Authors: Teague Pushor, Milad Alishahi
The recent decision of Olive v. The Rural Municipality of Keys No. 303, 2020 SKQB 146, highlights important considerations for rural municipalities involving petitions for referendums. Justice H.D. Macmillan-Brown outlines a two-part test for administrators to conduct when determining the eligibility of petitions put forth by ratepayers, and emphasizes the importance of rural municipalities staying within their jurisdictional capabilities.
The Hutterian Brethren of Crystal Lake made an application to the Rural Municipality of Keys No. 303 (the “RM”) to develop a new colony that would include communal dwellings, and to develop and operate an intensive livestock operation (“ILO”) on the colony. In order to proceed with the application, the RM passed Bylaw 03-2018 to amend the definition of the term “farmstead” in the Zoning Bylaw (Bylaw 2004-03) to include collective dwellings. This allowed Council to approve the development of collective dwellings.
Ratepayers and other individuals residing in the area became concerned about the impact of the proposed ILO on their water supply. Therefore, action was taken through a petition sent to the RM. It sought a referendum on a resolution concerning the repeal of Bylaw 03-2018 and the enactment of a new bylaw which would only give effect to amendments surrounding collective dwellings after a period of consultation with voters. The petition was rejected by the RM administrator on the grounds that petitions for referendums under The Municipalities Act cannot relate to matters under The Planning and Development Act. The petition sought to repeal amendments to the Zoning Bylaw, which was enacted under The Planning and Development Act.
Wilson Olive, one of the petitioners, applied to the Court to seek two orders: first, to compel the RM administrator to report on the sufficiency of the petition and second, to require the RM Council to act upon the petition and put it to a referendum.
In her decision, Justice Macmillan-Brown outlines two threshold requirements, one procedural and one jurisdictional, that petitioners must cross in order to trigger a referendum. The procedural threshold deals with the concept of sufficiency. Under section 134 of The Municipalities Act, the administrator is responsible for determining whether or not the petition is sufficient. In order to ascertain sufficiency, the administrator must ensure that the formalities outlined in section 133 of The Municipalities Act are met, count the signatures that comply with those formalities, and establish that there are enough signatures to satisfy the minimum requirements in section 132(2) of The Municipalities Act.
The jurisdictional threshold requires that the subject matter of the petition falls within the jurisdiction of a municipal council under the provisions of The Municipalities Act. If the subject matter falls outside of The Municipalities Act, the jurisdictional threshold is not crossed, and council need not proceed with a referendum. Justice Macmillan-Brown highlights the analysis of this threshold in Pevach v. La Ronge (Town) (1996), 148 Sask R 319 [Pevach]. In Pevach, the Court of Appeal stated that The Urban Municipality Act (predecessor to The Municipalities Act) was not intended to override The Planning and Development Act. The Court of Appeal concluded that Council was correct to refuse to submit the bylaw in the petition to the vote of electors as the petition was presented under The Urban Municipality Act and the issue being dealt with fell under The Planning and Development Act, outside of the jurisdiction of the Town under The Urban Municipalities Act.
Similarly in this case, it was decided that while Mr. Olive’s petition crossed the procedural threshold, it did not cross the jurisdictional threshold. The subject matter of the petition related to zoning, a matter dealt with under The Planning and Development Act and consequently, outside of the scope of The Municipalities Act. Therefore, it was ruled that the RM had no duty or obligation to put the resolution to the voters by way of a referendum.
This case illustrates two important implications for rural municipalities surrounding petitions for referendums. First, in order to hold a referendum, petitioners must meet both the procedural and jurisdictional requirements. Second, when deciding on these types of petitions, the administrator must be cognizant of whether the subject matter of the petition is within council’s jurisdiction under The Municipalities Act.