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The Senate - Motion for Concurrence in Legislative Assembly of Nunavut's Passage of the Official Languages Act—Referred to Committee

Hon. Serge Joyal: Honourable senators, I rise today to speak on Motion No. 26 because when it was introduced last week on the Order Paper, it caught my eye when I read that it was dealing with an official languages act. As any one of us in this chamber knows, the Official Languages Act is at the constitutional core of the duty of the Senate. We praise ourselves that our chamber represents regional authorities and minority rights. However, the motion calls upon the Senate to concur in the Official Languages Act for Nunavut.

I thought: Why are we concurring in that? Should it not be the prerogative of the Nunavut government to adopt the official languages status on its territory?

I found out that section 38 of the Nunavut Act, which this motion references has a "trick" in it. The Parliament of Canada is called to concur when there is a diminishing of rights. Section 38 states in relation to official languages:

. . . if that repeal, amendment or measure that otherwise renders that law inoperable would have the effect of diminishing the rights and services provided for in that ordinance as enacted on June 28, 1984 and amended on June 26, 1986.

In clear terms, what does it mean? It means that if there is a change of status in relation to language rights that, as an effect, reduce those rights, we are called upon to give our consent. In other words, we are the trustee. We are the fiduciary of language rights in the Nunavut territory as we are in the Northwest Territories because they are federal territories.

I wanted to know more about which rights were reduced, diminished or altered in the Official Languages Act of Nunavut that was submitted to us for concurrence. I found the answer in a backgrounder published by Canadian Heritage in May 2009, a month ago. It is titled "Concurrence of Parliament: Nunavut Official Languages Bill." Page 3 is entitled "Why Parliamentary Concurrence?" The first bullet states:

Necessary when rights and/or services are diminished . . .

Which rights are diminished?

The Nunavut Act (sec. 38) stipulates that the Nunavut Official Languages Act cannot be changed without the concurrence of Parliament if the proposed changes diminish the rights and/or services provided for in the Act.

The second bullet states:

Bill 6 includes two "reductions" in rights:

Aboriginal languages not spoken in Nunavut are losing official language status.

Why? The ancient territory has many Aboriginal languages that have status. This act will remove any recognition of those Aboriginal languages. There would be one recognized — Inuktitut.

The second bullet continues and refers to French and English:

Territorial court decisions may be issued in only one of the three official languages (instead of in both English and French currently).

Translation into the other official languages would occur only if a matter is of public interest or if requested by an interested party.

That triggered my attention. If I am called upon in this chamber to concur with a diminution of rights, I want to know the scope of it.

I called upon the Canadian Official Languages Commissioner, Mr. Graham Fraser. Our Official Languages Commissioner is an Officer of Parliament who acts on our behalf in reviewing legislation to ensure any legislation that has an impact on the status of both official languages is called to our attention. In a three-page letter dated May 2007 — two years ago — Mr. Fraser wrote to the Honourable Louis Tapardjuk, Minister of Culture, Language, Elders and Youth, and delivered a lengthy comment about the draft bill that was submitted to him.

There are many comments that he makes with regard to various aspects of the bill, but I want to refer to three for the sake of our reflection today. At the bottom of page 2, the last paragraph states:

I also noted that the draft Inuit language protection bill obligates all territorial municipalities to communicate with and provide services to the public in the Inuit language. Since English is currently the language that is most commonly used by the majority of municipalities and the Inuit language will henceforth enjoy legal protection in this regard, I am concerned about the inequality of status and use of French in municipal services.

He continues on the following page to state:

In light of this concern, it is my opinion that the draft official languages act should require municipalities to provide services in English and French when there is significant demand. This change would have no impact on the special status that the draft Inuit language protection bill grants to the Inuit language.

Honourable senators, I totally subscribe to the idea of making Inuktitut one of the official languages. However, in allowing the municipalities to use Inuktitut extensively, I am concerned about the consequences of our second minority language — French — in terms of numbers.

The commissioner is also preoccupied with something that we have legislated in this chamber. It is what I would call "Senator Gauthier's amendment." Do senators remember when we amended Part 7 of the Official Languages Act after lengthy debate? I think the bill was introduced four times by Senator Gauthier and finally it was adopted. Why? It places an obligation on the federal government to promote and not only to say "here is the letter of the law." You have to be proactive.

What does the Official Languages Commissioner state in relation to the Official Languages Act of Nunavut? I am quoting from the middle of page 2:

. . . although the preamble of the draft bill states the government's commitment to protecting the three official languages communities, this commitment has not resulted in explicit obligations for the Minister of Languages.

In other words, I recommend that we "refer explicitly to the obligation to take measures to promote the development and vitality of these communities." That applies strictly to the community that is smaller — the one drawn into a majority and will be speaking Inuktitut that is now speaking English. There will be a certain dynamic going on, and this is a dynamic to which I subscribe.

However, I do not want to subscribe to a dynamic while at the same time undermining the community that is more at risk, namely, the one that speaks French. That is why the Official Languages Commissioner has requested that the minister has the power to promote.

Honourable senators, the third point of the commissioner's letter that I want to draw to your attention is the following. It is the second paragraph of page 2, which states:

I would also like to draw attention to subsection 12(6), which requires government departments and agencies to ensure that communication with and services to the public that are offered on their behalf by a third party are offered . . . in the territory's official languages. However, I believe this clause could be improved in such a way as to make all territorial institutions subject to this obligation.

Honourable senators, it is again referring to the situation that we have known where a provincial government — that is, the New Brunswick government — contracted with the RCMP. The RCMP told them that they are not compelled to implement the Official Languages Act because they are within the territory of a province. That matter ended up in court in New Brunswick and Ontario. Both federal courts ruled that you cannot bypass the obligation you have to provide services in both languages. That is, in fact, what this paragraph covers.

Honourable senators, I am addressing myself to the Deputy Leader of the Government. I understand that our friend Senator Adams is retiring soon. He would like to have this motion concurred with by this house. However, in all senatorial consciousness, we should look into the implication of that motion, not in order to delay the adoption of the bill. Again, our friend Senator Adams is retiring, as I understand, on June 22. Therefore, I would propose that the Standing Senate Committee on Legal and Constitutional Affairs look into the implications of that motion and report no later than June 11, which is in a week's time.

(1430)

Honourable senators, this week the committee has just completed its study and report on Bill S-4. Therefore, we have an open agenda. We could hold our two weekly meetings next week on this issue and report to the chamber so that we will know what we are concurring with.

I think it is fair for us to have the Commissioner of Official Languages appear and, of course, a representative from Nunavut. We could easily accomplish that through teleconferencing. We would know the content of this bill and if it indeed needs our concurrence. As I say, at first sight, I concur with it; but I want to know if there are limitations that we should be concerned about and how to manage those in the future.

Motion in Amendment

Hon. Serge Joyal: Honourable senators, that is essentially why I wish to move:

That the motion be referred to the Standing Senate Committee on Legal and Constitutional Affairs for study and report; and

That the committee report no later than June 11, 2009.

That is in one week's time.

As a matter of fact, the government received a letter from the Nunavut minister with respect to this issue a year ago, on June 17, 2008. It is now June 2009, and we are asking for one week to look into the matter. If the government took a year to look into preparing the motion, we can take a week to perform our constitutional duty in an effort to understand why we should be diminishing rights, in what manner and what kind of measures are needed to ensure that, when we wake up, the fallout from this motion is what we expected.

The Hon. the Speaker: Honourable senators, there is a motion in amendment by the Honourable Senator Joyal, seconded by the Honourable Senator Robichaud, that the principal motion be referred to the Standing Senate Committee on Legal and Constitutional Affairs for study and report and that the committee report no later than June 11, 2009.

Are there questions and comments on Senator Joyal's speech?

Hon. Hugh Segal: Honourable senators, assurances were given in this chamber that there would be no intended diminution of existing rights for any of the linguistic groups in the territory. I accept that those were given in the best of faith.

Would Senator Joyal be prepared to share the letter that he quoted from the Commissioner of Official Languages, have it tabled so all sides could have a chance to examine it?

Senator Joyal: Honourable senators, I wish to table the letter because I think it is important that, as Senator Segal stated, we understand exactly the implications in relation to the official languages minorities that are at stake.

As I said, it is important to make the Commissioner of Official Languages aware that we know that he tried to exercise his duty, inasmuch as we are exercising ours. In his annual report, he could report on various implications and the way linguistic dynamics develop in Nunavut. With great pleasure, I have the letter available in both official languages.