Yukon, the ‘proto-province’: Thoughts on an interesting constitutional parallel

On rare occasions I get the opportunity to sit on my deck in the sun reading a new book. And, on occasion, these rare events lead to even more rare “ah ha” moments.   

That happened May 15, 2016, and yes, it was well over +20 on my deck here in Whitehorse, Yukon; this faraway Northern “land of ice and snow”! 

I was reading the 2012 fifth edition of The Canadian Regime: An Introduction to Parliamentary Government in Canada by Patrick Malcolmson and Richard Myers, two notable Canadian academics, who each have an unusual capacity to bring to the student clarity around the sophisticated construct of our country’s governance regime. 

Here’s what caught my attention:   

“Constitutional laws normally derive their supreme status from the fact that they emanate from the will of the people, usually as expressed in some kind of popular referendum.  Because those creating the new confederation were already subjects of the British Crown, however, their new constitution was not adopted as some kind of Lockean social contract; instead, it was legislated for them, at the request of their colonial legislatures, by the British Parliament.” (p. 23) 

So we, as Canadians, have a constitution whose basis comes from the passage of law by a Parliamentary body external from the geographical boundaries of the country we know as Canada. And, Yukon has its constitution, the Yukon Act, passed by a Parliamentary body external from the sub-national geographical boundary we know as Yukon. There would appear to be an exact parallel here. 

Yukon’s place in the federation is moving ever closer to a seat at the Constitutional Table in Canada as a “province”.

You can argue that, yes, in 1982 we “patriated” the Canadian Constitution through a comprehensive constitutional act that captured vital features of our Canadian governance regime, adding things like the Canadian Charter of Rights and Freedoms and a complex amending formula to be exercised by Parliament and/or the provincial legislatures. But, again, this legislating action was undertaken by an extra-territorial body, the British Parliament. 

Well, in 2002, similarly, the Yukon Act was substantively amended in ways that brought Yukon and its jurisdiction in line with that of Canadian provinces. In addition, it stipulated that in the future, any amendment to the Yukon Act would require consultation with those affected:

“56 (1) Before a bill that amends or repeals this Act [Yukon Act] is introduced in the House of Commons by a federal minister, the Minister shall consult with the Executive Council [of Yukon] with respect to the proposed amendment or repeal.

(2) The Legislative Assembly [of Yukon] may make any recommendations to the [responsible federal] Minister that it considers appropriate with respect to the amendment or repeal of this Act.”

In effect, it pursued the establishment of a regime for Yukon that brought Yukon’s constitutional presence in line with that of Canada and the sub-regional provincial bodies. If you want to change the constitutional make-up of Yukon, you must consult with Yukoners, just as the amendments to the Canadian Constitution require the use of an elaborate formula set out therein. 

Why is this important to Yukon? It is, yet again, another step in the recognition of this territory as a “proto-province”, moving it inexorably toward that ultimate objective of provincial status. 

The reader may know that these changes were made to the Yukon Act in 2002 as part of a comprehensive initiative to transfer land and resources from Canada to Yukon, akin to the transfer of land and resources from Canada to the western provinces in 1930 through the Constitution Act, 1930 (originally referred to as the British North America Act, 1930). 

Now some have argued that the nature of Yukon’s control over its land and resources is lesser than that of the provinces due to the terminology around legislative control referred to as “administration and control” in the Yukon Act. This description is indeed correct, for s. 45 (1) says “the Commissioner has the administration and control of public real property and of oil and gas in the adjoining area and may, with the consent of the Executive Council, use, sell or otherwise dispose of that property” [emphasis added]. 

But wait a minute; when you look closely at the Constitution Act, 1930, the same terminology is used to describe the land transfers to the provinces. In the schedules to that Act, reference is made “…that the Province [Manitoba in this instance] would be placed in a position of equality with the other provinces of Confederation with respect to the administration and control of its natural resources as from its entrance into Confederation in 1870” [emphasis added]. 

So, yes, one can argue that the Yukon Act does not directly recognize a Crown in Right of Yukon. However, it does clearly describe the “business” of land and resource management in Yukon using the same terminology as is applied to describe what is enjoyed by the provinces — sub-national governments that own their land and resources. Ultimately, if you can “sell, or otherwise dispose” of land, you have to own it; otherwise you’re selling (giving ownership) to someone else something that you have no right to dispose of. If that is not an implicit recognition of a Crown “presence” of some kind, I can’t imagine what is.

This is all to say that I continue to come across comparisons that suggest Yukon’s place in the federation is moving ever closer to a seat at the Constitutional Table in Canada as a “province”. What that might mean with respect to modern treaties framing public institutions in the Yukon will have to be a discussion for another day. Suffice to say, it won’t be a province quite like the first 10.◉

Photo credit: Darron Birgenheier (CC)

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