The following is a summary of the legal challenges to our freedom to fly, provided by R. Dan Cornell, LL.B, COPA’s General Counsel.
One of the most basic aspects of our freedom is the ability to establish an aerodrome or airport.
In various court decisions including Venchiarutti v. Longhurst, (Ontario Court of Appeal, 1992) and Regional District of Comox-Strathcona v. Hansen, et. al. (Supreme Court of British Columbia 2005), it has been established that the federal Minister of Transport has the exclusive authority to regulate the location of an aerodrome or airport. Details of these and other cases can be found in the Guide to Private Aerodromes in the members only section of our website under COPA Aviation Guides www.copanational.org/members/COPAGuides2.htm .
The federal government does not normally step in to assert its jurisdiction until cases like those referred to above reach an appeal to the Supreme Court of Canada, and then only selectively.
COPA was instrumental in providing legal resources to the people involved in those and other cases in order to meet the legal challenges. Funding came from the member-contributed Special Action Fund (SAF).
Significant demand on the SAF has arisen from a series of cases in the province of Québec. In order to maximize our prospects for setting a precedent that will apply across Canada, COPA decided to focus its efforts on two cases, Commission de Protection du Territoire Agricolé du Québec v. Laferrière and Municipalité de Sacré-Coeur v. Lacombe/Picard et. al. both of which have developed to the point where they are likely to proceed to the Supreme Court of Canada.
Mr. Laferrière attempted to establish a grass strip on his rural property, however the Commission de Protection du Territoire Agricolè du Québec (CPTAQ) refused to allow him to do so as such use was considered to be inconsistent with their mandate to protect agricultural land.
This case proceeded through various court levels eventually reaching the Québec Court of Appeal on the constitutional issue of whether the CPTAQ has the authority to prevent the establishment of aerodromes on agricultural land.
This is of the utmost importance to aviation as most aerodromes are located on agricultural land and the CPTAQ has consistently refused to approve new aerodromes. In a recent case, the CPTAQ refused to approve a new aerodrome despite the fact that the aerodrome was approved by the local town council, the regional government and by way of a local referendum.
At the same time, the Municipalité de Sacré-Coeur case was also proceeding through the Québec court system. The Municipalité de Sacré-Coeur was successful in obtaining an injunction, which prevented a commercial operator holding a Transport Canada operating certificate from using a float base on Lake Gobeil which was listed on the operating certificate and in the Water Aerodrome Supplement.
At trial, the court granted an injunction to prevent the use of the Lake Gobeil float base as such use contravened the local zoning by-law. The trial court came to this conclusion despite the fact that previous court decisions have held that municipal zoning by-laws are not applicable to aerodromes or airports.
An appeal from the trial decision was made to the Quebéc Court of Appeal. Due to the importance of this case, COPA applied for and received intervenor status which allowed COPA to fully participate in the appeal. In granting COPA intervenor status, the court recognized COPA as the voice of general aviation as well as COPA’s history and expertise in legal matters of this nature.
Arrangements were made to have both of these cases heard by the Québec Court of Appeal on Oct. 22, 2007. After hearing from all parties, the court reserved its decision indicating it will render the decisions and written reasons at some undetermined point in time in the future.
It is hoped that the Québec Court of Appeal will find in the Laferrière case that the CPTAQ does not have the authority to prohibit the establishment of an aerodrome or airport and, in the Municipalité de Sacré-Coeur case, that the municipal by-law does not apply to aerodromes or aeronautical activity.
If the Québec Court of Appeal does this, it will bring the law in Québec in line with legal decisions in the other provinces. In this event, the case may be appealed by the municipality and we will have to be involved.
If the Québec Court of Appeal chooses not to take this approach, then it will be necessary for COPA to seek leave to the Supreme Court of Canada which, if granted, will allow that court to have the final word on the subject.
APPEAL FOR DONATIONS
Until recently, a combination of high interest rates and relatively low demand on the SAF kept the principle in the Fund at over $1 million, to serve as both a source of interest income and provide a war chest to let those who would challenge us know that we are serious about defending our freedom.
Considerable funds were spent on the B.C. case and other recent actions elsewhere in Canada such that it was necessary to restart our appeal for donations.
COPA kicked off the campaign in October 2005 with $100,000 from our reserves, and the challenge went out to members to contribute, with the goal of building the fund to $2 million to both protect the principle and provide more working capital for the growing challenges.
To date, the campaign has realized $58,900 from member donations. For those who have contributed, thank you. Even with these infusions from donations, management of the two Québec cases has driven the Fund down to the point where we are now likely to draw down on the $1 million principle as these cases proceed.
Never, since the establishment of the SAF in the 80s, has the potential for draining the Fund been so great. If the SAF becomes depleted, dangerous precedents are likely to be set because no one will be there to meet the challenges.
We cannot depend on the federal government to defend its jurisdiction, at least at the early stages of the challenges, where precedents are sometimes set. They may choose to defend their jurisdiction only in cases involving large airports, effectively leaving the provinces, municipalities and others free to restrict aerodromes through bylaws and other measures.
Your contribution to the SAF is needed now. We anticipate the Québec Court of Appeal will render its decision early in the new year and that considerable additional funds will be required.
One way to justify your contribution is to consider the recent win that COPA secured for you. The draft regulation for Emergency Locator Transmitters (ELT) includes an option to equip with a much less expensive tracking device or service (see ELT Options in the January newspaper and on our website).
Instead of being required to spend $4,000 or more for purchase and installation of a new ELT plus $160 per year for re-certification, COPA’s effort has introduced alternatives, including equipping with a tracking device for a little as $170 plus $150 per year for the tracking service. You could invest some of this significant savings in a contribution to the SAF to protect our sector’s future.
More examples of how the SAF has been employed to protect our freedom to fly, as well as a donation form, can be found at www.copanational.org/non-members/SAF.htm. There is also a donation form in this newspaper.