Can Territorial Government always trump Municipal Bylaws?
The Yukon Municipal Act which serves as the rule book for Municipalities and Territorial Government states the following -
Effect of this Act
5 – The Government of the Yukon is bound by the bylaws of a municipality, except as otherwise established by the Commissioner in Executive Council by regulation.
Because municipalities are a ‘statutory creature’ and exist at the pleasure of the Territorial Government it can impose its will on a community like ours with an order in council. Thereby circumventing the need to comply.
Of course the cost associated with a move like that can cause irreparable political damage to the ruling party. Especially in the case of the apparent conflict between the Hospital Corporation’s desire to construct a hospital at Minto Park as soon as possible and the new Heritage Bylaws just passed by the previous Town Council.
The conflict arises because the Hospital Corporation is unable to satisfy the information requirements under Section 8 – Development Permit Applications from the Zoning and Heritage Management Bylaw 09 – 03.
They don’t have plans for the proposed building. Nothing can commence until all of the municipal requirements are satisfied. Otherwise, why bother having bylaws in the first place?
Another unfortunate aspect of the new hospital saga is the lack of consultation with the community at large. At no time did the people have a chance to ask our MLA or the Minister in a public forum to justify the location of proposed facility.
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IF Government of Yukon is looking for loopholes to avoid the law then how the heck would they expect the rest of us to follow the rules?
Your touching on my hobby here, John.
The sub-servient status municipalities enjoy – if that is the right word – is not unique to Yukon municipalities. It holds true for the cities of Toronto, Montreal, and Vancouver every bit as much as it does for the City of Dawson.
Back in 1982 when the Charter of Rights and Freedoms was debated by the federal and provincial governments, the FCM (Federation of Canadian Municipalities) made a serious and valiant attempt, vain alas, to have municipal governments recognized in Canada’s constitution. The provinces objected vehemently. The feds did not care about it one way or the other. Citizens – as is usual – were more concerned about sports and entertainment than the principle of democratic governance at the community level.
Only when a local conflict arises do people discover the reality that municipalities are nothing other than provincial/territorial toys. The municipal reality was best defined by the New Brunswick Court of Appeal in 1998 (Citizens Against Amalgamation Committee v. New Brunswick).
“Under s. 92(8) of the Constitution Act, 1867, each province has the exclusive right to make laws in relation to municipal institutions. There is no constitutional right of residents or electors to be consulted before the Legislature passes legislation relating to amalgamation or dissolution. The determination of boundaries of any municipality is exclusively in the Province, and it is not open to persons or groups of persons to usurp that power or encroach upon it so as to determine their own municipal boundaries.”
And what applies to boundaries applies to everything else in the sphere of local government, from dog control to development and zoning. Canada’s Constitution grants citizens rights and freedoms, but no power – none whatsoever. Power is the exlusive domain of federal and provincial governments.
The sad thing about all of this is that citizens hold to romantic assumptions about the status of their municipal government. We give call our mayors “Your Worship” and proudly display municipal flags, seals and other trimmings of this sort. But at the end of the day municipalities are nothing more than colonies of their provincial/territorial masters. Citizens have nothing to say about it.
If citizens want to change that, they will have to organize at the national level to lobby the federal and provincial/territorial governments. The challenge is to convince provincial/territorial governments to surrender some of their powers. How likely is that? Just take a look at the attempts by Yukon municipalities to take back some of the powers granted to citizens in the Municipal Act with the public votes provisions.
Problem is that whenever efforts toward constitutional recognition of municipal governments are attempted, citizens object because they feel more secure when their own municipal government is under the provincial/territorial thumb; citizens do not seem to trust the very people they elect to serve on their own council.
So aptly put.
Thank you for clarifying the true relationship we have as a municipality to the Territorial Government.
I even question our so called ‘rights and freedoms’ if we are not allowed to easily enjoy a modicum of empowerment at the grassroots level.
If I am not mistaken,it should be noted that the Tr’ondëk Hwëch’in government is constitutionally entrenched thereby making them almost equal to the Territorial Government in stature.
But would the Government of Yukon not be legally required to follow the clause John has quoted from a Territorial Act? To get the Commissioner in Executive Council i.e the Minister etc to sign a regulation?
The Minister and his colleagues then just have to be accountable politically for over-ruling the municipal Council. But at least it would be legal. Surely with that clause in there, Government of Yukon can’t just say, in generality, that ‘bylaws don’t apply to us’.
Commissioner in Executive Council, that’s the Cabinet. And when the Municipal Act says that the Government of Yukon is bound by the bylaws of a municipality “except as otherwise established by Commissioner in Executive Council by regulation” it means that the law gives Cabinet the power to do whatever Cabinet wants to do. All Cabinet has to do is pass a regulation, which takes about 10 minutes. The Legislature has already given its approval in the form of the section that allows for exemption by regulation. So, if Cabinet wants to ignore a municipal bylaw, any bylaw in any municipality for any reason at any time, then it can do so in full compliance with the law. Ain’t it beautiful how the law works? In answer to your question, Dawson Activist, “that bylaw don’t apply to us in this case” is precisely what the Yukon Government (Cabinet) may do and if it does say that, it will be in full compliance with the letter of the law. Welcome to the real world of local government.
I understand what you are saying but, they still need to take the 10 mins to do it, right? For it to be legal that is.
To put it on the permanent public record that the decision was forced through by Cabinet from above against the direction of the local bylaw as passed by the Council.
Just so, politically speaking, everyone was clear on the matter and there was accountability should the citizens wish to take an interest.
And, I’m sure the intent and spirit of that exception was for it to be used in highly unusual circumstances. Otherwise why would the first part of the sentence be there?
If it was intended that Government of Yukon claim a general exemption from bylaws, why write the first part? Would you not just write ‘Municipal Bylaws do not apply to Government of Yukon’. I think it has been generally accepted previously that you try not to do this.
I remain wedded to my first point. If government won’t follow the spirit of the rules I see no imperative to do so myself and I am sure others will feel the same and it brings the whole bylaw into disrepute. Leadership is best portrayed by example.
Dawson Activits, don’t forget that there are other forces at play. For example, if another Ministry, be that Highways, Health, Education, or whatever, have a need for something or other, and a budget with which to meet that need, then that is often considered to be the “greater interest” which trumps the limited “local interest.”
For example, there may be a deal involving the feds as well in a cost-sharing scheme, there may be timelines to such schemes too.
In B.C., for example, it is not unheard of for the provincial government to overrule a municipal council in land use or taxation matters “in the greater public interest.” Very easy for a provincial or territorial government to raise the “greater public interest” as the deciding argument because they represent the province or territory as a whole, whereas a municipal council represents “only” the “local interest” by which they usually mean the “narrow local interest” but lack the balls to say it in so many words.
I am smart enough to understand all that. I repeat, however, that it should be done legally. Ignoring the stipulated steps of procedure is a slippery slope that yourself and Dawson knows all too well leads to no good.
Reading your example again raises another pet subject of yours. For some reason, Government of Yukon chose not to use this exception for the lagoon, when there was fed money, timelines etc at hand.
Reason: Because they didn’t have the political courage to go against that direct vote.
I’ve done a lot of research in recent times and have quite come around to direct referenda actually. I’m not sure why those opposed to this project, on which fundamentally I am quite neutral, didn’t go that route.
John, it’s like deja-vu for me, when I had my little rant at the city, all I was trying to get across is that the little guy, me and now you are just serfs, pay taxes and pay homage, and all I want is for the citizens of Dawson to put on their heritage glasses and understand what we will lose if YTG has its way and it’s pretty close now to being fait accomplis. BUT close to 300 people have signed the petition to save Minto Park and more folks are coming on board every day so we will have faith and keep on collecting names and info on the importance of Minto Park in the everyday life of the town and what we can do to perhaps bring more events back to the park in the future.
I don’t know either, unless of course Yukoners have lost the courage to make use of that tool – the referendum that is.
Look at what happened in Whitehorse in the case of Marianne Darragh. The City of Whitehorse attempted to block the initiative process every step along the way, even going public with ads claiming that the McLean Lake petition was illegal. When the petition was eventually filed, with 20 percent more votes than required, the City took Marianne to court, naming her personally. She had to get a lawyer, at her cost. She won. The City then went to appeal the decision. The City won on appeal because the Court of Appeal relied on Alberta and Saskatchewan precedent. The Court of Appeal did not consider the information Marianne’s lawyer submitted to establish that the Yukon legislation had established new principles of citizen empowerment. Throughout it all Marianne was on her own. The YTG had it in its power to intervene and advise the Court of the citizen empowerment principles the Yukon Legislature had established with the new Municipal Act, but instead it chose to remain silent.
So Marianne was left on her own. The City of Whitehorse paid tens of thousands of dollars on this case – no big deal, it all comes from taxes. Marianne, on the other hand, was left as on individual citizen to pay for her costs, even when over 2.400 citizens had signed her petition. To add insult to injury, Marianne contributes to the City’s legal costs through her taxes.
And then, come election time, same old same old. Any wonder why citizens may be luke warm about attempting to use the limited bit of power they do have under the Municipal Act?