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WHEREAS municipalities face many legal issues and matters that are in common with, relevant to, effect or impact other municipalities; and
WHEREAS the Alberta Association of Municipal Districts and Counties (AAMDC) is the advocate for rural Alberta; and
WHEREAS the AAMDC adopted a policy in July 2008 regarding involvement in member legal matters whereby only through an endorsed resolution it will become involved in member legal matters; and
WHEREAS Wheatland County is currently involved in a legal matter regarding the Canadian Radio and Telecommunication Commission (CRTC) Decision 2008-45 involving the municipality of Wheatland County and Shaw Cablesystems Ltd. (Shaw) that involves the right of the municipality to manage local roads and right of ways;
THEREFORE BE IT RESOLVED that the AAMDC membership support, as set out in the AAMDC Policy, Involvement in Member Legal Matters, the legal appeal to the federal court regarding the Canadian Radio and Telecommunication Commission (CRTC) Decision 2008-45 involving the municipality of Wheatland County and Shaw Cablesystems Ltd.
An important aspect of sound right of way management is knowing what and where shallow utilities, including telecommunication, are located in the right of way. One way of managing such lines and preventing damage is through requiring users of the right-of-way, as a condition of access, to subscribe to a one call locate request service.
Wheatland County has taken the position that in order to effectively manage its road right-of-way, utility providers using rights-of-way within the municipality register their lines and equipment with Alberta One Call, a non profit organization that provides a utility notification service to the public, the digging community and its members with the purpose of preventing damage to buried facilities and promoting safety through education, advocacy, public awareness and dependable cost effective communication and exchange of information between members and those intending to disturb the ground.
Membership in Alberta One Call is a condition of access stated in Wheatland County’s Right of Way Access Bylaw and a term of its Municipal Access Agreement (MAA).
In an application to use the right of way in Wheatland County to provide cablesystem services to a new community, Shaw Cablesystems Ltd. (Shaw) took exception to this condition of access and advocated that its DIGSHAW service was just as effective as Alberta One Call. After several months of negotiation this issue remained in dispute. Shaw filed a Part VII Application to the Canadian Radio and Telecommunication Commission (CRTC) raising not only the issue of Alberta One Call but several other issues in the Municipal Access Agreement (MAA) that had already been agreed upon. In the CRTC Telecomm Decision 2008-45 deciding Shaw’s Part VII Application, the CRTC decided on the make-up of the Municipal Access Agreement. However, on the issue of Alberta One Call membership, the major issue in dispute, the CRTC refused to decide whether membership in a one call locate request service was a reasonable condition of access that may be imposed by a municipality. Despite the support of the Alberta One Call Corporation and several interveners representing the industry and digging community, the fact that all other major telecommunication providers in Alberta are members of Alberta One Call and the CRTC’s acknowledgement in the Decision (through the dispute resolution provision in the MAA) that it has complete jurisdiction to deal with all issues of access, the CRTC stated that it would not decide if Alberta One Call membership be a condition of access. The CRTC further stated that such a term should only be included in the MAA if mutually agreed to between the parties. The CRTC did, however, accept that DIGSAW may be used since Shaw had offered to provide the service.
Wheatland County is defending its right to manage local roads – a basic municipal responsibility and questions why Canada’s telecom system is handing control of public roads to private interests.
Wheatland County filed a leave to appeal this matter to the federal court. The Federation of Canadian Municipalities (FCM) along with the Rural Utilities and Safety Association (RUSA) has pledged financial support towards the filing of this leave to appeal to the federal court. This leave to appeal to the federal court has been granted.
This issue affects all municipalities not only in Alberta but in Canada. Wheatland County is requesting support from Alberta rural municipalities, through the AAMDC’s policy on involvement in member legal matters, to appeal this matter to the federal court.
The AAMDC’s policy provides guidelines for the Association’s involvement in the legal affairs affecting or legal actions involving members. This includes, but is not limited to, the timing of the involvement, the level of participation and any financial contributions. This assists the AAMDC in balancing member-directed involvement in legal affairs with fiscal and resource management in the support and protection of member interests while mitigating the risks to the organization.
The Federation of Canadian Municipalities has been working to garner financial support from one-call centres and associations from across the country to address this issue. They see this case as having the potential to affect the ability of municipalities and businesses to maintain safe rights-of-way across the country.
Resolution 23-07F: THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties urge all member municipalities to require that all buried facilities within public road allowances and rights of ways be registered with Alberta One-Call; AND FURTHER BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties encourage the provincial government to cooperate with, collaborate with and support the stakeholders in the damage prevention process toward the development of a regulatory encompassing of the buried facility damage prevention process as promulgated in the Multi-Stakeholder Damage Prevention Legislation Task Force Position Paper Issue #6 of 23 July 2001.
Resolution 17-07F: THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties (AAMDC) be authorized by its members to financially support the MD of Bighorn No. 8 in appealing the 31 July 07 Alberta Court of Queen’s Bench judgment in the matter cited as “Craig v. Bighorn (Municipal District No. 8), 2007 ABQB 507” for the benefit of all Alberta municipalities; FURTHER BE IT RESOLVED that the AAMDC request the Government of Alberta to support this appeal, to confirm the authority, granted by statute, of municipalities to plan and manage land uses, and issue development permits.
Resolution 14-07F: THEREFORE BE IT RESOLVED that the AAMDC engage a law firm to review the employee/employer relationship between municipalities and volunteer fire fighters and the general public who show up at fires to assist, and see whether the legislation is too onerous on municipalities to meet OHS, WCB and other safety issues.
Through the implementation of the AAMDC’s Policy for Involvement Member Legal Matters, the case has been supported by the AAMDC and its membership. Though the court case did not end in Wheatland County’s favor and gives municipalities reduced control over where companies must register buried facilities, the AAMDC has arranged for the financial support of their appeal. All member municipalities were called upon to support this effort and have responded with their portion of the financial contribution. The AAMDC also acknowledges the large support of the FCM and a coalition established to support this case. The AAMDC accepts that the intent of this resolution has been met.