REFLECTION – Co-Management Defined

With contribution from Sam Wells.

The process of reconciliation between the Government of Canada and Indigenous peoples has been characterized by a series of patchwork initiatives that have lacked integration.

While some of these initiatives may have carried positive impacts, institutional frameworks are necessary to ensure that reconciliation can be advanced in a manner that is consistent and equitable. One such institutional framework that offers strong potential is that of co-management.

In the broadest sense, co-management refers to the joint management of resources between two parties, often the State and a local community. In the context of reconciliation, co-management could refer to the collaborative management of resources between the Government of Canada and localized Indigenous communities.

Co-management bodies are often formally structured as councils or boards that provide equal membership and weight to all stakeholders.

Take, for example, the network of co-management authorities that work together under the Mackenzie Valley Resource Management Act in the Northwest Territories.

Environmental Assessments and land and water regulation are entirely managed by co-management structures with 50% of the representatives appointed by government and the other 50% either appointed or chosen by Indigenous organizations according to the land claim agreement that applies.

Co-management bodies can also feature a Chairperson that is jointly appointed by all members of the board via a defined procedure that gives everyone a voice.

Generally, the appointment of the Chair would require unanimous approval from all board members, and the individual appointed to the position would need to possess strong facilitation skills and a degree of neutrality.

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Co-management can be an effective tool to advance reconciliation with respect to land, water and resource development issues. It recognizes Indigenous authority through their representatives in the management of resources and lands in the decision-making process.  The powers of a co-management body must be clearly defined ideally in a statute. This has been federally in a number of instances to implement modern treaties particularly in northern Canada.

Co-management also allows for assessing traditional Indigenous by informing decision-making related to both renewable and non-renewable resource development.  Such knowledge is being recognized and applied in responding to remediating contaminated sites as well as pipeline proposals.

Decision-making that is based on traditional knowledge helps ensure that resources are effectively utilized with stewardship towards future generations.

Co-management ultimately provides an institutionalized approach to resource management that is both consistent and equitable, thus advancing reconciliation. The use of co-management bodies is much more effective in reconciling Indigenous, public and private rights than traditional federal or provincial regulatory authorities that rely solely on consultations to inform decision-making. 

Federal and provincial governments should adopting co-management structures as part of advancing reconciliation with Indigenous peoples across Canada.


Canadian flags on poles on the side of a building in Ottawa.

REACTION: A Governance Lens on the Emergencies Act

When the Emergencies Act was invoked on February 14th, this was the first-ever invocation of that legislation since its enactment in 1988.

The Emergencies Act is the modernized offspring of the much sterner War Measures Act (WMA), which saw Canada through two world wars and the 1970 October Crisis. When we compare the two acts, we find that many of the differences reflect evolving standards for core principles of democratic governance, particularly those relating to accountability and the conditions for the legitimate exercise of state power.

Both acts were grounded it in the authority of the federal government to legislate for the peace, order, and good government of Canada.

“…no amount of process will legitimize what citizens regard as a bogus “emergency”.”

During its time, the WMA served some useful purposes, including management of a modern wartime economy in the 1940s. It also made possible some of the ugliest incidents in Canadian history, including the dispossession and internment of Canadians during both world wars on the sole basis of their ethnicity, and the arrest of hundreds of innocent citizens in 1970.

In the aftermath of the October Crisis, which included a Royal Commission into activities of the RCMP, it became clear just how out of step the WMA was with contemporary standards of public governance – particularly in the absence of controls to ensure that the exercise of extraordinary powers was legitimately necessary as well as mechanisms to provide oversight and accountability.

The Emergencies Act was intended to address these concerns, while expanding the range of emergencies beyond war to international emergencies, public welfare emergencies, and public order emergencies.

Legitimate state action in a democratic society has both procedural and substantive elements. Following accepted processes is critical, but since emergency legislation essentially legalizes what is normally illegal and overrides jurisdictional boundaries, no amount of process will legitimize what citizens regard as a bogus “emergency”. The first test for legitimate use of the Emergencies Act is that it be rare.

On the critical question of whether an emergency actually exists, the contrast between the original WMA and the Emergencies Act is stark. Section 2 of the original act, under the heading “Evidence of War”, stated that a proclamation by the King or the Governor in Council (i.e., the Cabinet) “shall be conclusive evidence that war, invasion, or insurrection, real or apprehended, exists.”

 In other words, the only test for the existence of a crisis was the government’s say so.

By contrast, the Emergencies Act authorizes the declaration of an emergency where the government believes “on reasonable grounds” that an emergency as defined under the act exists and provides a statement of what constitutes the emergency and what measures are expected to be necessary to address it. The measures must be temporary, with a default 30-day sunset (120 days in the case of war), and the requirement of reasonable grounds applies to any extension.

As for process requirements, at their heart these relate to the rule of law, which in Canada is no longer simply a matter of Parliamentary enactment. The first emergency powers listed in 1914 were “censorship and the control and suppression of publications…” and “arrest, detention, exclusion, and deportation”. Arguably, our political culture at the time was more attuned to public order than to an expansive understanding of individual rights. All that has changed with the Charter of Rights and Freedoms.

The preamble to the Emergencies Act states explicitly that the temporary measures enacted under its authority would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must “have regard to” the International Covenant on Civil and Political Rights, “particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency”. The legal import of this preamble might be debated but the political and moral expectations are clear.

Another, increasingly critical aspect of legitimacy is what we call voice – the expectation that power shouldn’t be exercised without giving stakeholders a meaningful say.  It is a matter of voice as much as the rule of law that Parliament must approve the government’s declaration within seven days.

There is also the requirement that the provinces be consulted.

In formal terms a right to be consulted is not a right of veto, but we have learned from Charter jurisprudence that it can entail important procedural requirements, and in the context of Canadian federalism it is a powerful moral, or at least political, force.

The Emergencies Act is also marked by significantly heightened standards of oversight and accountability.

The requirements for parliamentary supervision and debate are particularly critical.

The renewal requirements – which include reviewing each of the orders made under the declaration for continued necessity as well as going back to Parliament – create a significant break on possible abuses, especially in a minority House. Even where the government has a majority, the renewal requirements create opportunities for parliamentary scrutiny, and possibly judicial review.  

The requirement that the responsible minister pay reasonable compensation to anyone who suffers loss, injury, or damage as a result of actions conducted under the declaration may also be regarded as a significant accountability measure that will almost inevitably be brought into play.

Perhaps the most significant oversight mechanism is the provision for establishing an all-party Parliamentary Review Committee to scrutinize the exercise of authorities under a declaration.

While such a committee would conduct business in camera, it would report to Parliament every 60 days through the course of the emergency. There is also the requirement, admittedly without specified parameters, that within 60 days of the end of the emergency the government cause an inquiry to be held “into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency”. Such an inquiry would report to Parliament within a year of the emergency’s end.

Since this is the first time a government has invoked the Emergencies Act, it remains to be seen just how effectively most of the safeguards described here will work and how robust a role parliamentarians and the courts will play.

The very fact of their inclusion in the legislation is a testament to a positive evolution in Canadian governance over the course of the 20th century.

Inside the House of Commons

REACTION: The Accountability of Leaders

With contribution from Karl Salgo.

If your head is still reeling from the speedy ouster and (interim) replacement of Conservative Party of Canada Leader Erin O’Toole, you’re not alone.

While the Prime Minister may be thankful to the Conservatives for yet another seemingly gratuitous gift, he and the other party leaders are probably also thanking the heavens that such a thing could not happen to them.

The ouster took place under CPC caucus rules arising from the 2014 Reform Act, which received strong all-party support at the time of its enactment and applies to all parties to this day.

Breaking party ranks on a parliamentary vote is a rarity in Canadian politics and there have been multiple proposals to give MPs a greater degree of independence. The Reform Act was an attempt to re-empower individual MPs, who were widely perceived to be groaning under strict party discipline from their respective House Leadership.

In its watered-down final form, the Reform Act required each party caucus in a newly elected Parliament to vote on four questions regarding whether caucus:

(1) determines its own membership, (2) chooses its own chair, (3) can trigger a leadership review, and (4) can choose an interim leader.

The last two were obviously in play in the Conservative caucus this week. It should be noted that the capacity of caucus to oust a leader is not novel in the Westminster system, as Margaret Thatcher knew only too well, and as Boris Johnson presumably knows to his great anxiety.

What’s interesting here in Canada is that, since 2015, only the CPC caucus has given itself these powers.

The Liberal caucus has actually been coy about the votes themselves, citing caucus secrecy, and we can’t be sure that they’ve always been held, legal requirement notwithstanding.

It’s easy to see why leaders might not be crazy about their caucus taking on these kinds of powers, although they haven’t altered voting habits to any discernible degree. But accountability is a core requirement of democratic government, and there’s no such thing as too much accountability, is there?

Or is there?

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The Reform Act was passed in the wake of a significant number of other initiatives in the early 2000s to improve accountability across various fronts, in both the public and private sectors. In the Government of Canada, the most comprehensive was the Federal Accountability Act, which among other things created a host of new laws on the behaviour of public officials, elected or otherwise.

Perhaps the immediate question as we commiserate (or not) with Mr. O’Toole is whether accountability might not require something from those who hold others to account.

Is there not arguably an implied need for those to whom account is rendered to exercise some form of due process, even if it be within the confines of their own judgment? If accountability is to mean anything, should evidence not be weighed equitably, prudently, and without regard to conflicting interests?  

Of course, in politics the electorate is famously always right, and there would be both impracticality and irony in a bottomless cycle of accountability for accountability.

Perhaps there are instances in which we might think twice about adding to the list of accountabilities – as I’m sure Justin Trudeau and Jagmeet Singh would be prepared to tell you.

REACTION: Convoy of Confusion

During the last weekend of January 2022, a convoy descended on Ottawa to protest mandatory vaccinations for truck drivers travelling across the Canada – United States Border.

The most troubling aspect of the “Truckers Convoy” for Canada and its democratic institutions is the potentially long-lasting effects of declining confidence in public institutions ability to respond to health and safety challenges and civil disobedience under the rule of law.

The Ottawa Police services are working to reassure the public that there have been no fatalities, injuries, or significant damage to property.

However, residents continue to be “under siege” and downtown business, already burdened with the stress of the pandemic, are forced to close.

Emerging evidence of foreign money and coordinated blockades disrupting trade and public services to citizens are creating a highly flammable environment.

With no visible end in sight, provincial and federal politicians continue to take to the microphone with calls of both support and condemnation of the actions of the protestors.

The public remains dissatisfied – why?

What we are seeing is a visible lack of coordination among law enforcement agencies and their elected leaders.  Public trust comes with public confidence.

As a public, we assume enforcement agencies are preparing their operational plans and understand why details of such plans are not public.

We also assume that all orders of government are working together to ensure a peaceful and permanent end to this occupation.

However, public officials at any level of government have not referred to any semblance of a plan. Further troubling is that the Ottawa Police Service seems to be on their own with no obvious evidence of others standing by to assist in a coordinated fashion. Seven days in, there is a growing unease that these assumptions may be misplaced.

It remains unclear whether, when and how the occupation will end. 

The mayor points to the police. The police are now signalling the situation is escalating in its complexity to resolve with each passing day.

With no sense of ‘what comes next’, growing anxiety among citizens and the business, community is beginning to erode trust in our institutions.

With an already growing erosion of public trust in western democracies, what are the operational leaders doing to assure the public that there is an end in sight?

Without a public plan, we must ask ourselves – what is happening in the background?

To re-establish trust and confidence, there needs to be a sense of organization and structure among public officials.  This could involve the mayor asking the Chief of Police to work with federal and provincial law enforcement agencies to establish an inter-agency working group. The working group would help ensure information, planning and coordination among these agencies was clear, efficient, and timely.  The details of such need not be communicated but the request to ‘organize’ should be.

The mayor could also call on the other levels of government to support the inter-agency working group by forming an ad-hoc intergovernmental committee involving himself, and relevant federal and provincial ministers. 

Typically, this body would ensure elected officials both receive the same information at the same time as well keep their internal decision-making processes engaged as necessary as the issue evolves.

Next, there needs to be one official spokesperson. Support spokespersons can be designated from each level of government to speak on specific aspects, but it needs to be coordinated.

It’s important for elected leaders to know who’s on first and who gets to speak to what and on what issues.  For the most part, this often results in a boring talking point that “I am aware of the issue and my officials are monitoring closely and we have assured local law enforcement that we are ready to support as circumstances warrant.”

Daily briefings to the media and public would be coordinated. In this scenario, the Prime Minster would repeat this message and possibly refer all matters to his appointed Minister who would coordinate with the mayor and provincial representative.

Plans can change with circumstances but with the right systems in place intelligent adjustments can be made and communicated effectively.  This is essential in maintaining public trust.

While the underlying issues that gave rise to the protest will likely require significant debate and policy discussions among the politicians over the medium to longer term, the respect for the rule of law and dealing with civil disobedience need to be handled lawfully by the enforcement community guided by an informed plan with an engaged elected leadership. 

At the end of the day, this is an issue of public trust.

Transparency and clear accountability are two defining factors of good governance, which ultimately contributes to this trust.

Regardless of what comes next, officials need to prepare the public for enforcement actions that are necessary and legitimate.  Failure to do so will further undermine trust in government, as well as trust in our democracy, and give the protestors an even greater advantage.

More than ever, our society needs strong leaders to make hard choices under even tougher circumstances. Our Leadership and Learning Courses can help you prepare for those decisions.

REACTION: Graham Flack named Treasury Board Secretary

The Treasury Board got a new Secretary.

Graham Flack comes to Treasury Board via Employment and Social Development Canada, where he’d been Deputy Minister since 2018. Flack was previously DM of Canadian Heritage, following a career that included several senior positions in the Privy Council Office, and is widely considered one of the more thoughtful members of the senior public service.

He will need to put that thoughtfulness to use to support the many demands the Prime Minister has made of Treasury Board President Mona Fortier in his December 2021 mandate letter. Many of these expectations – and many more challenges besides – relate to the governance issues under TB’s purview.

Treasury Board has several key responsibilities, including its roles as the government’s management board and as the employer for most of the public service.

In those capacities, it has a lead role for both how the government operates and how the public service does its job. You can’t effect vast change in a rapidly evolving landscape with a static public service.

The good news begins with what sounds like a positive tone with public sector unions, as Minister Fortier is called upon to negotiate with unions in good faith and to work with them on a coordinated plan for the future of work within the public service.

This would include a Public Service Skills Strategy, among other efforts to modernize the public service for the 21st century. What that workforce will look like is not specified, although there will be heavy emphasis on diversity and inclusion as well as improved data, IT, and digital capacity. This meshes well with the Clerk of the Privy Council’s recent report on the public service, which called for precisely such a skills strategy, as well as “flexible and equitable” post-pandemic work arrangements.

All this is fine and needful, but it doesn’t amount to much more than a start on public service reform and the broader matter of better public sector governance for the 21st century.

First, we might ask what is meant by flexible and equitable work arrangements.

So far, TB has opted against a one size fits all approach, leaving individual organizations to sort out what works for their mandates and needs. That is at least a little shrewd, since TB would hardly want to own a definitive model at this point in the game.

But this is the Government of Canada we’re talking about: TB will certainly keep a close eye on what is going on and won’t hesitate to intervene if it doesn’t like what it sees.

Frankly, the country’s industrial age, hierarchical, and rules bound work force needs a lot more than the capacity to work virtually. The normative mindset of the public service is still defined by the culture of compliance that was denounced by, of all people, the late Auditor General Michael Ferguson.

Ferguson wasn’t against compliance – what accountant is? He was referring to a culture of sticking to the blame-avoiding safe harbor of following rules rather than innovating and taking rational risks. This culture was epitomized by the Federal Accountability Act, which addressed a host of behavioral problems that didn’t exist, and which the Trudeau government has never lifted a finger to dismantle.

It is a culture reinforced by inadequate performance metrics and the fact that public servants are not accountable for results, nor could they be given the limited trust and authority that’s given to most of them.

Remote working arrangements may help to push long-overdue changes, like faster, flattened decision making and performance assessment that turns more on genuine productivity as opposed to just showing up and participating in processes.

Significant governance changes are also needed to fully unleash the capacity of digital technology to meet evolving citizen expectations.

Politicians and public servants have been talking about improved horizontality and “whole-of-government” approaches for decades, but we still struggle to dismantle or work around the silos of the classic Westminster system.

This is not to be dismissive of the rules around reporting and accounting to Parliament, or the broader principle of ministerial responsibility. And digital and data governance raise privacy and security issues that aren’t easy to address. While successive governments have made progress, including through the appointment in multiple departments of chief data officers, there is a long way to go.

In practice, horizontality has been approached largely through a more powerful center. And the impact of 24/7 media and a hostile twitter mob have gotten in the way of efforts to be more open with information and less hierarchical in decision making.

The bottom line is that for government to evolve it needs to be less self-regarding and more focused on the citizens it is supposed to serve.

It’s a tall order, Mr. Flack, and we wish you and Minister Fortier the very best.

Government of Canada office building

REACTION: 2021 Mandate Letters

Governing Liberal Style

In late December 2021, the Prime Minister’s Office released the collection of ministerial Mandate Letters. These documents outline departmental and ministerial priorities for the mandate ahead.

The letters reflect the government that produced them. There is no shortage of ambition, even audacity.

The prime minister has remained true to the focus of his election campaign and Throne Speech, focusing on pandemic management and recovery, reconciliation and social equity issues, climate change and the environment, and improved access to housing.

The mandate letters set out an agenda that is heavily oriented towards social rather than economic policy; even the equity the government seeks to deliver is more social than economic.

Spending to Fix

A good portion of the economic policy in the letters relates to transitioning a net-zero emissions economy – albeit with a respectable measure of pro-innovation and technology initiatives in the mix.

The Deputy Prime Minister and Minister of Finance is admonished to keep an eye on the government’s fiscal health. There are few measures to significantly raise revenues and even fewer to reduce expenditures.

This is not an austerity agenda: many initiatives explicitly call for additional spending and even those that don’t will in many cases require it. Presumably a day of fiscal reckoning will come, but this is not that day.

A Reworked Rewind

Even aside from the fiscal mindset, we see multiple inversions of a conservative agenda, at least as manifest by the previous government.  Net-zero has plainly supplanted the ambition to become an “energy superpower”.  Law-and-order, pro-gun policies have yielded to “justice strategies” aimed at removing cultural and gender biases in the police and courts, increased funding for the Court Challenges Program, and confiscation of guns where “red flags” arise.

Efforts to keep the public service, and its scientists, focused on operations and implementation have yielded to a supposedly science and data driven approach to analysis by a diverse, digitalized workforce that benefits from flexible and equitable working arrangements.

A Renewed Public Service Relationship

While directed at their political leaders, these mandate letters direct Deputy Ministers, Assistant Deputy Ministers, Directors General, and the rest of the public service in, well – their direction. Coupled with fiscal updates, these are the marching orders of the public service.

However, how do you implement vast change, in a changing landscape, with a static public service? 

You don’t. 

The public service must constantly renew itself – a notion which has been evoked in throne speeches for years to help Canadians enjoy a quality of life envied by other countries.

Surely, there are nods to this within the letters. Striking a cooperative tone is a start, as is the recent report by the Clerk of the Privy Council [HYPERLINK] and its focus on the future of work.

Digital efficacy, replacing systems, improved service capacity – all of these remain components of a renewed public service.

But is this enough? Is it a complete vision of a 21st century public service? Arguably, it misses the mark. 

To meet the challenges of declining trust in government and colliding forces of globalization and disruption, a responsive public service requires structural changes that are far more reaching than outlined in this batch of letters.

Our Problem or Theirs?

Much of this agenda has been in place, with mixed success, since 2015 – but a few things seem to have gone by the wayside.

Direct links to the infamous “deliverology” approach have been quietly dropped. Not much remains of the democratic reform agenda – although the Intergovernmental Affairs Minister is tasked with some open-ended efforts to improve the electoral system.

The enhancement of Canada’s parliamentary democracy looks to be limited to better digital connectedness by parliamentarians, renewal of the perennial promise of more free votes, and undisclosed updates to the Parliament of Canada Act to reflect the Senate’s non-partisan role.

Overall, the government appears more concerned with the democratic shortcomings of others than of itself.

NEWS: IOG Welcomes Owen Charters to Board of Directors

Ottawa, ON – The Institute on Governance is proud to announce the addition of Owen Charters to our Board of Directors. Owen Charters is CEO of BGC Canada (formerly Boys & Girls Clubs), the country’s largest child- and youth-focused charity. Former Chair of Imagine Canada and the Human Resources Council on the Nonprofit and Voluntary Sector, Owen is also faculty for the Social Sector Leadership MBA at York University’s Schulich School of Business.

The Institute on Governance is excited to have Owen serve as a strategic voice on our Board of Governors. His commitment to people, passion for nonprofit sector work, and dedication to colleagues will serve the IOG as we move towards our future.

Presently, the Board of Governors of the Institute on Governance is comprised of:

Aurèle Thériault, Chair – Co-President, Interlocus Group.

Sarah Paquet, Vice-Chair – Director and CEO at FINTRAC.

Aneeta Bains – Partner, Public Sector at IBM Canada.

Brian Bost – Partner, Advisory Services, KPMG.

Malcolm Brown – Senior Strategic Advisor, PricewaterhouseCoopers LLP.

Julie Di Lorenzo – President, Diamante Urban Corp.

Martine Durier-Copp, M.A., M.Mus., PhD. (she/her/elle) – Academic Dean, NSCAD University

Shingai ManjengwaChief Executive Officer of Fireside Analytics Inc.

Colin McKayHead, Public Policy and Government Relations, Google Canada.

Owen ChartersCEO of BGC Canada.

The Institute on Governance is a Canadian non-for-profit focused on working to advance governance through research, learning, advisory services, and more. Over our three decades, we have worked with federal, provincial, municipal, and Indigenous governments, and not-for-profit organizations. Our networks have taken us to three dozen countries worldwide, including with recent projects in Iraq, and Botswana. Today, we are focused on the 21st century challenges to good governance that governments and their citizens face.

For media inquiries, please contact:

Nick McRoberts

Marketing and Communications Business Partner

Reflecting on the 90th Anniversary of the Statute of Westminster

REFLECTION: Reporting on Reports

With contribution from Shelby Torres.

What’s To Report?

Last week, Canadians saw seven parliamentary reports by Agents of Parliament on various department’s activities tabled within the House of Commons. While these kinds of reports graze the parliamentary table with relative frequency, their importance to governance and benefits to Canadians are seldom emphasized or appreciated.

So what exactly do parliamentary reports do and why should we pay attention to them?

Accountability by Informing.

Parliamentary reports are an essential accountability tool used by both government and opposition parties.  For governments, parliamentary reports communicate important information to the public and promote transparency. 

The Government of Canada is Canada’s largest employer with thousands of entities with varying mandates serving citizens. Parliamentary reports provide a key role in consolidating information from across institutions and communicating it back to the public. 

Canada’s Auditor General Karen Hogan’s recent Reports entitled Regional Relief and Recovery Fund and Enforcement of COVID Quarantine and Testing Orders respectively, are great examples of both keeping Canadians informed and a window into internal activity and resource decisions using public funds.

Improving Service Delivery.

Parliamentary reports, particularly from the Auditor General, also provide decision-makers and governing institutions recommendations on how those institutions can improve program delivery and service to Canadians. You can’t improve a program or fix a problem if you don’t know it’s needed – and you cannot mark your own homework so to speak. 

Reports such as Parliamentary Budget Officer Yves Giroux’s Family Wealth Distribution in Canada provides insight into wealth distribution inequality that Canadians may not otherwise be unaware of. An informed public is essential in a healthy representative democracy. 

Politicians are generally attuned to an informed and engaged public, and usually appeal to their citizen’s sensibilities at least every four years.

A Demonstration of Progress – or a lack thereof.

Ministries also release annual reports on important priorities in order to highlight actions and ideally progress.

Women and Gender Equality Canada releases an annual report on Canada’s National Action Plan on Women, Peace and Security, highlighting the government’s efforts to support causes that Canadians have deemed important, such as gender equality. Reports such as these let Canadians know public institutions are performing as they should or not.

Other reports such as Commissions of Inquiry, provide the public with a deeper understanding of controversial issues of the day. Both the Final Report from the National Inquiry Into Missing and Murdered Indigenous Women as  well as the Calls to Action by the Truth and Reconciliation Commission of Canada legitimized Indigenous Voices.

These reports demonstrated the need that the government must address societal inequities that span decades if not generations. While some may believe these reports have been relatively ineffective at providing timely solutions, they have informed Canadians on the inequalities faced by marginalized communities and provide non-Indigenous citizens knowledge to demand better from their government. 

Good Governance means Good Reporting.

While parliamentary reports pass through the House of Commons frequently and seldom garner notoriety amongst the general public, they are nevertheless a staple of good governance that should not be discarded.

Once published or tabled, parliamentary reports help hold Canada’s institutions and political actors to account through increased transparency and sometimes the legitimization of voices of those who have historically not been heard. 

Without them, Canadians would be ill equipped to hold their representatives and public institutions into account.

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Reflecting on the 90th Anniversary of the Statute of Westminster

REFLECTION: The Statute of Westminster

With contribution from Karl Salgo and Stephen M. Van Dine.

Autonomy? Not Yet.

December 11th will mark the 90th anniversary of the British statute to which Canada owes its autonomy as a nation. This refers not to what was once known as the British North America Act (BNA) and is now the Constitution Act, 1867, but to a (yet) less well-known act entitled the Statute of Westminster – a crucial piece of legislation.

While Canada did become a country in 1867, it’s a common misconception that we gained our independence at the time.

Britain mostly left us to our own devices on domestic matters but played a not-always-helpful role in our international affairs. They sided with the United States on such significant matters as the Alaska boundary dispute of the early 1900s.

The right to appeal to the Judicial Committee of the Privy Council (JCPC) had a significant impact on Canada’s constitutional jurisprudence. Perhaps even more to the point, the British Parliament retained an ill-defined right to legislate for Canada.

The Path to Sovereignty.

Fast forward to the Imperial Conference of 1926 and the Balfour Declaration that came out of it.

The Balfour Declaration stated that “autonomous communities within the British Empire” were equal and “in no way subordinate to one another”. In other words, Britain was no longer in charge.

It’s important to appreciate that the Declaration had been proposed by Canada’s own Mackenzie King. King was a far stronger and more effective champion of Canadian sovereignty than is sometimes recognized. 

King had famously struggled with Governor General Byng earlier in 1926, so it’s interesting that the Declaration recommended that Governors General cease to be representatives of the British government to the dominions.

Legislative Loopholes.

The provisions of the Balfour Declaration were enacted in legislation as the Statute of Westminster in 1931. The Statute of Westminster declared that no act of the British Parliament would have any impact on a dominion without the dominion’s express desire and consent.

This was a profound moment of maturation in Canada’s history, not least because we had shown leadership in bringing it about.

In fact, ties were not severed all that cleanly. Canada continued to allow appeals to the JCPC until 1949 in civil matters. Our written constitution, the BNA, remained a British statute until 1982 essentially because we couldn’t agree on an amending formula.

Canada’s Constitutional Consent.

Even that was not quite the end of it.

The nations affected by the Statute of Westminster remained subjects of the Crown – their consent was required for any amendments to the law of succession.

Before passing the Succession to the Crown Act in 2013 , the British government made a point of securing the approval of the Commonwealth – Canada included.

After some hand wringing about whether this triggered the amending formula under our own constitution, Canada’s government gave its consent to bringing the monarchy into the 21st century.

December 11th is also the anniversary of the 1997 Supreme Court of Canada decision referred to as Delgamuukw v. British Columbia, where Aboriginal title over traditional use and occupancy of lands was recognized and defined by the court. This paved the way for land claim settlements across Canada. 

Sharing the anniversary date with the Statue of Westminster, while coincidental, is nevertheless symbolic of a special day of the Crown recognizing the rights of Nations.

Interested in more blog content from the Institute on Governance? Click here to view more posts!

REACTION: Speech from the Throne

As originally published in iPolitics Wednesday, November 25th 2021.

With contribution from Karl Salgo and Rhonda Moore.

A time-honoured tradition.

A Speech from the Throne or Throne Speech is a highly ceremonial element of the parliamentary process, the centerpiece of the opening of any new session of Parliament following an election or a prorogation. The Governor General, as the representative of the Queen, reads the speech on behalf of “her” government, in which the latter seeks the support of parliamentarians for its legislative agenda for the session.

Parliament debates and votes on the throne speech, which is a matter of confidence, meaning that it must receive majority support if the government is to continue in office.

Canadian throne speeches tend to differ somewhat from their British counterpart, the Queen’s Speech, most conspicuously in length. In recent times the average duration of the Queen’s Speech is about 10 minutes, which means about 1000 words or less.

Our throne speech tends to be much longer – typically in the 3,000 word range (Tuesday’s speech being a bit over 2,700). Arguably, that reflects a greater tendency for Canadian governments to use the speech as a communications tool. Or perhaps it’s just that no one dares to tax Her Majesty with the additional verbiage.

The need for a public statement of strategic direction.

From a governance perspective, the throne speech is one of the more significant manifestations of a core principle: the need for public statements of strategic direction. By strategic direction we mean that specific government initiatives should be part of a broader, coherent agenda.

Such forward planning contributes to effective performance, while the public nature of the plans contributes to accountability, two other core governance principles. Canadian governments have a relative handful of comprehensive strategic statements – electoral platforms for those who have recently been to the polls, throne speeches which often and justifiably resemble electoral platforms, or the federal budget, to name a few.

What’s at Stake?

The Governor General’s concluding remarks gave clear marching orders to Parliamentarians when she said “[the] priorities for this 44th Parliament are clear: a more resilient economy, and a cleaner and healthier future for all of our kids.”

In a mandate that will be marked by an aggressive push for a “return to normal” and “building back better”, we see rich opportunities for action informed by scientific evidence and innovation. 

Emerging from the pandemic will require vaccines for children, COVID-19 “booster shots” for the rest of us. “A cleaner healthier future” is undeniably a reference to transitioning to a low carbon future and investing in measures to adapt to or mitigate the impact of climate change. Science and innovation have key roles to play to achieve these visions. 

But science and innovation alone will not deliver the government’s new mandate. Progress requires the willingness of society to accept the knowledge science provides, and to act on that knowledge. That requires trust. Her Excellency gave a clear directive on that topic, too, when, in her concluding benediction she said: “may you be equal to the profound trust bestowed on you by Canadians, and may Divine Providence guide you in all your duties.”

Accountability comes next.

These points considered, it would be surprising if this throne speech did not resemble the government’s recent campaign platform, which is arguably a reflection of its accountability (i.e., is the government doing what it said it would?). The next step in accountability will be the debate and confidence vote, and the longer term manifestation will be how well the government delivers on this agenda.

When it comes to accountability for public statements, leaving themselves a bit of wiggle room is a time-honoured tradition among Canadian governments.

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