Covid-19 has brought massive disruption to life across the North. The unprecedented changes to daily life pose many difficult questions for local governments about their role in responding to the pandemic. Although much of the response is being led at the federal, provincial, and territorial levels, particularly through the orders and advice of the Chief Public Health Officers in each jurisdiction, all levels of government have a role to play.
As local governments work hard to respond to this crisis, they also need to continue to operate in challenging circumstances. This means holding council meetings, providing essential public services, and communicating with residents. This blog post highlights some of the tools available to local governments in the Northwest Territories and Nunavut.
It's not business as usual, but councils must meet
Councils in the Northwest Territories and Nunavut are required by statute to meet at least once each month. But councils are also subject to the orders of the Chief Public Health Officer in each jurisdiction, and unlike legislative assemblies, cannot claim parliamentary privilege as an immunity from these orders. This raises difficult questions about how councils can perform their essential (and mandatory) role while respecting the orders prohibiting gatherings in both territories.
On April 11, 2020, the Chief Public Health Officer of the Northwest Territories ordered that all public and private indoor gatherings, of any size, are prohibited across the territory. Persons attending offices and workplaces are exempt from this prohibition, but only if the workplace respects the Chief Public Health Officer’s guidelines, including maintaining social distance of two meters. The order does not address whether it is intended to prohibit in-person meetings of local governments, but it appears likely that most council meetings cannot, under the current order, take place in the same form as they did prior to the pandemic.
On April 24, 2020, the Chief Public Health Officer of Nunavut issued an order that, among other terms, prohibits all organized public gatherings of more than five persons. This prohibition applies to all meetings open to members of the general public. This order does not expressly address meetings of local government councils. However, because council meetings are generally required by statute to be open to the public (subject to some statutory exceptions), an in-person council meeting would likely be prohibited by this order.
Can councils meet electronically?
In the Northwest Territories, both the Cities, Towns and Villages Act and the Hamlets Act allow councils to conduct meetings remotely in two circumstances: (1) when council members are outside the community when the meeting is scheduled to occur; or (2) when council members are physically unable to attend in person. This reflects the normal rule that those who can attend in person must do so. In Nunavut, the Cities, Towns and Village Act and the Hamlets Act authorize councils to meet electronically or through “other communication facility”.
Legislation in both Nunavut and the Northwest Territories requires that council members be able to hear and speak to each other during an electronic meeting. Members of the public must also be able to hear what is said at the meeting. This is consistent with the requirement that all meetings be open to the public, subject to a narrow exception for closed (or in camera) meetings to discuss certain prescribed subject matter. Nunavut’s Cities, Towns and Villages Act and Hamlets Act both prohibit councils from holding in camera sessions during electronic meetings; no such restriction exists in the Northwest Territories.
Facilitating public participation in electronic meetings can be a significant challenge in the north, particularly given the slow internet speeds experienced in most communities. For most communities, it simply isn't realistic to stream council meetings online. But councils should be aware that there is no requirement for members of the public to see the meeting - all that's needed is for the public to be able to hear the proceedings. This could likely be satisfied, for example, by using a conference call line that allows members of the public to join the meeting by telephone.
What can local governments do to protect their communities?
Because local governments have significant authority to enact bylaws and regulate behaviour within community limits, they may want to consider how steps can be taken through bylaw to enhance the safety of residents. For example, the City of Toronto has enacted a bylaw to impose "emergency physical distancing" in City parks and squares, with contravention punishable by a fine. Ottawa has banned all open-air burning, to minimize the risks of fires and ensure first responders are available to respond to calls related to COVID-19. Other communities are waiving penalties for late payment of utility bills in recognition of the economic toll of the pandemic on many households.
Across the north, local governments are finding creative ways to give residents access to library materials, organizing drive-in movies and free bingos, and providing puzzles and games to residents to encourage residents to stay home. These initiatives demonstrate that local governments are uniquely positioned to support initiatives to foster well-being for their residents.
As local governments consider their options in responding to the many challenges they face, it is important to recall that local governments’ powers are limited to what is found in the various statutes creating and regulating municipal authorities, such as each territory’s Cities, Towns and Villages Act and Hamlets Act. Where a community wishes to take steps that are not clearly authorized by legislation, we recommend consulting with the relevant government department and seeking legal advice.
Can local governments ban or restrict alcohol or cannabis in their communities?
Some communities in the Northwest Territories and Nunavut have expressed an interest in temporarily banning alcohol in response to the pandemic. Countries around the world are grappling with how to address alcohol use and abuse in the context of the pandemic, with some, like Greenland, temporarily banning alcohol sales in some communities in hopes of reducing alcohol-fueled violence in homes while families are isolating. Others have kept alcohol and cannabis stores open. Whatever a community’s views on alcohol and cannabis may be, it is important to understand the distinct roles of municipal governments and the territorial government should a community wish to impose restrictions as part of its pandemic response.
While communities in the Northwest Territories do have the power to restrict the sale of alcohol and cannabis, these restrictions can only be imposed after a plebiscite is held under the Liquor Act or the Cannabis Products Act. However, both statutes also allow municipal and band councils to request that the Minister prohibit the consumption, sale, purchase or transportation of liquor or cannabis in all or part of the community for a period no longer than 10 days. A temporary prohibition order can be made "if special circumstances exist in the community" that warrant it. Neither statute says what these circumstances would be, and a community that feels such a prohibition order is necessary would need to explain what these circumstances are when making the request. It may be that increased levels of violence during mandatory isolation or quarantine would meet this threshold.
In Nunavut, many communities have either restricted or prohibited the consumption of alcohol. Where a prohibition is not already in place, the Liquor Act only allows councils or the Minister to declare a temporary prohibition where a special occasion is to occur in the community in question. “Special occasion” is not defined in the Liquor Act, and it seems unlikely that this would include an outbreak of COVID-19 or the orders of the Chief Public Health Officer. There is no mechanism in Nunavut’s Cannabis Act for communities to declare or request a temporary prohibition on cannabis.
What options do local governments have for collecting property taxes and enforcing payment of arrears?
Local governments in the Northwest Territories and Nunavut are required by the Property Assessment and Taxation Act of their respective jurisdictions to collect property taxes. For many local governments, this taxation is a critical source of revenue for funding their operations. Nevertheless, in these challenging times, local governments may wish to explore alternatives to collecting property taxes, in recognition of the economic hardship faced by many households as a result of COVID-19.
However, local governments must be cautious about the manner in which they choose to provide financial relief. The Property Assessment and Taxation Act of both jurisdictions require local governments to maintain a tax arrears list and to provide timely written notice to assessed owners and interested parties at various dates in the year. Any temporary relief rolled out by local governments must adhere to these statutory deadlines and notice requirements.
One option is to refrain from listing a taxable property with accumulated tax arrears on the tax arrears list. This tax arrears list must be prepared and posted by March 31 at the latest. However, local governments may wish to refrain from omitting taxable properties from the tax arrears list because this act precludes the sale of the unlisted taxable property at the following year’s public auction.
Another option for local governments is to enter into payment agreements containing financial relief provisions with the assessed owners of taxable properties on the tax arrears list. Under this option, local governments can proceed normally with preparing and posting the tax arrears list, preserving their right to list taxable properties for sale at auction. The Property Assessment and Taxation Act requires local governments to send written notice letters to the assessed owners of all taxable properties listed on the tax arrears list. In its notice letters, local governments must offer assessed owners the option of entering into an agreement to pay. Temporary relief can be provided in the form of tailor-made provisions that defer payment for a set amount of time. Local governments should be careful when drafting these relief provisions to ensure that their intended effect is achieved. Once an agreement to pay is entered into, the taxable property must be removed from the tax arrears list, eliminating the need for the local government to provide written notices throughout the year pursuant to the Property Assessment and Taxation Act.
Local governments may also choose to delay a public auction as a form of temporary economic relief. However, this does not alleviate the local government’s responsibility to send written notices at various times in the year.
Questions? Contact us
Lawson Lundell has extensive experience advising governments across the North on a wide range of legal issues. Please contact a member of the Northern Group if you have any questions about your legal options in this challenging time.
 A municipal council is a creature of statute, and enjoys only the powers granted to it by legislation: Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission), 2001 CanLII 8549 (ON CA) at para. 46. This is unlike provincial and territorial legislative assemblies, who are immunized from Crown or judicial scrutiny in aspects of their operations as a matter of constitutional law: Villeneuve v. Legislative Assembly et al, 2008 NWTSC 41 at para. 21.
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