Articles
<< back to all ArticlesBy-Law Newsletter: Hear Us Out
Council’s Role in Public Hearings under the Municipal Government Act
Under the Municipal Government Act, RSA 2000, c M-26 (“MGA”), a public hearing must be held in order for council resolutions or bylaws of council to be valid if the MGA or another enactment indicates that a public hearing is required (section 216.4 MGA). Circumstances in which public hearings are required include, but are not limited to, changes to the boundaries of an environmental reserve, road closures, establishment of controlled corporations, or the sale, lease, or disposal of designated reserve land. However, the most common circumstance in which a public hearing occurs is where a municipality is passing or amending a statutory plan (e.g. municipal development plan, area structure plan) or a land use bylaw.
A public hearing must occur before second reading of a proposed bylaw or before council votes on a resolution, as the case may be. It must be advertised in accordance with section 606 of the MGA or the municipality’s advertising bylaw (provided the advertising bylaw has been properly passed in accordance with section 606.1 of the MGA). Public hearings must occur during a regular or special meeting of council.
Public hearings serve an important role in the municipal planning process as they provide ratepayers, developers, and affected parties the ability to engage with future planning objectives, as well as specific regulations and requirements that will apply to municipal development. For this reason, councillors should have regard to their unique obligations in the context of public hearings.
Public hearings must be conducted with regard to the duty of procedural fairness. In the context of public hearings, procedural fairness necessitates that council give the public sufficient notice of the public hearing – having regard to section 606 of the MGA. It also requires that council give the public enough information about the content of the resolution or bylaws being considered such that the public can adequately participate.
Procedural fairness may also require, in some circumstances, that council adjourn a public hearing in order for the public to adequately participate, especially where there has been an administrative or technical error in the leadup to the public hearing in relation to notice or the sharing of information. A final procedural fairness consideration is if a councillor does not attend any of a public hearing, they cannot vote on the proposed bylaw or resolution. If a councillor attends only a portion of a public hearing, they retain the discretion to abstain from the vote on the proposed bylaw or resolution.
In advance of a public hearing, councillors may receive information from ratepayers in informal settings. It is important if an individual councillor is receiving information from ratepayers or attending open houses or town halls hosted by developers that this information is shared with all of council so that every councillor attending the public hearing has the same information before them. Councillors should also avoid doing their own independent investigation. For example, if a redistricting amendment application is before council, which would be an amendment necessitating a public hearing, and that redistricting relates to a specific development site, a councillor should not attend at the development site and collect their own information. This can create unfairness in the public hearing process, which can put the validity of the entire process at risk.
During the public hearing itself, councillors should ensure that they maintain an open mind, remain neutral and unbiased, and consider all information presented by parties or delegations. Council may set procedural rules for the conduct of public hearings by bylaw and must provide for public hearings to be conducted by electronic means (section 199(2.1) MGA). Procedural rules for public hearings can include requirements in advance of the public hearing for delegations or individuals to register to speak during the public hearing or to submit information in a timely manner; during the hearing itself, procedural rules can include limits on the length of time that parties or delegations may speak, as well as rules for removing individuals who become disruptive.
At the conclusion of the public hearing, council will need to determine whether they have received any information that necessitates an amendment to the proposed bylaw or resolution. If council determines that no amendments are required, it may close the public hearing and continue to second reading of the bylaw or proceed to pass the resolution. If, however, council decides that amendments are required, it may close or adjourn the public hearing, direct administration to address any amendments related to the public hearing, and then proceed to second reading at a later date.
Public hearings are an integral part of council’s roles and responsibilities. Council should ensure that public hearings are not only carried out in accordance with the MGA, but also with regard to the overarching duty of procedural fairness. Doing so will allow councillors to discharge their obligations while also moving forward important and necessary strategic goals for the municipality.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
