Sections of the Local Governance Act: 4 – 20
Description:
Part 2 sets out the powers for local governments as well as the limitations with respect to these powers. More specifically, the areas covered include:
- Establishment of local governments as corporate bodies
- Defining“municipal purposes”
- Powers of local governments and interpretation of such powers
- Powers relative to the establishment of corporations
- Delegation of powers
- By-law making powers (areas of authority, required by-laws, specific requirements, applicability, process to enact, limitations )
New Provisions and Intent:
This part includes the most substantive and important changes to the legislative framework for local governments in New Brunswick. In particular, the Act provides local governments with greater flexibility to address matters of local concern through the following:
Defining Municipal Purposes
The new Act outlines a broad definition for “municipal purposes” in order to provide guidance and parameters around what local governments may undertake for their respective communities. There are a number of references throughout the Local Governance Act that specify a local government may carry out a particular activity, but that this activity must be in line with “municipal purposes”. For example, subsection 102(1) of the Local Governance Act specifies that “… a local government may, by resolution of council, make a grant of money or an in-kind grant for municipal purposes to any of the following…”. Similar references are provided with respect to a local government making by-laws, borrowing money, conducting economic development, and exercising its natural person powers.
Services provided by a local government
It should also be mentioned that that there is no longer a schedule in the legislation listing the services a municipality may provide. Rather, the “municipal purposes” definition specifies that one of the purposes of a local government is “…to provide services, facilities or things the council considers necessary or desirable for all or part of the local government…”. Furthermore, the Local Governance Act specifies that by-laws may be enacted respecting the programs and services offered by the local government. For example, a by-law could be enacted that describes how snow removal services are to be provided by the local government.
Note that a listing of services is included in the Local Governance Act in Part 15 that pertains specifically to local service districts.
Granting of Natural Person Powers
The Local Governance Act provides local governments with “natural person powers”, but with some limitations. These powers can be exercised in fulfilling municipal purposes. Essentially, natural person powers give local governments the authority to exercise various corporate powers not explicitly spelled out in the legislation. For example, the authority to carry out day-to-day tasks such as entering into contracts, hiring staff for the organization, sue and/or be sued, etc., can all be covered through natural person powers.
Broad Interpretation of Powers of Local Governments
To further strengthen a local government’s authority to deal with local matters, the Act now recognizes local governments as a responsible and accountable level of government. Furthermore, the Act provides that “…the powers contained in the new legislation are to be interpreted broadly in order to provide broad authority to the council to enable it to govern the affairs of the local government as it considers appropriate and to enhance the council’s ability to respond to issues in the local government.” The intent of this section of the Act is to reinforce the notion that local governments have a broad array of powers to deal with issues of local concern (as long as the matter falls within municipal purposes).
The Act contains limitations on the use of natural person powers. They are identified throughout the Act and include:
- Specific purposes for which corporations may be created
- Not being permitted to hold securities in a for-profit corporation
- Limitations on delegation of powers
- Limitations on borrowing of money
Providing authority to establish corporations
The Act provides local governments with the authority to establish not-for-profit corporations for municipal purposes. However, the establishment of these corporations is limited to the provision of a service, the operation of a utility, encouraging economic development, and the management of properties of the local government. Note that a local government cannot establish a corporation for the purposes of making a profit, or acquire or hold securities of a corporation that operates for a profit.
Providing Broad Categories of By-law Making Authority
Rather than providing a series of specific (and detailed) items for which local governments may make by-laws, the Act provides, for the most part, relatively broad categories of by-law making authority. This authority may be exercised in fulfilling the municipal purposes set out in Section 5 of the Act.
The following three examples illustrate how the legislation has changed with respect to by-law making authority.
Example 1: To deal with matters related to parking, the previous legislation outlined in detail how parking could be regulated (e.g., provide for parking spaces in parking zones, provide for the installation of parking meters in or near parking spaces, provide for the installation of pay and display machines in or near parking zones, impose a toll for the parking of a vehicle in a parking space and fix the amount thereof for different periods of time, etc.). The new legislation simply indicates that a local government may enact a by-law regulating “…the use of motor vehicles or other vehicles on or off roads, streets and highways, and the regulation of traffic, parking and pedestrians”. If new parking-related technology emerges, local governments will have the flexibility to use it in the management and regulation of parking.
Example 2: In the previous legislation, there was an extensive and detailed section dedicated to how animals could be regulated by local governments. The new Act now states that a local government may enact by-laws regulating “wild, domestic and exotic animals and activities in relation to them, including animal control activities”.
Example 3: The Act provides by-law making authority regarding the safety, health and welfare of people and property”. Using this broad category of by-law making authority, a local government could enact by-laws to deal with a variety of matters. Examples include smoking in outdoor public properties, the idling of vehicles, and the use of fireworks.
It should be emphasized that local governments will not have to immediately revise their by-laws to reflect the new legislation. Other than the new requirements for by-laws (e.g., code of conduct), a local government’s by-laws continue to have effect. Should a local government choose to revise some or all of its by-laws, care should be taken to ensure that appropriate legislative authority is cited.
Licenses, permits and approvals
The Local Governance Act outlines the authority a local government has with respect to issuance of licenses, permits and approvals. This section also specifies that a local government has the authority to prohibit the taking of any action if a particular licence, permit or approval has not been issued.
Power to differentiate
In making by-laws, local governments have the power to “differentiate in any way and on any basis a local government considers appropriate.” The intent of this provision is that a local government could apply a by-law to different geographic areas and to different groups of people. Examples of such bylaws include: prohibiting idling of vehicles in certain areas of the community; closing off a section of a downtown street to motorized traffic during a certain time of the day and year, and putting in place a curfew for a certain section of the community (e.g., the downtown), and that applies to individuals of a certain age.
Required by-laws
Sub-section 10(2) outlines the by-laws that local governments are required to enact. Along with being required to have a procedural by-law, local governments are required to enact the following by-laws: 1) establishing a code of conduct for members of council; 2) requiring vaccinations against rabies for dogs; and 3) the provision of the service of police protection.
Application of by-laws
The Act specifies that a local government’s by-laws can only apply within its territorial limits (unless there are specific provisions in this Act or in other Acts that provide otherwise). In addition, the legislation provides that the by-laws of a local government enacted under section 10 of the Local Governance Act do not apply to Crown lands that are under the control of the Minister of Energy and Resource Development, land vested in the Crown in right of Canada, and infrastructure of the Crown in right of the Province or of the Crown in right of Canada.
Enactment of by-laws
The process to enact by-laws remains largely the same. However, if local governments choose to use a notice in the process so that the by-law does not have to be read in its entirety at a council meeting, they now have the flexibility to post these notices on their websites, as long as the notices are available for examination by the public in the office of the clerk. A summary may describe the proposed by-law by title and general subject matter. The matter of giving notice is dealt with in more detail in section 70 of the Act (See Part 6).
Limitations on by-laws respecting businesses
Local governments will have the authority to enact by-laws respecting “businesses, business activities and persons engaged in business”. However, this by-law making authority will be limited to the issuance of licenses and permits, classification, and hours of operation. The term “classification” is intended to cover instances where a local government wishes to differentiate types of businesses that would be subject to all or certain sections of a by-law. For example, a local government may want to differentiate retail stores from restaurants / pubs for purposes of establishing hours of operation.
Provincial approval
Under the Local Governance Act, the only by-law requiring provincial approval is a by-law made under paragraph 10(1)(p) that closes all of or a portion of a highway within a local government’s territorial limits that is built and maintained by or under the supervision of the Department of Transportation and Infrastructure, the New Brunswick Highway Corporation, or a project company. This must be approved by the Lieutenant-Governor in Council as specified in Section 20, and this process will be co-ordinated by the Department of Environment and Local Government, with input from the Department of Transportation and Infrastructure.