WHEREAS the judgment handed down in the case County of St. Paul v Belland 2004 ABQB, the decision of Justice Burrows states: In the result, though I am satisfied on a balance of probabilities that Mr. Belland dumped the rocks and debris which are the road allowances, that he cultivated portions of the road allowances, and that he removed soil from the road allowances, I am not satisfied that his doing so constituted a contravention of the MGA, another enactment which the County is authorized to enforce or a County Bylaw. Accordingly I find that the County has not established its entitlement to the order it has sought. AND WHEREAS this judgment affects every municipal road allowance in the province; AND WHEREAS this judgment undermines the intent of the Municipal Government Act to provide municipalities with the authority to govern without issuing bylaws for every possible infringement; AND WHEREAS the County of St. Paul feels a responsibility to appeal this judgment on behalf of the County, and on behalf of all municipal districts and counties in the province; AND WHEREAS the County of St. Paul has already spent in excess of the reclamation amount of the damages over the last three years, and will greatly surpass their budgeted allotment for legal expenses with this appeal and cannot afford to do so;
THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties (AAMDC) support the County of St. Paul v Belland appeal both financially and legally for the benefit of all municipalities dealing with managing roads within their jurisdiction; AND FURTHER BE IT RESOLVED that the AAMDC request the Government of Alberta to support this appeal in confirmation of the Municipal Government Act, and all other applicable legislation that imposes a statutory duty for municipal districts and counties to manage road allowances.
The County of St. Paul has been fighting this case for three years. Eighteen months ago the presiding judge of the day issued a cease and desist order, which was for all intents and purposes ignored. The order really had no teeth and the County was powerless to do anything; thus the defendant continued to dump rocks and debris on the road allowance, and to help himself to cover material. This final judgment, issued April 2, 2004, has set a dangerous precedent for all municipalities and if it is not successfully appealed it could mean open season on road allowances. If this judgment forces municipalities to have a bylaw in place for protecting road allowances than municipalities will need a bylaw for any perceived infringement of their authority. In short this ruling infers that the MGA on its own does not give municipalities sufficient authority to act without a bylaw. It states very clearly in Section 18 of the MGA, Part 3: 18 (1) Subject to this or any other Act, a municipality has the direction, control and management of all roads within the municipality. 18 (2) Subject to this or any other Act, a municipal district has the direction, control and management of roads and road diversions surveyed for the purpose of opening a road allowance as a division from the road allowance on the south or west boundary of the district although roads or road diversions are outside the boundaries of the municipal district. There is also the matter of the Public Highways Development Act under which municipalities are authorized to enforce road allowance. Section 43 provides clear direction for a municipality to act when a highway is obstructed or injured and that the offender is guilty of an offence. The definition of highway in section 1(i) of highway includes road allowances. It would seem blatantly clear that there has been an error in law based on several factors in this ruling.
The AAMDC has no resolutions currently in effect with respect to this issue. However, the AAMDC board has a policy in place that all member requests for Association funding of legal costs be brought before an AAMDC Convention, for direct consideration by the delegate body.
The Belland case was successful. Section 18, part 3 of the MGA has been reaffirmed by the Court as granting municipalities control over roads and road allowances in their jurisdictions, to make bylaws, and to enforce legislation thereby.