Territorial Government in Canada
Under Canada’s federal system, the powers of government are shared between the federal government, provincial governments and territorial governments. The territories — Northwest Territories, Nunavut and Yukon — are governed by their respective governments, which receive their legislative authority (the ability to create laws) from the federal government. Ottawa has given territorial governments authority over public education, health and social services, and the administration of justice and municipal government. More and more of these powers have been handed down from the federal government in a process called devolution. Indigenous and Northern Affairs Canada is the federal ministry responsible for the territories.
What are the Differences between Provinces and Territories?
Authority to Govern
The main difference between provincial and territorial governments has to do with the separate roots of their authority to govern. According to the Constitution Act, 1867, territorial governments are under federal control and therefore do not have the same status as provinces. Provincial governments, for example, receive their legislative authority from the Constitution, while legislative authority in the territories is delegated (or handed down) by the federal government in a process known as devolution. Federal law allows the territories to form elected councils, which are given powers similar to provincial legislatures, including authority over public education, health and social services, and the administration of justice and municipal government.
Since legislative powers described in the Constitution are divided between the federal government and the provinces, changing those powers requires a constitutional amendment (see Constitutional History and Constitutional Law). Since the territories fall constitutionally under federal control, changing the powers delegated to territorial governments can be achieved through an Act of Parliament. Similarly, the creation of a new province requires constitutional amendment, while the creation of a new territory only requires an Act of Parliament.
Territorial governments are not included in the amending formula of the Constitution. Beyond representatives in the House of Commons and Senate, who may vote on constitutional change, territorial representatives are not involved in the process of changing the Constitution. Each territory has one seat in the House of Commons and one seat in the Senate.
The Constitution Act, 1982 provides each province with the power to amend the constitution as it applies in their province; however, assent of the House of Commons and Senate is also required. Since territorial constitutions are federal statutes, only the federal Parliament can amend them.
Lands and Resources
Unlike the provinces, Crown lands in the territories were long controlled by the federal government. Yukon and Northwest Territories gained control of their lands and resources in 2003 and 2014, respectively. In October 2014, Nunavut began to negotiate with Indigenous and Northern Affairs Canada for control over its lands and resources.
The provinces are sovereign jurisdictions of the Crown in Canada, and each provincial government is headed by a lieutenant-governor — a representative of the Crown — a largely ceremonial position. Since the territories are under federal jurisdiction, they do not have Crown representatives. Territorial governments are instead headed by commissioners who are appointed by the federal government, an authority the commissioner represents in the territory. However, the role of commissioner has become increasingly ceremonial as federal control over the territories devolves.
While each territorial government has an executive, legislative and judicial branch, their political organization differs. Northwest Territories and Nunavut operate consensus governments, in which independent representatives are elected to the legislature. In turn, those representatives elect a speaker, premier and cabinet ministers from among themselves. Consensus governments do not have political parties.
Yukon follows the party system, in which the leader of the political party with the most seats in the elected legislature becomes premier and in turn appoints his or her cabinet, which governs the territory with the confidence of the legislature.
Because the territories are geographically remote, they receive unconditional financial transfers from the federal government. Known as Territorial Formula Financing (TFF), the program is similar to equalization payments, which help support public services in less prosperous provinces. TFF recognizes the higher cost of services in the North. While TTF is not the only source of territorial revenue, it does account for the majority.
What is Devolution?
Devolution is the process through which the federal government delegates (or downloads) decision-making powers to other government jurisdictions, including territories. Through devolution, territories receive the legislative authority to create laws within their borders, making them more accountable to their citizens and to local interests.
Since the mid-1970s, the federal government, through the minister of Indigenous and Northern Affairs Canada, has devolved increasing responsibilities to legislative assemblies in the Northwest Territories and Yukon. In both cases, legislative responsibilities are now roughly the same as provincial allocations recognized by the Constitution Act.
Northwest Territories Government
In 1870, the Hudson’s Bay Company sold Rupert’s Land and the North-Western Territory to Canada. A vast region covering present-day Alberta, Saskatchewan and Manitoba, northern Québec and Ontario and the territories, it was known as the North-West Territories from 1870 to 1905. The first Canadian territory, it was governed by Ottawa through an appointed lieutenant-governor and unelected council.
The North-West Territories Act (1875) allowed the territory to pass ordinances relating to roads, real estate and inheritance, the rights of married women, the administration of justice and the prohibition of alcohol. However, the federal government could change or void any ordinance. The Act also outlined the creation of an elected legislative assembly and cabinet, which were instituted by 1888. Though the territorial government was afforded responsibilities similar to provincial governments’, it was not given control over its lands and resources.
By 1912, the vast lands of the North-West Territories had been divided among Yukon (1898), Alberta and Saskatchewan (1905), and Manitoba, Ontario and Québec (1912). Given its diminished size and population, responsible government was abolished in 1905, and an appointed government restored. This lasted until 1951, when citizens were again able to elect members to council. Council became a fully elected body in 1975.
(See also Northwest Territories and Confederation.)
On 1 April 2014, the Northwest Territories Devolution Act granted the Northwest Territories responsibilities similar to those wielded by provincial governments, including control of Crown lands and resources. The agreement was signed by the federal government, the government of the Northwest Territories, the Inuvialuit Regional Corporation, the Northwest Territory Métis Nation (see Métis), the Sahtu Secretariat Incorporated (see Sahtu Got’ine), the Gwich’in Tribal Council (see Gwich’in) and the Tlicho Government (see Tlicho).
Consensus government, the system of government in the Northwest Territories, does not follow party politics. Instead, Members of the Legislative Assembly (MLAs) are elected as independents in 19 constituencies. Following an election, MLAs choose one member to serve as premier, another as speaker, and six more to serve on the Executive Council (or cabinet). The premier is responsible for assigning ministerial portfolios and leading cabinet.
MLAs who are not in cabinet become the unofficial opposition, regular MLAs who question government and keep it accountable to the people. The majority of MLAs must agree to a decision, motion or legislation for it to be passed into law. Because the unofficial opposition includes 11 members, it actually holds the balance of power in government.
The commissioner is the federal government’s representative in the Northwest Territories. The position is appointed by the minister of Indigenous and Northern Affairs Canada and is increasingly ceremonial.
Yukon was created by the Yukon Territory Act in 1898 — just two years after the Klondike Gold Rush began.The Act established a territorial government, which consisted of a federally-appointed commissioner and council. An elected 10-member council was established in 1908; however, the gold rush had faded by that point, and the population of Yukon dwindled. As a result, the council and office of the commissioner were abolished in 1918, and a three-member elected council with reduced authority was established the following year. This remained unchanged until after the Second World War, when Yukon’s population grew again.
In 1948, the role of federally appointed territorial commissioner was reinstated. The commissioner led an executive committee (cabinet), which included both appointed and elected members of the legislative assembly. In 1979, Yukon achieved responsible government when the role of commissioner was redefined. At that point, commissioners came to resemble provincial lieutenant-governors and the head of government — the premier — was first elected.
(See also Yukon and Confederation.)
The process of devolution in Yukon started in 1998, when the Yukon Devolution Protocol Accord was signed. Since then, resource management — including forestry and mining — has been devolved to the territorial government. In October 2001, the Devolution Transfer Agreement transferred responsibility over land and resources to the territory, and on 1 April 2003, Yukon became the first territory to officially take control of its land and resources by an amendment to the Yukon Act.
Candidates for seats in the Yukon Legislative Assembly have run under a party banner since 1978 (see Party System). The leader of the party that wins the most seats in an election becomes premier. The premier then forms cabinet. The ruling party must hold the confidence of the 19-member Legislative Assembly in order to continue to govern — this is especially relevant in minority government situations.
Since the mid-1970s, Inuit have pursued a two-track strategy of settling their outstanding Indigenous land claims and achieving self-government. In order to settle such claims in the Northwest Territories, Inuit Tapirisat of Canada, an advocacy group, proposed that a separate territory be created.
Tunngavik Federation of Nunavut (later Nunavut Tunngavik Incorporated) was established in 1982. Representing Inuit of the eastern Arctic, it aimed to negotiate a land claims agreement with the federal government. That same year, a referendum was held in Northwest Territories, asking whether voters supported dividing the eastern and western halves of the territory. While 56 per cent of voters in the territory were in favour, roughly 80 per cent of voters in eastern NWT supported the idea. In 1992, a second referendum established the boundary of what would become Nunavut.
In 1993, the federal government passed the Nunavut Land Claims Agreement Act and the Nunavut Act. The Nunavut Act divided the Northwest Territories into the Northwest Territories and Nunavut. After a federally-appointed commission established Nunavut’s government institutions, the first territorial election was held on 15 February 1999. Nunavut was officially created on 1 April 1999.
(See also Nunavut and Confederation.)
The federal government has gradually devolved responsibilities to what is now Nunavut since the 1970s, including housing and language, health, education and social services. However, control over land and resource management in Nunavut is currently held by Indigenous and Northern Affairs.
In 2008, the Canadian government, the Government of Nunavut and Nunavut Tunngavik Inc. signed the Lands and Resources Devolution Negotiation Protocol, which will guide devolution negotiations.
Formal negotiations for control over lands and resources started in October 2014, when an Agreement- in-Principle was signed. Negotiations continued in July 2016 — when a chief negotiator was appointed — and are ongoing.
The Legislative Assembly of Nunavut is organized as a consensus government, which is considered to be in keeping with traditional Inuit decision-making. Members of the Legislative Assembly (MLAs) are elected as independents in 22 constituencies. Following an election, MLAs elect a premier, speaker and cabinet ministers by secret ballot. The premier is responsible for assigning ministerial portfolios and leading cabinet government. While the number of seats in cabinet is not fixed, it must not represent a majority of MLAs. MLAs who are not in cabinet (regular MLAs), hold the balance of seats. The majority of MLAs must agree to a decision, motion or legislation for it to be passed into law. Cabinet must maintain the majority support (or, confidence) of the members of the legislative assembly in order to govern.
A crucial issue in territorial governance is how to achieve the best relationship between the territorial government, as a public government, and re-emerging Indigenous governments (see Indigenous Peoples). The major changes are different in Yukon, Nunavut and the Northwest Territories.
Indigenous communities in the Northwest Territories have negotiated self-government claims with the territorial and federal governments since the 1970s. Major examples include the 1984 Western Arctic Claim (or the Inuvialuit Final Agreement), which the Inuvialuit of the Mackenzie Delta signed for limited self-government (see Inuvialuit), and the comprehensive land claims agreement signed by Sahtu Dene and Métis of the Northwest Territories and the federal government in 1993 (see Sahtu Got’ine and Métis).
In 1999, Nunavut, meaning “our land” in Inuktitut, was separated from the Northwest Territories. At about 2 million km2 in size — one fifth of Canada’s land mass — Nunavut represents the largest Indigenous land claim settlement in Canadian history. Inuit represent about 85 per cent of the population in Nunavut, giving them majority representation in territorial government, which helps to ensure that government decisions reflect Inuit culture and tradition.
In Yukon, the territorial government is adapting to a new relationship with Indigenous peoples within the territory, as Indigenous communities in what is now Yukon never signed treaties with the federal government. In 1993, Canada concluded the Umbrella Final Agreement to settle the Indigenous claims in the Yukon (see Indigenous Peoples: Treaties; Indigenous Land Claims). The Indigenous population is dispersed among 14 recognized First Nations communities, each of which negotiates its own final claims agreement and a self-government agreement with the governments of Canada and Yukon. As of 2008, 11 First Nations communities in Yukon had finalized agreements.
First Nations governments in Yukon share some responsibilities with the territorial government or operate parallel to it, offering education, language, health and social services to their members, with the territorial government serving the non-Indigenous population. Each nation is responsible for law-making, land-use, fish and wildlife, forestry, water and resources.