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Rapid evolution of territorial government in Canada's North in recent decades has had a profound effect on the office of commissioner. Unlike the situation fewer than 30 years ago, the commissioner is no longer involved in the day-to-day activities of the Department of Indian Affairs and Northern Development and other federal agencies. The commissioners' control over the administration of the governments of their respective territories has also ended. Thus distanced from both supervision and participation, the commissioner's role has become more like that of a lieutenant governor of a province.
This book has been developed by the Department of Indian Affairs and Northern Development as part of its role in supporting commissioners in the fulfilment of their duties. It continues the Minister's general instruction to commissioners that they should act as a lieutenant governor would act. It also encourages commissioners to understand the reasons for doing so. The commissioners' functions must not be reduced to rigid rules of behavior which might inhibit the development of conventions applicable to local circumstances.
In Canada, our past has taught us the importance of listening to each other. What we learn from this public conversation is the need to embrace new approaches to governance. Ideas and institutions must bend to meet the demands of changing times to stay relevant and useful. While we welcome opportunities for growth, we also know that with every innovation, our reworked identity needs clarification.
As Canada's northern territories have assumed greater control over their destiny, the Institution of the Commissioner has evolved accordingly. A new set of guidelines then, is also required. Thanks to the Department of Indian and Northern Affairs, the Commissioners of the Territories provides a clear outline of the position and responsibilities of the Commissioners, their similarity to Lieutenant Governors, and their relation to the Governor General.
As Governor General, I congratulate the three northern territories on their progress. Their willingness to accept the challenges of growth shows the inclusive spirit that has kept Canada strong and united.
It is a pleasure for me to contribute to Commissioners of the Territories.
The political evolution of Canada's northern territories has been one of the most significant developments within our federation over the past several decades. While constitutional questions have sometimes seemed to dominate the political scene across our country, those in the north have worked together to build a system of governance which allows them to collectively take decisions concerning the development of their regions and determine the kind of future they wish to see for their children.
An important element of this transition has been the elaboration of representative and responsible government. The progress attained in this area is reflected in the evolving role of Commissioners of the Territories. This book offers a valuable insight into this federal institution and its role in the ongoing development of Canada's north.
Having participated actively in this journey first as Minister of Indian Affairs and Northern Development and more recently as Prime Minister, I take great pride in what Canada's northerners have accomplished. The Yukon, Northwest Territories and Nunavut are vital parts of the Canadian identity and will continue to be key contributors to the evolution of the Canadian Federation in the 21st century.
It is my pleasure to introduce this book entitled Commissioners of the Territories, a comprehensive look at the commissioners' role as representative of each of Canada's three territories.
Commissioners of the Territories is an excellent introduction to the role of this distinguished office for future commissioners and will help to inform Canadians about our northern territories. It is important that we learn and understand more about the territories and the unique and important role of the North in our federation.
This book was developed to better define the current responsibilities and functions of the commissioners and provides an overview of the constitutional framework of the territorial governments. It should be of interest to a wide range of readers - from students to senior government officials. It is the product of two years of consultations with former commissioners, deputy commissioners, and senior territorial government officials. I congratulate all who contributed to this project.
The roles of lieutenant governors are set out in the Constitution Act, 1867, and in instructions. These provisions are qualified by the constitutional conventions that have emerged since the 1840's when responsible government was established in Canada. The conventions of the constitution are rules of constitutional behaviour which are considered to be binding by those who participate in public life, but which - unlike laws - are not enforced by the courts. Conventions are essentially political and the sanction for failure to respect them is political, not legal.
Because of their nature, conventions are usually quite concise and precise. Complexity or ambiguity would defeat the purpose of achieving a broad consensus among political actors on the meaning of a convention.
Constitutional conventions provide the very basis for parliamentary democracy or responsible government in Canada. Among the most important conventions for a commissioner to consider are the following:
In almost all circumstances, the lieutenant governor acts on the advice of his or her first minister and other ministers. There are, however, exceptions. Dissolution of a legislature should not be granted if a motion of no confidence is before the assembly and has not been disposed of. If a first minister dies in office, the lieutenant governor might have to exercise discretion in appointing a first minister (on an interim basis), pending a party convention to select a new leader. If a first minister became fully incapacitated by a serious illness and was unable to resign, the lieutenant governor would be able to dismiss the first minister and appoint a new one (perhaps on an interim basis), since a key role of the lieutenant governor is to ensure that a duly constituted government is always in place.
When responsible government was established in the territories by the Government of Canada, these conventions became applicable to the territories, with one important exception. In the Yukon and the Northwest Territories it is the Governor in Council (the Governor General and his or her advisors) by law and not the Commissioner who grants dissolution. The Nunavut Act empowers the Commissioner to dissolve the Legislative Assembly following consultation with the Executive Council.
The potential discretion of the Commissioner is further limited in the Northwest Territories by the consensus system of government. Today, members of the legislative assembly meet informally to decide who will be the first minister and ministers in the Cabinet. This is conveyed formally by the Legislative Assembly to the Commissioner. It is then the first minister's responsibility to recommend to the Commissioner the distribution of portfolios among the elected ministers.
Also, in respect to appointments to the Nunavut Cabinet, the Nunavut Act further limits their Commissioner. The Act enshrines the requirement for the Commissioner to make appointments to the Executive Council upon the recommendation of the Legislative Assembly.
New responsibilities: The actual power to direct and control northern governments has now been taken over by the elected representatives of the people of the territories. The termination of the commissioners' participation in the day-to-day operation of the governments has resulted, however, in new constitutional responsibilities, such as the need to be able to identify those rare situations where it may be necessary to act without or against the advice of the first minister. There are also new opportunities for action. Thus, for example, now that the commissioner is no longer personally involved in making government policy, it is more proper to become active in the support worthy nonpolitical causes.
In recent years territorial governments have become more and more like provincial governments. Indeed, in their behavior and outward appearance they are now so similar in so many ways that most people cannot tell the difference. What this means for territorial commissioners is that, although they are not lieutenant governors, it is more and more appropriate for them to be treated as a lieutenant governor would be treated, and to act as a lieutenant governor would act. The similarity between commissioners and lieutenant governors is a result of the responsiveness of successive Ministers and Governments of Canada to the desire of Northerners to take control of and responsibility for the day-to-day direction and control of territorial governments. This result is often called "responsible government" because the persons in charge of running the government (the "cabinet ministers") hold power only so long as they are supported by a majority of members of the elected legislative assembly. The Government of Canada's policy is supported by changing circumstances, by continuing traditions and by the transfer to the territories of the conventions of the Constitution respecting responsible self-government.
Cooperative relationships: "The Government of Canada, consistent with the aspirations of the people of the North, supports the evolution of strong public governments in the territories accountable to their citizens."
- Instructions to
September 10, 1998.
Federal policy to involve Northerners at the top level of territorial government began with the practice of appointing Northerners to the office of commissioner in the Yukon in the 1960's. Reduction of the commissioner's exclusive responsibility for administration of the government dates from the Minister's 1970 instructions establishing the first Executive Committee of the Yukon. Subsequent instructions to Yukon commissioners, culminating in Minister Epp's letter of 1979, continued and expanded this policy of directing commissioners to seek and heed the advice of elected advisers, and to withdraw from personal involvement in government operations. In the Northwest Territories, a somewhat similar process began with the commissioner being required to take up residence in the territory in 1967, and led to Minister Crombie's 1985 instruction to the commissioner to give up the chairmanship of the Executive Council. Subsequent Ministers have reaffirmed the nature of the new era of northern government by instructing commissioners to follow "conventions and traditions relative to the offices of Governor General and provincial Lieutenant Governors." Federal support for Northerners' aspirations now finds dramatic expression in the establishment of Nunavut as a new territory enjoying responsible government from the moment of its creation.
Familiar symbols: Shared traditions accepted and supported within and outside the North are important to both the constitutions of the territories and the strength of the Canadian federation as a whole. In numerous ways, large and small, territorial governments have adopted practices and symbols familiar to other jurisdictions, helping to express their nature as governments properly so-called. For example: The political head of a territorial government may be called the first minister of the territory, and his or her cabinet members may be called ministers. The person who presides over the legislative assembly is called the speaker. A mace may be used in the assembly as a symbol of authority.
In the territories, recent decades have been a time of tremendous social and economic change. Federal policies resulting in improved communications, better education and increased funding have contributed to an increase in the capacity of the North for self-administration. The efforts and initiatives of citizens and both levels of government have diminished the need for federal supervision and control of territorial affairs. With the assumption of executive responsibility by elected representatives of the local population, the administrative duties and powers of the commissioner have been reduced and then extinguished. Territorial governments now look, act and are treated more and more like provincial governments, and as part of the process, commissioners look, act and are treated more and more like lieutenant governors.
Local customs: This is not to say that local customs cannot be accommodated within these traditions. For example, in the governments of the Northwest Territories and Nunavut, decisions are made on the basis of consensus. To some extent this practice reflects the decisionmaking processes preferred by Aboriginal Peoples.
The shape of northern government today has its roots in Canadian and British traditions. From the start, federal officials providing administrative systems for the North turned to what was familiar to them - the principles and structures of other Canadian governments. The foresight of this approach is evident in the ability of the Canadian federation to accommodate burgeoning territorial participation in the national community of governments.
As the administrative responsibilities for day-to-day direction and control of the government have been assumed by local politicians, traditions influence the nature of the commissioner's participation in national affairs. Thus, following Canadian custom, it is not the commissioner but elected representatives serving as ministers in the territorial government who advance the territorial interest in relations with other Canadian governments. Coincident with such developments, however, there has been an increase in that part of the commissioner's role that would be played by the lieutenant governor in a province. At the national level, for example, commissioners are invited to participate in conferences for lieutenant governors convened by the Governor General. Locally, commissioners, like lieutenant governors, are expected to play a traditional role in ensuring that there is always some representative of the people (like the premier of a province) to be in charge of the territorial government.
Because the kind of government which exists in the territories is so similar to the provincial model, performance of a role like that of a lieutenant governor is required. This chapter explores what this implies for the conduct of commissioners in the exercise of their powers and the performance of their duties.
To reign is not to rule: Long before Europeans arrived to stay in North America, English monarchs personally wielded the supreme authority of their nation. Events such as the signing of the Magna Carta in 1215 established a constitutional trend separating the day-today exercise of government power on one hand from the performance of ceremonial and symbolic functions on the other. The Queen now is the "Head of State," but she is not the "Head of the Government." Likewise on the establishment of a new colony, the governor personally exercised absolute authority, but only for so long as was required to establish a separate judiciary and legislative assembly. In time, members of the assembly acquired executive powers. There is in this a parallel to what is happening to the office of commissioner, which no longer embodies the head-of-government function but retains the function (for territorial purposes only) of head of state.
The federal stance: The federal government treats commissioners like lieutenant governors in many ways. For example: Instructions from the Minister require commissioners to act, for the most part, as a lieutenant governor would act. In the table of precedence for Canada, commissioners rank in relation to the territorial governments the same as lieutenant governors rank in relation to provincial governments. Like a lieutenant governor, a commissioner is entitled to be styled "Honourable", though only while in office and not for life. Commissioners participate in periodic conferences for lieutenant governors convened by the Governor General. Like lieutenant governors, commissioners are entitled to diplomatic passports.
Like the Queen in London or the Governor General in Ottawa, a lieutenant governor for the most part exercises power not by making decisions, spending money or telling others what to do, but by acting as a symbol of the nation and the values according to which its citizens have agreed to be governed. Thus, for example, allegiance is owed not to the politicians of the day, but to the Queen. The Governor General personifies the national and federal interests of all the people of Canada, while the lieutenant governors personify the interests of the people of their respective provinces. Over them all, the Queen or Sovereign is a figurehead symbolizing the unity of these separate interests in one nation.
But the role of a lieutenant governor is more than to reflect a connection among the various governments of Canada. Within each province it is important as well to emphasize that government powers belong not to the judges, politicians and bureaucrats, but to the state as represented by the Queen. Therefore the courts, the legislative assembly and the ministers of government act only in the name of the Queen. In each province, the person who symbolizes this role is the lieutenant governor. A commissioner of a territory is not a lieutenant governor. However, the form of territorial government and the needs of its people are so much the same as in the provinces, that a tendency arises for the commissioner to be treated as a lieutenant governor. Accordingly, it is good and proper for commissioners to act as lieutenant governors would act.
One particular need, which no one other than the commissioner is so well-positioned to perform, is the role of a flesh-and-blood symbol for the territory. Neither the Minister of Indian Affairs and Northern Development nor the Governor General is well situated to be regarded in fact as an embodiment of the distinct interests of a territory's people.
Accordingly, and notwithstanding that commissioners are not appointed as representatives of the Queen, the symbolic role tends to accrue to them. Performance of the symbolic role by lieutenant governors requires dignity, tact and selflessness. Dignity, to maintain respect for the institutions of government despite political activity and human error. Tact, to do so without meddling or becoming embroiled in controversy. Selflessness, to rise above personal interest so as always to promote the realization of the will of the people of one's province through their elected representatives. In these times of rapid change in the North, the two issues symbolized elsewhere by a lieutenant governor - participation in the Canadian federation and popular support of government institutions - are especially important, and commissioners face exceptional challenges.
Prerogative powers: Fortunately, it is almost never necessary for a lieutenant governor to exercise his or her constitutional authority to act contrary to or without the advice of the first minister. In this connection, the lieutenant governors have been compared to fire extinguishers: "...they appear in bright colors and are strategically located. But everyone hopes their emergency powers will never be used; the fact that they are not used does not render them useless; and it is generally understood that there are severe penalties for tampering with them."
- Frank MacKinnon,
The Crown in Right of Canada.
In addition to their symbolic role, lieutenant governors do possess important constitutional duties, which, fortunately, they almost never need to exercise. The infrequency of their use, however, does not diminish their importance. Notably, the duties are to ensure the continuity of government, and to maintain democratic freedoms. Thus, while the Constitution gives lieutenant governors the legal powers to implement and enforce the laws of their province, collect lawful taxes and spend public money (the so-called "executive powers"), historical tradition expects them, whenever possible, to do so only in accordance with the instructions or "advice" of the elected representatives of the people. To avoid controversy and ambiguity, it is common practice to receive the advice exclusively from a single person, who is typically known as the "first minister", "prime minister" or "premier," of the province. When getting such advice poses a problem, a lieutenant governor is expected to act independently, but only to restore as quickly as possible his or her access to a person who has sufficient support from the legislative assembly for the advice to be reliable. The similarity of a territory to a province and the absence of clear alternatives suggest that these laws and customs have relevance as well to the office of commissioner.
The source of a lieutenant governor's powers in respect of these matters is partially set out in the Constitution, but it also flows from the conventions of the Constitution which emerged in Canada in the 1840's. To know how to act when the need for independent action arises can be a difficult and delicate problem, for which lieutenant governors often seek advice from constitutional experts. To know when to act is even more important, and is best learned from the historical examples provided by other lieutenant governors and governors general. Generally, a lieutenant governor may need to act independently whenever a question arises as to whose advice he or she ought to follow, or whether the person providing the advice - the premier or first minister - has adequate support from the duly elected representatives of the people.
A lieutenant governor is responsible, therefore, for ensuring that there is always a first minister (usually called the "premier") at the helm of his or her provincial government. A first minister continues in office until a new one is sworn in, and the lieutenant governor maintains the continuity of government by formally appointing a successor when it appears necessary to do so. Very rarely this might involve calling a general election without or against the advice of a first minister holding office. Less rarely a question can arise (usually but not always after a general election) as to the elected person best able to obtain the support the legislative assembly. The selection of a new first minister - which is not a power to choose but, rather, a duty to ensure that a choice is made by the people's representatives - is normally routine, but exceptional circumstances such as the lack of a political party commanding a majority of the seats in the House, or the death of a first minister in office, can complicate matters. Lieutenant governors encountering the need to act in such matters frequently seek advice from recognized constitutional experts.
Now that territorial governments are under the control of "ministers" supported by their legislative assemblies, commissioners are faced with the need to perform a function similar to that of their provincial counterparts. They must decide whose advice they will follow. Because the only way a commissioner can be effective is to follow the advice of the person or group best able to obtain this support, the decision is almost always straightforward. Territorial customs or even legislation may simplify the procedure, but they do not relieve a commissioner of the underlying responsibility to ensure that he or she always has a first minister or the equivalent who can provide advice backed by the elected representatives of the people.
Rarely it might happen that no person or group is able to obtain the necessary support of the legislative assembly. Following provincial precedent, resolution of this situation typically requires the calling of a general election. Except in Nunavut, there is an important difference between provincial and territorial procedure. Unlike a lieutenant governor, a commissioner of the Yukon or the Northwest Territories does not have an independent power to cause a general election by dissolving the legislative assembly. To do so requires a federal Order-in- Council and, therefore, involvement of the Minister of Indian Affairs and Northern Development. Commissioners in these territories should expect to be able to recommend to the Minister the action they would take if they did have the same power as a lieutenant governor. The requirement in territorial constitutions for consultation with members of the assembly has been considered to have been satisfied by the receipt of a request for dissolution from the first minister of the territory. In other respects, such as formally appointing the head of the territorial government, the usual constitutional precedents should be considered. Confirmation that commissioners should endeavor to follow these precedents as far as possible now appears in their letters of instruction.
Assent: Bills passed by the legislative assembly do not become law until they receive the commissioner's assent, which may be given orally by a commissioner present in the House for that purpose or, later, in writing. The commissioner's role in assenting to bills is like that of a lieutenant governor and is almost always exercised in accordance with the advice of the first minister. A commissioner need not assent or refuse assent immediately upon request if there is compelling reason for taking the matter under advisement to seek advice or instructions.
Reservation: Unlike the lieutenant governors, commissioners do not have a statutory power to reserve bills for the decision of the Governor in Council.
Disallowance: The power to disallow territorial legislation after it has received the commissioner's assent is a power of the Governor in Council not requiring action by the commissioner.
Lieutenant governors also have a duty to protect the people from abuse of power by persons in positions of authority. Constitutionally, this is the duty that the Sovereign owes to Her subjects in exchange for their allegiance. These powers are very rarely used, but they are still effective in the sense that their very existence tends to act as a deterrent. Specifically, lieutenant governors have the power to dismiss the first minister from office, and to call upon another elected representative to replace him or her. Indeed, lieutenant governors even have an independent power, exercisable without or against the advice of a government in office, to dissolve or refuse to dissolve the legislative assembly. In addition, there are the powers to withhold assent to bills passed by the legislative assembly, and to reserve assent and refer bills to the Governor General for decision, as well as the Governor General's power to disallow bills after assent.
In the territories, the commissioner possesses similar powers to those of a lieutenant governor, with the exception that a commissioner does not have a power to reserve bills for the assent of the Governor in Council. As previously mentioned, in the Yukon and the Northwest Territories, the commissioner also has no independent power to cause a general election by unilaterally dissolving the legislative assembly.
Canadian history shows a process of evolution in the status of positions such as that occupied by the lieutenant governor. The intentions of the fathers of confederation expressed in the Constitution Act, 1867 (originally called the British North America Act), have been shaped by subsequent events and by the forces of tradition, so that the legal principles alone provide an imperfect picture of how government in Canada actually works. A similar process of constitutional evolution is underway in the territories.
1867 - the British North America Act provides that "the Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen." Lieutenant governors start out as officers of the dominion government in much the same way as the Governor General is considered to be an agent of the British government.
1867-1900 - The Lieutenant governor's role as an instrument for exercising federal authority and influence falls into disuse. At the same time, there is an increase in the importance of their constitutional functions, which is reflected in recognition of their entitlement to viceregal ceremonial honours such as gun-salutes.
1892 - The British Privy Council, the highest court of the day having authority over Canada, determines that a lieutenant governor is a representative of Her Majesty (notwithstanding that lieutenant governors are appointed by the Governor in Council).
1931 - The Statute of Westminster, an Act of the British Parliament, finally recognizes that the Governor General of Canada is no longer an agent of the British Government but a representative only of the Crown.
1947 - Letters patent from the King authorize the Governor General to exercise almost all of the Sovereign's powers for Canada.
1952 - Queen Elizabeth is proclaimed separately as the Queen of Canada.
1982 - The British Parliament relinquishes to Canada complete authority for the amendment of its constitution, but Canada continues to retain the British monarch as the Queen of Canada.
Because of their constitutional position and their duty to symbolize and express national values (such as national unity) as well as the values of their provincial community, lieutenant governors have a right to advise, and to be advised by, their first ministers. However, this right, which is sometimes described as the right to encourage, to warn, and to be kept informed, receives variable recognition among the provinces. The extent of consultation which in fact takes place depends very much on the personalities and circumstances of each situation. In any event, the right is exercised by lieutenant governors discreetly, impartially and tactfully, and does not include the right to obstruct or divert government policy or to advance personal or partisan agendas. In short, the lieutenant governor's right is a right to be heard, but not necessarily to be heeded.
As in the provinces, close relations between commissioners and their respective ministries are not to be taken for granted. Exercise of the constitutional duty to encourage, warn and be kept informed, therefore, may require exceptional diplomacy.
Except in the rare case of a need to exercise an independent constitutional power as mentioned above, lieutenant governors are expected always to perform their duties in accordance with advice received from their first ministers. To follow advice, however, it is necessary to understand it, and lieutenant governors are entitled to ask for necessary explanations from their first ministers.
The powers of commissioners include both statutory and customary responsibilities. Statutory responsibilities include the swearing-in of members of the legislative assembly and executive council, the reading of the speech opening sessions of the legislative assembly, and the signing of documents such as orders-in-council, commissioner's warrants, statutory appointments and dispositions of Commissioner's Lands.
Customary responsibilities include the commissioner's attendance at official functions and the issuance of declarations having no legal effect. In all such matters it is now inconceivable that a commissioner would act independently, without or against the advice of those in control of his or her elected government. Situations in which a commissioner might act without contacting his or her first minister are dealt within Chapter 4 of this book.
Duty to act upon advice
Except in rare instances of constitutional
crisis, lieutenant governors
follow the advice of their
ministers. Commissioners are
now explicitly instructed by the
federal Minister to do likewise:
"The Executive Council is now
the paramount institution for the
exercise of executive authority in
the Government of the
Northwest Territories. Consistent
with Canadian constitutional conventions
... you are to act by,
and with, the advice and consent
of your first minister and
Executive Council in all those
matters relating to territorial policy
and administrative decisions
which fall within your competence
as Chief Executive Officer.
There are only a few exceptions
where your first minister alone
has the capacity to provide
direction, or where you possess
personal prerogatives similar to
those held by provincial
- Instructions to
September 10, 1998.
Now that responsible government is well established in the territories, the commissioner's role as a federal officer has lost almost all of its powers and responsibilities. The function which remains is largely symbolic. The Minister's instructions to Commissioner Gingell describe it thus: "You, like Lieutenant Governors, hold an important trust. As the executive head of the territorial government under its 'constitution,' the Yukon Act, and as the Government of Canada's senior representative in the territory, you signify the value of our federation." Most of the remaining specific duties are like those of the lieutenant governor: to swear in members of the legislative assembly and to provide notice to the Minister before undertaking travel outside the jurisdiction. Specific responsibilities under territorial constitutional statutes - for example, in relation to lands - are exercised in accordance with the advice of territorial ministries.
Lieutenant governors no longer have any significant contact with federal officials to convey or obtain information about events in or affecting their provinces. While it was not always thus, keeping a distance is now necessary to protect the federal authority from the appearance of meddling in provincial affairs. Similarly, it reassures the provincial government of its exclusive right to represent provincial interests at the federal level. The benefit to the lieutenant governor is in avoiding the need to compromise the high dignity and impartiality of his or her office. For all these reasons, the duty of lieutenant governors to act as federal informants is no longer practised. There is no legal requirement for communication between commissioners and the Minister concerning territorial issues to occur, and the risks of such contact are the same as in federal-provincial relations.
Like a lieutenant governor, commissioners have access to sources of advice and guidance at the federal level. Rideau Hall: Rideau Hall, or the Office of the Governor General, is regarded as standing apart from the departments and agencies of the federal government. It is considered to be impartial and is approachable by lieutenant governors and commissioners seeking advice concerning, especially, protocol on official occasions. Because of the similarity of the commissioner's social role to that of a lieutenant governor, the staff at Rideau Hall can also provide informal but valuable advice to commissioners on this subject.
Northern Affairs Program: This office serves as the main contact for commissioners to obtain information or assistance from departments and agencies of the federal government. In particular, access is provided through this channel to the Department of Canadian Heritage, which is responsible for such matters as state protocol, precedence and titles of office.
Privy Council Office: Although commissioners, like lieutenant governors, are appointed by the Governor General in Council, in practice they receive their instructions from the Minister of Indian Affairs and Northern Development, who is the minister responsible for The Northwest Territories Act, The Nunavut Act, and the Yukon Act. Accordingly, matters which a lieutenant governor might bring to the attention of the Prime Minister through the Privy Council Office - such as questions about their appointment, instructions and the performance of their duties - are to be raised through the Northern Affairs Program of the Department of Indian Affairs and Northern Development.
Ministerial instructions: Territorial constitutions empower the federal Minister or the Governor in Council to issue instructions to commissioners. It is important for commissioners at all times to be aware of the specific requirements of instructions that apply to them.
The members of the executive council of a territory are a commissioner's ministers and thus his or her principal advisors. As mentioned previously, a commissioner has the same right as a lieutenant governor to be consulted by his or her ministers, to advise them, and to be informed of their intentions and activities. Accordingly, it is proper for commissioners to meet with their first ministers from time to time. In addition, to be kept informed of current cabinet business, a commissioner may receive copies of written records of its proceedings. Commissioners desiring to pass on information to their territorial governments should do so only in accordance with the advice of their first minister. In order not to become embroiled in public controversy, commissioners should keep confidential wherever possible the details of any disagreements with their first minister.
Except for ceremonial or symbolic purposes, a lieutenant governor does not represent his or her provincial government in its relations with other provinces. Official activities involving other provinces or territories, therefore, should be undertaken by a commissioner only upon and pursuant to the advice of his or her own first minister. Nevertheless, it is proper for lieutenant governors to contact each other for advice or guidance respecting the conduct of their official duties. Commissioners are provided with copies of The Lieutenant Governors' Briefing Book and they attend the annual Lieutenant Governors and Commissioners Conferences.
Like the lieutenant governor of a province, the commissioner plays an important role as a link between the government and the people. He or she is often seen as a trustworthy and unbiased official. In visiting communities and participating in public ceremonies and other events, commissioners hear of matters deserving government attention. While it is a proper function of the office of commissioner to raise matters of public concern with the first minister of the territory, a commissioner is not an ombudsman. The nature of communications with the government, therefore, must not bear any overtones of advocacy, argument or intervention. Rather, the proper function is only to act as a conduit for information which otherwise might escape the government's notice.
Commissioners should not pass along information about matters of private concern except upon request of those involved. In such cases, the commissioner should assure the individual making the request that the matter will be raised privately with, and left entirely in the hands of, their elected officials. A matter of private concern may be brought directly to the attention of the appropriate minister, but the commissioner should always be sensitive to the need not to appear to be inappropriately bypassing the office of the first minister.
As an appointee of the federal government holding office under an Act of Parliament, certain procedural and administrative requirements apply to commissioners. Additionally, in the performance of their duties, commissioners should be guided by an understanding of the nature of their office and its importance to both the Canadian federation and the welfare and good government of the territory. For instance, while there is no rule to prevent a commissioner from sitting in the public gallery of the legislative assembly, to do so would be a breach of constitutional convention.
Generally, a commissioner discharges the responsibilities of office by following the advice of the first minister and other ministers of the territorial government. The need for this kind of action is almost invariably brought to the commissioner's attention by an official communication from his or her territorial advisors. However, the performance of the commissioner's ceremonial and symbolic functions often creates opportunities for independent action. The dignity and responsibilities of a commissioner's public functions, therefore, dictate as well a measure of discretion in their personal conduct. Particularly, commissioners must avoid situations that can appear to create conflicts of interest, or that appear to compromise their impartiality. This chapter addresses some of these situations. In case of doubt about the propriety of any activity, a commissioner cannot go wrong by seeking the advice of the first minister.
The operation and maintenance costs of the office of commissioner, including the provision of staff, are responsibilities of the territorial government. This follows the practice with respect to lieutenant governors in the provinces.
Territorial constitutions provide for the appointment of a deputy commissioner (N.W.T. and Nunavut) or administrator (Yukon) to act when the commissioner is unable to do so, or the office is vacant. In Nunavut the judge of the Supreme Court with the earliest date of appointment is empowered to act if neither the commissioner or deputy commissioner is present or able to act. The administrator or deputy commissioner can act even if the commissioner is in the territory, but only if the commissioner is "unable" to perform his or her duties.
The person appointed as administrator or deputy commissioner acts as an alternate to the commissioner, and not as an assistant or subordinate.
Aides-de-camp serve as assistants to and representatives of lieutenant governors on appropriate occasions. They may provide a retinue for special functions, such as the opening of the provincial legislature, state funerals, balls, and other important social and political events. Although aides-de-camp are traditionally police or military officers, civilians may also be appointed. Except for police and military officers performing the function as part of their assigned duties, service as an aide-de-camp is voluntary and unpaid.
A commissioner has no jurisdiction outside the territory. Commissioners leaving the jurisdiction are responsible, therefore, to ensure that the administrator or deputy commissioner is available to act during the absence. It is also good practice to advise the first minister of the territory.
While away, a commissioner is not entitled to the honours normally attached to the office. Nevertheless, it is entirely in order for commissioners to participate in "good will missions" sponsored by their territorial governments.
A Commissioner should also inform the office of the Assistant Deputy Minister of the Northern Affairs Program of the intention to travel on official or personal business outside Canada. There are several reasons for this: First, as with lieutenant governors, the Government of Canada has an interest in being kept informed of the activities outside Canada of commissioners, to ensure that they are consistent with Canadian foreign policy and the dignity of the office. Second, the travel may require coordination in relation to matters of protocol by the Department of Foreign Affairs and International Trade and the Department of Indian Affairs and Northern Development. Third, especially in the case of travel abroad, it may be important that foreign authorities be informed of the presence of the commissioner so that personal security may be assured.
A commissioner may, in his or her official capacity, occasionally be invited to address groups or participate in other events outside the territory. In deciding to accept or refuse such an invitation, a commissioner must take into account the auspices under which the event is being held and the subject on which he or she has been asked to speak. In some cases, it may be prudent simply to decline, to avoid compromising the impartiality of the office. In others, it may be desirable to consult the lieutenant governor of the province or the commissioner of the territory to which he or she has been invited before accepting the invitation. In all cases a commissioner should consider as well the need to verify the propriety of his or her intended activities with his or her own first minister.
During the term of office, the name of a commissioner should not be associated in any way with political organizations, and discretion should be used in formal and informal relationships with political candidates. Even in the absence of political parties, it is important for the commissioner to remain above politics by not appearing to take sides in the day-to-day issues confronting government, by not appearing to favor one community over another, and by an impartial attitude toward all segments of territorial society.
A commissioner may wish to become involved with various organizations and establish a presence among the people. Patronage, in the sense of support and encouragement of worthy endeavors through verbal praise and other awards, is a legitimate function of the office of the commissioner. In exercising this authority, however, a commissioner must be assured of the merit of the individual or organization receiving their support. Organizations such as the Girl Guides and Scouts, the Red Cross and the Life Saving Society are greatly appreciated in the communities where they exist and a commissioner can benefit from associating with these groups. Becoming a patron of various sporting events or festivals is also an effective way for the Commissioner to meet and speak with the public.
Conflict of interest guidelines applicable to federal ministers and other public officials apply as well to commissioners. The purpose is to avoid both actual and apparent conflicts between their public duties and their private interests.
The Public Service Commission of Canada makes it possible for Commissioners and their spouses to learn a second official language of Canada.
Upon leaving office, it is advisable for a former commissioner to continue to be politically neutral for a discrete interval, preferably at least two years. The spouse may continue his or her activities.
Commissioners may be provided with an orientation session upon their appointment as commissioners. In addition, the Governor General convenes conferences of lieutenant governors and commissioners. Experts in fields that are relevant to their official duties provide further clarification of their duties during these meetings. Commissioners may seek information and advice from officials of the Department of Indian Affairs and Northern Development, through the Office of the Assistant Deputy Minister, Northern Program. For those situations where their exercise of discretion is critical, and where the technical expertise does not exist in the Department, those officials, if the commissioner so chooses, will themselves locate experts on that subject and arrange for the commissioner to be provided with a briefing in regard to the options for action to be taken. For advice concerning the procedures of their territorial government, commissioners should consult their first minister.
The commissioner takes office after having taken the prescribed oaths of office and at this time assumes the title "Honourable", which is retained for the duration of the term.
On official occasions, the commissioner takes precedence over all other territorial officials, including the territorial first minister and members of the executive council. At functions involving federal or provincial officials, the commissioner follows provincial first ministers.
It should be noted that the presence of The Sovereign or the Governor General in the territory does not diminish or negate the authority of the commissioner to carry out the duties of the office. The position of the commissioner will be affected only to the extent that The Sovereign or the Governor General may be called upon to officiate at specific functions.
The commissioner may be attended by a fifty person Guard of Honour like that accorded to, for example, the Prime Minister or other dignitaries. In the Northwest Territories this has been a unit of the Northwest Territories Rangers. This option is rarely exercised.
A Guard of Honour may be accorded to the commissioner on the occasion of the opening and closing of the Legislature, and after the swearing-in ceremony. Guards of honour may be mounted on other occasions of territorial significance.
Commissioners, in so far as they are not representatives of the Queen, are not entitled to the Royal Salute. However, they are entitled to receive the General Salute.
When in uniform (if applicable), the commissioner will salute during the playing of the General Salute as well as the playing of the national or royal anthems. Officers in waiting to the commissioner will not salute during the playing of the General Salute, but will salute during the playing of the national or Royal anthems.
The Queen visits Canada on the invitation of the Government of Canada (as is also the case for members of the Royal Family). The Royal Family, as the Queen's Family, is considered Canada's Royal Family. Participation of commissioners in the events pertaining to a Royal visit will be directed by officials responsible for coordinating the visit.
While in office, the commissioner and his or her spouse may hold diplomatic passports.
This project would not have been possible without the support of a number of Commissioners, past and present.
The contributions of specific individuals, notably Jim Almstrom, Thomas Poetschke, Alastair Campbell and James Hurley, were essential to the successful completion of this book.
Assistance in the collection of information and photographs was received from a wide variety of federal, provincial and territorial officials: Tony Whitford, Pat File, Ronna Bremer, David Hamilton, Robin Armour, Pat Michael, Missy Follwell, Virginia Flood, Shirley Robb, Wayne Mitchell, Georgina Buddick, Charles Maier and Christian Coulombe.