The Government of Alberta is advancing so-called Charters for the Cities of Calgary and Edmonton and is seeking input from the public following the release of a 25-page Overview Package that sets out their proposed new powers, with some explanations. Observers of municipal affairs in Alberta will recall the Framework Agreement for Charters signed in October 2014 between the Province, Calgary, and Edmonton. That agreement acknowledges that a one-Municipal Government Act-fits-all approach to municipal powers and responsibilities does not comport with the unique capabilities and the scale and complexity of demands that characterize Alberta’s two largest cities. It also recognizes that augmenting the two cities’ powers would serve the provincial interest in attracting investment and promoting its own global presence.[1]
Earlier this week I attended an engaging and informative public session regarding the City Charters hosted by the University of Alberta. Experts and facilitators were on hand to answer questions and collect feedback in anticipation of the draft changes which will be announced in early 2017. Here are my initial thoughts about the proposed Charters:
1. Charters by Regulation? The Canadian cities of Vancouver, Toronto, Winnipeg, and St. John’s are distinguished by separate statutes recognizing their special status. Unlike them, Edmonton and Calgary will merely be granted Charters promulgated as regulations under the Municipal Government Act. In 2015, the MGA was amended authorizing the cabinet to establish by regulation on a request by a city a charter for that city.[2] Once a Charter is established, it deals with all matters related to the administration and governance of the city, including its duties and powers. The Charter may vest in the City different powers and duties from those conferred by the MGA on other local governments, and even allow the city itself pass a bylaw opting out of specific provisions of the MGA, or “any other enactment”.[3]
The allure of creating a Charter through secondary legislation (i.e., regulation) rather than primary legislation (a statute enacted by the legislature) is that such a Charter is easily changed. But pliability is not a feature we ordinarily associate with the term “Charter” in Canada, nor is it necessarily a virtue in law making. More often we demand laws that are predictable and stable, with deliberative processes for change providing checks and balances against caprice or whim. The proposed framework allows the Lieutenant-Governor to expand or rescind the special mandate of a Charter city simply by making new regulations.[4] The cabinet can, for example, change procedural and evidentiary rules of evidence in local courts, abolish development appeal rights, set new taxes and fees, allow local authorities to redefine permit terms set by provincial licensing agencies or, say, change or opt out of the provincial minimum wage, and otherwise impact private rights.
But precisely because the powers delegated to local governments can affect residents, businesses, and property owners so profoundly that the scope of those powers is best established by the legislature directly. It is highly unusual for the legislature to delegate to the cabinet the very power to define and redefine the mandate of local governments, and it would be even more unusual for that mandate to include further delegation to the city the power to opt out of a law governing the rest of the province.
In short, the method by which Charters are proposed for Alberta’s most important cities arguably distinguishes them quite grievously. Edmonton and Calgary would acquire a fickle mandate under inferior secondary legislation, whereas other municipalities in Alberta would enjoy a more stable set of rights and responsibilities under the (soon to be amended) MGA. And the people living and working in Edmonton and Calgary would not be as secure in their rights and responsibilities, which might be changed by executive fiat and with limited public debate.
2. How are Edmonton and Calgary different from other municipalities? They are different in many ways, no doubt. But the province and the cities should articulate the differences more fully and justify the need for special powers. For example, if electronic notices for zoning amendments and development permits is a good idea (it is), then why not enable it in the Municipal Government Act, so that more Albertans could benefit from it?
[1] For an excellent backgrounder, see the Centre for Constitutional Studies, A "Big City Charter" for Edmonton and Calgary: Explaining the Role of Municipalities in Canada's Federal Framework.
[2] MGA, s 141.3.
[3] MGA, s 141.5, notably s 145(3)(c).
[4] The amendments to the MGA do not provide an express way for amending a city Charter (but see s 141.1(1)(a)). Ordinarily, the power to make regulations includes the power to amend or repeal them in the same way. However, it would be an absurdity if cabinet could only amend a city Charter on request by that city.
