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The issue is moot
By Paul Bickford
In a Jan. 6 written decision, Justice Louise Charbonneau declined to make a ruling, saying the issue is moot.
The petition called for a plebiscite on a controversial rezoning application for a lot on Cameron Crescent. However, in late September, council rejected the rezoning application. Ten days earlier, petition organizers had gone to court over the town's rejection of many signatures on the petition. "The subject matter of the petition, the very matter that could potentially be put to a vote, has disappeared," Charbonneau wrote, noting the only purpose of examining the issue would be to avoid a similar controversy in the future. She wrote: courts should not decide issues that are purely academic and of no practical consequence, except in exceptional circumstances. The two sides had presented their arguments in a Nov. 25 hearing in Hay River. The applicant in the case was Harvey Werner, a Hay River resident who argued the case for petition organizers. The respondent was Terry Molenkamp, the senior administrative officer (SAO) for the Town of Hay River. In essence, the issue centred on whether a declaration of voter eligibility contained in the petition's preamble was sufficient for signatures to be accepted, or whether the town's senior administrative officer had to take extra steps to verify the signatures. The petition contained 680 signatures, significantly more than the 25 per cent of eligible voters required under the territorial Cities, Towns and Villages Act to request a plebiscite. However, the town challenged 152 names, since they were not on the voters list. The 152 people were required to declare they met the requirements as eligible voters, but only 10 showed up at Town Hall to do so. Charbonneau noted, while the act makes it the SAO's duty to screen a petition according to certain criteria, it does not provide specific guidance on how to determine if a petitioner is an eligible voter. "There is no reference to using the voters list; there is no reference to the use of statutory declarations," she wrote. "The act leaves it to the senior administrative officers to decide how best to discharge their duties in this regard." Charbonneau noted the act leaves open the possibility that inconsistent procedures or standards might be used from one municipality to the other, or even within the same municipality with different people serving as senior administrative officer. "The question is whether this clarification should come from this court in the context of this litigation," Charbonneau wrote. "I am not persuaded that it should. The responsibility for making legislation rests with the legislative branch of government, not the courts." Ron Karp, one of the petition's main organizers, was disappointed that Charbonneau declined to rule on the Hay River issue. The petition organizer noted the judge stated clarification of the legislation should come from the people who make it. "Hopefully, this legislation is reviewed and rewritten so the rights of the people are clear," Karp said. The territorial government will act to clarify the role of SAOs in verifying petition signatures based on Charbonneau's comments, according to Eleanor Young, director of community operations with the Department of Municipal and Community Affairs. "We'll be taking this recommendation and amending our legislation," said Young. Details of the changes have not yet been worked out. Legislation in other jurisdictions will be looked at, Young said. "We'll take a look at what works best." No time frame has yet been set for when the legislative changes will be made. Changes will be made to the Cities, Towns and Villages Act, plus other legislation covering hamlets and charter communities.
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