Spotlight on renovating the public hearing: When should the public hearing not be held?
January 18, 2024
BY Kevin Zakreski
BCLI is running a public consultation (closing date: 15 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
The Local Government Act places the public hearing at the centre of public engagement on land-use bylaws. It grants local governments only a tightly limited scope in which they may decide not to hold a public hearing. In this respect, public hearings are the legislated default and standard for engaging the public on local-land-use bylaws in BC.
But the public hearing has recently come under criticism. Critics have argued that public hearings don’t provide a deliberative forum for productive commentary on a land-use bylaw. Other forms of public engagement may in fact do a better job of meeting the goal of using the public’s input to improve land-use decision making.
Other jurisdictions have given their local governments more freedom not to hold a public hearing and more flexibility to use other forms of public engagement. To what extent should BC consider following the same path by allowing its local governments more scope not to hold a public hearing?
Discussion of options for reform
This is an issue that’s capable of generating a wide range of options. This range includes everything from retaining the current legislation to incremental reforms that keep the same basic structure in place to new directions that de-emphasize the public hearing in favour of different approaches to public engagement.
A majority of committee members favoured an option that took this last approach, which would significantly change BC’s legislation on public hearings. In their view, this option unites several of the major themes that run through this consultation paper by embodying the following features:
• it responds to criticisms of the overly formal and adversarial nature of public hearings—which have inhibited deliberation and the flow of information useful for informed land-use decision making—by opening up options to use other forms of public engagement;
• it gives local governments more flexibility in deciding how to conduct public engagement in respect of a specific land-use bylaw;
• it engages the principles of public engagement discussed elsewhere in the consultation paper by enshrining them within a new, principles-based approach to legislation.
In this majority’s view, allowing local governments to eliminate the public hearing if they allow for other forms of public engagement that advance the principles discussed earlier would have several advantages.
First, it gives local governments more tools to tailor public engagement on land-use bylaws to local circumstances. A major criticism of public hearings is that they’ve failed to contribute to better land-use decision making. This failure may be due to the adversarial nature of a public hearing. Or it may be due to the perceived tendency of public hearings to empower groups favouring the status quo. These concerns may be overcome by giving local governments the power to draw on different ways of engaging the public.
Second, it moves the legislation away from rule-bound regulation of how local governments engage with their public. Another frequent complaint of public hearings is that their formal nature inhibits deliberation and frustrates local governments. A shift in focus from detailed rules to broad principles addresses this concern.
Third, it ensures that public engagement takes place on all land-use bylaws on a consistent basis that’s informed by stated principles. Under the Local Government Act, a local government must hold a public hearing in most cases, but it’s not required in some cases (e.g., if the land-use bylaw at issue is a zoning bylaw that’s consistent with the official community plan for the area it covers). This means that, in some cases, the public hearing may be eliminated and no public engagement need take place at all. This creates a kind of all-or-nothing feel to the current legislation, which could be addressed by ensuring that public engagement takes place in all cases.
But some committee members weren’t in favour of this option. In their view, the current law, which calls for public hearings in all but limited circumstances, still provides the best framework for public engagement on local-land-use bylaws.
These committee members were concerned about what they saw as uncertainties in the majority’s proposal. In particular, they were concerned about the following results:
• local governments using their enhanced flexibility not to hold a public hearing and using a form of public engagement that doesn’t provide direct access to decision makers;
• local governments using their enhanced flexibility to provide less information to the public;
• uncertainty over the meaning of the guiding principles leading to litigation.
This approach could be criticized as failing to respond to concerns about the public hearing. In these committee members’ view, these concerns can be best addressed by incremental changes to current laws on public hearings, rather than replacing public hearings with a new system of public engagement.
Between these two ends of the spectrum of options, there may be a wide range of other options. In particular, there are potentially a large number of ways to build on the current law, which allows for the public hearing not to held in a specific set of circumstances. This logic could be extended, with legislation that keeps public hearings at the centre of public engagement on land-use bylaws but expands the circumstances in which the public hearing could be eliminated.
This approach could be seen as striking a balance that preserves what’s best in the current law and addresses criticisms of it. On the other hand, it could be argued that this approach is too limited to deliver a real improvement to the law.
Summary of options for reform
• An amendment to BC legislation should enable principle-based public disclosure and engagement processes for amendments to local-land-use bylaws, that when used by local governments would not require public hearings.
• BC’s legislation on public engagement on land-use bylaws should allow local governments not to hold a public hearing when the following conditions are met: . . . [open option inviting readers to fill in their own suggestions].
• BC’s legislation on public engagement on land-use bylaws should continue to only allow local governments not to hold a public hearing when (a) the proposed bylaw at issue is a zoning bylaw; (b) there is an official community plan in effect for the area that is the subject of the zoning bylaw; and (c) the zoning bylaw is consistent with that official community plan.
To respond to this issue or to read more about issues like this one, please visit the Renovate the Public Hearing Project webpage.
