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WHEREAS Section 16(1) of the Municipal Government Act reads, “The title to all roads in a municipality, other than a city, is vested in the Crown in Right of Alberta”; and
WHEREAS Section 58(1) of the Law of Property Act reads, “The Owner of the surface is and is to be deemed at all times to have been the owner of and entitled to sand and gravel on the surface of that land, and all sand and gravel obtained by stripping off the overburden or excavating from the surface, or otherwise recovered by the surface operations”; and
WHEREAS in Section 58(2) of the Law of Property Act reads, “The sand and gravel referred to in Subsection (1) is deemed not to be mine, mineral or valuable stone but is deemed to be and have been part of the surface of the land and to belong to the owner of the surface”; and
WHEREAS most Alberta municipalities are experiencing a lack of affordable gravel for the purpose of regular road maintenance and construction;
THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties request the Government of Alberta to amend Section 58 of the Law of Property Act to allow municipalities the first right at no cost to gravel resources on or under municipal road allowances for the purpose of municipal road maintenance and construction even though the land ownership of all public roads and road right of ways is vested in the Crown in the Right of Alberta.
Like many other municipalities, the MD of Bonnyville presently buys gravel for road maintenance and construction from private suppliers. Also, like many other parts of the province gravel supplies are limited due to geography and private supplies are also becoming limited. As well gravel supplies in Alberta are being used by private purchasers for oil and gas development. All this creates a shortage and high costs for public road maintenance. Presently the MD of Bonnyville has a few areas where raw gravel supplies remain under road allowances but the MD is left trying to beat private gravel companies to negotiate with the province for the rights to excavate this gravel as it is owned by the Crown, not the municipality.
Resolution 15-10F: THEREFORE BE IT RESOLVED that the AAMDC encourage the Province of Alberta to develop a province wide strategy for the management of aggregate resources through the Provincial Land Use Framework; and FURTHER BE IT RESOLVED that municipalities where the resource is located be given first priority when the Province of Alberta reviews applications for a Surface Material Exploration (SME) or Surface Material Lease (SML) on Crown Land.
Environment and Sustainable Resource Development:
Section 58 of the Law of Property Act states that:
“(1) The owner of the surface of land is and is to be deemed at all times to have been the owner of and entitled to sand and gravel on the surface of that land, and all sand and gravel obtained by stripping off the overburden or excavating from the surface, or otherwise recovered by surface operations.”
When a road allowance is surveyed, the ownership of the surface transfers to Alberta Transportation and, therefore, the sand and gravel resource also transfers to Alberta Transportation.
The ownership of the sand and gravel resource under an unsurveyed road allowance remains with the Crown.
Administration of the Law of Property Act resides with Service Alberta. This resolution should therefore be referred to Service Alberta for response.
Municipal Affairs has no comment on this resolution, as the Law of Property Act falls under the jurisdiction of Service Alberta, while the referenced background refers to the departments of Transportation, and Environment and Sustainable Resource Development.
Alberta Transportation recognizes the challenges facing municipalities in securing gravel for road maintenance and construction. Alberta Transportation faces similar challenges. Accordingly, Alberta Transportation is not prepared to recommend changes to the Law of Property Act to transfer to municipalities the first right to gravel resources on or under municipal road allowances. However, Alberta Transportation is prepared to revise its policy procedures to ensure that when a private gravel company wants the aggregate resource under a municipal road allowance, then the municipality is consulted before Alberta Transportation enters into negotiations with the private company.
While Service Alberta understands the challenges this resolution seeks to address, the Law of Property Act is not the appropriate medium to resolve this concern. An amendment to the Law of Property Act would sign over ownership of the sand and gravel to municipalities. This may not be in the best interest of the Crown.
If the affected ministries (Environment and Sustainable Resource Development, Transportation, and Municipal Affairs) accept the premise of the resolution, (that municipalities have first right to access gravel for road maintenance), this policy decision may be better reflected via contract on a case-by-case basis rather than a full legislative amendment.
Multiple ministries express understanding of the challenges municipalities face in obtaining sand and gravel resources in the response from Government, however, the Ministries of Transportation and Service Alberta both indicate amending the Law of Property Act is not a course of action they are willing to recommend. Though AAMDC is pleased that Alberta Transportation indicated interest in revising policy procedures to consult with municipalities when a private gravel company requests aggregate resource under a municipal road allowance, it does not address the issue identified in this resolution.
To gain a better understanding of the aggregate allocation process in Alberta, the AAMDC released its report, Got Gravel? Strategies to Secure Gravel for Rural Municipalities in November 2013. The report and supporting technical report encourages greater involvement of municipalities in the allocation process and an analysis of the aggregate resources in the province. The report has been shared with AAMDC members and members of the public at large.
As there is no current indication that the Law of Property Act will be amended, the status of this resolution will remain Unsatisfactory.