Is there a confidence convention in consensus government?

• Author: Brock, David M.
• Position: Report

In the Northwest Territories' consensus system, as in the party system, a government is appointed by the formal executive and members of the executive council are accountable to the House. However, the selection of executive council members in the two systems differs significantly and perhaps consequentially for the confidence convention in responsible government. In this article, born out of a debate between the authors sponsored by the Northwest Territories Regional Group of the Institute of Public Administration of Canada, David M. Brock and Alan Cash explore some of the factors to consider if and when the convention is put to the test in a consensus system. They conclude by noting that with recent changes to the Northwest Territories Act as well as emerging conventions regarding the removal of members of the Executive Council, one may now safely argue that the confidence convention could be applied in the Northwest Territories in a manner similar to the application found in party systems. However, the prerogative of the House, emphasized and codified in consensus government, limits the discretion of the first minister and mitigates the power of the executive.

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Consensus government in the Northwest Territories is to be executed "in accordance with the principles of responsible government and executive accountability." (1) This does not necessarily mean that all elements of responsible government are applied in the same manner as may be in the case in a party system. One area of potential uncertainty is the confidence convention. This convention holds that if the executive no longer has the support of the majority of members of the legislature, the government must either resign or request dissolution and a general election. But, how might this work in the northern system of consensus government?

The interpretation and application of the confidence convention in a Westminster party system is already complicated. We know, generally speaking, the leader of the political party with the most representatives in the legislature is usually called upon by the Crown's representative to form a government. This is based on the likelihood that that same party leader can command the sustained support of a majority of members. However, complications with the confidence convention arise from determining what exactly constitutes a vote of confidence, whether a vote of non-confidence truly signals an inability to govern responsibly, and if a request to prorogue should be granted.

In the northern system of consensus government, where governments are formed and held to account differently, understanding the potential interpretation and application of the confidence convention can be even more disorienting. In the consensus system, as in the party system, a government is appointed by the formal executive and members of the executive council are accountable to the House. However, the selection of executive council members differs significantly and perhaps consequentially. In a party system, the selection of ministers is the prerogative of the Crown acting on the advice of the first minister. In the consensus system, the selection of ministers, including the first minister, is the prerogative of the House. The manner by which the executive council is selected may therefore affect how--and whether the executive council can be removed en masse, and, most importantly, if the House can be dissolved and a general election can be held before a fixed date. (2)

Recent changes to the federal Northwest Territories Act further complicate the understanding of the confidence convention in consensus government. The rights of the Commissioner enumerated in federal statute expanded in April 2014 to include new powers of appointment and dissolution; the method of selecting who serves on the executive council, as established by territorial statute, remains the same.

The confidence conundrum was the subject of a recent discussion organized by the Northwest Territories Regional Group of the Institute of Public Administration of Canada. We were asked to debate: be it resolved that there is truly a confidence convention in consensus government. Neither that debate nor this paper will conclusively resolve the issue, and the views expressed here are only those of two individuals and not an official position; but, in exploring this issue we help draw out what factors possibly merit attention when sorting through how Canadian conventions of responsible government apply to the northern system of consensus government.

Responsible Government Comes North, Again

Territorial governments in Canada are established by federal statute, rather than by constitutional entrenchment. There is no Crown in right of the Northwest Territories. However, over the past 50 years, and especially over the past 15 years, all three territorial governments have attained province-like powers and are generally understood to be self-governing sub-national units.

Responsible government in the Northwest Territories first emerged in the 19th century, following the sale of lands by the Hudson's Bay Company to the Dominion of Canada in 1869. It was then that a Council of the Northwest Territories was established, comprised of a mix of appointed and elected members. Eventually this mixed composition ceded to a fully-elected Council and system of responsible government in 1897 under the guidance of the first premier of the Northwest Territories, Frederick Haultain. (3)

After the creation of Alberta and Saskatchewan in 1905, responsible government in the Northwest Territories lapsed: for nearly half a century, the territory was administered by bureaucrats in Ottawa; in 1951, the first representative...