WHO REALLY OWNS CITY HALL 1: Look in the mirror

Andre Carrel
By Andre Carrel
February 18th, 2013

The last section in the Municipal Act calls on the Minister to “establish a process for the review of this Act” within 10 years after its adoption. The Act was adopted in 1998, and by the time the Minister complied with section 371, that deadline had long ago expired. However, the review process is now underway and although the Municipal Act Review Committee’s reporting deadline is still a long way off, Yukoners would be well advised to engage in the process without delay and reflect on their role in governing their own communities.

The Minister established nine guiding principles for the review process. For the most part the principles adopted (e.g., engaging, accountable, open communications) apply to any public consultation process. Two principles, however, deserve special consideration. One, Principle #8, calls on the review to strive to inspire people to think long-term about local governance. The other, Principle #5, calls on the review to draw from the best available research and analyses and to involve subject-area experts to guide decision-making throughout the review. This will be the guiding principle for this and my future columns on the subject of the Yukon Municipal Act review.

 Fifty years ago Yukoners stood on the bottom rung of Canada’s democracy ladder. Respect for democracy’s principles began to improve in the territory as a result of dedicated pioneering work done by individuals such as Elijah Smith. There is no comparison between the way Yukoners govern themselves today and the way they were being governed in the days when the Commissioner did not just represent the government, but was the government.

Progress in democracy in the Yukon was slow and gradual. What Yukoners enjoy today is the result of unwavering, persistent and tenacious work done by Yukoners themselves. Toward the end of the 20th century, Yukon governments, territorial and municipal, had finally achieved the kind of government Canadians in all provinces had long ago taken for granted. By that time Yukoners were firmly installed on a democracy trajectory; they had achieved equality with citizens in provincial jurisdictions. But Yukoners were on a roll, and achieving equality was not seen as a reason to abandon the drive for more democracy.

Although still a territory under the federal constitutional umbrella, the Yukon Act gives Yukoners legislative powers to structure their own municipal and local government institutions equal to the powers given to provinces by the Constitution. History bequeathed a unique pioneering spirit on Yukoners, the courage to go where others fear to tread. It is not surprising that Yukoners proceeded to adopt local government legislation with unprecedented democratic credentials once freed from federal government supervision. That achievement is all the more remarkable as it was the product of a non-partisan political effort. The Yukon Party initiated the work in 1995 and the New Democratic Party brought it to conclusion in 1998. The Legislative Assembly adopted the new municipal legislation by unanimous vote.

The 1998 Municipal Act is framed by six principles. These principles are listed in the Act’s preamble; they constitute the framework for how Yukon communities are to govern themselves. A careful reading of these six principles, and thoughtful contemplation of their meaning, is an essential first step in the review of the legislation:

·         That the Government of the Yukon recognizes municipalities as a responsible and accountable level of government;

·         That Yukon municipal governments are created by the Government of the Yukon and are responsible and accountable to the citizens they serve and to the Government of the Yukon;

·         That the primary responsibilities of Yukon municipal governments are services to property and good government to their residents and taxpayers;

·         That public participation is fundamental to good local government;

·         That sustainable Yukon communities require financially solvent local governments that are responsible to the public’s need for affordable public services; and

·         That local governments have a significant responsibility for furthering compatible human activities and land uses.

 The Municipal Act’s Public Votes sections(Part 3, Division 16) is where we find the procedures and regulations that make it possible for Yukoners to participate in their own governance and to hold their municipal government responsible and accountable. We must keep in mind that, according to the legislation’s principles, participation is not merely desirable, it is not a matter of “wouldn’t it be nice”, it is fundamental to good local government. The Public Votes sections enable Yukoners to hold their municipal governments responsible and accountable in ways not possible for Canadians in any provincial jurisdiction. These are the sections that enabled voters in Whitehorse to amend the Official Community Plan to protect green spaces in 2006, and voters in Dawson City to prevent sewage lagoons to be constructed adjacent to a residential subdivision in 2008.

The August 21, 2009, Court of Appeal decision inWhitehorse (City) v. Darragh (2009 YKCA 10 No.: YUo624) imposed a serious limitation on the application of the Public Votes sections. That decision interpreted the legislation on the basis of provincial precedents and, in doing so it marginalized the principles of public participation and council accountability in matters relating to land use. It is not an exaggeration to say that this court decision set the democracy Yukoners had worked so long and hard for back by decades.

The Court of Appeal did not find that Yukon legislators had exceeded their authority under the Yukon Act or that they had pushed democracy too far. It did not rule theMunicipal Act’s Public Votes sections to be unconstitutional. There was a rationale to the Court’s decision, and it would be contemptuous to suggest otherwise. The Municipal Act requires councils to hold a formal public hearing before adopting a land use bylaw (e.g., official community plan or zoning bylaws). Counsel for the City of Whitehorse referred to case law in provincial jurisdictions where it was determined that a bylaw approval process calling for mandatory public hearings amounts to a separate and distinct procedure. Legal precedent in provincial jurisdictions recognizes two distinct bylaw adoption procedures. The two are identical in all aspects except for the mandatory public hearing.

The Yukon’s Municipal Act states that the Public Votes sections apply to “any” bylaw within council’s jurisdiction, exempting only operating and capital budget and taxation bylaws. The Yukon Supreme Court found that the word “any” meant that the Public Votes sections applied to the adoption of all bylaws, save the stated exemptions. The court deemed the mandatory public hearing to be an ancillary to the bylaw adoption procedure. The Court of Appeal disagreed. It can be taken for certain that the Court of Appeal would have upheld the Yukon Supreme Court’s decision if the Legislative Assembly had included a section in Part 7 of the Municipal Act to the effect that the Public Votes division also applies to the procedure prescribed for Planning, Land Use and Development bylaws. Yukon Supreme Court Justice Veale outlined a process in his ruling that would accommodate both the public hearing and the referendum. An amendment to the Municipal Act would need to be more precise and set out the timing for the public hearing in advance of the referendum.

The loser in that case was not the Marianne Darragh; the losers were Yukoners everywhere. The Court of Appeals’ decision denies citizens throughout the Yukon the power to take responsibility for land use decisions within their own communities. More so than taxes or any spending decisions, land use decisions are the most consequential of all municipal decisions. Land use conflicts do not lend themselves to compromise solutions because land is finite — the world is not expandable. Land designated for one use is not available for another use. Citizens cannot rely on elections to undo land use decisions. How could a new council make a shopping mall disappear, undevelop a green space, or relocate a sewage treatment plant?

The Court of Appeal decision raises an important question for Yukoners to consider. The Yukon Supreme Court’s decision was based on the judge’s interpretation of the Legislative Assembly’s intent when it adopted the Municipal Act in 1998. The Court of Appeal’s decision was based on how courts had interpreted bylaw approval procedures in provincial jurisdictions. With that decision the Court of Appeal established a Yukon precedent recognizing the public hearing requirement as constituting a distinct bylaw approval procedure. It means that land use decisions where public hearings are required may not be challenged by referendum, not only in Whitehorse, but in all Yukon municipalities. If Yukoners believe that the Yukon Supreme Court correctly interpreted the legislation’s principles, and if Yukoners want to restore the Municipal Act to its original intent, the Act will have to be amended.

It has been more than three years since the Court of Appeal truncated the Municipal Act’s Public Votes division. If the Government of Yukon had wanted to restore the Act to its original intent, it could have amended it years ago. Why did the Government of Yukon not propose such an amendment? The reluctance to do so can be explained in one word: referendum. What is a referendum? Why are some of the people we elect so vehemently opposed to the referendum? That question will be the subject of my next discussion on Who Really Owns City Hall.

Andre Carrel is a retired City Administrator, journalist, author, and full-time grandpal.

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