Official Language Act (New Brunswick) | The Canadian Encyclopedia


Official Language Act (New Brunswick)

New Brunswick, the province with the highest level of linguistic duality in Canada, adopted the Official Languages of New Brunswick Act (OLNBA) in 1969, a few months before the federal government enacted its own Official Languages Act. New Brunswick’s recognition of two linguistic communities (1981), mechanisms for enforcement of the law and redress for infractions (2002), and regulations on bilingual commercial signage (2009) have been the boldest measures in support of bilingualism of any province in the country. Francophones in New Brunswick represented 32.4 per cent of the population in 2016.

Founding of New Brunswick and the Schools Question (1784–1877)

After the deportation of the Acadians by the British, Acadians took refuge in the region of Miramichi, at the Camp d’Espérance (1756) in the northeast corner of what is now the province of New Brunswick (see History of Acadia). After the signing of the Treaty of Paris (1763), they were joined by other Acadians who had been deported to New England or France. The Acadians cleared land in Memramcook area and settled along the Saint John River; some abandoned farming, their traditional livelihood, in favour of fishing. At the end of the American Revolution, more than 30,000 loyalists settled in the Maritimes. Starting in 1784, the Acadians called for a new, distinct colony separate from Nova Scotia and named New Brunswick.

During the first half of the 19th century, the colony established grammar schools for the anglo-protestants who had settled in southern New Brunswick. For the Acadians in the north, the colony provided travelling teachers, French language classes and sometimes schools. Thanks to a strong birth rate, the Acadian population grew from 3,700 individuals in 1801 to 45,000 in 1871.

The Constitution Act, 1867, which made New Brunswick one of the four founding provinces of the Canadian confederation, contained no specific provisions about the Acadians: section 133 recognized the bilingualism of institutions in the province of Quebec and the use of French in the House of Commons and the federal courts, while section 93 recognized the legislation governing schools that had been in force in the colonies up to that point. But as there was no law guaranteeing funding for Catholic separate schools or instruction in French, the government in Fredericton was free to suspend these schools. In 1871, the Common Schools Act (also known as Bill 87) introduced free education and created school districts, but at the same time prohibited the teaching of the catechism or the French language. Bill 87 faced strong opposition from Acadians and provoked a crisis (see New Brunswick Schools Question). The federal government refused to intervene, however, and the Supreme Court confirmed the constitutionality of Bill 87. In January 1875, two people died in a riot in Caraquet. In August of that year, Fredericton once again authorized the presence of religious instructors, after-school religious instruction, and the use of French and bilingual textbooks in elementary schools where there were a sufficient number of Catholic students.

Modest Recognition (1877–1940)

Beginning in 1884, the creation of a French department in the Normal School (teacher training) allowed Acadian students to earn a Third-Class  Certificate (the least specialized training program at the time). However, the authorities still aimed to prepare students to enter English high schools, but only 3 per cent succeeded in doing so. In addition, politicians on the campaign trail did not hesitate to be openly hostile toward francophones. Eventually, in 1929, Fredericton repealed a regulation that encouraged the use of French in Acadian schools.

At the same time, Acadian communities were establishing their own institutions, including a French-language hospital, the Hôtel-Dieu Hospital in Moncton, founded in 1922. The Acadian elite also worked toward enriching the educational experience and creating caisses populaires (credit unions).

The Rise of Acadian Institutions and the Pursuit of Equality (1940–69)

Economic prosperity after the war and the demographic growth of the Acadian population (they composed 41 per cent of the population of New Brunswick in 1941) allowed the clergy to establish franco-Catholic colleges in Madawaska, as well as colleges for girls. It was also at this time that the first French-language radio and television stations appeared. However, inequities persisted in comparison to the anglophone population: students in (anglophone) Kings County received funding that was 2.5 times higher than that received by students in (Acadian) Gloucester County; moreover, illiteracy among Acadians was twice as high as that among anglophones.

The election of Louis Joseph Robichaud’s Liberals in June 1960 and the modernization of government structures led to the opening of French-language public high schools and the creation of the Université de Moncton (1963). Re-elected in 1963, the Liberals introduced the Equal Opportunities Program (1965), which aimed to better distribute the province’s resources, including by centralizing educational funding. In 1971, school districts in Acadian counties in the north of the province were recognized as francophone, but English or bilingual districts still managed Acadian schools elsewhere.

The Official Languages of New Brunswick Act (1969)

Following the first report of the Royal Commission on Bilingualism and Biculturalism, which was issued in 1967, and the 1968 student demonstrations in Moncton, the Robichaud government recognized French as an official language in New Brunswick. Proclaimed on 18 April 1969, three months before the adoption of the federal Official Languages Act, the enactment of the Official Languages of New Brunswick Act (OLNBA) made New Brunswick the first province to grant its citizens the right to receive government services in the official language of their choice.

However, the OLNBA did not force professional associations, unions, the private sector, health services or municipalities to follow suit. Moreover, the eight-year delay before some of the Act’s provisions came into force, and the absence of an ombudsman to oversee and ensure its enforcement were major limitations of the OLNBA.

Reception and Implementation of the OLNBA (1969–77)

The New Brunswick branch of the United Empire Loyalist Association and the Provincial Grand Orange Lodge of New Brunswick, among others, were opposed to this transformation, which they depicted as a political repudiation of anglophones (see Orange Order in Canada). Some politicians used this displeasure to their advantage. The mayor of Moncton, Leonard Jones, who painted all recognition of the French language as discrimination and sectarianism, was re-elected in 1973 and challenged the OLNBA before the Supreme Court of Canada in 1975 (see Jones Case).

In the meantime, militant Acadian neo-nationalists wishing to increase pressure on the government formed the Société des Acadiens du Nouveau-Brunswick (SANB). The radicalization of positions in the province pushed Progressive Conservative premier Richard Hatfield, elected in 1970, to create a new linguistic policy to reduce tension, maintain social peace and build a new identity for New Brunswickers.

Recognition of Acadian Communities (1977–81)

Re-elected in 1974, Richard Hatfield split the Ministry of Education into anglophone and francophone sections, each granted its own authority for school programs, and gave the Acadians ministerial autonomy. The Université de Moncton law school, which opened in 1978, provided Acadians with the first training in common law in French and paved the way for greater numbers of Acadian lawyers, prosecutors and judges. However, the premier acted carefully. He hesitated to establish francophone school boards and to undertake the administrative restructuring that would lead to linguistic duality in the public service.

The election of the Parti Québécois in 1976 and the breakthrough by the Parti Acadien, which received 12 per cent of the vote in the 1978 New Brunswick election, created a sense of urgency. The SANB highlighted the continuing precarious socio-economic status of Acadians in the north of the province and pointed out that many ministries still had no francophone directors. The exclusion of Acadians from the policy development process led those at the Convention d’orientation nationale des Acadiens, held in October 1979, to propose a collective project that would see New Brunswick either adopt much more than a token bilingualism or else split into anglophone and Acadian provinces.

In the face of this crisis, the Hatfield government acknowledged the uniqueness of the Acadians without, however, giving them the status of “a people,” which would imply the right to self-determination (the right of peoples to make decisions for themselves). An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, also known as Bill 88, was adopted on 17 July 1981. The Act affirmed the equality of the status, rights and privileges of the two linguistic communities and gave each the right to its own cultural, educational and social institutions. However, the legislation also affirmed the indivisibility of the province. Finally, it granted individual liberties that Jean-Maurice Simard, the bill’s sponsor and the president of the Treasury Board, hoped would help slow the linguistic assimilation of the Acadians. Even though the SANB considered Bill 88 to be incomplete, the organization viewed the law as one of the ways to safeguard Acadian culture.

Slowdown in the Recognition of Political Duality (1981–93)

New Brunswick’s provincial linguistic rights were enshrined in the 1982 Canadian Charter of Rights and Freedoms (Charter). Subsection 16.1(1) confirms the equality of New Brunswick’s two linguistic communities and subsection 16.1(2) requires the province to preserve and promote the status, rights and privileges referred to in subsection (1), while subsections 17(2) and 19(2) stipulate that an individual has the right to use the official language of his or her choice in the legislature and the courts; finally, subsection 20(2) provides that “any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.”

While the Charter received royal assent, jurists Michel Bastarache and Bernard Poirier recommended, in order to defuse the tensions between anglophones and francophones, that the provincial administration be reorganized and decentralized, that the linguistic identity of the administrative regions be preserved, that all public servants be granted the right to work in the official language of their choice and that a coercive mechanism be created to correct uneven application of these measures. In veiled terms, they recommended the adoption of administrative duality, along the lines of the duplication at the Ministry of Education.

The overwhelming majority won by Richard Hatfield in the 1982 election, however, which marginalized the Parti Acadien, tempered Hatfield’s willingness to do more. Dissatisfied with the Poirier-Bastarache report, Hatfield created a ministry to reform the management of provincial services and established a new commission on bilingualism. Tabled in June 1986, the Report of the Advisory Committee on Official Languages of New Brunswick (also known as the Guérette-Smith report) also recommended the formation of linguistically homogeneous working units and the adoption of positive discrimination policies with the goal of developing a true capacity to offer an equal level of service in both official languages.

It was Frank McKenna’s Liberals, elected in 1987, who implemented the Guérette-Smith report. In response to a controversial judgment by the Supreme Court of Canada ruling that the right to speak French in a courtroom did not include the right to be understood, the Liberals amended subsection 13(1.2) of the OLNBA to ensure that every individual has “the right to be heard by a court that understands, without the need for translation, the official language in which the person intends to proceed.”

Shaken by the rise to official opposition status of the Confederation of Regions Party, which proposed that the Maritime provinces unite and that specific rights for Acadians be revoked, the SANB, by this time the Société des Acadiennes et des Acadiens du Nouveau-Brunswick (SAANB), redoubled its efforts to protect Bill 88 from the vagaries of politics by enshrining it in the constitution of Canada. At the request of the McKenna government, the House of Commons amended the Charter in 1993 to include in it the principles found in the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick.

Modernization of the OLNBA (1993–2002)

Underlying the recognition in subsection 16(1) of the Charter of the equality of New Brunswick’s two “linguistic communities” is the notion that each community possesses collective rights and privileges. This acknowledgement, in addition to two Supreme Court of Canada decisions (the 1990 Mahé case and the 1993 Manitoba schools case), led to the reorganization of school districts along linguistic lines in 1997.

In the Charlebois v. Mowat et Ville de Moncton case (2001), in which a building owner in Moncton challenged the validity of an order and a municipal bylaw published only in English, the New Brunswick Court of Appeal required 19 municipalities to have their bylaws translated and the province to revisit the OLNBA. The Charlebois case had surprising repercussions: in 2002, Moncton became the first officially bilingual city in the country, and action was subsequently taken to address the demands on the part of teachers and the SAANB that the OLNBA be modernized.

Framework of the New Official Languages Act (2002–13)

The Progressive Conservative government of Bernard Lord rewrote the OLNBA as the Official Languages Act (OLA) in June 2002: section 19 recognized citizens’ right to use the official language of their choice without the aid of an interpreter in provincial and municipal courts; section 35 required all municipalities with an official language minority population of at least 20 per cent to adopt and publish their bylaws in both official languages; section 36 stipulated that municipalities were required to offer services and communications in both official languages, which affected 15 additional municipalities; section 43 established the position of the Commissioner of Official Languages, an ombudsperson whose role it is to oversee the bilingualism of the provincial administration and those municipalities designated as bilingual. The 2002 OLA had more “teeth” in terms of its mechanisms for enforcement, promotion, investigation and verification.

In 2008, in a case concerning a ticket issued by a unilingual anglophone officer to an Acadian motorist, the Supreme Court of Canada recognized that the Royal Canadian Mounted Police, which is responsible for provincial policing services in New Brunswick, is subject to the same linguistic obligations as provincial institutions.

That same year, the Liberal government of Shawn Graham proposed that the dozen anglophone, bilingual and francophone health authorities be consolidated into one anglophone and one bilingual authority. This would have required the hospitals and the authority that essentially functioned in French to become bilingual. Former Supreme Court of Canada justice Michel Bastarache sued his own government for attacking the fundamental liberties of francophones. After two years of resistance, the government backed down and acknowledged that there was an inequality of services, that remedial efforts were required and that it was necessary to protect New Brunswick’s francophone health authority and dual health care system.

Other adjustments relating to official languages have been made. In 2009, Fredericton presented a revised policy on the language of work and introduced a law intended to improve the accuracy of translations of documents presented as evidence in court. Starting in 2011, the Municipalities Act strengthened the capacity of certain municipalities with a large majority of Acadian residents to function essentially in French. In 2009 and 2010, some of these municipalities adopted bylaws that require bilingual signage on the exterior of all businesses.

Resurgence and Ongoing Challenges (since 2013)

In June 2013, the Progressive Conservative government of David Alward amended the OLA to expand the responsibilities of the Commissioner of Official Languages , make professional associations subject to the legislation, take into account linguistic obligations in efforts made by police services and courts to deliver justice within a reasonable time, and provide for a revision of the law before December 2021.

This reform was ambitious, but it failed to address all the problems: the rate of bilingualism among anglophones was stagnant at 15 per cent, the Commissioner of Official Languages pointed out the lack of bilingualism in ambulance services, and the reduction in the number of ridings in 2014 resulted in fewer rural francophone ridings, which lessened the Acadians’ political clout. During the provincial electoral campaign in the fall of 2018, no leadership debate took place in French, the Progressive Conservative Party pleaded for a reduction in bilingualism requirements in the political administration, and the People’s Alliance of New Brunswick recommended even more pronounced steps backward.