Cameron: Constitutional “patriation” for the territories

Our Yukon correspondent, Kirk Cameron, on constitutional “patriation” for the territories.
[dropcap_1]A[/dropcap_1]pril 1, 2013 will mark an auspicious occasion in the constitutional evolution of one of our northern territories, the Yukon.  That day subsection 4(3) of the Yukon Act will be repealed thus removing a remaining vestigial colonial power held by Ottawa over Yukon (see automatic repeal in s. 68 of the Yukon Act).
Section 4(3) is the provision giving the capacity to the Governor in Council (in practice the federal Cabinet), or a Minister so assigned responsibility under the Act, to issue written instructions to the Commissioner (the position in the territories equivalent in actions to a Provincial Lieutenant Governor).
Ironically, this provision was used by the Minister of Indian and Northern Affairs, Jake Epp in 1979 to recognize Party Politics, turn all executive powers over to the elected members of the Legislative Assembly, remove the Commissioner from the Legislative Assembly, and in effect give Yukon the same structure one normally finds in the Provinces where Party Politics and the Westminster system of government is alive and well.   Despite this significant constitutional step forward in 1979, some academics and northern governance practitioners have argued strenuously that the very existence of s. 4(3) means that the advancements of 1979 could be removed at the whim of a federal Cabinet or Minister responsible (for instance see Dr. Stephen Smyth, “Constitutional Development in the Yukon Territory: Perspectives on the ‘Epp Letter’”, Arctic, March 1999).

Heeding these concerns, Yukon political leaders and officials pressured Ottawa for the removal of s. 4(3) of the Act during negotiations leading to the transfer of administration and control of land and resources to Yukon in 2003 (known as “Devolution”).  The negotiations were comprehensive between Canada and Yukon regarding all aspects of the transfer, including a substantial rewrite of the Yukon Act which was needed to legally backstop the transfer.  The Yukon Government entered these discussions with the position that Yukon should achieve a form of “constitutional presence” similar in all aspects to the Provinces, although stopping short of taking on the title of “Province”.  A key aspect was the removal of any provisions allowing Ottawa to step back in to province-like affairs.  Removal of s. 4(3) was thus high on the list of Yukon’s interests.

The arrangements for Devolution negotiations included extensive consultation with Yukon First Nations.  During those discussions, First Nations’ representatives argued that there were a number of Land Claims negotiations not yet concluded (at the time 6 of the 14 First Nations negotiations were not yet complete: Ross River Dena Council (not completed), Liard First Nation (not completed), White River First Nation (not completed), Carcross & Tagish First Nation (2006), Kwanlin Dun First Nation (2005), and Kluane First Nation (2004)), and as the federal government held the fiduciary responsibility to look after First Nations interests in Yukon, they preferred the retention of a clause that ultimately could allow the federal government to step in to address First Nations interests if an impasse were to result in negotiations with Yukon on some aspects of negotiating the Claims.

The decision was made to remove s. 4(3), but agreement was reached that this was to occur only at the tenth anniversary of the new Yukon Act coming into force and effect, in other words April 2013.

That day is almost upon us.

Why is this important to Yukon?  In the Spring 2012 edition of Northern Public Affairs, in his article “Defining the North”, distinguished University of Toronto Political Scientist, Dr. Peter H. Russell, speaks of Canada’s unfinished constitutional business, specifically that “we have surely reached a moment in Canada’s history at which decisions about the future of the North must be made primarily by northerners.” (p. 26) The repeal of s. 4(3) of the Yukon Act is a significant step in that direction, confirming that Canada can no longer use a provision of the Yukon’s “constitution” to arbitrarily change the political institutions in the territory.  To do so following April 2013 will require a Parliamentary amendment to the Act.  Although not impossible, this would be far more difficult, and far more visible than the issuance of a letter to the Commissioner.

Along the same lines, one more step of importance was taken in 2002 when the current Act was passed by Parliament.  Section 56 (1) ensures that before Parliament considers any further amendment or repeal of the Yukon Act there must be consultation between the sponsoring federal Minister and the Yukon’s Executive Council (the Premier and Cabinet).  Ultimately the Yukon’s Legislative Assembly by virtue of s. 56 (2) may make any recommendations it considers appropriate to the federal Minister respecting any proposed changes to the Act.

These changes to sections of the Yukon Act reflect a new place for Yukon within the constitutional “fabric” of Canada.  In almost all respects, Yukon is the 11th Province in the Nation!

Going one step further, although not reflected in the Yukon Act, some of us argue (indeed this includes Justice Vertes of the Supreme Court of the Northwest Territories) that there is an underlying Crown presence vested in the Yukon independent of the Crown in Right of Canada (see Policy Options March 2000 “There is a Northern Crown”).

Now, if we could only do something to strengthen and diversify the economy….   Oh well, one step at a time.


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