CASUAL LEGAL: Ever Wondered What the Difference is Between the Highways Development and Protection Act and the Public Highways Development Act?

Ever Wondered What the Difference is Between the Highways Development and Protection Act and the Public Highways Development Act?

By Jenna M. Chamberlain

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

There are many similarities between the Highways Development and Protection Act, SA 2004, c H-8.5 (HDPA), and the Public Highways Development Act, RSA 2000, c P-38 (PHDA). Although these two Acts are different, there are some sections that are, or are nearly, identical.

The HDPA was enacted in 2004, but it was not immediately put into force. According to the applicable Hansards, the legislature created the HDPA with the intention to consolidate and modernize the PHDA and the City Transportation Act, RSA 2000 c C-14. This intention is reflected in section 78 of HDPA. Section 78 says that the PHDA and the City Transportation Act are repealed on a date or dates to be fixed by Proclamation. On December 15, 2009, the HDPA was Proclaimed into force as of January 1, 2010. This Proclamation makes no mention of repealing the PHDA. No other Proclamation repeals the PHDA.

Both the HDPA and the PHDA remain in full force and effect. The Government of Alberta website states that the PHDA remains in force, even though the administrative structure described in the Act has been replaced by HDPA. The Government of Alberta website also states that, under the PHDA, Municipal Affairs and Transportation share responsibility for forestry roads and roads within most improvement districts. This suggests there is still an important difference between the PHDA and the HDPA. However, both acts consider forestry roads and roads in improvement districts. It is difficult to determine which Act prevails if there is overlap.

It is unclear why the legislature has not repealed the PHDA, or considerably amended either the PHDA or the HDPA to resolve any confusion. The considerable overlap between the HDPA and the PHDA could be confusing in circumstances where either or both Acts apply. Each situation where this happens will have to be considered separately to determine which Act applies. The intention of the HDPA was to replace and modernize the PHDA. However, while they are both in force, it cannot be treated as a replacement. The PHDA should not be discarded until it is officially repealed.

For now, it is important to watch for legislative changes to either of the Acts. Particularly, check for any amendments which could explain why both are still in force and check to see if the PHDA is repealed. Additionally, the case law should be monitored to determine how the courts are dealing with the overlapping sections.