Cameron: A Constitutional Celebration!

Something big happened April 1, 2013. That date, Yukon took another significant step forward in its political evolution.

Some of my readers may know that in 2003, along with the transfer of lands and resources control from Canada to the Yukon Government in what is referred to as the Devolution process, the Yukon’s Constitution, the Yukon Act went through a substantive rewrite. This modernized Yukon Act was Assented to March 27, 2002, and brought into full force and effect April 1, 2003 at the time of Devolution.

There were a considerable number of changes to the Yukon Act relating to the status of the territorial government enshrining in law advances in political development that had been proffered to Yukon by way of letters of instruction from the federal Minister of Indian Affairs and Northern Development.  These letters were provided for through s. 4(3) of the Yukon Act. Two letters were issued in 1979 by the then Ministers, Hon. Hugh Faulkner (January 1979) and Hon. Jake Epp (October 1979). Before the substantive rewrite of the Yukon Act in 2002, it was these letters that gave to the territory responsible government whereby the Commissioner acts in all respects like a Lieutenant Governor and the political party enjoying the greatest number of seats forms the government with a Premier and Ministers occupying the cabinet. Before 1979 the Commissioner still occupied a real role in the executive as well as the running of government in the territory.

Thus, 2003 saw the legal enshrining of these substantive political advancements in representative and responsible government. And there was more.

One remaining vestige of the “colonial-style” governance regime whereby Ottawa controls the business of the territory was left in the Yukon Act. The section in question is 4(3) of the Act, whereby the federal Minister responsible for the North can from time to time issue instructions to the Commissioner. It reads, “4. (3) The Commissioner shall act in accordance with any written instructions given to the Commissioner by the Governor in Council or the Minister”.

In 2001 and 2002 when discussions took place on the rewrite of the Yukon Act among officials from Canada, Yukon and the Council of Yukon First Nations representing most Yukon First Nations, it was agreed that there may be extraordinary circumstances whereby the federal government may need to step in and instruct the Commissioner on matters relating to the negotiation of remaining First Nation final land claim agreements and companion self-government agreements. In 2002 eight agreements had been reached with six agreements still at various stages of negotiations. To First Nations it was vital to ensure that there would be no disruption in the progress of their interests at the land claims tables following Devolution in 2003.

However, the architects of the modern day Yukon Act reached agreement with CYFN that this residual provision relating to federal fiat over Yukon affairs should be accompanied by a sunset clause. In the Yukon Act, 2002 s. 68 was added which automatically repeals 4(3) “on the day that is 10 years after the day on which that subsection comes into force”. In other words, April 1, 2013, 4(3) ceased to exist.

For the “constitution wonks” in Yukon, this is a big deal. It means that the only way the federal government can now interfere with the province-like functioning of the territory is if it brings forward to Parliament changes to the Yukon Act. The capacity to direct the Commissioner no longer exists as a mechanism for this intervention.

Furthermore, the capacity of Canada to change this relationship is circumscribed by another provision of the 2002 Act, specifically the requirement for Canada to consult the Yukon’s Cabinet before amending or repealing the Act.   S. 56(1) states, “Before a bill that amends or repeals this Act is introduced in the House of Commons by a federal minister, the Minister shall consult with the Executive Council [Yukon Cabinet] with respect to the proposed amendment or repeal”. It goes on to note in subsection 2, “The Legislative Assembly [of Yukon] may make any recommendations to the Minister that it considers appropriate with respect to the amendment or repeal of this Act”.

A few of us have decided that this is indeed worthy of celebration. We have arranged an event for June 11, 2013 to recognize this auspicious event in Yukon’s history. A panel will debate the constitutional evolution of our Territory at the Yukon Arts Centre with a reception to follow.  Notables such as the Commissioner of Yukon, Hon. Douglas Phillips, the former Minister of Indian Affairs and Northern Development, Hon. Robert Nault (he was the Minister of the day who shepherded the new Yukon Act through Parliament), and Daryn Leas (the CYFN official who took part in the development of the new Act) will take part in this celebration.

Of course, the “p” word comes to mind. We’re so close that you can just taste a future where we wake up to find an 11th Province in our Canada… maybe.  A discussion for a future blog!

Photo credit: Ryan Schrieber, creative commons.

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