Government must respond to court decision

Government must respond to court decision Open letter to Archie Lang, minister of Community Services: On August 21, the BC Court of Appeal ruled in Whitehorse (City) vs. Darragh 2009 YKCA 10 Whitehorse's position that the Yukon Municipal Act does not per

Open letter to Archie Lang, minister of Community Services:

On August 21, the BC Court of Appeal ruled in Whitehorse (City) vs. Darragh 2009 YKCA 10 Whitehorse’s position that the Yukon Municipal Act does not permit the city to amend the Official Community Plan by a petition for referendum was correct.

The decision was released two months ago. The case has been before the courts since the summer of 2008.

The Yukon government has had plenty of time to review the decision. As the respondent in the case, I am particularly curious about the outcome of such a review.

Can the government now state whether the intention of the Yukon Municipal Act was to exempt the Official Community Plan from the public votes section of the act?

The municipal act can be amended to clarify that land-use bylaws are not excluded from the public votes section by saying so explicitly in the relevant sections.

Based on my own experience with the McLean Lake Park petition, I suggest the public votes section of the municipal act also needs to include measures that protect petitioners from litigation initiated by a municipality. 

Official Community Plan and accountability

Information released through an ATIPP application (but not until months after the Court of Appeal hearing) made it clear the Yukon government refused to impose any more limits to the bylaws eligible for referendum during the 2008 municipal act review, as the Association for Yukon Communities proposed.

The proposed amendment was more strongly opposed by the public than any other.

The administration’s recommendation was such an amendment could be seen as “unduly limiting the democratic process.”

It’s doubtful that, if my lawyer and I had received this information in time for the hearing, it would have changed the decision of the Court of Appeal.

We did submit Hansard records from October 2008 and November 1998 that reflected the recommendation quoted above, and said the public votes section was conceived as an integral part of the municipal act, respectively.

What Yukon legislators said did not carry the weight of Saskatchewan and Alberta legislation the Court of Appeal compared with the Yukon Municipal Act.

The court also said the section in the act for the Official Community Plan was “comprehensive,” which showed the intention to exclude the OCP from public votes.

That is my perception of the basis of the decision, but I’m not a lawyer.

Suppose the Yukon government agrees with the Court of Appeal the intention of the legislation was to exempt the Official Community Plan from the public votes section.

There are 50 provisions related to land use in the Yukon Municipal Act, 239 and 163 provisions in the Saskatchewan and Alberta acts respectively. Without reading all the acts, some of the differences are sure to be in provisions for accountability.

It was also apparent in the information released through ATIPP the public had raised other issues during the 2008 municipal act review having to do with more, not less, oversight of municipalities.

The referendum provisions were intended to provide the checks and balances for municipal councils’ decisions made with the expanded powers given by the municipal act in 1998:

“[The new municipal act] replaces [ministerial control and approvals] with a system that empowers voters to provide direction to municipal governments. The provisions for petitioning and public votes puts the checks and balances into the hands of the electorate.” (Hansard,

November 24, 1998.)

If public votes provisions exempt the Official Community Plan, what oversight is there?

Court actions

The provision for the city to go to the courts to challenge a petition question is in the Whitehorse referendum bylaw (Bylaw 2004-20, Section 7), not the municipal act.

The Supreme Court noted that because of the lack of precedent, the matter was “of more than ordinary difficulty,” and the BC Court of Appeal said it raised an issue “important É to all residents of Yukon.”

Still, I have to bear the legal costs of responding to the appeal.

It’s easy to say, in retrospect, it would have been wiser not to respond to the court actions.

But even after 18 months of being caught up in litigation not of my own making, I don’t know how else it could have been managed without surrendering the petition and setting a precedent for future ones.

The municipal act offers no guidance for citizens faced with such a dilemma.

There is now a precedent that the respondent in a case that challenges the municipal act pays legal costs; and a degree of risk has been added to the already high bar (2,000 eligible voters in Whitehorse) set for a valid petition for referendum.

The risk must be addressed in the legislation or the public votes section can’t be used by the citizens it was intended for.

Municipal act

Preparing the McLean Lake Park petition for referendum, and the time spent gathering 2,654 signatures was a very positive experience.

The events that followed were disappointing.

But it would be so unfortunate if citizen-initiated referendums were allowed to die from attrition, due to one municipality resisting the legislation and using citizens’ resources to persistently attack voters’ rights that were generally understood to be a vital part of the municipal act:

“The new municipal act gives voters the power to oversee the affairs of the municipality, and to provide binding direction to councils on important issues É this gives citizens a meaningful process to ensure that councils act on issues the voters consider important É Yukon municipalities endorse these new checks and balances. They believe É they should be fully accountable for their actions.” (Hansard,

November 24, 1998.)

The municipal act was recognized by the Canadian Federation of Municipalities and other jurisdictions for its “progressive and innovative” provisions, which include those allowing for public votes “on any matter” within a municipality’s jurisdiction.

Since 1998, all the parties in the Yukon legislature have had the opportunity to affirm the Yukon Municipal Act that was adopted in 1998. All parties have taken ownership of the act.

I hope this matter can be dealt with in the same spirit, so that the progressive elements of the municipal act are upheld, and citizens are empowered again to participate fully in municipal government.

Thank you for your attention. I look forward to your reply.

Marianne Darragh


See more letters page 6.