Thank you for inviting me to discuss the Head Tax issue with all of you today. Even though I have not, up until this point, taken part in any of these discussions, I have been reading, listening, watching, as well as participating in discussions at the federal level with M.P.s, and at meetings held by the Secretary of State for Multiculturalism. Please keep in mind that I most likely don’t have all the facts, and would be more than happy to be corrected and to listen to everyone’s opinion.

I will discuss the issue from a national perspective, based on historical and recent events.

Before I begin, I would like to thank Prof. David Lai for providing me with the proceedings of the National Conference held in March, 1991, in Winnipeg, as well as the results of the survey on this issue done by Victoria University and Simon Fraser University in 1996.

First, I would like to put the issue in its historical context. There has never been any doubt that Canada was a racist country, like all other Western countries at the time. Many of you are aware that our immigration policy remains discriminatory despite the fact that the racial and cultural qualifications were removed in 1967.

Everyone here today is aware of why the Head Tax was imposed. The main reason was that the B.C. politicians were concerned by the rapid growth of the Chinese population in comparison to the rest of the population in the province, and they were also afraid of losing the support of the working class who feared competition from Chinese labour. The Head Tax was meant to discourage Chinese migration to Canada after the completion of the Canadian Pacific Railway, when Chinese labour was no longer needed. The reason the amount was set at $50 in 1885 was based on information gathered by the Royal Commission of 1884. The amount was just above the maximum amount a Chinese labourer was able to save per year after his living expenses were paid, which were estimated to be $48.

However, we know that the Head Tax did not discourage Chinese immigration, and so the amount was increased to $100 in 1900, and to $500 in 1903. It is interesting to note that between 1885 and 1903, 39,925 Chinese paid the Head Tax to immigrate to Canada. From January 1904, after the tax was increased to $500, until the passage of the Chinese Exclusion Act of 1923, 42,444 Chinese paid the Head Tax to come to Canada (between 1886 to 1924, a total of 82,369 paid the Head Tax to enter Canada. The Chinese Exclusion Act in the U.S. was passed in 1882). What these figures tell us is that the Chinese clearly wanted to come to Canada, and that no amount of Head Tax would discourage them.

Most of you would know that the reasons for migration were economic. This was mainly due to a huge increase in the population in Guangdong province without enough land to feed the population. There were also wars and rebellions that caused a great deal of suffering. At the same time, because of the abolition of the slave trade (Britain 1833), labour was needed by Western countries in their colonies. Going overseas meant survival, and despite discrimination, it was still the preferred option for the poor peasants in China. That is why we have the term “Gold Mountain.” Going overseas became a tradition and chain migration started. And, because of the great impetus for the Chinese to immigrate to the New World, countries such as the U.S., Canada, Australia and New Zealand imposed a Head Tax to try to discourage their entry.

In reading the transcripts of the Winnipeg Conference of 1991, the point was made that there was a treaty signed in 1904 (Treaty Series #7) between the United Kingdom and China on the Employment of Chinese Labour in British Colonies and Protectorates, meaning that the Chinese should have had the right to immigrate to Canada which was a British Colony. Technically, yes. However, Canada became a country in 1867, and had its own immigration policy, and besides, most Chinese who immigrated after the completion of the CPR came as family members in the form of chain migration. So, in effect, this treaty did not apply. If I’m wrong, please correct me.

From everything I’ve read so far, no one has mentioned anything about Chinese tradition and culture, which are very important points. A lot has been said about the Canadian government separating families, but if you look at the pattern of Chinese immigration overseas until after the Second World War, the immigrants were mostly adult males. The women were left behind in China, not by their own choice, but because of Chinese tradition. Even after the Second World War, if it had not been for the civil war in China, many of the women and children would still have been left behind. Villages in many parts of south China consisted mainly of women and children because as soon as the boys were old enough they would be sent abroad, despite having to pay the Head Tax. These families were known as the “overseas families.” But that’s another story which I’m not going to expand on at this time.

There is absolutely no question that the Head Tax was unfair, and that the Chinese were discriminated against by the Canadian government, since we were the only group singled out by racial origin to have legislation passed against the entry of many of our ancestors. However, we must realize that other groups, such as the South Asians also had legislation passed against their entry by the “Continuous Journey” amendment in the Immigration Act (1910), which just about excluded them from coming to Canada, even though they were not mentioned specifically by name in the legislation.

Canadian politicians wanted Canada to remain a white country, and as British as possible. That was why Eastern and Southern Europeans were not welcome until after the Second World War, and only then, partly because of the war against Fascism, but mainly because of the booming Canadian economy and the need for labour. So, aside from race, anyone with a different religion or customs, such as the Hutterites and the Doukhobors, was considered unable to assimilate. You can say that Canada had a discriminatory history similar to other immigrant receiving countries such as the United States and Australia.

In order to prevent those of non-British origins from entering, Canadian politicians did all they could to bar their entry. One of the ways was through negotiations with foreign governments. The Canadian government did attempt to abolish the Head Tax in exchange for self-regulation by the Chinese government on the emigration of its citizens, similar to the Hayashi – Lamieux agreement with Japan. I know the following information has been presented by Prof. David Lai in the past, but because it is so important, I am going to repeat it for those who are not aware of it. In 1908, Mackenzie King went to Beijing to discuss the issue with Liang Tun-yen, the acting president of the Ministry of Foreign Affairs. However, the officials at Foreign Affairs suggested that King return to Canada, and bring forward any matter for discussion with the Chinese Consul-General who was being appointed, and in turn, he would refer the Canadian position to the Chinese Foreign Ministry for instruction. So, the opportunity for an agreement was missed because of the evasive and indecisive attitude of the Manchu government. In June, 1914, the Chinese Consul General in Ottawa suggested that the Chinese government was willing to restrict the number of emigrants to 1,000 per year, but the Canadian government felt that the number was too large, and no agreement was reached. So, I do put the blame partially on the Chinese government at the time.

Now, I will go over the chronology of the Head Tax redress campaign. For those of you who are very familiar with it, I hope you will bear with me for the sake of others who may need this information.

In 1984, an elderly Chinese-Canadian went to the office of MP Margaret Mitchell (NDP) of Victoria and asked if he could expect to be compensated for the Head Tax he paid. That was, to my knowledge, the beginning of the Head Tax redress issue.

We all know about the success of the redress movement of the Japanese-Canadians in 1988. Like everything else in Canada, events seem to follow those in the U.S. In 1980, the U.S. Congress conducted hearings into the internment of Japanese Americans. A year before the Canadian agreement by the Mulroney government, the U.S. government offered an acknowledgement and individual compensation package to the Japanese American internees.

In 1988, Prime Minister Mulroney formally acknowledged the wrongs done to the Japanese Canadians, and authorized the provision of C$21,000.00 to each of the individual survivors of wartime detention. The language used in the official document was “acknowledge” the treatment of the Japanese Canadians, and the government “pledge” to ensure it won’t happen again, as well as to “recognize” the commitment and loyalty of the Japanese Canadians to Canada. Please note that nowhere was the word “apologize” ever used. This is important because the Chinese communities all want an apology, even if they cannot agree on anything else. Please remember that the federal government will be very reluctant to use the word “apology”, because legally speaking, it means liability, and the government can be sued for monetary compensation. And because there are so many groups out there asking for redress, the government feels that there would be no end to it.

The Japanese redress movement was successful and a comparison has often been drawn to that of the Chinese Head Tax redress. I want to point out that there are at least two major differences:

1. the Chinese who paid the Head Tax to come to Canada were Chinese nationals and not Canadians. The Head Tax was to prevent the Chinese from entering the country. The Japanese who were interned were Canadians or residents of Canada;
2. Unlike the Japanese Canadians, the Chinese were not interned, and to my knowledge, they never had their belongings and properties confiscated and sold.

So, comparing the two is like comparing apples and oranges.

In a speech given to the National Congress of Italian Canadians and the Canadian Italian Business Professional Association on November 4, 1990, Prime Minister Brian Mulroney mentioned that he would apologize to the Italian Canadian community for the internment of 700 Italian Canadians during the Second World War in a speech to the House of Commons during that session of Parliament. This event was seen as a boost to the Chinese redress campaign. However, by the end of the parliamentary session, he still had not apologized. And to my knowledge, no apology was ever made.

On May 22, 1992, the British Columbia government approved a motion calling on the federal government to provide reasonable redress for the injustice of the Chinese Head Tax. This is a complete reversal of the earlier B.C. policy of urging the Dominion government (as it was known at the time) to stop Chinese immigration. After the Head Tax was instituted, the B.C. government was given part of the proceeds, which became very profitable for the province. Between 1885 and 1903, a quarter of the Head Tax, certificate fees and penalties went to the B.C. government. From 1903, half was paid to the B.C. government. So, the question is, is the B.C. government willing to compensate the Head Tax payers? I am not aware of any decision on their part.

I should like to mention that, at this time, some of the other groups who are seeking redress are:

1. the Italian Canadians (internment, WWII)
2. the Ukrainian Canadians (WWI internment – almost 9,000; Bill C-331 Inky Mark – public commemoration and restitution to be devoted to education and promotion of tolerance),
3. the German Canadians (internment during both World Wars)
4. the Canadian Jewish Congress (turned away the St.Louis – 900 Jewish refugees from Nazi Germany),
5. the Doukohbors (for 6 years, the B.C. government kidnapped their children and confined them in the New Denver Institution),
6. the National Association of Canadians of Origins in India (Continuous Journey; Komagata Maru) and
7. the African Canadian communities (slavery legal until 1833; Africville and the Black Loyalists – the African Canadian Coalition Against Racism formed in 2001 is a coalition of a number of black Canadian organizations).

Redress petitions were sent to then Secretary of State for Multiculturalism, Sheila Finestone, (by the Chinese Canadian National Congress, the National Congress of Chinese Canadians, the German Canadian Congress, the Canadian Jewish Congress, the National Association of Canadians of Origins in India, the National Congress of Italian Canadians, the Ukrainian Canadian Congress, and the Canadian Ukrainian Civil Liberties Association), and on December 14, 1994, Minister Finestone made the following statement, “we wish we could rewrite history. We wish we could relive the past. We cannot…We believe our only choice lies in using limited government resources to create a more equitable society now and a better future for generations to come. Therefore, the government will not grant financial compensation for the requests made.”

I got to know Sheila Finestone when she was appointed to the Senate about three years ago. One day, I asked her why she made that announcement in 1994, and she said the Cabinet refused to pay compensation, and her hands were tied.

In 1995, the Canadian Race Relations Foundation was established with a grant of $24 million, as a fulfillment of the commitment under the Japanese redress in 1988, as well as the commitment of the government in 1994. Going through their website, I can see that many groups have had grants for initiatives and specific projects against racism, but up to this year, the Chinese Canadians have not received any significant funding from the Foundation for any educational projects on the Head Tax or the Chinese Exclusion Act of 1923. I thought the Foundation is exactly what many in the community have been asking for. It is available, and we should make use of it.

Interestingly enough, also in 1995, a head tax of $975.00 per person was imposed on all immigrants by Citizenship and Immigration Canada, on top of $500.00 per adult and $100.00 per child as a processing fee. These amounts have been raised to $550 and $150 respectively. There are other fees as well for different kinds of sponsorships. Many people have complained and charged that the government is being unfair to immigrants. Have you ever wondered what the descendants of these immigrants may do in the future?

In 2001, the Chinese Canadian National Council launched a class action suit against the federal government “Mack vs. Canada”, acting for the survivors and relatives of those who paid the Head Tax to enter. The claim was for financial compensation, with compound interest, of the tax paid, as well as for general damages for pain and suffering. This failed, and the CCNC appealed to the Supreme Court of Canada on November 15, 2002, which was rejected, and a complaint is now underway with the United Nations Human Rights Committee.

On February 12, 2002, Prime Minister Helen Clark of the New Zealand government issued a formal apology to the Chinese New Zealanders, and announced the beginning of a process of reconciliation with the ethnic Chinese who had to pay poll tax until 1944. Funds and resources will be provided for the purpose of restoring and maintaining the Chinese heritage, culture and language. I think it is important to learn from the Chinese New Zealanders.

On December 10, 2002, Inky Mark introduced Bill C-333, which basically asks for:

1. an apology;
2. restitution to be devoted to educational materials on Chinese Canadian history, and the promotion of racial harmony.

The latest that I know of is that this May, the CCNC launched a New Redress Website and Canadians for Redress Campaign. It has won the support of, among others, the NDP leader, Jack Layton, June Callwood, Mathew Coon Come of the Assembly of First Nations, the Canadian Race Relations Foundation, the Metro Toronto Chinese as well as the Southeast Asian Legal Clinics.

Before we discuss the way forward, we should look at what the Chinese Canadian communities really want. From the survey that I have, there are many different points of view from the Head Tax payers and their descendants, from wanting personal compensation, to an apology, to education, to nothing at all. As long as there is such extensive division in the Chinese communities, the federal government will not deal with us seriously.

I now propose the following questions for discussion:

1. Do Chinese nationals have the right to compensation when another government tried to prevent them from entering the country?
2. Did the Chinese culture and tradition of keeping the women and children in China, while the men went abroad to work, not play a role in separating families as well?
3. If conditions had been better in China, would we be here discussing the Head Tax?
4. Are we responsible for the sins of past generations? As tax payers, are we responsible for what the politicians did generations ago? Should we set a precedence that future generations should pay for our sins?
5. What happened to the Chinese in the past was against human rights, but the concept of human rights was not even part of our vocabulary until after the Second World War. The claim by the different groups for redress is based on the Charter of Rights and Freedoms passed in 1982. Is it possible to claim retroactive rights?
6. In order that past mistakes are not repeated, future generations must know the truth about Canadian history. Would education not be the key to solving the problem. Since education is a provincial responsibility, is it not up to all of us to make sure that accurate history is taught in our schools and in our homes?
7. Is the new Human Rights Museum (Winnipeg) an effective venue for educating Canadians about past wrongs?
8. Should there be a Chinese Canadian National Museum like the one the Japanese Canadians have in Burnaby, B.C., or the Abbotsford Sikh Museum, also in B.C.? And if so, where do you think it should be located?

For all of you who really want to learn about the insider story of the Japanese Canadian redress, you should read Bitter Sweet Passage by Maryka Omatsu, who is a judge in Ontario, and who was intimately involved with the negotiations. I agree with her that, if it had not been for the settlement in the U.S., and the economic clout of Japan, it would not have happened in Canada.

No matter what any government says, history can repeat itself, so we must always be vigilant. Ultimately, I think political power is the only way to ensure that past wrongs will not be repeated. So, to all the members of the younger generation here, please keep that in mind, and play an active role in Canada’s future government.

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In April 2003, the Supreme Court of Canada denied plaintiffs leave to appeal in Shack Jang Mack Quen Ying Lee and Yew Lee v. Attorney General of Canada. In doing so, the Court shed some light on a sensitive but important issue: the limitations of the courts in providing redress for a past injustice which was itself the result of government policy.

The history of that policy is certainly deplorable in retrospect – something that all parties agree on, including the Crown and the courts. In 1885, Parliament passed legislation imposing a duty or “head tax” exclusively on Chinese people immigrating to Canada. The legislation reflected contemporary prejudices, such as those of one member of Parliament who declared that “there is not much room for the Chinaman in Canada. He displaces a good Canadian, or a good British subject” (Nathaniel Clarke Wallace, speaking in 1900). In 1923, that tax was replaced by legislative restrictions on Chinese immigration, amid claims that “the wily oriental has found some means or subterfuge to circumvent any regulations that may have been imposed upon him” (as MP John Armstrong MacKelvie told the House of Commons). The legislation was finally repealed altogether in 1947.

In December 2000, head-tax payers and their families launched a class action in Ontario, seeking recovery of monies paid to the federal government, as well as damages for pain and suffering, injury to dignity, and lost opportunity inflicted by the legislation. Plaintiffs’ counsel estimated the claim to be worth more than $1 billion.

The Crown brought a preliminary motion to strike out the statement of claim on the basis that the legislation in question had been validly enacted more than 115 years ago and repealed more than 50 years ago. Mr. Justice Cumming of the Superior Court of Justice agreed, and struck out the claim in its entirety in July 2001.

The plaintiffs turned to the Ontario Court of Appeal, which, in unanimous reasons released September 13, 2002, dismissed the appeal. Finally, leave to appeal to the Supreme Court of Canada was denied on April 24, 2003.

The plaintiffs’ argument had primarily two branches. First, they made a claim in international law, as received into Canada through human rights legislation, the Canadian Charter of Rights and Freedoms, and Canadian jurisprudence. Second, they argued that a discriminatory law, even when validly enacted, does not constitute a legal or sufficient reason for unjust enrichment.

The history of [the head tax] policy is certainly deplorable in retrospect – something that all parties agree on, including the Crown and the courts.

The Crown took the position that it was not enough for the plaintiffs to allege that they had been subject to discriminatory legislation in the past. Indeed, that fact was never at issue in the case. As Justice Cumming declared, “the legislation in its various forms was patently discriminatory against persons of Chinese origin. By contemporary Canadian morals and values, these pieces of legislation were both repugnant and reprehensible.” The Court of Appeal added that “Canada’s treatment of people of Chinese origin who sought to immigrate to this country between 1885 and 1947 represents one of the more notable stains on our minority rights tapestry.”

The Crown did not dispute these findings, arguing instead that Canada had made a clear policy decision not to provide redress for such historic wrongs. In 1994, the Honourable Sheila Finestone, then Secretary of State for Multiculturalism, announced that the Government of Canada would not compensate six groups seeking compensation over past discriminatory immigration practices or wartime measures. Ms. Finestone stated:

In the past Canada enforced some immigration practices that were at odds with our shared commitment to human justice. Canadians wish those episodes had never happened. We wish those practices had never occurred. We wish we could rewrite history. We wish we could relive the past. We cannot. … The government understands the strong feelings underlying these requests. We share the desire to heal those wounds. The issue is whether the best way to do this is to attempt to address the past or to invest in the future. We believe our only choice lies in using limited government resources to create a more equitable society now and a better future for generations to come.

In ruling against the plaintiffs, Justice Cumming stated that “the court’s function is not to usurp the power of Parliament. Rather, its role is to adjudicate claims based upon their legal merit within the framework of Canadian constitutional law.”

The message was clear: historic wrongs are best viewed as mistakes not to be repeated rather than as lingering grievances to be resolved by the courts.

What is significant about this case is that it was decided so quickly. A statement of defence had not been served; limitations defences had not been raised; the matter had not reached even the certification stage, let alone trial. Yet the courts found it plain and obvious that the claim failed to disclose a reasonable cause of action. The message was clear: historic wrongs are best viewed as mistakes not to be repeated rather than as lingering grievances to be resolved by the courts. As the Court of Appeal pointed out, after reiterating their condemnation of the actual policies in question:

The head tax laws ceased to operate 79 years ago, in 1923. During their life, they were constitutional in domestic law terms and they did not violate any principles of customary international law. The doctrine of unjust enrichment is an equitable doctrine. However, even the broad purview of equity does not provide courts with the jurisdiction to use current Canadian constitutional law and international law to reach back almost a century and remedy the consequences of laws enacted by a democratic government that were valid at the time.

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