- My presentation at The Institute for the Study of the Crown in Canada’s Conference in Toronto in June 2019: “The Authorities of the Territorial Commissioners: Responsible Government in Yukon vs Consensus Government in Northwest Territories and Nunavut“
Nunavut held its second scheduled general election under the Nunavut Elections Act on 25 October 2021, and the Commissioner convened the 1st session of the 6th Legislature on 17 November so that the 22 members of the Legislative Assembly could gather as the Nunavut Leadership Form and elect a Speaker and also to select the Premier and Executive Councillors of Nunavut, too. MLAs elected Tony Akoak as Speaker, and P.J. Akeeagok as the next Premier of Nunavut (at age 37, perhaps the first head of government of my generation in Canada), along with 8 other MLAs – David Akeeagok. Pamela Gross, David Joanasie, Lorne Kusugak, Adam Arreak Lightstone, John Main, Margaret Nakasuk, and Joanna Quassa – as Executive Councillors.Premier P.J. Akeeagok will assign them portfolios as ministers in the coming days and weeks.
Consensus Government, a kind of consociational system which Northwest Territories pioneered in the late 1970s and which Nunavut inherited and continued in 1999, starts from the premise of non-partisanship. All MLAs are elected as independents because the electoral commissions and Legislative Assemblies of these territories do not recognise political parties in the first place, and the effects of this non-partisanship cascade through the system, namely on the authority of the Premier and Executive Councillors, and the nature of ministerial responsibility itself. The Commissioner must appoint as Premier the candidate whom the members of the Legislative Assembly themselves nominate in a practice akin to the confirmation voting which many European legislatures follow, including the devolved assemblies in Scotland and Wales. But Northwest Territories and Nunavut take this method one step farther: the Commissioner also appoints Executive Councillors in accordance with the Legislative Assembly’s advice. The Legislative Assembly can also at pleasure remove the Premier and Executive Councillors individually. Non-partisanship in conjunction with confirmation voting for both the Premier and Executive Councillors mean that collective ministerial responsibility as we understand it in the rest of Canada does not exist and that Consensus Government relies on individual ministerial responsibility alone. The Premier does not control cabinet – the Legislative Assembly does.
The Statutory Entrenchment of Consensus Government
Under section 6(2) of the Legislative Assembly & Executive Council Act,the Commissioner must summon the 1st session of a new legislature within 45 days after the election, “unless exceptional circumstances exist that make a delay necessary.” Presumably, the Commissioner would do so on the Premier’s advice. Nunavut has elected 6 legislatures since 1999, and all have convened within 45 days after the election. The 1st session of the 1st Legislature opened on 1 April 1999, precisely 45 days after polling day. The 2nd Legislature met 22 days after the 2nd election in 2004; the 3rd Legislature, after only 8 days in 2008;the 4th Legislature, after 18 days in 2013; and the 5th Legislature, after 18 days in 2017.In 2021, 23 days passed between polling day and the opening of the the 6th Legislature.
The Legislative Assembly of Nunavut consists of 22 MLAs elected to represent single-member districts, and they act as either Regular Members or as Executive Councillors and Ministers. By convention, the number of Executive Councillors does not exceed half the number of MLAs. Sections 60 to 66 of the Executive Council and Legislative Assembly Act of Nunavut codify the rules under which Consensus Government operates. Section 60(1)sets out the procedure for confirmation voting and requires that the Commissioner appoint the Premier and other Executive Councillors “on the recommendation of the Legislative Assembly.” Section 63(1) likewise allows the Legislative Assembly to remove a Premier from office – a precedent which it set in 2018:
“If a vacancy occurs in the office of Premier by death, resignation or otherwise, the Legislative Assembly shall choose another of its members to be Premier.”
The Legislative Assembly can also withdraw its confidence from an Executive Councillor and remove him or her from office, after which the Legislative Assembly would have to nominate another MLA, whom the Commissioner would be bound to appoint:
“60 (3) The members of the Executive Council chosen or appointed under subsection (1) hold office during the pleasure of the Legislative Assembly.”
The Legislative Assembly & Executive Council Act restricts the authority of the Premier in ways that constitutional conventions in Yukon, the provinces, and Ottawa do not. The Commissioner must appoint Executive Councillors on the advice of the Legislative Assembly, and the Premier can only build a cabinet and assign and take away portfolios from amongst the Executive Councillors whom the Commissioner appointed on the advice of the Legislative Assembly. The Commission assigns and takes away these Executive Councillors portfolios as Ministers on the advice of the Premier.
“66 (1) The Commissioner, on the advice of the Premier, may appoint under the Seal, from among the members of the Executive Council, the Ministers of the executive government.”
“(2) The Ministers appointed under subsection (1) hold office during the pleasure of the Premier.”
While the Premier can advise the Commissioner to revoke an appointment of a member of the Executive Council as a Minister, only the Legislative Assembly can remove an Executive Councillor. The Premier could therefore only punish an Executive Councillor by, in effect, turning him into a Minister without Portfolio.
The Legislative Assembly & Executive Council Act also establishes clear rules on the transfer of power between Premiers and Executive Councillors (the ministry” after an election, which removes some of the ambiguity over the Caretaker Convention in the provinces and Ottawa. The incumbent Premier remains in office during the writ and up until the moment that the new Legislative Assembly chooses a new Premier, and Executive Councillors likewise remain in office as Ministers responsible for their portfolios during the writ and up until the Legislative Assembly nominates and the Commissioner appoints their replacements after the election under section 69 of the statute:
“63(2)the person who holds the office of Premier at the time of expiration or dissolution of the Legislative Assembly continues to hold the office of Premier until the next Premier is chosen at the first session of the next Legislative Assembly.”
“69. A person, other than the Premier, who is a member of the Executive Council at the time of expiration or dissolution of the Legislative Assembly continues to be a member of the Executive Council, and to hold the office of Deputy Premier or Minister, until the beginning of the first day of the first session of the next Legislative Assembly, unless the person’s appointment or appointments are revoked earlier.”
This proviso guarantees orderly transitions of power between Premiers and ministries (if we can still use that term in the absence of collective ministerial responsibility). Coupled with confirmation voting, it also significantly narrows the authority of the executive, both the Commissioner and the Premier, in favour of the Legislative Assembly. The Governor General and Lieutenant Governors, and the Commissioner of Yukon, appoint a new Prime Minister or Premier before the House of Commons or assembly convenes, and the House of Commons or assembly must either sustain the Crown’s choice by voting in favour of the Address-in-Reply or supply, or, in a minority parliament, reject that choice by withdrawing its confidence from the ministry altogether. The Governor retains the initiative in either case. But Consensus Government gives that advantage to the Legislative Assembly instead.
Consensus Government Abolishes Collective Ministerial Responsibility
Northwest Territories and Nunavut have pioneered a unique framework and taken advantage of the fact that the division of powers under sections 91 and 92 of the Constitution Act, 1867 only entrenches the provinces. The three territories operate on devolved assemblies subject to the Parliament of Canada, and their Commissioners are not constitutionally entrenched under section 41(a) of the Constitution Act, 1982. This has afforded the territories the opportunity to experiment with limiting the executive authority of the Commissioner on the one hand and the Premier and ministry on the other in ways that would be unconstitutional in the provinces and in Ottawa, though only Northwest Territories and Nunavut have chosen to do so. Northwest Territories and Nunavut have also, in effect, abolished collective ministerial responsibility altogether because their Legislative Assembly and Executive Council Acts state clearly, and numerous precedents over the last thirty years affirm, that the tenure of the Premier does not determine the tenure of the ministry as a whole as it does in the provinces, Yukon, and Ottawa.
The Legislative Assemblies of these two territories can table, and have tabled, motions of non-confidence in a Premier alone, or in one minister alone, or a handful of ministers at the same time but in separate line-items – which means that the rules of Consensus Government. For example, on 14 June 2018, the Legislative Assembly of Nunavut took the unprecedented step of ousting Paul Quassa as Premier and replacing him with Joe Saviktaaq, but this did not entail getting rid of the entire Executive Council. In contrast, motions of non-confidence in the House of Commons and provincial legislative assemblies take the form, “That his House has lost confidence in the government,” and the entire Ministry stands or falls as one. Speaker Milliken ruled as unconstitutional in 2006 Nathan Cullen’s attempt to table a motion of individual non-confidence in Rona Ambrose as Minister of the Environment. James Bezan tried to replicate that precedent by tabling a motion of non-confidence against Harjit Sajjan as a Minister of National Defence in 2017, but it died on the Order Paper in that majority parliament and obviated the need for the Speaker to issue a ruling affirming that of his predecessor.
Consensus Government operates under its own set of coherent and logically consistent rules. First and most fundamentally, this system of government operates far less on uncodified constitutional conventions (dialectical and open to interpretation) that characterise Responsible Government and instead relies on clear procedures codified unambiguously in statute. Second, these rules include banning political parties altogether, which has led concomitantly to abolishing collective ministerial responsibility in favour of individual ministerial responsibility, implementing confirmation voting for the Premier and Executive Councillors, and requiring by implication something akin to constructive non-confidence to replace those individual ministers. This is precisely why we scholars should treat Consensus Government not as a mere variant of Responsible Government but as a different system in its own right and separate from Responsible Government.
Ironically, Consensus Government proves the validity of what Jonathan Malloy derisively mocks as the “Responsible Government Approach” in Canadian political science. He characterises the “Responsible Government Approach” as “a defensive approach to Canadian legislative studies” which relies on “normative defences of existing practices and past traditions.” He continues:
This “responsible government approach” emphasizes the historic and organic development of the Westminster parliamentary model. It stresses the intermingling of Parliament’s components and traditions, and strongly argues that change in one area has repercussions for the effectiveness of all. Parliamentary institutions have evolved with such nuance and balance that any significant reform, change or other tinkering will likely undermine and destroy the whole. In the tradition of Dawson, Forsey and other classic scholars, this approach emphasizes “richly textured description” and, in the words of Atkinson and Thomas, has “accepted the wisdom of executive-centred parliamentarism” that characterizes Canadian legislatures.
Yet Consensus Government proves the validity of the very same normative framework of Responsible Government that Malloy disparages. Northwest Territories and Nunavut changed only two features that had developed organically under Responsible Government – by mandating non-partisanship and establishing new procedures on how Premiers and ministers are appointed – and these two changes collided with the political institutions of these jurisdictions, abolished collective ministerial responsibility altogether, and caused an entirely new system, Consensus Government, to emerge in the aftermath.
Northwest Territories and Nunavut have pioneered something unique within the Commonwealth Realms, and their system merits further study that starts from the premise of its uniqueness. I made this argument in a presentation that I gave to the conference of the Institute for the Study of the Crown in Canada at the University of Toronto in June 2019; I shall pursue this project further in 2022-2023.
Jane George, “P.J. Akeeagok Has Seen Selected as Nunavut’s Next Premier,” CBC News, 17 November 2021.
John Main in [“Motion 009-5(2): Removal of the Member for Aggu from the Executive Council of Nunavut,” in Nunavut, Legislative Assembly, Nunavut Hansard, 5th Assembly, 1st Session,14 June 2018, 45-60.
The Honourable Michael Ignatieff in [Business of Supply: Opposition Motion – Confidence in the Government”] in Canada, House of Commons, Hansard (Debates), 40th Parliament, 3rd Session, volume 145, no. 149, 25 March 2011, 9246; The Honourable Stephen Harper in [Government Orders (Supply): Opposition Motion – Confidence in the Government”] in Canada, House of Commons, Hansard (Debates), 38th Parliament, 1st Session, volume 140, no. 157, 24 November 2005, 10073.
Jonathan Malloy, “The ‘Responsible Government Approach’ and Its Effect on Canadian Legislative Studies,” paper submitted to the Canadian Study of Parliament Group, November 2002, page 2.