Law stifles citizen participation

Law stifles citizen participation In the Our Towns, Our Future report, only a handful of paragraphs are devoted to the Yukon Municipal Act, essentially saying a full-scale review is a long way off. In the meantime, the rest of us probably need to watch

In the Our Towns, Our Future report, only a handful of paragraphs are devoted to the Yukon Municipal Act, essentially saying a full-scale review is a long way off.

In the meantime, the rest of us probably need to watch our backs.

Whitehorse city council ranged especially far and wide in its eager wish list for the municipal act: more taxing authority, including the ability to impose a sales tax; and all Crown land turned over to them for $1. They mused about providing services for fees to the communities Ð a business venture, of sorts.

The only nod to governance issues from Whitehorse was Mayor Bev Buckway’s perennial complaint about the referendum legislation and how it should be much harder for citizens to use Ð much harder, for instance, than getting voted into office.

The growing evidence of Whitehorse’s deficient understanding of the fundamentals of voters’ rights is getting alarming.

In 1998, the Association of Yukon Communities’ Municipal Act Review Committee wanted to be free of the ministerial controls written into the old act. When YTG asked them about checks and balances, the committee said oversight should instead go to the citizens Ð the people directly affected by the decisions made by municipal government. They proposed citizen-initiated referendums instead of the appeal mechanisms governed by YTG, such as the Municipal Board of Appeal.

Accordingly, the intention of the 1998 Municipal Act referendum legislation was to foster a spirit of consensus between council and citizens, giving citizens the referendum tool to balance the expanded powers of municipal government. Expanded powers of municipal councils without corresponding checks and balances was not contemplated in the act.

The Association of Yukon Communities’ record in upholding the democratic principles in the act is not great.

Once ministerial oversight was replaced with direct democracy legislation in the municipal act, they almost immediately began to resist the measures, with the membership using the considerable resources at their disposal to challenge the same progressive statutes they had proposed.

Within a year of its adoption, Whitehorse Ð whose mayor had been one of the members of the municipal act review committee Ð set to work attempting to neutralize the referendum legislation.

In 2009, through expensive court battles launched by Whitehorse, with the help of the British Columbia Court of Appeal, and a Yukon Party government that looked the other way, Whitehorse finally succeeded in alienating land use from the public votes section.

This is still not reflected in the act itself. That is, the land-use exemption from the public votes section in the act won’t be found in the act. One has to imagine that it’s in there. Instead of legislation, Whitehorse is happy to explain its own interpretation of the court’s decision, and the rest of the act as well, and Minister Lang, an absentee steward of the municipal act, won’t interfere.

Where do citizens fit into this municipal act now Ð this new act cobbled together by a Vancouver court, and never subjected to review in the Yukon Legislature?

Recently, a longtime resident of Whitehorse had to go to council with a plea to have residential zoning restored to the titled property she’s lived on for 50 years; zoning that changed three years before without her knowledge, and that made her property attractive to only one buyer Ð Whitehorse. Council granted her request, narrowly. What were her options if they hadn’t?

Faro told the Our Towns, Our Future review that more training was needed for members of town councils, and that they have difficulty managing much of the legislation in the municipal act, including planning and zoning. There are so many policies and bylaws, Faro said, that they “fall by the wayside.”

When Faro got caught up in a zoning dispute with residents, Whitehorse lawyers stepped into the breach, the way they do. They petitioned the Yukon Supreme Court to evict the residents from their titled property because zoning doesn’t permit them to live there.

Justice Leigh Gower did not disappoint Faro. He evicted the residents, who represented themselves, with unduly harsh language toward them. (One has to go to the sentencing of the two men who were convicted in the murder of a Carcross resident to find his kinder, gentler side.)

Gower’s decision will reinforce Yukon municipalities’ sense of entitlement to an unchecked authority the legislators for the 1998 municipal act never intended to grant, and that citizens never consented to. And citizens’ status as “defeated outsiders” to the court system is further solidified by the tone of the decision.

But let’s leave aside for a moment the unholy alliance forged between the courts and Yukon municipal politicians.

It’s an interesting time to resurrect the ghost of Jane Jacobs, who had so much influence on urban planning.

Jane Jacobs’ gift was to trust her own observations about what made communities thrive, and question the prevailing views of city hall and its technocrats. But her insights weren’t simply accepted through a constrained process of stakeholder meetings and citizen surveys. She struggled to be heard.

The legacy of the Yukon Municipal Act is that changing the conversation, as Jane Jacobs did, has become difficult in the extreme.

It’s truly ironic, the municipal act that was conceived in the spirit of nurturing a creative, open collaboration between citizens and local government is now the instrument for stifling new conversations, and different ways of seeing.

Marianne Darragh

Whitehorse