Another look at municipal charter
Can be a broad and useful document that we look back on with pride or it can be a narrow and impotent document that we look back on with regret
Last week, on the insistence of Municipal Affairs Minister Derek Mombourquette, Cape Breton Regional Municipality (CBRM) held public consultations on the development of a municipal charter. The charter is being sought as a way of working around parts of the Municipal Governance Act (MGA) that hinder the work of the municipality.
Months prior, CBRM Mayor Cecil Clarke provided the province with “A Charter for CBRM: Draft Considerations.” Clarke’s draft was created from a council motion to extend Sydney Harbour Investment Partners’ (SHIP, the company given exclusive rights to market the port) development agreement – far from the careful, thorough, and research-driven basis one wants for a legal document with multigenerational impacts.
At its core, a charter should be about strengthening the economic, environmental, social and legal foundation of a municipality. It should be about seeking a better balance of power between a municipal and a provincial government, not the elimination of important checks and balances.
In 2018, a CBRM charter might, for example, look to modernize an area’s tax system, creating a structure that is more sustainable, equitable and conducive to development than what we have today. It could address immigration, municipal-provincial relations, public transportation and community well-being.
The document Mayor Clarke has before the province (one not subject to council discussion) fails to achieve any of the above. It also fails to see economic development as anything broader than the port-related legal maneuvers being sought by SHIP.
The mayor’s draft includes four provisions: (1) allowing the CAO to enter into 99-year leases; (2) allowing the municipality to grant tax abatements to private companies; (3) allowing the sale of municipal land at less than fair market value; and (4) increasing the CBRM’s ability to enter into fiscal commitments of up to $500,000 without ministerial approval. These provisions are cause for concern when looked at through the lens of good governance.
Presently, under the MGA, the CAO may approve the lease of municipal property for up to one year. The proposed charter gives unilateral power to the CAO to grant leases up to 99 years without the approval of elected officials. This eliminates the need for council discussion, consultation and public hearings.
No other municipality in Canada gives their CAO such unencumbered powers.
The draft charter does not include criteria to be used in determining whether to grant a 99-year lease. Surely one would want, at minimum, to include that “the lease may be granted provided that leasing this property for such a term would be of demonstrable benefit to the community.”
Second, the draft charter seeks broad authority on tax abatements. While this can be a necessary tool, here again no criteria are established on which council should approve abatements, making decisions on abatements, arbitrarily. In determining criteria for this provision, council may wish to:
• Consider the MGA and its overarching purpose – to ensure the provision of services that are necessary or desirable for all or part of the municipality. The case law has interpreted this to mean that actions of a municipality should lead to a demonstrable benefit to most members of the community;
• Add in a requirement that obliges applicants to prove their need for special consideration;
• Include a provision whereby those receiving abatement must reapply annually and council must be satisfied that there continues to be a need for this special service.
The third provision of the draft charter – the sale of municipal property for less than market value – is likewise unaccompanied by criteria for its enactment. With no criteria outlined for situations in which the municipality would want to sell property for less than market value, and no objectives outlined for what the municipality hopes to achieve with such sales – there is much room for error, unfairness, and a lack of transparency.
Finally, the draft charter increases CBRM’s authority to enter into fiscal commitments from $100,000 to $500,000. Today, $500,000 makes up a significant portion of our revenue. Unless the municipality can demonstrate that its inability to enter into $500,000 agreements without provincial oversight regularly hinders, and will continue to hinder, its work, this, too, seems to be an over-reaching provision based on the desire to quickly respond to the SHIP’s needs.
In his opening comments, Minister Mombourquette noted that the CBRM does not need a charter to enable the swift conclusion of a future port development deal. With or without a charter, the province will move quickly to meet its obligations.
This is helpful. We’ve been given, via the minister’s clarification, an opportunity to develop a strong charter without the threat that, by seeing this for the opportunity it is, we are jeopardizing our sacred cow.
Despite these comments, Clarke seemed uncertain as to whether these consultations would affect the draft he has out before the province. When asked by Councillor Ray Paruch what he intended to do with his draft, he might have outlined the ways in which council could modify or rescind and re-adopt the SHIP motion to leave the extension intact but create a blank canvas for the proper development of a municipal charter.
Instead, he held up this motion as an impediment – as something that, although done with no consultation and minimal council input, could not be undone.
Our charter can be a broad and useful document that we look back on with pride or it can be a narrow and impotent document that we look back on with regret; one that reflect the needs of the community or one that reflects just the needs of SHIP.
“No other municipality in Canada gives their CAO such unencumbered powers.”