QUISPAMSIS in New Brunswick lost several court battles over the issue of merging of municipalities.

Thornhill: Ultimately the province will call the shots

The provincial government has the constitutional power and authority to do whatever it wants.

By Andre Carrel

PROVINCIAL CABINET minister Coralee Oakes could not have been more wrong in her reply to the regional district when it asked her to consider incorporating Thornhill as its own municipality.

“Governance is about who decides what,” said Oakes in a letter sent this past January.

In reality, governance is the activity which flows from those who have the authority to decide who does what.

But make no mistake, while Oakes may be wrong in her concept of government, she is clearly in the camp of those who do have the authority to make decisions, and that could very well be at the heart of how Thornhill is to be governed.

Provincial legislatures have exclusive powers to make laws in relation to “municipal institutions.”

The Constitution does not define municipal institutions; the constitutional status of a municipal council is identical to that of a school board.

Provincial power in matters within exclusive provincial jurisdiction is absolute. Thornhill residents might take a lesson from a municipality across the country – Quispamsis, New Brunswick.

Residents learned about the scope of provincial power in 1998 when they attempted to prevent the forced amalgamation of their municipality with the village of Gondola Point.

They asked the court to overturn the New Brunswick government’s Order in Council that created the amalgamation.

The court dismissed the application. The residents appealed, arguing that a forced amalgamation amounts to an infringement on their fundamental freedom of association guaranteed under the Canadian Charter of Rights and Freedoms.

The appeal was dismissed.

Or consider an example closer to home – the 2012 incorporation of the Jumbo Glacier Resort Municipality.

The provincial government favoured the commercial development of the area, but that ambition was not shared by the Regional District of East Kootenay.

When the provincial government realized that it could not persuade the regional district to embrace its development objectives for Jumbo Glacier, it proceeded to incorporate the area as a municipality.

The Ktunaxa Nation took the matter to court, arguing that the incorporation of the Jumbo Glacier area violated the constitutional rights of the aboriginal people and their freedom of conscience and religion.

The British Columbia Supreme Court dismissed the application.

The Jumbo experience seems to contradict the Community Charter, the provincial legislation which governs municipalities.

The Community Charter’s principles of municipal governance provide that: “municipalities and their councils are … democratically elected, autonomous, responsible and accountable,” and that they are “established and continued by the will of the residents of their communities.”

But nobody lives in Jumbo Glacier; the municipality has no population!

No residents to nominate candidates and no voters to elect a council.

The provincial government simply appointed the municipality’s mayor and two councillors.

How can the Jumbo Glacier decisions be reconciled with the Community Charter’s principles?

The answer is that the Community Charter is not a charter at all.

The concept of a charter goes back to the Magna Carta of 1215. A charter is a grant from the sovereign that guarantees certain rights, privileges, and powers.

Canada’s Charter of Rights and Freedoms meets that definition. When federal and provincial legislators enact laws in conflict with the principles of the Charter of Rights and Freedoms, the courts will invalidate such laws.

The Community Charter does not establish guarantees of a constitutional nature, no more so than does the School Act.

As it concerns Thornhill’s local governance or government, the provincial government has the constitutional power and authority to do whatever it wants.

It may cause Thornhill to be incorporated as a regular municipality, it may cause it to be annexed to the City of Terrace, it may enact special legislation for the greater Terrace region, or it may stay with the status quo.

For all we know, the province could very well factor in costs in its decision.

Municipalities are classified as villages, town, or cities on the basis of their population. A community’s taxable assessment and its distribution (residential vs. non-residential) is critical to a municipality’s ability to provide services to the community, but assessment is not a criterion, it does not come into consideration.

The Local Government Act does consider macro-economic matters with provisions for incorporation of municipalities in conjunction with the development of resources, but it does not consider a municipality’s ability to pay for services.

Even where costs are significant, as in the case of police services, the determining factor is population.

Occupants of a rural area or a municipality which has a population of below 5,000 pay a police tax which is less than half the cost of providing police services.

When the population is between 5,000 and 15,000 the municipality pays 70 percent of policing costs. The municipal share increases to 90 percent when the population exceeds 15,000.

The provincial government is not concerned with a municipality’s ability to pay for services; setting tax rates and spending priorities is a municipality’s responsibility.

The law and taxable assessment do not provide a basis from which residents can debate governance.

How we do the things we do is best determined by politics, not in the partisan sense of Liberals vs. NDP, but in a philosophical sense.

Politics in this sense addresses many complex relationships; it involves the authority and power of people in our society, and it involves the practice as much as the art of directing and administrating the community.

A philosophical debate on governance compels participants to see and think of themselves as citizens. As residents in our communities we consume services, we vote for politicians, and we pay taxes.

That is what we do, but it is not who we are; we are citizens. We should all welcome the minister’s offer of $60,000 “to assist the regional district with a diagnostic and research study on services, governance, and planning in the Greater Terrace area.”

But we should respond with a proposal that would allow the community to determine the terms of reference, the guiding principles, for a study on the governance of Thornhill.

As illustrated above, the province’s constitutional authority over local government institution is absolute, and British Columbia has, on more than one occasion, used its authority to establish local government structures that recognize unique conditions.

The minister’s willingness to contribute to a Greater Terrace governance study is an opportunity not to be squandered.

The community could define the terms of reference for a new study to blueprint key principles of governance for the area.

If (when) the community reaches a consensus on how local decisions should to be made, it would be in a position to present to the minister the terms of reference for legislation appropriate to the incorporation of a local government designed to govern in the manner described in the governance study.

How that is put together is a crucial step in the attempt for Thornhill to decide its own future.

This is the second in an occasional series to be published concerning Thornhill’s future.
Andre Carrel counts nearly 20 years experience of working for small municipalities in the Northwest Territories, the Yukon and B.C. in addition to running his own consulting business and sitting on various local government associations.
Now retired and living in Terrace, B.C., Carrel retains a keen interest in how governments work and should work.