Re Court of Appeal decision – Whitehorse v. Darragh:
When Yukon municipalities lobbied the Yukon government last year to exempt Official Community Plan decisions from the petition and referendum process, the Yukon government declined.
Municipalities can now rejoice; the Court of Appeal for the Yukon territory, in its Whitehorse v. Darragh decision, has done for municipal councils what the Yukon government and legislature did not want to do.
When the Yukon Municipal Act was written more than a decade ago the Association of Yukon Communities wanted to eliminate the Yukon government’s supervisory role in official community plan decisions.
It was agreed then that councils should be responsible and accountable to the citizens they serve. That principle was written into the legislation’s preamble, and the public votes division was written to provide the petition and referendum rules, lending substance to the legislation’s guiding principles.
The municipal act’s public votes division sets Yukon municipalities apart from all other Canadian municipalities. Democracy in the Yukon took a giant leap forward with the 1998 municipal act; it moved people from being observers and taxpayers governed by the elected few to being citizens in control of and responsible for their own governance Ã for better or for worse.
Alas, some municipal councils do not appreciate their citizens’ supervisory role.
The Court of Appeal, by unanimous decision, concluded “The adoption of an OCP is a collective process that focuses on the broadly based interests of the community as a whole. It does not involve planning by individually based interests that are more narrowly focused.”
This is an interesting conclusion.
How does an OCP amendment come about?
Typically a developer approaches a municipality, in confidence, with a planned project. The project may require a change in zoning, which in turn may require a change in the OCP.
Developer and council have an incentive to co-operate in this. The prize for one is an opportunity to make a profit, for the other the prize is a richer tax base.
Whitehorse residents have seen that game played many times.
This is what the Court of Appeal defines as a “collective process that focuses on the broadly based interests of the community as a whole.”
The municipal act’s public votes division does not prevent this process. What it enables is an additional process, such as the one Whitehorse saw a few years ago with the greenbelt referendum.
This was a petition signed by well over 2,000 citizens and a referendum in which every citizen could have a say.
It resulted in the protection of every greenbelt, environmental protection area and park reserve in the municipality.
This is what the Court of Appeal defines as “planning by individually based interests that are more narrowly focused.”
The Court of Appeal’s decision leaves Whitehorse with a dilemma: OCP section 6.4.4 requires that, “When any amendment, including an amendment put forward during the Official Community Plan review process, proposes a new land-use designation of an area currently designated greenbelt, environmental protection or park reserve on the area land-use designation map, the proposed change shall be put to referendum.”
It is what the citizens of Whitehorse voted for.
Now, however, this section contravenes the municipal act as interpreted by the Court of Appeal. Out goes the protection of greenbelts and parks. A majority of citizens voted for that protection, but, by the Court of Appeal’s reasoning, the decision was not made on broadly based interests of the community as a whole, it was made by individually based interests holding to a narrow view.
This Court of Appeal decision calls for action on the part of the Yukon government and the legislative assembly.
There are two choices.
One is for the government and legislative assembly to reaffirm the principles of the municipal act, which state that municipal governments “are responsible and accountable to the citizens they serve” and that “public participation is fundamental to good local government” by adding the phrase “including land use, planning and development matters” to section 153(1)(c) which states the petition for referendum applies to any matter in the council’s jurisdiction.
Their other choice is to remove the principle of council responsibility and accountability and the principle of public participation from the preamble, and to remove the public votes division in its entirety.
This may seem to be a radical move, but if the OCP is exempt from the citizens’ right to petition their council for a referendum, then the petition and referendum process is reduced to little more than symbolic window dressing.
Official community plans are more than land-use bylaws; they are a municipality’s bible.
The Whitehorse OCP’s vision statement lists seven principles that concern not only land use, but also the environment, social issues, recreation, the economy, and politics (Principle No. 7: Provide a process for involving residents on land-use and community development decisions, which will build consensus on actions affecting the city’s future).
An official community plan is the fence within which council may roam. Council is not obligated to do anything called for in the OCP, but on the other hand council may not do anything that conflicts with the OCP.
In other words, council may do anything it wishes to do so long as its decisions fall within the confines of the OCP.
The Court of Appeal decision means that it is up to council, not citizens, to decide where that fence should be.
Public hearings must be held on proposed OCP changes, and council is obliged to listen with an open mind to submissions made, but council is not obliged to accept the views of citizens who are opposed to a proposed change, even if they represent the majority view.
The majority’s view is of no consequence in the public hearing process.
Today, if a citizen files a notice of petition and council disagrees with the stated objective, regardless of the objective’s nature, council may amend the OCP and block the petition’s intent before the petition is validated with the required number of signatures.
Without an amendment to the municipal act citizens are henceforth only permitted to petition council to do such things as council has already expressed a willingness to do.
This neutralizes the public participation principle with a “why bother” principle.
Leaving the act unchanged is not an option for the Yukon government. Doing so would mislead the public.
Citizens should be able to understand their municipal legislation without having to consult a lawyer to research Court of Appeal decisions, and citizens have a right to know where their government and legislative assembly stand in this matter.