The following opinion letter was submitted to New Brunswick’s daily newspapers on January 18, 2023 by the Commissioner of Official Languages for New Brunswick, Shirley C. MacLean, K.C.
When I accepted the position of Commissioner of Official Languages in January 2020, I never thought the climate around official languages would be so tense just three years later. Our nation and our province have been officially bilingual for over 50 years – since the adoption of our Official Languages Act (OLA) in 1969. The province then wanted to go beyond that Act and Richard Hatfield’s government adopted An Act Recognizing the Equality of the Two Linguistic Communities in New Brunswick which recognizes the province’s social contract that is rooted in linguistic duality. Since that time, our Legislative Assembly through the leadership of premiers of all political stripes, has implemented legislative changes that have entrenched the rights of our two official linguistic communities, English and French. Most importantly since 1982, the constitution recognizes these language rights in the Canadian Charter of Rights and Freedoms.
Since 2002 the OLA has included a provision to review the Act every 10 years. Amendments implemented over the years have served to progress the equality of our two official linguistic communities. For example, the requirement for government institutions to provide services in the official language of choice was bolstered by adding the active offer. Institutions must now actively offer services in both official languages to members of the public. Additionally, professional associations now have the same obligations under the OLA as government institutions.
The Commissioner of Official Languages position was added to the OLA in 2002. I am an independent legislative officer. I do not work for government. Like my counterparts the Child and Youth Advocate, the Auditor General and the Ombud, my role is to ensure government carries out the work they are required to do. I investigate complaints from the public when they believe their language rights under the OLA have not been respected and report my findings to the public. This important work is conducted in a fair and impartial manner. I am also mandated to promote both of our official languages.
So far, my experience has been that government institutions are aware of their obligations under the OLA and actively cooperate with us in our work.
So why are things tense? As Commissioner, I have observed a lack of understanding as to what the OLA means and I feel I must take this opportunity to talk about that.
New Brunswick has two official linguistic communities. The French linguistic community is the minority linguistic community. The English linguistic community is the majority linguistic community. The rights in the Charter and the OLA are not meant to set up a system to accommodate a linguistic minority or to provide special status to a linguistic minority, but to ensure the two communities are treated equally. The OLA clearly does provide protection to the official linguistic minority. That is the nature of language rights legislation. It also means that no group is to be treated differently and that we all have access to the same rights and privileges as the other official linguistic community. The rights of our minority linguistic community are not secondary rights.
Our OLA is not about bilingualism. Yes, New Brunswick is an officially bilingual province and the desire and efforts of both official linguistic communities to learn, participate in and enjoy each other’s language and culture is laudable and important to us. However, the OLA is not about requiring individuals to be bilingual. If one takes the time to read the Act, they will see it requires institutional bilingualism. Government institutions, municipalities, professional associations and other public bodies have specific legal obligations to ensure the public is provided with services in the official language of choice.
The New Brunswick government does not require all employees be bilingual. As of March 31, 2019, according to the Government of New Brunswick figures, 55% of Part I employees must be able to speak English. However, enough positions must be filled by people who can communicate in both official languages so that government institutions can serve members of the public equally in both official languages.
We all must be given the choice of our official language whether we are accessing health care services, going online or visiting SNB to renew our driver’s permit or writing an accreditation examination to gain admission to a profession. Every New Brunswicker has the right, when accessing these important services, to communicate in our official language of choice and to understand what is being communicated to us.
It is true that the great majority of my work relates to failures to provide services to the official linguistic minority, francophones. As an anglophone, I do not have difficulty obtaining service in my official language. It is not something I worry about in New Brunswick. This is not the case for francophones.
When minority language rights are not respected, the courts have continuously interpreted linguistic rights in a very broad way that demonstrates that language rights entail significant positive obligations that go beyond merely providing services.
The OLA is a quasi-constitutional document that imposes a positive obligation on the government of New Brunswick to preserve and promote both of our official linguistic communities. This is an area where I think we have seen success. Our two official linguistic communities are part of the fabric of our wonderful province, along with our Indigenous peoples and our many newcomers. Recent data indicates that New Brunswickers generally support the desire and efforts of both official linguistic communities to learn, participate in and enjoy each other’s language and culture.
There are, however, clear constitutional rights that exist for our two official linguistic communities which require not accommodation, but continued equality and our OLA clearly states that equality means more than just provision of services but also promotion of cultural security.
The government recently announced the establishment of a government secretariat to assist the government in meeting their language obligations under the OLA. The details of secretariat are not yet clear. At the time of this writing, there has also been no response to the other 31 recommendations made by Commissioners Finn and McLaughlin in their review of the OLA. I sincerely hope the government intends to build on the work of previous governments and continue moving forward to achieve true equality.