Everyone knows that the Yukon’s status as a territory has something to do with our sparse population and the large sums of money sent up here from Ottawa. What’s less often considered is what we lack compared to the provinces - namely, a final say over our own concerns.
If the federal government doesn’t like something that a province has done, that’s just too bad. If it tries to interfere it will get its hands slapped by the courts. It takes a dreadfully boring semester in law school to learn the exact line between federal and provincial responsibilities, and you still come out feeling that the distinction is sometimes murky.
Usually, a similar line exists between the Yukon and the federal government. But there is no obligation on Ottawa to avoid crossing it.
With the passage of some legislation in Parliament, Ottawa could take back the power it gave us over natural resources in 2003 -“de-devolution” if you will. Theoretically, the feds could even disband the Yukon legislature and revert to the situation that existed before 1979 where the federally appointed commissioner was in charge of all areas of territorial responsibility.
Of course this would be preposterous. If anything, the trend has been in the other direction - with the federal government giving us more power and local autonomy rather than less. Ottawa has shown no inclination to take such drastic, paternalistic and undemocratic action and for the most part voluntarily abides by a similar line that the provinces have. Moving backwards at this point would prompt outrage.
But there are a few exceptions to our equality with the provinces.
The federal government still handles the prosecution of criminal offences in the Yukon, which is something that the provinces usually do. Since the feds decide what the criminal law says, the power to handle your own prosecutions isn’t that useful. But the provinces do have some leeway - see for example Ontario Premier Kathleen Wynne’s recent musing that her province may refuse to enforce Ottawa’s new prostitution law, or the refusal of several provinces to handle prosecutions of offences pertaining to the now defunct long-gun registry. It may be preferable to have that discretion locally.
There is also the matter of bilingualism. We are accustomed to thinking of Canada as a bilingual country, but the reality is that none of the provinces - with the exception of New Brunswick - are legally compelled to offer services in both languages. The remaining nine provinces are unilingual (in the case of Quebec, unilingual francophone). The Yukon, on the other hand, is compelled to be a bilingual jurisdiction.
These are relatively minor matters, and depending on your perspective (the Yukon is, after all, the third-most bilingual in Canada) may be even for the best. Since it is so unlikely that Ottawa will do anything drastic, it is not terribly surprising that the idea of the Yukon becoming a province has failed to grab the public imagination.
But the proposed changes to the Yukon Environmental and Socio-economic Assessment Act making their way through Parliament may be reason to give the idea a second thought. The fact that YESAA is federal legislation is another “exception” to the rule that the Yukon is treated just like a province. The development of natural resources is provincial jurisdiction, and this “problem” we’ve been having is not one that a province would have. Parliament would not have the jurisdiction to amend, for example, the British Columbia Environmental Assessment Act.
If there is anything more galling than the changes themselves, it is certainly the fact that they are being made thousands of kilometres away by politicians with little connection to the territory.
I appreciate that all indications are that our own Yukon Party government played a role in driving these changes and has offered its full-throated support for them. Perhaps the outcome would be the same if these changes came at the territorial level.
But if that were the case, at least we would have an opportunity to hold them accountable. Aside from giving our single Conservative member of Parliament the boot in the next federal election, there is little Yukoners can do democratically to express our displeasure or (better yet) reverse the changes altogether.
Again, this is not a problem that a province would have.
There are obviously very real practical obstacles to the Yukon becoming a province. There are complicated constitutional questions. There is also the issue of money. I’ve opined before that the Yukon’s dependence on large federal transfer payments is unlikely to end anytime soon, and there is a very real and defensible sense that provincehood is a “pay to play” proposition.
But ensuring our continuing autonomy within the federation without interference by Ottawa - through provincehood or otherwise - is something at least worth thinking about.
Kyle Carruthers is a born and raised Yukoner who lives and practises law in Whitehorse.