When is a municipality not a municipality?
When no one lives there.
(silence)
All right… No one said that environmental lawyers were good comedians, but it’s not really a joke. Recently the BC government created the Jumbo Glacier Resort Mountain Municipality –a “municipality” without people, with a mayor and council appointed by the cabinet that will make land use plans for the proposed resort for up to 15 years.
Even the appointed mayor recognizes the difficulties: “A politician who represents no current citizens is obviously in an awkward position… The purpose here is to represent future residents and visitors.”
The reason for this so-called “municipality” is to allow the controversial Jumbo Glacier Resort to go ahead. The Jumbo Glacier Resort is expected to negatively impact Grizzly habitat, and is widely opposed in the Kootenays (where the resort will be located). But in May 2012, the government amended the Local Government Act to allow the creation of ski-resort related municipalities with no people and then, last November, created the Jumbo Mountain Resort Municipality.
West Kootenay EcoSociety executive director David Reid calls it a significant moment in the 20-year fight against the proposed Jumbo Glacier Resort development northeast of Nelson.
On Tuesday afternoon, Reid and EcoSociety lawyer Judah Harrison filed a petition in BC Court in Nelson to challenge the proposed mega-resort. The application for judicial review argues that the appointment of municipal councilors without any electors violates the constitution and various provincial statutes.
West Coast is proud to have provided two Environmental Dispute Resolution Fund grants to the Ecosociety to develop and bring this challenge, and hope that it will establish that a municipality is a fundamental unit of democracy – not a tool that can be manipulated for the benefit of a large developer.
Theory of the case
Canada, unfortunately, is no stranger to turning over control of large areas to corporate interests. Indeed, the Hudson’s Bay Company asserted British interests over huge areas of the country , making the company a de facto government over large areas of what is now Canada. Logging companies sometimes assert a high level of control over logging rights over wide areas of public lands. But no one pretended that these corporations are municipalities, which by definition are intended to represent the citizens that live within their boundaries.
Judah Harrison and the EcoSociety point out that that by creating this so-called municipality through an amended Local Government Act, the Province is purporting to act under its authority under s. 92(8) of the Constitution Act, 1867 to pass laws related to “Municipal Institutions.” That term can’t just mean whatever the province wants it to mean, the Ecosociety argues. Municipal Institutions was understood, even in 1867, and even more so now, as referring to local governments that represent inhabitants.
The Ecosociety’s pleadings explain:
23. … [P]rovinces have wide discretion in their creation and regulation of Municipal Institutions. Nothwithstanding a province’s wide discretion in creating Municipal Institutions, such discretion must be grounded in both the Constitution and law, and must adhere to constitutional convention. A review of legal authorities evinces two clear legal perquisites for a province to properly exercise its constitutional authority and create a Municipal Institution; there must be both: (i) a defined geographical area; and (ii) a local population.
24. The Letters Patent creating the Jumbo Glacier Mountain Resort Municipality were issued with respect to a defined geographic area [in] which there are currently no inhabitants. It is respectfully submitted that absent local inhabitants, the province did not have the legal authority to declare this geographic a Municipal Institution or a Municipality.
25. There is ample authority regarding Municipal Institutions requiring inhabitants. Virtually every definition of a municipality or Municipal Institution, both historic and recent, embeds the requirement of a local population. From the very first Municipal Act of England and historical legal scholars, to modern day Canadian municipal legislation and case law, the requirement that a municipality have a local population is crystal clear.
And that’s not all.
The provincial laws related to municipalities, the Local Government Act and the Community Charter, are said to apply to this “Mountain Resort Municipality”. But since both Acts assume, throughout, that there are people living in municipalities and other local governments, it’s often pretty difficult to see how either Act really applies to a “municipality” that has no people living there. The result is legal uncertainty, which the EcoSociety further argues invalidates the order creating the Jumbo “municipality”.
Municipalities are, both in common understanding and in common law, democratic institutions, that must act to further the public interest. Can a municipality be democratic without a populace; or act in the public interest without any public?
For their part, the Ktunaxa First Nation has judicially reviewed the approval of the Jumbo Glacier Resort Master Development Plan on the basis of the government’s failure to adequately consult with the affected First Nations impacts of the Master Development Agreement on their religion and sacred sites [Updated 28 March 2013].
Conclusion
It’s unfortunate that a municipality without residents is not just a bad joke. Instead, it’s a bad law. And we hope that the BC Supreme Court will recognize that and put an end to this poorly thought out exercise in non-democracy.
By Andrew Gage, Staff Lawyer