There will be no referendum to create a park surrounding McLean Lake.
Friday, Yukon’s Court of Appeal overturned an earlier decision that had sided with Marianne Darragh, the proponent of a referendum that would have barred development near the lake, found six kilometres west of the city’s downtown.
The decision ends eight months of legal wrangling and leaves Darragh owing $15,400 in lawyer bills.
The spat started over whether a cement plant should be built near the lake, which is a popular fishing and recreation area. But as the case wended its way through the courts, Darragh’s fight raised questions about the nature of democracy in the Yukon.
Darragh and her supporters maintain the referendum powers included in Yukon’s Municipal Act are intended to put more power into the hands of ordinary people, rather than subjecting them to rule by politician.
These powers, they argued, include the ability to alter the city’s Official Community Plan, which serves as a top-level guide to land-use planning.
All zoning bylaws must match the plan. So a park surrounding McLean Lake would trump a development permit already granted to a proposed cement plant that would sit 150 metres from the water’s edge.
The city has argued allowing residents to meddle with the Official Community Plan through referendums would tie the hands of elected officials and prevent councillors from doing their jobs.
There’s nothing democratic about that, say officials.
And there’s already a process in place for changing the Official Community Plan, spelled out in the Yukon Municipal Act, which requires public meetings to be held during periodic reviews of the plan.
In the end, the Appeals Court judges sided with the city.
“The decision has really gutted the municipal act. It basically says you can make your council accountable every three years,” said Darragh, referring to how frequently municipal elections are held.
“The spirit of the municipal act is to have citizens sharing governance with council. And they’ve given council a free pass to keep business the way they have, I guess.”
The long and expensive court battle also sends a message to other Yukoners who may have considered taking up a referendum of their own, said Darragh, who had collected 2,654 signatures to support her cause.
“They let it be known how far they’ll go to fight a petition,” she said. “I have no doubt if it hadn’t gone their way they’d have gone to the federal Supreme Court.”
The referendum may be quashed, but that doesn’t mean there won’t one day be a park surrounding McLean Lake.
Whether such a thing happens in the near future is up to Whitehorse’s next city council. Municipal elections are in October.
A big decision the new council will soon face will be what to do with a report produced from public meetings held by the city over the past year, during its review of the Official City Plan.
That’s the proper time to tinker with the plan, according to the city and the Court of Appeal’s interpretation of the act.
And even with the referendum dead, the developer of the proposed cement plant faces a new obstacle.
Another Appeal Court decision, also released Friday, ruled the bylaw that allows the proposed plant near McLean Lake is invalid.
The decision hinged on the lot’s zoning as a gravel quarry. Whitehorse’s Official Community Plan allows “related activities” on quarry grounds, and the court agreed that operation of a cement plant would meet this criteria.
But there’s a catch: the plan also requires quarry grounds be returned to their natural state once gravel has been depleted or the quarry is given up.
In other words, development on such land is intended to be temporary. Yet a cement plant may operate well after the local gravel supply has been exhausted. On that basis, the Appeal Court judges ruled the zoning invalid.
The city is still puzzling over the decision, said Shewfelt.
“I’m not sure what that does,” he said. “We’re still digesting it.”
Skeeter Miller-Wright cheered the decision. He sits on the executive of the McLean Lake Residents’ Association, which represents the two dozen residents who live near the lake and had launched the court challenge.
The next big question, he said, will be whether a champion of McLean Lake runs in the upcoming election.
“Maybe we need someone on council who will actually listen to city residents.”
Contact John Thompson at email@example.com.