Updated: Nov 2, 2021
After several centuries of top-down requirements, the proposed changes mark one of the few spaces where local governments will be able to customize local rules that best suit their context.
By Jennifer Wolowic and Jasmin Senghera
The announcement on October 27, 2021 to propose updates to public notice requirements in the Community Charter is an example of governance updating to the times.
During the Development Approval Process Review (DAPR) (2018), the Ministry of Municipal Affairs heard there was “significant interest in and high importance placed on increasing the efficiency and effectiveness of the public input process” and the requirement to post in the newspaper was a barrier. “The North placed specific importance on replacing advertising requirements with more modern methods.”
Thus the second post in our special series is dedicated to this proposed change. Public notice has also been core to the evolution of public hearings and common law duty of procedural fairness. We take you through where they came from, what values are embedded and what opportunities and limitations are ahead.
What might be changing?
The biggest impact of the proposed change will be a shift from provincial standards to local customization. Basically, local governments would be able to pick what communication format they will use to share a notice with residents, rather than being required to use newspapers.
The Bill proposes the following addition to the Community Charter and then edits other sections to make both the LGA and the Charter consistent with these changes.
The addition put some specific requirements on the choices that local governments can make, while also allowing municipalities to continue to use newspapers. The change also allows the Minister to make further recommendations.
On one hand, this is a small change.
Many municipalities already go above and beyond the minimum requirements to post notices in newspapers. They embrace social media and websites.
This will also have a limited impact on the City of Vancouver since they follow the Vancouver Charter and not the Community Charter and Local Government Act.
On the other hand, this bill does mark a potential precedent.
In Canada, the laws that govern municipalities are top-down. Each province controls what municipalities can and can not do, since municipalities are not included in the Constitution.
Yet rules for municipal governments across Canada are fairly similar. That is because most of their legislation is based on the Municipal Corporations Act or Baldwin Act from 1849. It inspired the rules we have in BC. Notices used to be signs posted on doors, but changed to newspapers in the 1920s. Newspapers remained the requirement for 100 years.
After several centuries of top-down requirements, the current proposed changes mark one of the few spaces where local governments can customize local rules that best suit their context.
Fun history lesson, but how does this relate to public hearings?
Too often the public can view colonial laws or structures as static. The proposed bill is an example of how our democracy is always updating for our present day. While, tweaks like these are always happening, they tend to maintain certain core principles that have been consistent for centuries. In this case, the the public notice full-fills a core principle that people should know when and where decisions will be made and the specifics related to those decisions.
The core principles also connect the importance of public notice to public hearing contexts. Especially in the following ways:
The common law duty of procedural fairness
The public’s right to know
Public notices are a key requirement in municipal government decision making procedures. They informs the public so that the public can decide if they want to participate in a public hearing.
Duty of Procedural Fairness
Common law duty of procedural fairness was not a term we knew existed until we started exploring public hearings. It came up early and often in our research and conversations. The principles dictate much of the current experiences, procedures and requirements of public hearings.
Current rezoning public hearings are legislated to be quasi-judicial spaces. Council members are supposed to preside in an unbiased manner like judges of a court. All sides must be given all the information they need to provide input. Everyone who believes they will be affected by the decision has a right to be heard. Council and chair must remain neutral throughout the experience. If they fail in their duty, the city can be sued and decisions reversed.
Cities do not get sued because they approve density. They get sued when a plaintiff believes the city did something wrong in the procedures that led up to a decision to densify. It might be an accusation that the city forgot to post in a newspaper, did not release the notice within legislated time frames, did not give the public all the reports related to a development, or if the statements made by council prior to hearing showed they had already made up their mind. Any of these could send the city to court.
You won’t find procedural fairness steps and processes in the Local Government Act itself, but some details, like the current and proposed changes about public notices, are legislated. Instead most of these procedures are embedded in common law (the precedents created by the outcome of court cases).
We've learned from lawyers, that among land-use decisions and public hearings, “There is no shortage of cases in which seemingly innocuous breaches” of procedures have caused council decisions to be overturned by the courts (Bradley and Patterson, 2020). So these procedures do matter.
But it is also important to note that statutory law– what is named in bylaws, and provincial acts– takes precedent over the common law. Thus if these proposed changes are approved, judges will look to the updated Community Charter and local bylaws to assess any future accusations of procedural fairness violations. This is why this update may impact future land use decisions.
If approved and municipalities decide to create bylaws for alternative means of public notice publications, they will have to be clear about their procedures and chosen means of publication. Residents have a right to fully understand how municipalities will continue to fulfill their duty to inform residents as part of procedural fairness and the courts will protect those rights. Municipalities will also have to be careful to select forms of communication are clear and easy to access for all community members.
Municipal outreach must also be mindful that any future bylaw should ensure all residents, who feel they are affected by a decision, have access to the information they need. The courts have ruled that this information must be clear, and accessible so that residents have enough information to decide if they want to participate in the process and can access the details of proposals. Any future bylaws for public notices must meet the public's right to know.
Right to Know
The right to know is not only part of procedural fairness, but an increasingly core democratic value.
In the 20th century, “Visibility and disclosure have become part of our lives, expectations, and instinct; their erosion or retrenchment today would evoke a sense of loss, of injustice, of outrage” (Schudson, 2015, 13). The public insists on government transparency and accountability. Being able to know what is coming up in a city’s decision-making schedule is part of the public’s expectations.
Municipalities want to meet these expectations and that is why local governments recommended changes to the newspaper requirements in the DAPR process. It is also why municipalities already go above and beyond the legislated minimum requirements and use social media, translate notices into multiple languages, use websites and other means in addition to newspapers.