The debate in the legislative assembly on a motion to restore meaningful public participation provisions in the Yukon Municipal Act was both encouraging and disturbing.
Steve Cardiff, who introduced the motion, and Eric Fairclough, who endorsed it, spoke with passion and eloquence in support of democratic principles and about the legislature’s intent when it adopted the act in 1998.
The relevant issue in this debate is found in a question Henry David Thoreau asked in Civil Disobedience, an essay he wrote in 1849:
The progress from an absolute to a limited monarchy, from a limited monarchy to a democracy, is a progress toward a true respect for the individual. Is a democracy, such as we know it, the last improvement possible in government?
The legislative assembly answered Thoreau’s question with a definitive no when it adopted a new municipal act in 1998. Community Services Minister Archie Lang’s response to Cardiff’s motion, and the legislative assembly’s vote to defeat that motion indicates democracy in the Yukon had advanced too far in 1998 and that, in matters of community planning, government knows best and should therefore not be accountable to anyone.
Lang’s assurance “the referenda provision of the municipal act continues to allow residents to petition for a referendum on the wide range of other issues” is naive. Perhaps Lang does not understand what an official community plan is and what effect it has in local government.
The municipal act stipulates an OCP must address future development and land use, municipal services and facilities, environmental matters, utilities and transportation systems.
Further to that, the act allows a council to include anything it wishes in an OCP. The act prohibits a council from enacting “any provision or carry out any development contrary to or at variance with” the OCP. But the act allows that the OCP “shall not commit the council Ã‰ to undertake any of the projects outlined” in the OCP.
What this means is everything council wishes to do either must or may be covered in the OCP.
While council is not permitted to contravene the OCP, it is not required to do anything stipulated in the OCP. The OCP provides the fence within which council may freely roam.
The act specifies a petition may be submitted “on any matter,” listing just three exemptions: the operating budget, the capital budget, and the property tax bylaw.
The government’s decision to allow the BC Court of Appeal’s decision to stand without amending the act either as proposed by Cardiff’s motion or to add OCP bylaws to the list of exemptions opens the door to legal challenges on any petition.
OCP bylaws are not exempt, but Whitehorse argued it should be. The Yukon Supreme Court disagreed, but the BC Supreme Court overruled the Yukon court and decided petitions and referendums on OCP bylaws should not be allowed.
This creates a situation where a citizen’s petition for a referendum on any issue, which citizens are free to do as Lang suggests, may be short-circuited by council with a minor amendment to the OCP to prohibit whatever the initiative calls for.
Of course, if council agrees to act on a citizen’s proposal, there is no need for a petition.
Today, if a citizen initiates a petition to build a playground, to pave a street, to upgrade a water or sewer system or to do anything council does not wish to do, council can preempt the petition with an OCP amendment.
Council could also follow the example set by Whitehorse in the McLean Lake matter, leaving the citizen with the choice of abandoning the petition or being dragged through the courts for months and paying thousands of dollars in legal fees.
Prior to 1998, the municipal act placed the checks and balances for local government decisions in the hands of the minister. The 1998 municipal act put these checks and balances in the hands of the people in the communities affected by their council’s decisions.
The Yukon government’s inaction in response to the BC Court of Appeal decision in City of Whitehorse v. Darragh eliminates all checks and balances from local government.