Referendum battle in court again

In the midst of a review of the Official Community Plan, a Whitehorse woman is in court fighting for the right to meddle with what the city has dubbed a protected document.

In the midst of a review of the Official Community Plan, a Whitehorse woman is in court fighting for the right to meddle with what the city has dubbed a protected document.

Whitehorse is appealing a Supreme Court decision that granted McLean Lake resident Marianne Darragh the right to amend the Official Community Plan by way of a referendum.

The city’s appeal extends a battle begun in June 2008 when Darragh collected 2,654 signatures in support of creating a 500-metre buffer of parkland around McLean Lake.

“We already won this issue in Supreme Court (in October),” said Darragh during a break in the court proceedings.

“Our argument relied upon the Yukon Municipal Act, which lays out public participation as a guiding principle.”

At stake in the court case is the question of whether citizens have the right to amend planning decisions made during the Official Community Plan process.

“The municipal act intended land-use planning only through the (Official Community Plan) process and not through ad-hoc referendums,” said city lawyer Dan Bennett.

“The OCP process already allows for public input.”

This level of public input isn’t adequate, argued Darragh and her lawyer Zeb Brown.

“In public consultations, council doesn’t have to go ahead with what the public is recommending whereas a referendum is a binding vote,” said Darragh.

“You have no real weight in the consultation process and the city keeps pushing it as though it’s reasonable. But it’s not the same thing.”

Referenda are a legitimate means for amending the Official Community Plan, Brown argued in court.

“I think one of the undercurrents of this case is the idea that referenda can become frivolous,” said Brown.

“But they won’t become frequent, too-many or ad-hoc.”

Darragh’s referendum is the second to come before the city in 10 years.

“There’s a certain irony for the city to say amending the OCP for someone else’s objectives and goals is ad-hoc,” said Brown.

“The OCP from 2002 has been amended at least 17 times without full review. These are spot amendments the city is using to achieve its development goals.”

But municipal acts in Saskatchewan and Alberta prevent citizens from holding referenda to amend official community plans, said Bennett.

“Alberta and Saskatchewan both looked into this matter and said that orderly changes should be made through the OCP process,” said Bennett.

Also, McLean Lake is on territorial land, not city land, said Bennett.

“The appeal concerns Yukon-owned land,” said Bennett.

“The bylaws referred to in the petition were beyond the jurisdiction of the city.”

No final decision was made on the appeal Tuesday. Justice Ron Veale did not state when a decision might be expected.

Whatever the outcome of the court case, the city will abide by the decision, said Mayor Bev Buckway, who was present for some of the hearing.

“We didn’t like to see this going to court, but sometimes the legal route is the way you have to go.”

Referenda don’t deal well with complex issues and they don’t usually draw sufficient numbers of voters, said Buckway, adding she’s not necessarily opposed to them.

“We didn’t get many voters out in the last referendum … and the cost and time it takes to put referenda together adds up.”

Contact Vivian Belik at

vivianb@yukon-news.com