Court dismisses city in referendum fight

The city’s referendum laws do not need to be rewritten, the Yukon Supreme Court decided on Thursday.

The city’s referendum laws do not need to be rewritten, the Yukon Supreme Court decided on Thursday.

That means Marianne Darragh’s petition for a referendum on McLean Lake can proceed.

“I don’t have any complaints,” said Darragh .

The city argued the referendum laws are flawed because the city is forced to dismiss its own public consultation process.

But the referendum clauses in the Yukon Municipal Act provide enough public input without damaging the pre-existing consultation requirements, said Justice Ron Veale.

“I’d say (the decision) isn’t what the city wanted, but we went to the Supreme Court and this is the decision,” said Mayor Bev Buckway.

“When you have a referendum that’s being presented to the public like this, it’s something that crosses over jurisdictions with legislative processes that are already in place. And that’s what makes it so complex.”

The controversial referendum to declare a park around McLean Lake through an amendment to the Official Community Plan is far from over.

“In his case we are being asked to spend taxpayers’ money,” said Buckway.

“That’s where it gets really difficult,” she said.

“We’ve got something here that crosses over with our budget process.”

Though budgetary problems have existed in previous referendums, the city will have to wait until they can be addressed with changes to the municipal act.

A bill tabled last week in the Yukon legislature tweaked the act, but contains nothing about referendums.

“It took us four years to get this far with the few changes we got in,” said Buckway. “At some point we’ll have to start again, but it will be a lengthy process.”

Despite squabbles over the expense of a referendum, the city’s court challenge has already cost citizens quite a bit of money.

The court awarded Darragh costs for her legal expenses.

“It’s pre-litigation costs too,” said Darragh. “That means that the cost when I had to retain a lawyer is covered.”

Darragh had to retain a lawyer before the case went to court because the city released statements that attempted to discourage her efforts.

“I had to hire a lawyer from when I submitted the petition and (Robert) Fendrick told me that he had to approve the (referendum) question,” said Darragh. Fendrick is the city’s director of administrative services.

“I had to hire a lawyer then, just to clarify the referendum bylaw,” said Darragh.

The court ruled this process was unnecessary and costly for Darragh.

“If (the city) had a problem with (the referendum), they shouldn’t have been issuing press releases, they should have gone straight to court,” she said.

The news releases were “arguably calculated to both dissuade Ms. Darragh from proceeding with her petition and discourage electors from signing the petition,” wrote Justice Veale in his decision.

“I felt that was pretty perceptive,” she added.

Now, the city must prepare the referendum question before it goes to voters.

“(The city) has eight weeks to prepare the bylaw question and do first reading,” said Darragh.

Whitehorse also has to figure out how to educate the public about what’s at stake.

“We have to make sure that we can get information to the public, so that the public understands when they’re voting on,” said Buckway.

“(The public) would want to understand what the costs would be to the city,” she said. “They’d want to understand the long-term implications.”

“But one of the most important things here is that you can get a petition out with 2,000 signatures, but there’s nothing in place that says you need more than two people to show up at the polls to vote,” she said.

“It’s critical that the voters actually show up at the polls to vote when we have this referendum,” said Buckway.

The average turnout for city council elections is usually around 45 per cent, she said.

“And for referendums it’s less than 10 per cent. So it’s pretty dismal,” she added.

Buckway doesn’t know if the referendum question will be changed yet, she said.

But because there are so many unresolved issues, no one is ruling that out.

“I’m going to be watching (for changes),” said Darragh.

“What the question is going to be is a very big issue.”

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