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Non-Public Property: Unraveling The Mystery - Part 1 Of 3
By Mary Turner
In this first of three articles designed to explain the unique and sometimes complex world of Non-Public Property, or NPP, I will be describing the legal nature of NPP. In Parts Two and Three, to follow in subsequent editions, I will write about the legal status of NPP organizations and Staff of the Non-Public Funds, Canadian Forces.
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NPP is a legally defined term, found in section 2 of the National Defence Act (NDA). Although it is often referred to as non-public “funds”, NPF is not a legally defined term. While it is true that there are money accounts, or “funds”, created for non-public purposes, the general use of the term “funds” does not reflect the fact that NPP is a much broader term. The legal meaning of “property”, although it does include money or “funds”, also includes every other type of property of every nature and kind, such as physical assets, real estate and rights. It is therefore more correct and appropriate to describe our organizations, activities and property as NPP, as opposed to NPF.
The NDA also establishes, in sections 38 to 41, the specific legal provisions governing NPP. Those sections provide, among other matters, that NPP is vested in the Chief of the Defence Staff (CDS) and Base, Wing and Unit Commanders for the benefit of serving and former CF members and their dependants. These provisions, together with the fact that the property is called “non-public”, sometimes lead people to conclude that NPP is not Crown property. Such a conclusion is wrong. The words “non-public” are not legally the equivalent of “not Crown”. NPP is public property in the sense that it is Crown property. NPP is merely a special class of Crown property created by the NDA.
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The major difference between “public” and “non-public” property, is that NPP is not subject to the rules and regulations governing the administration of public property found in the Financial Administration Act (FAA) and the regulations made pursuant to the FAA. The reason those rules do not apply, is that the NDA specifically states that the FAA does not apply to NPP. The CDS is responsible for establishing the rules governing how NPP is to be administered. Even so, because the CDS and Base, Wing and Unit Commanders are always acting in their official capacities when carrying out their NPP responsibilities, and because the NDA makes the Minister of National Defence ultimately responsible for NPP, there is always accountability to the Crown for how NPP is administered.
While NPP is unique in Canadian Law, many countries have established similar special classes of property or funds administered by military organizations in support of their troops, all of which operate outside the rules governing how “public” (or “appropriated”) property is administered. In the United States, for example, this class of property is called “Non-Appropriated Funds”.
Since 1969, the Government of Canada has recognized that personnel support is a public responsibility, and public support for a system of NPP organizations has been formally authorized. Indeed, the relationship between Her Majesty in Her public capacity and Her Majesty in Her non-public capacity, is one that is truly symbiotic. In the next segment of “NPP – Unraveling the Mystery”, I will explore that relationship.
