Bypassing the Legislative Process is Deadly to Democracy

by Jane Gaffin


(“Bypassing the Legislative Process is Deadly to Democracy” was originally published in the Whitehorse Star, May 12, 2004)


Democracy can be described as a government run directly or indirectly by the people who live under it.

Paul Johnson summed up true democracy in “The Enemies of Society” to mean “the ability to remove a government without violence, to punish political failure or misjudgment by votes alone…”

Yet the electorate has no voting power because the names of senior bureaucrats are not on the ballots. The voters can only place a mark beside names of politicians who depend on the hired help to carry on the government but without the political will to reinstate the democratic principles and social order.

To quote my own eBook, “Justice Served Up Yukonslavia Style” (view on this site) is the worst form of government except for all the others, as Sir Winston Churchill would have told the politically illiterate.

“A segment of the Canadian population, who call themselves ‘social democrats’, whine mindlessly that ‘democracy isn’t working’.

“How would they know? Democracy hasn’t been in vogue in this country for nigh on 35 years, or since Herr Trudeau started dismantling it from 1968 onward.

“But is it any wonder democracy is ailing? Public-ignorance surveys have revealed that three-quarters of Canadians are so oblivious to politics as to not know what the terms ‘left’ and ‘right’ denote. Is it any wonder that the average election is nothing more than a crap shoot?”

One feature of democracy that I always appreciated–and miss the most–was the emotion and exhaustive debates in Parliament where each political party, each elected member, was afforded the freedom to express his/her opinions on legislative bills that effect every Canadian’s life.

But the Liberals axed this segment of democracy. They introduced a method that gives the government license to close debate prematurely and call a vote, especially handy on contentious, ill-conceived matters like the non-Charter-proofed firearms and anti-terrorist bills.

Regardless of what the constituents want from their elected Liberal representatives, the prime minister dictates that Liberal members will cast a party-line vote, or stay away when the vote is called.

Otherwise, the dissident members will lose committee privileges and be relieved of their keys to the caucus washroom.

The prime minister rules the three branches of government–Parliament, Senate and Supreme Court of Canada–with an iron fist analogous to the force with which Josef Stalin ruled the Politburo in the former Soviet Union.

Dictating the outcome of the legislative process is not a democracy.

But it gets worse as it gets closer to home. Now, the Liberal government has actually circumvented the entire parliamentary process and given government rogues, hidden in the bowels of the Parliament building, the unfettered mandate to rewrite statutory acts.

A number of those illicit, ill-conceived acts dealt off to the territory has put the Yukon government in a very awkward position.

On April 1, 2003, Ottawa off-loaded management responsibilities of its Northern Affairs program to the Yukon government.

Inherent in the transactions was the promise to “mirror” appropriate federal legislation into new Yukon government legislation. Any necessary changes would be minimal, we were told.

For instance, the legal names of the acts had to be altered slightly to reflect territorial responsibilities.

The text would replace the Minister of the Department of Indian Affairs and Northern Development (DIAND) with Commissioner of the Executive Council to denote territorial authority.

The statutory acts effected were the Yukon Quartz Mining Act, Yukon Placer Mining Act, Yukon Territorial Lands Act and the Yukon Waters Act.

Another act, presently hot on the front burner, is the Yukon Environmental and Socio-economic Assessment Act (YESAA, pronounced “yes, suh”), formerly known as DAP (Development Assessment Process). It was supposed to “mirror” the federal mess called the Canadian Environmental Assessment Act that only a Stalin administrator could have loved.

Any time promises are delivered from federal bureaucretins, who wouldn’t know anything about integrity and democracy if it bit ’em on the butt, Yukoners may as well expect the worst.

Sure ’nuff! None of the legislation was “mirrored”.

Last month, I stumbled across that fact when obtaining copies of the revised territorial legislation to send to a friend in B.C.

I thought it would be a simple task to sift through the fresh “mirrored” acts and flag the troublesome parts that were giving mining folks heartburn.

Wrong. The miners have held onto their statutory rights to enter the land to locate, prospect and mine on the mineral claims. But after section 12, I got mired in the muck.

I had difficulty locating the sections that were supposed to be identical to the previous federal act. Text had been inserted; text had been deleted; text had been rewritten; text had been massaged to the extent of changing the section numbers and the meaning of the act.

The first thing my untrained eye noted was “Commissioner of the Executive Council” was not defined up front in the legal definitions section; neither was “Minister”.

In the previous federal act, “Minister” was defined as “Minister of DIAND” and was supposed to be removed. Or did “Minister” now mean the territorial minister of Energy, Mines and Resources? Or are we still dealing with the federal minister? I don’t know and neither did anybody else.

And why do the titles “Commissioner” and “Minister” sometimes appear in the same sentence?

The section under “Exceptions”–the places miners aren’t supposed to set foot to locate claims–had been re-positioned and re-numbered. The adjective “national” had been deleted from in front of the word “park”.

Cute. That slight change means about half to three-quarters of this territory has been alienated from mining interests. The word “park” now includes territorial park, city park, parking lot, preserve, reserve, wetlands, dry lands, wildlife corridor, hiking trails, special management areas, special unmanaged areas, and whatever.

I scouted for somebody who had seen this new mining act. I checked around the chamber of mines, asked bureaucrats, politicians and their assistants. Nobody had seen, much less read, this document, which presumably was released a year ago April. Worst, nobody seemed to care.

One bureaucrat advised that a condition placed on these four new acts devolved to the territory was they couldn’t be cracked open for changes in the legislature for five years.

Who needs a legislature? Ottawa didn’t bother with the legislative process when monkey-wrenching these statutory acts. I want a Yukon Supreme Court judge!

The Yukon Supreme Court is “supposed” to be the only judicial body designated to adjudicate matters over Crown land and federal acts from which the territorial act flows.

From where I sit, the Yukon government has two choices.

Send a “certainty” message to the mining industry and kill the economy once and for all by blanketing the whole territory with a staking moratorium.

Or, the Yukon government could initiate a judicial review of these four acts in an effort to find out exactly what kind of a dog’s breakfast the Liberals vomited in Yukoners’ laps this time.

This is scary stuff, to think Ottawa has been so successful dismantling democracy without people’s knowledge or permission, and nobody even winced.

See Jim McFaull’s analysis of The Yukon Quartz Mining Act and Its Regulatory Regime’s Impact on The Free Entry System of Mining Law, February 2000.



Life of Geologist Jim McFaull Was Once Full of Ups and Downs

Attached in PDF is one of my favorite articles of the many I wrote about Jim McFaull over the 35 years of knowing the accomplished exploration geologist and mining ambassador who died unexpectedly but peacefully at his home in Whitehorse, Yukon on April 14, 2012. He was 59.