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Changes may be coming to local government public notices
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 lie 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 puts some specific requirements on the choices that local governments can make, while 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, embracing 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 this are always happening, they tend to maintain certain core principles that have been consistent for centuries. In this case, the public notice fulfills 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 notices 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 inform 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 many 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, and 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 could be an accusation that the city forgot to post in a newspaper, did not release the notice within legislated time frames, or did not give the public all the reports related to a development, or that 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 past 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). This means these procedures do matter.
But it is also important to note that statutory law – the law laid out 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 if 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 that are clear and easy to access for all community members.
Municipal outreach must also be mindful that any future bylaw should ensure that 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 bylaw 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 a 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 expectation.
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, translating notices into multiple languages and using social media, websites, and other means in addition to newspapers.
If the changes are approved, municipalities and regional districts will also have to make sure the communication formats they choose allow for the right information to easily reach residents. “In other words, does the notice provide sufficient information to allow members of the public to fairly consider whether to exercise their right to be heard; a fundamental requirement of procedural fairness” (Bradley and Patterson, 2020).
In addition to the format, the language used is increasingly important. Case law such as the 1982 decision, Peterson v. Whistler (Resort Municipality), has ruled that postings need to be clear and understandable as well as available. Signs and postings need to avoid technical jargon.
Time will tell if this case law expands to include rulings related to local languages used in the community. While French and English are Canada’s official languages in statutory law, equitable public engagement will need to go beyond that. In our increasingly multi-lingual communities, these notices will need to include several languages to provide equitable access and meet the expectation of the public’s right to know.
Final thoughts: what is the city's vs the individual's responsibility?
Prescribing local formats and continuing to reflect on and improve equitable communication are ways that local governments can step up to meet the democratic expectations embedded in simple rules about public notices. But individuals also needs to remember, our governments can only do so much.
In the 19th century, being informed meant residents had to walk past and stop to read a notice on a door in town. In the 20th century, being informed meant taking the time to read through posts in the newspaper. The 21st century will require residents to choose to follow the right information channels and pause from their endless scrolling to absorb the information published by cities.
Residents have to recognize their role in staying informed of land use decisions and upcoming public hearings. Residents have a civic responsibility to stop and read these notices in order for the duty of procedural fairness to function well.
Local governments are often accused of not notifying residents. In the 1965 Wiswell v Winnipeg case, the absence of a sign on a property – even though notices were posted in the newspaper – was enough for a local homeowner’s association to take the city to court and win. A more recent example is a redevelopment agenda on the west side of Vancouver where residents say “the city has been deficient in its notification and consultation process.”
Local governments are required to create opportunities for the public to encounter information that will help people decide if they want to get more involved in an issue. Cities are required to take the time to write and post notices. Failure to meet these expectations results in court battles over procedural fairness.
But our liberal democracy places no requirements on citizens to take the time to read the newspaper or stop to read a sign on a street. Collectively, we are less unified on what level of civic participation is expected of residents so that they are informed.
Thus as we look across the history and values embedded in the proposed update to our Community Charter, we can see the proposed changes may make it easier to reach residents, but will only succeed in removing barriers and adding equity if individuals make a choice to take the time to be informed.
More than that, these proposed changes inspire us to think about the other factors involved in people’s right to know. What equitable communication methods can be used across communities? Which multi-language and multi-media channels are best used to reach communities that are often siloed? What procedures can narrow the gap between cities and residents? What is the individual’s responsibility to seek information on issues they care about or affect them?
Now that the province is proposing prioritizing local contexts for defining the means of public notices, municipalities have an opportunity to engage with their communities to shape future procedures. They will need to carefully consider how to navigate procedural fairness with these new means of communication. Our hope is that municipalities consult with communities that are often left out or misrepresented in public hearings to inform future bylaws so that they will succeed in meeting 21st-century expectations for procedural fairness and the right to know.