Bill 329: the ‘good’ developers gift law?

Let’s begin with our question of the day. Do we really need a Law Amendments Committee?

After Public Bills have received second reading in the House, the Standing Committee on Law Amendments gives them clause-by-clause consideration and hears representations from any interested persons or organizations.

That’s the official logical rationale for a committee that has been around since 1867.

It’s an opportunity for outsiders, experts, and those about to be affected by a piece of proposed government legislation to make their case in public to a committee of legislators before a bill becomes law.

The committee is currently composed of five members from the government side, including the chair. That means they will always be able to out-vote the four members from the opposition benches, currently two Liberals and two NDP.

But, regardless of composition, the committee is supposed to carefully consider those representations from the public, and perhaps even suggest changes to bills to make them better before they are sent back to the full House of Assembly for third and final reading.

That’s the theory. The reality…

On October 12, 2023, the Houston government introduced Bill 329, a mouthful of an “Act to Amend Chapter 39 of the Acts of 2008, the Halifax Regional Municipality Charter, and Chapter 21 of the Acts of 2021, the Housing in the Halifax Regional Municipality Act, Respecting Housing.”

Thankfully translated into English by Canadian Press reporter Michael Tutton:

Nova Scotia’s government is inserting itself into the process of approving residential developments in Halifax, saying it needs to create a fast-track system to deal with housing shortages… The bill, which amends two pieces of legislation, calls for more flexibility in the types of units allowed in buildings, and increases minimum floor-plan and lot sizes for residential towers. It would also impose a two-year freeze on the fees the city levies on developers.

And here’s what it’s really all about, as explained to the Law Amendments Committee by Halifax Mayor Mike Savage and reported by my colleague, Tim Bousquet:

“This legislation is unnecessary and it’s harmful,” Savage told the committee. “This legislation is built on a demonstrably false premise, introduced with absolutely no notice or discussion. It is an autocratic intrusion into municipal affairs and completely ignores the biggest problem that it claims to address.

“By and large, this legislation is an egregious overreach and is not a solution to the housing crisis,” continued Savage. “This bill is performative and addresses a problem that doesn’t exist and is part of that regulatory solution that enables a single person — a single person with no planning experience or any knowledge of the municipality — to singlehandedly approve projects to go ahead with no requirement for accountability or justification.”

“Consolidating power with a provincial minister, any minister of any party, erodes public process and transparency and undermines HRM’s legislative mandate to deliver public service.”

Let’s pull out of those weeds for a little context.

Tim Houston’s government was elected in the summer of 2021 on a promise to fix health care, fix health care, fix health care. Remember? Health care was going to be Job 1 all the time for all time until it was fixed. (We could — but won’t — consider today just how well that file has gone for the Houston Tories.)

Instead, some more context for Bill 329. The PCs were still celebrating their election day victory when Halifax police violently moved in on a downtown Halifax homeless encampment, instantly forcing the issue of affordable housing onto the provincial agenda. Ever since, Houston’s government has been playing catchup on an issue it had barely campaigned on or thought much about.

One more thing. Despite winning a majority in the provincial House of Assembly, the reality is that the PCs did not win a single seat in metro Halifax in the 2021 general election.

Metro Halifax, of course, is where the housing crisis is most acute.

And Halifax is where the provincial government decided to insert itself, unasked and unwelcome, by introducing this sweeping legislative power grab.

“When we came in [to office],” Housing Minister John Lohr said in explaining the government’s supposed rationale, “we saw [housing] developments had been delayed as much as seven, eight, or nine years, and we know that some of these professional developers are good developers.”

Uh… Good developers?

Under the law, developers who have been “pre-qualified” by the minister will get expedited approvals to build residential units…

Can you say Doug Ford? Can you say Ontario’s Greenbelt scandal?

Just in case you’ve forgotten, here are a few excerpts from the recent Ontario auditor general’s report into Ontario’s process for “speeding up” residential development by unilaterally inserting itself into established decision-making:

Our review … raises serious concerns about the exercises used, the way in which standard information gathering and decision protocols were sidelined and abandoned, and how changes to the Greenbelt were unnecessarily rushed through. The process was biased in favour of certain developers and landowners who had timely access to the housing minister’s chief of staff.

Oh, and by the way, the RCMP is now investigating to see whether the scandal involves criminality.

But let’s circle back again to Lohr’s rationale for a moment. He claims the city put up too many barriers to good developers, tying them up in too much red tape and forcing them to justify themselves at far too many community consultations with obstructionist neighbours.

Is that even true? According to Mayor Savage, who bases his counterarguments on facts and statistics instead of his last kaffeeklatsch with soon-to-be pre-qualified real estate developers, the city currently has issued permits for developers to build 11,000 housing units and has development-ready land available for 200,000 more — all of that achieved, as he notes, with “plans that incorporated public input.”

So why aren’t those units being built?

Savage referenced — more inconvenient actual data for the minister to ignore — a recent RBC report entitled “Soaring Construction Costs Will Hamper Canada’s Home Building Ambitions,” which pinned the blame on high-interest rates, a lack of qualified workers and problems in the construction industry supply chain. Since the beginning of the pandemic, the inflation rate for residential housing construction has topped 50%.

Not that the Houston government appears to worry over-much about facts that interfere with their narrative.

After the government zipped its legislation through first and second reading, it urgently sent it on to the Law Amendments Committee four days after it was unveiled for its “careful” consideration. Oh, and by the way, consider quickly.

Eleven witnesses, including Mayor Savage, seven city councillors, and HRM’s senior administrative team all made presentations, all opposing the legislation.

Bousquet’s report on Chief Administrative Officer Cathie O’Toole’s appearance before the committee is instructive:

It’s unusual for municipal bureaucrats to make an appearance before a legislative committee without first being given direction by the municipality’s elected council, but as the province announced the legislation just last Thursday and council meets on Tuesdays, there was no time for the staffers to consult with councillors [before Monday’s law amendments hearing].

O’Toole began her remarks by noting that not only is she the municipality’s CAO, she’s also a chartered professional accountant and has significant experience in municipal utility, finance, and infrastructure, which was a reference to her position as director of Halifax Water before taking the top position at HRM.

Additionally, O’Toole said, “I have been qualified as an expert witness on these topics on several occasions and have served on national and international committees and boards working on these topics.”

“With its proposed freeze on all development charges, the bill constrains the municipality’s ability to pay for growth,” said O’Toole. “Halifax has one of the lowest permitting fees in the country, and the cost of facilitating development is highly subsidized by the public.”

So, the PC legislation isn’t simply unneeded interference, O’Toole suggested it could cause real harm to the cause of encouraging affordable housing.

Wait a minute. Wasn’t that the supposed purpose of the government’s intrusion into Halifax’s governance?

But consider the city’s pre-existing density bonusing program, which gave developers the chance to increase the size or height of planned developments in exchange for paying into a fund to support non-profit housing. In less than three years, the fund has generated over $7 million and led to funding commitments for 10 non-profit housing projects.

To be clear, non-profit housing is one of the few vehicles that currently exist to encourage the development of desperately needed and truly affordable housing. (How many for-profit housing developments target low-income needs?)

John Lohr, demonstrating his profound ignorance of what the city is doing and why, dismissed the bonusing program out of hand.

“I would call it a tax,” Lohr said of the bonuses. He added he is “not aware” of exactly what HRM is doing with the money for affordable housing.

“Maybe they have done something, and I just don’t know, but as far as I know that just still remains a pot of money that they intend to use somewhere,” he said.  

Really? Is this our housing minister, or our minister for good developers?

John Traves, Halifax’s solicitor, told the Law Amendments Committee he “had a packet of concerns directly related to the language of the legislation that he wanted to highlight to the committee, but as there was limited time, he wasn’t able to detail those.” So he made just one recommendation:

“The recommendation, frankly, though, is that there be a pause and so that there would be an opportunity for actual discussion around what is the intent and whether, in fact, what has been drafted meets the intent of the government, because in our perspective, it does not,” said Traves. “Frankly, in many instances, it leads to additional red tape or delays or additional costs of development, which we believe are anticipated.”

His pleas and those of other city officials were ignored.

Following Monday’s presentations, Liberal and NDP members tried to get the bill referred back to departmental staff for further consideration, but the Progressive Conservative majority on the committee voted to return it to the legislature without amendments.

Without amendments?

Do we need a Law Amendments Committee? Absolutely. More than ever. But we need one that takes its responsibilities seriously and is not simply a rubber stamp for a government that is more interested in its own agenda — and perhaps its own friends — than in good law.


A version of this column originally appeared in the Halifax Examiner

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