Spotlight on renovating the public hearing: Should BC legislation on local-land-use bylaws specify procedural requirements for public engagement and public hearings?
February 29, 2024
BY Kevin Zakreski
BCLI is running a public consultation (closing date: 15 March 2024 update: the closing date has been extended to 22 March 2024) for its Renovate the Public Hearing Project. The consultation is asking for your views on options for reforming public engagement on local-land-use bylaws. For more information about how to participate in the public consultation, please visit the Renovate the Public Hearing Project webpage. This post throws a spotlight on one of the issues discussed in the consultation paper.
Brief statement of the issue
Legislation on public hearings is focused on select aspects around timing of the hearing and notice requirements. The procedures for how public hearings are conducted have largely been shaped with a view to ensuring compliance with the courts’ view of them as serving a quasi-judicial function subject to standards of procedural fairness. Criticism of public hearings has pointed to the failure of the process to create inclusive spaces for all interested persons to learn and share input. On the contrary, public hearings and their procedures are noted as being well suited to empowering a small segment of the public.
This has led to developers and local governments leading alternative forms of public engagement. However, the scope and benefit to the general public of these other forms of engagement in the current legislative framework depend upon the individuals in roles where they can lead these engagements.
Discussion of options for reform
One option to address this issue would be to amend legislation to expressly provide procedural requirements for public hearings and public engagement. A downside to this approach would be that local governments who are working collaboratively with First Nation governments to co-plan and co-develop engagement strategies could lose the flexibility to devise engagements as part of their intergovernmental relationships.
Another approach would be to amend BC’s legislation to clarify the expectations of local governments to work with First Nations as rights and title holders on co-planning, including in creating opportunities for engagement and dialogue with members of the public.
The advantage to this option is that it could help clarify for local governments some of their obligations as state governments under the UN Declaration on the Rights of Indigenous Peoples. Additionally, by allowing for flexibility in public-hearing or public-engagement procedures, the procedures can be adapted at a local level to include local Indigenous approaches to engagement and better meet the needs of the community.
This approach could be further supported by some of the options discussed elsewhere in the consultation paper. For example, if legislation were amended to require local governments to have a principles-based public-engagement policy, the legislation could further specify a requirement to co-develop the policy in consultation and cooperation with First Nations rights and title holders whose territories are impacted by the local government’s exercise of jurisdiction.
Such an amendment may need to be crafted in such a way as to ensure that local governments in working with First Nations meet First Nations where they are at and are able to find innovative and accommodating ways to do so. In terms of intergovernmental co-planning and working towards free, prior, and informed consent, BCLI heard from participants in the Reconciliation Listening Series that capacity support for First Nations is essential, as are frameworks for supporting an ongoing relationship as opposed to point-in-time information dumps and correlated requests for input on short timelines.
BCLI also heard from Reconciliation Listening Series participants of the need for these frameworks to be well supported in legislation so that they are not dependent upon the will of individuals in leadership roles.
Summary of options
• BC legislation on local-land-use bylaws should be amended to clarify the obligations of local governments to work collaboratively with First Nations governments in developing procedures for public engagement and public hearings, where required.
• BC legislation on local-land-use bylaws should be amended to set out procedural requirements for public hearings.
• BC legislation on local-land-use bylaws should be amended to provide local governments with a general authorization to set the procedure for public hearings as they see appropriate.
• BC legislation on local-land-use bylaws should not be amended to set out procedural requirements for public hearings.
To respond to this issue or to read more about issues like this one, please visit the Renovate the Public Hearing Project webpage.
