Notes from the Supreme Court: Affirming the Territorial ‘Crown’ Relationship

In the March 2000 edition of Policy Options magazine, I published a short piece entitled “There is a northern Crown”.  That article reflected on a 1999 judgment from the Northwest Territories Supreme Court in the case of Donald Morin v. Anne Crawford, Conflict of Interest Commissioner for the Northwest Territories (sub nom. Morin v. Crawford).  Justice Vertes’ decision reflected on the nature and character of territorial governments and comparisons to sub-national bodies in Canada, otherwise known as provinces. 

The following are a few juicy tidbits from my 1999 article.   

Justice Vertes’ third and most far-reaching statement [concerns] the independence of territorial Legislatures, and more generally the constitutional character of territories. He writes that “it has long been recognized that the territorial assemblies, whether of the Northwest Territories or the Yukon, are not acting as agents or delegates of the federal Parliament when legislating within their sphere of powers. In this sense they have a sovereign-like legislative character” (p. 18). Implied in this argument is the proposition that there is a territorial “Crown” independent of a territory’s legislative connection to Parliament. 

A fourth point raised by Justice Vertes is that the territories do have some limited constitutional recognition. S.3 of the Charter of Rights and Freedoms provides for basic democratic rights for all of Canada’s citizenry. Moreover, territories fall within the definition of “province” wherever that term is used in it (s.30). Justice Vertes concludes: “this recognition reinforces my opinion that in no way can this Legislative Assembly be considered as merely an emanation or organ of the federal government. It is a separate and distinct legislative entity [and] is an independent legislative institution as fully effective within its sphere of jurisdiction as any other legislature” (p.19). 

Invoking arguments from the New Brunswick Broadcasting decision brought down by the Supreme Court of Canada in 1993, Justice Vertes argues that territorial governments have constitutional status, as do provinces, insofar as inherent privileges are concerned. He argues that the capacity to legislate with regard to privilege does not depend on the express provision of the authority in the federal statute listing the powers of the territorial legislative assembly.  He draws a parallel to the argument in the Broadcasting case that “‘…inherent privileges can enjoy constitutional status regardless of whether there exists a power to legislate in respect of privilege in the provincial constitution…’”  (p.21). 

Finally, to cement the constitutionality argument in favour of territories, Justice Vertes quotes again from the same case: “‘our democratic government consists of several branches: the Crown, …, the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role….’” (p.38). Again, we see Justice Vertes’ willingness to draw links to the sovereign relationship, and to argue the symmetry of territorial and provincial constitutionality.    

It is also important to note that this is not the only ruling of this kind. In 1986, the Yukon Supreme Court stated that the Yukon is not a “department of the federal Parliament, or of the federal government,” and it went on to refer to the Yukon as an “‘infant province’ with most but not all the attributes of a true province” — a most intriguing statement from the Court. Thirteen years later, Justice Vertes’ ruling is considerable help in clarifying what the Courts mean by this term “infant province.” 

Now, fast forward to 6:30 a.m. (PST) Wednesday, March 22, 2017.  This is perhaps a little early in the morning, but it is the start of the work day for the Supreme Court of Canada (SCC). Imagine Kirk Cameron sitting at his computer enjoying a cup of coffee and listening intently to the arguments being made at the SCC regarding the First Nation of Na-Cho Nyak Dun, et al. v. Government of Yukon on appeal from the Yukon Court of Appeal on the topic of the Peel Watershed land use planning process (yes, definitely worth the early morning). 

Then imagine said Cameron listening with incredulity as Justice Rosalie Silberman Abella of said Court muses on the direct responsibilities and obligations of the Government of Yukon in its relationship with Yukon First Nations, stating “…particularly a government [Yukon] to whom the Honour of the Crown attaches”. Oh my goodness, here we are 18 years after Justice Vertes’ seminal statements on the place of territories within our constitutional framework, and a learned voice from Canada’s highest Court brings additional perspective to this question, directly linking Crown and territory! 

We inch ever-closer to that elusive goal of full recognition within the Canadian constitutional family. 

I await with bated breath the ruling of the SCC in the case of the First Nation of Na-Cho Nyak Dun, et al. v. Government of Yukon. Perhaps the words of Justice Abella will find their way into that ruling, at which point it will be a far-reaching statement from Canada’s highest Court!◉  

Photo credit: istockphoto/GBlakeley

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