall examine this last point in the Newfoundland
context. As is well known, Section 93 is not directly applied to
Newfoundland, which has Term 17 of Union, instead. However, Term
17 is not totally unrelated to Section 93; it is, rather, to be viewed
as a Newfoundland version of the latter. I shall begin with discussing
what Section 93 is about and why Term 17 has to be read in that light.
Then, I shall move on to determine what philosophy Term 17 embraces, whose
interest it protects, and how. My ultimate question is: What
exactly is the Newfoundland legislature not allowed to do? A determination
of the extent of constitutional restriction will help the legislature to
work out a model of public education that will best serve its people.
1. The History and Philosophy of Section 93
Let me first explain what Section 93 is about, namely, its philosophy or spirit. The original idea of preparing disallowance provisions in the B.N.A. Act was that, just as Upper Canada had been recognizing the educational rights and privileges of the francophone Roman Catholic minorities in its territory, so too should Lower Canada protect the interests of its anglophone Protestant minorities. Initially, therefore, the focus of such provisions was on English Canada's demand for French Canada's respect for minority rights. The Rough Draft of the B.N.A. Bill put it this way: "All the powers, privileges, and duties conferred and imposed upon Roman Catholic separate or dissentient schools, and school trustees in Upper Canada, shall be extended to the Protestant and Roman Catholic schools in Lower Canada!' (43) (Pope 1895: p. 135). The Rough Draft, however, did not go as far as to prescribe a full warrant of minority interests. Nor did it prescribe that only Lower Canada was obliged to protect minority interests. In Section 42 (7), it made clear that only the powers, privileges, and duties of minorities in any province recognized by law at union (specifically, "at the time when this Act came into operation') were to be protected (Point 1) (ibid.: p. 134). If any province had separate or dissentient schools at union or if any province created such schools later on, such schools and their school trustees were to be assured of their vested powers, privileges, and duties. If such schools and school trustees had complaints about any decision or act of the provincial legislature, an appeal was to lie with GovernorGeneral in Council, namely, the parliament (Point 2). The Rough Draft also stipulated that the parliament had "power, in the last report, to legislate?' remedial laws in order thereby to overrule a provincial decision or act that had been appealed (Point 3) (ibid.).
Although the wordings of the Rough Draft underwent some changes,1 the final Act retained in Section 93 all the three main points. Point 1 was split into two subsections. Subsection (1) stipulated that any provincial "Law' ("ordinance' [First Draft, 39]) shall not "prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union,' thus meaning by 'Denominational Schools" separate minority schools in a province. Subsection (2) specified that not only Lower Canada but also Upper Canada had to respect the powers and so on of its minorities. It thus protected the vested interests of the "Separate Schools and School Trustees of the Queen's Roman Catholic subjects" in Upper Canada as well as "the Dissentient Schools of the Queen's Protestant and Roman Catholic subjects in [now] Quebec." Point 2 survived in Subsection (3) almost intact. Point 3 seems to have incurred dispute over the extent of the overruling power of the parliament. The Rough Draft originally indicated that the federal power to remedial legislation shall be exercised "in the last resort.' The subsequent First Draft put it in a tougher wording that the overruling power be "unrestricted" and exercised regardless of the stipulations in the B.N.A. Act (39 ). The Third Draft, however, returned to the moderate stance. It prescribed that the power be exercised only 'for the due execution" of B.N.A. Act provisions or any remedial decision by the parliament (67 ). The final Act adopted in Subsection (4)the Third Draft's wording.
All in all, English Canada's initial concern with extending the powers, privileges, and duties of minority schools and school trustees in Upper Canada to those in Lower Canada eventually led to constitutional provisions that bound both Canadas. The Manitoba School Question in the 1890's was a good case to test the extent to which the overruling power of the parliament would safeguard the protected minority interests. The dual school system provided for in the 1870 Manitoba Act was a literal application of Section 93 to the region where the population was composed of two fairly balanced linguo-religious groups. Within ten years, however, anglophone Protestants outnumbered their francophone Roman Catholic neighbours. In 1890, Thomas Greenway's Liberal government, supported by the anglophone Protestant majority, stripped francophone Roman Catholics of the right to establish their own schools, thus directly violating Section 93 provisions. The federal government indeed issued a remedial order. However, when it was ignored by the Manitoba government, the federal government chose to negotiate rather than enforce the order. The subsequent Laurier-Greenway Compromise of 1896, however, led only to a revised School Act which allowed extra-school-hour religious classes and conditional English/French bilingual classes (Morton 1982: p. 113). Although numerous actions were taken by the francophone Roman Catholics (including such court cases as the Barrett case and the Brophy case), their initially granted "rights and privileges' in separate schools have, since then, not yet been reinstated. The Manitoba case illustrated limitations in enforcing Section 93 provisions.
Since then, Section 93 was applied to new provinces with more
flexibility. When Saskatchewan and Alberta became provinces ten years
after the outbreak of the Manitoba school crisis, the Lauder government
agreed to apply the Section according to the 'at union" principle, i.e.,
with 'such modifications as the circumstances of the new provinces warrant'
(Tkach 1983: p. 101). The Alberta and Saskatchewan Acts the laws
that were to govern the two provinces constitutionally - recognized only
the rights and privileges of religious minorities that had already been
substantially reduced by the Northwest Territories School Ordinances of
1892 and 1901. Roman Catholic minorities were allowed only the privilege
of setting up their own schools with their own tax monies under the tight
control of a secular department of education (ibid.: p. 102).
The implementation of Section 93 even in the original provinces varied
because their situations varied. Nova Scotia and New Brunswick tried
to accommodate into their school systems the idea of respecting minority
interests although their state of affairs at union did not obligate them
to do so. Meanwhile, Ontario and Quebec, from whose delicate mutual
relations Section 93 was born, pursued the protection of minority interests
in their own ways. Consequently, the actual status of the separate
schools in one has not been the same as that of those in another (Bezeau
1989: p. 47). In all these provinces, however, the philosophy of
protecting minority interests has been embraced and pursued albeit in differing
11. Term 17 of Union
Term 17 of Union was worded in a way significantly different than that of Section 93. The most prominent difference was the complete withdrawal of the provisions of appeal to the parliament and the latter's power to overrule a provincial decision or act. This meant that education in the new province was to be an entirely provincial matter. The wording of the prohibitory clauses focused on two points: that the provincial legislature did not have authority to 'prejudicially affect" (i) any right or privilege at union of any class or classes of persons with respect to denominational schools, common (amalgamated) schools (i.e., interdenominational schools2), or denominational colleges and (ii) "out of the provincial funds provided for education." Point (ii) was further elaborated in two areas: (a) that such schools shall receive their share of the funds determined from time to time by the legislature on a non-discriminatory basis for all schools under its authority, and (b) that such colleges shall receive their share of any grants voted for all colleges under the authority of the legislature.
Whereas Section 93 has been applied to other provinces with flexibility in spite of the overruling power of the parliament, the Newfoundland legislature has interpreted Term 17 in a very restricted way in spite of its freedom from federal intervention. The scope of the officially accepted interpretation is so narrow that the school system based thereon is far from what a disinterested reader can infer from the text. Under the current Schools Act, for instance, an educational district is to be established normally upon the recommendation of a denominational education council (5 ). If the region does not have a "recognized" denominational education council, a recommendation can be received from the General Advisory Committee which is represented by such denominational education councils (5 ; Department of Education Act [DEA] 21  [e], [g]). If the region has no religious denomination or a denomination whose status is not recognized by the "at union" principle, it cannot have an educational district unless the legislature resolves to recognize the denomination constitutionally (5 ). A school board that comes into being under the auspices of a denominational education council writes its own constitution to be approved first by the council and then by the government. Legally required seats for elected board members are merely one-third or more (7 ). The rest are to be appointed by the council from clergymen or other denominational officers (DEA 18 [a] [i] [B]. The board is therefore responsible mainly to its denominational authority and only partially to the citizens who support it. Thus, schools in Newfoundland are under the exclusive control of a few religious denominations.3 Even though they rely almost entirely upon taxpayers' money, those denominational authorities are not held responsible for any failure they entail in providing "public" education. (For example, the legislators may not be re-elected if they have failed to meet with given mandates. However, the denominations do not assume responsibility in a similar case). In short, the interpretation of Term 17 as embodied in the Schools Act is such that the Act endorses the denominational authorities' unaccounted monopoly of public education rather than protecting any minority interest. My reading of Term 17, however, does not lead to supporting such an established interpretation.
The interpretation of the Term as entrenched in existing legal provisions appears to be as follows:
1. The rights and privileges protected by Term 17 are the rights and privileges of religious denominations (e.g., DEA 17, 18).
2. Since all the schools and colleges that existed at union were either denominational or interdenominational, the denominations that had stakes at that time in those schools and colleges are de facto all of the educational authorities.
3. All the provincial funds for public education are to be distributed among them on a non-discriminatory basis (DEA 17 ).
However, the text of Term 17 does not endorse this reasoning.
As regards 1, it simply states that such rights and privileges of "the
class or classes of persons" with respect to the specified types of schools
and colleges should be prejudicially affected neither by law nor by educational
funding. There is no indication that the rights and privileges of
the . class or classes of persons" are those of religious denominations.
As regards 2, Term 17 specifies denominational schools and colleges and
common (amalgamated) schools not as all of those that exist or could possibly
exist, but only as those whose interest should not be prejudicially affected.
What is implied with respect to 3 is therefore not that all the provincial
funds available for funding schools and colleges in Newfoundland ought
to be distributed only among those protected schools and colleges, but
that such schools and colleges ought not to be discriminated against when
the funds are distributed. Thus viewed, the essence of the provisions
is protection of the interests vested in those schools and colleges and
not recognition of those denominations with stakes in those schools and
colleges as monopoly forces in public education. This implies that
the current interpretation as found in educational laws is not adequate.
How then shall we read Term 17?
Ill. The Philosophy of Term 17
The reasonable way of reading the document is reading it in the light of Section 93 whose philosophy is the protection of minority interests. The most obvious reason for suggesting this way of reading is that Term 17 is part of the constitution of Canada. As such, it cannot contradict what the B.N.A. Act stipulates because the latter is the main framework of the constitution. Therefore, the viewpoint that we have to adopt in reading Term 17 is that the latter is a Newfoundland application of Section 93, embodying the latter's philosophy. If the B.N.A. Act protects minority interests, it is inconsistent that Term 17 accords some major groups the monopoly right to what is apparently public. Such a viewpoint can yield a germane ground for developing new discussions on public education in the province. There are supplementary reasons as well for reading the text in this way.
Term 17 can be seen as a product of deliberation upon the philosophy of Section 93 and the historical background of Newfoundland schools at the time of union. By the time of union, as we have seen briefly, Canada had accumulated enough experience to understand the difficulties of implementing the philosophy of Section 93 in the provinces where society was changing rapidly. Therefore, as we have seen, when Saskatchewan and Alberta became provinces soon after the Manitoba school crisis, the Laurier government chose to secure minority interests within the "at union' principle. In the case of Newfoundland, as well, the government of Canada adopted a similar approach. The provisions in the "proposed" Term that the Canadian government originally prepared were very similar to Section 93 (Penney 1988: p. 85). Upon consulting with the Newfoundland delegation, however, the same government agreed to sign the final Term that we now have. Why then did that government do so? Will it be reasonable to imagine that it abandoned the dictates of its own constitution in order to take Newfoundland in?
In fact, the history of education in Newfoundland presents strong grounds to believe that Term 17 was aimed to protect the interests of the denominational groups as minority interests. Denominational schools had begun to be criticized well before the 1874 Education Act established the system legally (Rowe 1964: pp. 90-1). Advances were made as early as 1903 and 1916 to create amalgamated schools and common schools although their "legal sanction' was accorded only in 1943 (Penney: p. 84). A non-denominational academy was tried in 1844, albeit unsuccessfully. An interdenominational normal school was opened in 1921. A nondenominational university college was created in 1925. The Commission of Government that ruled Newfoundland up to the day of union was known to be negative to the denominational system although it failed to bring to it any drastic changes. All these historical facts suggest that the negotiators of the union considered a future in which denominational schools and colleges would be degraded to vulnerable minorities. Thus viewed, the constitutional protection of the interests of denominational groups in education takes a proper context. Nevertheless, protection does not mean confinement. So the Term protects the cooperative interests vested in common or amalgamated schools, as well, to ensure that denominational groups could opt out of, as well as opt in, the denominational framework. McCann (1988: p. 73) thus points out that it "not only safeguarded the rights and privileges of denominational schools but also those of 'common (amalgamated) schools,' and also allowed them due share of financial aid from the government."
IV. Whose Interests to Protect?
The gravest mistake in the established interpretation, then, is due to the failure to attend to the reasons why such protective provisions were prepared in the constitutional document in the first place. Failure to see the interests of denominational groups as minority interests limited the interpreters to the one idea of protecting the status quo of some religious denominations. The interpreters thus identified the interest of a denominational group with the interest of the denomination. Such a mistake was obviously caused by misreading the phrase "class or classes of persons" in the text. A good example of this is the House of Assembly's resolution to recognize and enshrine in the new Constitution of 1 982 that: "The Pentecostal Assemblies of Newfoundland be possessed of all the same rights and privileges with respect to denominational schools, common (amalgamated) schools or denominational colleges as those held under Term 17 by any other class or classes of persons in the Province at the date of Union" (Penney 1988: P. 99). In this resolution, the Pentecostal Assemblies of Newfoundland as a denomination is taken to be the "class of persons" whose interest is provided for constitutional protection. This officially embraced interpretation takes note of "class or classes" and overlooks "persons." It thus takes heed of "denomination or denominations" while completely ignoring those individuals who have rights and privileges to pursue an education along their denominational lines. Literally, however, what the phrase "class or classes of persons" means is entirely different. The phrase "class or classes" is just a category whereas the real substance is "persons." Therefore, the real substance of the phrase must be "individuals of a denomination or denominations" rather than 'denomination or denominations." Consider other examples of the "p of q' format. When I say that I wish to drink 'a glass of wine," I mean thereby that I am desirous of wine and not of a glass. Therefore, I would not mind even if you give me wine contained in a plastic cup or in a paper pack if only the quantity is what I expect (and perhaps a little bit more). Similarly, when you buy a two-litre bottle of Coke, you in fact buy two litres of Coke and not the two-litre bottle, which can be returned anytime for your deposit. We may imagine a case very similar to what we have. Suppose the parliament revises constitutional laws in order to protect the German-Canadian culture. The parliament stipulates in their legal text that any right or privilege of the class or classes of persons with respect to the GermanCanadian culture shall neither be Prejudicially affected by any law nor by federal funds for promoting cultures. In this case, who holds the protected rights and privileges, individuals (most likely German-Canadians) interested in the German-Canadian culture or a national German-Canadian organization?
It is to be noted that Term 17 borrows the phrase "class or classes of persons" from Section 93, in which the phrase "class of persons" is used to designate individuals of dissentient denominations. The Section specifies "the Queen's Roman Catholic subjects" or"the Queen's Protestant and Roman Catholic subjects' as those whose rights and privileges in education are to be protected. The constituency of the rights and privileges lies in the individuals ("persons"), not in any denomination to which those individuals belong ("class"). (Obviously, it is impossible that the B.N.A. Act protect the rights and privileges of "the Queen's Roman Catholic Church" or "the Queen's Protestant and Roman Catholic Churches" because it is not those churches that pay loyalty to the Crown: only the members of those churches. And where there is no loyalty, there is no protection). Therefore, separate schools and their trustees, whose interests Section 93 protects, are all subject to the decisions of individuals in support of the schools. Separate schools are established by the individuals' collective petition, trustees are elected by, and accountable to, those who elect them and pay rates. The denominational authority does not have any jurisdiction over matters related with the schools. Why then should the same phrase found in Section 93 be interpreted differently in Term 17 and especially when they are both part of the same constitution?
More fundamentally, a right or privilege recognized in the denomination ("class") rather than in its constituent members ("persons") can be incompatible with the philosophy of protecting minorities. In order for the rights and privileges recognized in the denomination to be justified in such terms, all members of 'the denomination must have an equal chance of participating in the process of exercising such rights and privileges. This condition requires that the organization of the denomination is such that every member's opinion regarding the exercise of the rights and privileges can be represented in the process of making decisions and executing them. But not all religious denominations may satisfy such a procedural requirement because a religious denomination does not have to be operated democratically. Moreover, if, as it is the case now in Newfoundland, all schools were operated on a denominational/interdenominational basis, there would be no guarantee that every member of society would equally benefit from such a system. Because even when all members of society belonged to one or another recognized denomination, the degree of their allegiance to such denominations would vary. Some may participate in whatever activity their denomination organizes; some may participate only in its religious activities and not in educational activities; some may be members of the denomination only nominally and actually not participate in any of the denominational activities. The problem in this case is not only that the right or privilege accorded to a denomination will not benefit the last two categories of people but also that it will infringe upon their basic rights. Even worse is what Penney (1 988: p. 90) draws our attention to. He reports that in 1981 almost 16,000 Newfoundlanders were non-members of any of the recognized denominations, even nominally. These "dissentient" individuals, however, are forced by laws to send their children to denominational or interdenominational schools. This is obviously a case in which the rights and privileges of minorities are sacrificed on behalf of the majority. Historically, Penney points out, the number of non-Christians has been increasing in Newfoundland. We can then imagine a situation in which only 10 percent of Newfoundlanders belong to the recognized denominations whereas the rest are not. Can the phrase . class or classes of persons" in Term 17 still be interpreted as it is now so that it can justify the minority domination of majority education? (What if 99 percent of Newfoundlanders become no members of any of the established denominations?)
In sum, Term 17 must be seen as protecting the rights and privileges
of the individual citizens who wish to educate their children in the teachings
of their denomination, provided that the denomination was recognized by
law at the time of union. How, then, does the Term protect their
rights and privileges?
V. How to Protect?
Term 17 stipulates that the legislature does not have the authority to make laws that prejudicially affect certain groups in terms of their rights and privileges and in terms of funding. It also stipulates that the schools and colleges operated by such groups shall receive their share as determined by a non-discriminatory scale. The text of Term 17, therefore, uses two different formats in order to prohibit two specific legislative actions that prejudicially affect the groups' interests. When it refers specifically to a prohibited law, it uses the single principle that the law shall not "prejudicially affect" the groups' interests. When it refers to the scale of funding, it uses two principles: namely, that the scale shall not "prejudicially affect" the groups' interests and that it shall not be "discriminatory" against the groups. In order to determine the extent of protection, therefore, it is appropriate to clarify the two formats and examine their practical implications.
With respect to the first format, two cases can be considered in which an act prejudicially affects a group's interest: it can do so either on the group's behalf or on its disbehalf. In other words, when A prejudicially affects B's interest, A can do so either to B's advantage or to B's disadvantage. However, whether A's act affects "prejudicially" cannot be determined in the exclusive relationship between A and B. For in such a case A's act can be either to favour B or to disfavour B. In order to be "prejudicial," A's act upon B must be compared with his act upon others like C, D, and E. For instance, if you punish only one of your twin sons for a mischief done jointly, you thereby favour one and disfavour the other. In this case, both of your twin sons are "prejudicially affected" by your disciplinary policy, one to his advantage and the other to his disadvantage. Therefore, what the first format implies is that a law shall not favourably or unfavourably affect the interest of a group while not doing so to other groups (no prejudicial affection principle). This may lead to saying, ironically, that a law can favour or disfavour a group if it does the same to all groups.
The second format is more complicated. It stipulates that a scale for distributing educational funds shall neither "prejudicially affect" the interest of a group (no prejudicial affection principle) nor "discriminate" against the group (no discrimination principle). Whereas prejudicial affection can occur either to the advantage or to the disadvantage of a group, "discrimination" is made to the disadvantage of a group. Therefore, the no prejudicial affection principle subsumes the no discrimination principle. What is suggested by the second format, then, is two-fold. First, in the no prejudicial affection principle, it is normally suggested that a funding scale shall not prejudicially affect the interest of a group either to its advantage or to its disadvantage. Second, in the no prejudicial affection principle in which the no discrimination principle is included, it is strongly suggested that the funding scale shall not prejudicially affect a group at least to its disadvantage. (This of course does not mean that the funding scale shall prejudicially affect the interest of the group to its advantage because doing so, as well, violates the no prejudicial affection principle). The practical implications of the two suggestions as well are different. In light of the normal suggestion, the legislature shall not establish a funding scale that is either advantageous or disadvantageous to a group while it is not so to other groups. In other words, it must treat all groups equally. In light of the strong message, the legislature shall establish a funding scale that is, at least, not disadvantageous to a particular group.
This analysis yields a conclusion that the two formats aim at maintaining a certain existing balance between different groups rather than protecting one, some, or all groups' interest. For even under the policy not to prejudicially affect any group's interest by law or "out of funds" and not to adopt a discriminatory funding scale, it is possible that the legislature damages one, some or all the groups without breaking the balance. For the legislature still reserves the option to "non-prejudicially" disband all the groups or to "non-discriminatorily" starve all of them by not funding at all or by funding only nominally (e.g., giving just one cent to each group), thus leaving the burden of maintaining their schools and colleges virtually to the stakeholders. The two formats are then far from protecting the current denominational school system because they can underwrite the demolition of all denominational or interdenominational schools and colleges.
In order to be "protective" measures, the formats must, in effect, protect certain denominational groups' interests. This they can do only when the protected interests of the denominational groups are counterpoised against the unprotected interests of some other groups. These unprotected groups may be other competing denominations, or non-denominational and even anti-denominational groups. Whatever they may be, only when such unprotected groups intimidate or actually infringe upon the interests of the protected groups can the two formats function to defend the latter from the former. Implied by this observation is, no doubt, the situation in which the protected denominational and interdenominational groups are vulnerable minorities.
The implications of a non-discriminatory funding scale can also
be considered in this light. The reason for prescribing that a funding
scale shall not be established on a discriminatory basis is that a share
determined by such a scale is believed to "prejudicially affect" the rights
and privileges vested in denominational and interdenominational schools
and colleges. Therefore, the criterion in determining whether a scale
is discriminatory or not is whether the scale functions to the disadvantage
of such schools and colleges while not doing so to other schools and colleges.
In other words, the condition that a funding scale is required to
meet is that it shall not discriminate against any school or college for
religious or denominational reasons. No doubt, this does not imply
that the legislature is obligated to fund denominational and interdenominational
schools and colleges under all circumstances. Funding those schools
and colleges is primarily the responsibility of their stakeholders.
Two reasons can be given for this observation. First, to protect
rights and privileges does not mean to warrant the exercise of such rights
and privileges. For instance, to say that the legislature has to
protect your rights and privileges in dining out does imply that it has
to pay your restaurant bills. The legislature's responsibility is
only to make sure that no one hinders your dining out at your own expense.
Second, a nondiscriminatory funding scale does not necessarily mean that
all funds should be divided equally or on a "per capita" basis. If
only the scale is determined according to criteria applicable to all parties,
there is no breech of the no discrimination principle (e.g., no scholarships
for low achievers, no housing grants for gamblers, no funding for schools
where academic achievement is well below the national average, etc.).
VI. Summary: What the Legislature Is Not to Do
The Terms of Union as part of the constitution of Canada cannot be interpreted in a way that contravenes the philosophy embodied in the constitution. Term 17 as the constitutional framework of Newfoundland's public education cannot be interpreted in a way that contravenes the philosophy of Section 93.4 In light of Section 93, however, Term 17 as translated into the school system of Newfoundland obviously violates the philosophy of protecting minority interests. Rather, the system accords a few religious denominations the monopoly right to public education at the expense of taxpayers' money without even being held accountable for any failure they entail. Term 17 does not exhibit any evidence that such a system is what it purports to warrant. It merely prescribes that the rights and privileges of individuals supporting denominational schools are to be protected if they were legally approved to do so at union. Even in that case, the Term does not imply, explicitly or implicitly, that the financial burden remains on the shoulders of the legislature. Implicitly implied is a situation that the denominational and interdenominational schools and colleges are, some day if not today, minorities in need of protection. The Term stipulates that such schools and colleges shall not be discriminated against in receiving a share out of the province's educational funds. But there is no implication that such schools and colleges are entitled to a share equal to that of any school or college that exists or will exist in the province under the authority of the legislature.
Overall, Term 17 accords the legislature of Newfoundland more power in the sphere of public education than that which Section 93 accords to other provinces. The decision or act of the legislature of Newfoundland is not subject to any overruling power of the parliament. its power and authority to plan, establish and manage non-or even anti-denominational schools and colleges or to promote private schools and colleges of similar nature is not restricted by Term 17. Even its power to issue licenses to denominational and interdenominational schools, to supervise and control the operation of such schools and colleges, and to close any such school is not disallowed by the Term. The only area in which the legislature does not have authority is the "prejudicial affection' of the rights and privileges of certain recognized denominational and interdenominational groups of persons vested in their schools and colleges and, when public funds are to be allocated, the .prejudicial" exclusion of them and "discrimination" against their schools and colleges.
1. Legal Documents
Bezeau, L.M. (1989). Educational Administration for Canadian Teachers (Toronto: Copp Clark Pitman).
Department of Education, Division of Evaluation and Research (1990). Education Statistics: Elementary/Secondary (St. John's: Author).
McCann, P. (1988). 'Denominational Education in the Twentieth Century Newfoundland,' in W.A. McKim (ed.), The Vexed Question: Denominational Education in a Secular Age (St. John's: Breakwater Books), pp. 60-79.
Morton, W.L. (1982). 'Manitoba Schools and Canadian Nationality,' in E.B. Titley and P.J. Miller (ads.), Education in Canada: An Interpretation (Calgary: Detselig), pp. 110-20.
Penney, R.G. (1988). 'The Constitutional Status of Denominational Education in Newfoundland," in The Vexed Question, pp. 80-101.
Pope, J. (1 895). Confederation Documents Hitherto Unpublished (Toronto: Carswell).
Rowe, F.W. (1976). Education and Culture in Newfoundland (Toronto: McGraw-Hill Ryerson).
Rowe, F.W. (1964). The Development of Education in Newfoundland (Toronto: Ryerson).
Tkach, N. (1983). Alberta Catholic Schools: A Social History (Edmonton: University of Alberta, Faculty of Education).
Professors Jeff BuIcock, Ishmael Baksh and James Covert have read this paper and kindly offered useful comments.
1. The Rough Draft of 1866 was soon revised to the First Draft, which in turn underwent four revisions until it became the final B.N.A. Act in 1867.
2. A "common" school was set up normally under the majority denominational board with contribution from minority denominational boards operating in the same region. An "amalgamated" school was maintained by a joint board in which different denominations participated (Rowe 1964: pp. 92-3). The two types were therefore "interdenominational" by nature.
3. During the 1989-1990 academic year, four denominational or interdenominational authorities controlled the education of 99.53 percent of the total elementary and secondary students. The rest 0.47 percent were educated in "non-public" schools, including two private schools, two youth centres, one deaf school and one native school (Department of Education 1990: pp. 2, 71).
4. Nor can it be interpreted in a way that contravenes the stipulations in the 1982 Constitution, especially its Charter of Rights. Although the Charter recognizes the denominational rights and privileges protected in Section 93, it is obvious that it does not approve the way in which Term 17 is currently interpreted. However, I have left this point out of my discussion.