McLean Lake question goes back to court

Marianne Darragh will continue the court battle for a referendum to be held on the establishment of park around McLean Lake.

Marianne Darragh will continue the court battle for a referendum to be held on the establishment of park around McLean Lake.

The city has filed an appeal of Yukon Supreme Court Justice Ron Veale’s Oct. 30 decision in favour of Darragh.

Veale ruled the city had to hold a referendum on whether a park should be established in the area and that the referendum must be held in February.

The city is now seeking a ruling from the court of appeal that Darragh’s petition for the referendum is invalid.

The paperwork was filed last Friday. With the appeal court not set to sit in Whitehorse until next May, the city is also seeking a stay on the February referendum date until a ruling is made on the appeal.

A hearing on the potential stay is scheduled for Dec. 12 in Vancouver.

“It’s kind of a surprise, kind of not a surprise,” Darragh said Monday afternoon of the city’s appeal.

The city seems to have trouble letting go of the issue, even after a senior judge has provided a clear ruling, Darragh argued.

While she’ll continue her fight, she noted right now her focus is on the hearing for the stay that will be held in Vancouver.

That will mean she will either have to have her lawyer attend by phone or appear at the hearing, an additional cost in an already-expensive battle.

“It’ll be one step at a time, like last time,” Darragh said.

The dispute over the proposed referendum began last April, when the city declared Darragh’s petition for referendum over the park’s creation invalid under territorial legislation.

She continued collecting the 2,000 signatures needed for a referendum, coming to the city with a total of 2,654.

City lawyers found the document met all the requirements for a referendum. However, they found holding a referendum was outside council’s jurisdiction, so the city began its court proceedings to have the petition declared invalid.

Veale then ruled against the city in his Oct. 30 decision.

In an interview Monday afternoon, city manager Dennis Shewfelt said the city maintains its position that Darragh’s petition means the city would end up having to change its Official Community Plan (OCP ) in a way that’s contrary to the territorial legislation under the Municipal Act and would exceed the city’s jurisdiction.

“We believe it should be the OCP process as laid out in the act,” Shewfelt said. The city isn’t necessarily opposed to a park, he stressed, but rather the process that would result.

“The appeal’s not against the park. The issue here is the process,” he said.

Shewfelt pointed out the city has already agreed to consider the possibility during the upcoming review of the OCP, as Coun. Jeanine Myhre had proposed earlier.

The case will provide clarity on whether the OCP amendment and referendum processes are compatible under the territorial legislation, the city argued.

While the decision to appeal the court decision was made primarily by city administration, Shewfelt said council has been kept up to date and well-informed on what’s happening with it.

“They’re supportive,” he said.

In a separate interview, Mayor Bev Buckway echoed many of Shewfelt’s statements. She also argued the OCP amendment process and upcoming review already allow for residents to have their say in the city’s future.

“The processes are set up for public input,” she said

As well, the mayor commented, the case will affect three levels of government, including the Kwanlin Dun First Nation, which has property in the area, and the city and territory.

As Buckway pointed out, a referendum would mean a significant cost to taxpayers.

An affidavit filed with the appeal by assistant city clerk Norma Felker states the city could expect to pay $14,000 for a referendum between the $10,000 in direct costs and $4,000 in administrative overhead expenses.

Among the work in store for the city would be updating the list of electors, extensive advertising between the list of electors, looking for election staff, educating voters on the referendum and its question, renting at least two facilities for the vote, and hiring and training a minimum of six returning officers and six polling officers.

There would also be a loss of productivity among city workers forced to focus their attention on preparing for the referendum within their regular work schedule, Felker wrote in her affidavit.

Along with the city’s work, community and business organizations also typically spend time and money on advertising around the referendum question, she pointed out.

It’s expected a referendum would involve an estimated 11,222 voters.