BY: KEVIN PSUTKA - PRESIDENT AND CEO AND GLENN GRENIER - COPA LEGAL COUNSEL
3 NOVEMBER 2010
Who has the final say as to where an aerodrome may be located in Canada: the federal government, the provinces, or both?
According to the Supreme Court of Canada (“SCC”), the unequivocal answer is the federal government alone. In the first of two decisions released October 15, 2010 which were sponsored by COPA’s Freedom to Fly Fund, the SCC ruled that a provincial law which prohibited non-agricultural land uses in provincially designated agricultural zones could not apply to aerodromes. In the second decision, the SCC ruled that a municipal by-law, which prohibited the use of a specific lake as a water aerodrome, was beyond the jurisdiction of (“ultra vires”) the municipality and thus, the by-law could not apply to the aerodrome. In the result, the owners/operators of the aerodromes in question remain free to carry on their aeronautical activities unhindered by provincial or municipal prohibitions to the contrary.
These two decisions are a reaffirmation and an expansion of decisions dating back 60 years. In 1951, the SCC decided that aeronautics was a matter of national concern and thus should be within the jurisdiction of the federal government. Since taking off and landing was an essential part of aeronautics, the location of aerodromes was necessarily part of that federal power. In that case, the provincial (Manitoba) law in question that authorized municipalities to prohibit the establishment of aerodromes was ruled to be beyond the jurisdiction of (“ultra vires”) the provinces (the “Johannesson” decision).
Notwithstanding this 1951 ruling as well as a number of similar decisions in the decades which followed, provincial and municipal legislators, regulators and by-law officers have relentlessly sought to control the establishment of aerodromes and activities thereupon. They have sought to do so through provincial and municipal planning controls, by the imposition of permit and fee requirements and through the passage of outright prohibitions against aerodromes. In some cases, such efforts to control aerodromes did succeed. For example, in 1987, the British Columbia Court of Appeal upheld a municipal by-law which prohibited the use of a privately owned airstrip by anyone other than the property owner (the “Van Gool” decision). In 1990, the Québec Court of Appeal upheld a provincial law which prohibited a property owner from using his land as an aerodrome because the property was located within a provincial designated agricultural area (the “St-Louis” decision).
The threat to the freedom to fly posed by such decisions, as well as numerous other instances of provincial and municipal attempts to regulate aerodromes, was clear. If such efforts succeeded, it would mean a patchwork of regulations affecting aerodromes which could change from province to province or indeed, from municipality to municipality. On behalf of tens of thousands of aviators, COPA became very active in defending the principle that the federal government, and only the federal government, had the jurisdiction to control aeronautics through a single regulatory scheme that would be consistent across the country. This included the power to determine whether and where to establish aerodromes and how such power was exercised. A number of years ago, the COPA leadership created our Special Action Fund (now called more appropriately the Freedom to Fly Fund) to, amongst other things, provide a source of funding to defend this principle. It was recognized that it might be necessary to take these issues back to the SCC, particularly in light of the Van Gool and St-Louis decisions.
As matters turned out, COPA became involved in two such cases: one involving a private aerodrome (“Laferrière” also known as “COPA”) and one involving a commercial aerodrome (“Lacombe”). Both cases directly involved the issue of federal jurisdiction over aeronautics and provincial and municipal attempts to encroach into same. On October 14, 2009, the SCC heard appeals in these two cases. We are pleased to report that on October 15, 2010 the SCC ruled in favour of COPA’s long-standing position. In addition, SCC expressly recognized that the Van Gool and St-Louis decisions had been overruled and were no longer good law.
While these decisions vindicate the rights of Canadians to establish aerodromes, they do not mean that we can let down our guard against continuing challenges. This article is intended to explain what was decided, what the decisions mean and provide some guidance for those who are considering establishing an aerodrome and who may be confronted by local authorities because of their aerodrome. It also highlights the need for keeping our Freedom to Fly Fund strong.
Facts of The Cases:
Bernard Laferrière and Sylvie Gervais owned a wood lot near Shawinigan, Québec. In 1998, they cleared part of the lot and built a grass airstrip and a hangar for the storage, assembly and maintenance of aircraft. They also registered the aerodrome pursuant to the Canadian Air Regulations.
The aerodrome was built on lands designated by the Province of Québec as an agricultural region further to An Act respecting the preservation of agricultural land and agricultural activities (referred to herein as the “APA” or “Agricultural Preservation Act”). Section 26 of the APA prohibited lots in a designated agricultural region from being used for anything other than agriculture unless prior permission for such non-agricultural use was first obtained from the Commission responsible for administering the APA. Section 14 empowered the Commission to issue orders forcing owners to restore lots to their former condition if used for non-agricultural purposes. The Commission was also authorized to impose fines. Relatively little of the land area of Québec is ideally suited for agriculture. The land that is suitable also happens to coincide, in many respects, with land that is best suited for aerodromes.
Acting on the belief that the Québec government had no jurisdiction over their aerodrome, Laferrière and Gervais did not obtain permission from the Commission prior to constructing their aerodrome. As a consequence, the Commission ordered them to remove the aerodrome and restore the lands to their pre-aerodrome state. The owners challenged the Commission’s order before the Administrative Tribunal of Québec. The Tribunal upheld the Commission’s order, applying the 1990 decision of the Québec Court of Appeal in St-Louis described above which dealt with almost the exact same issue.
COPA had not been involved in the St-Louis case which involved an order to shut down an aerodrome and parachuting operation, also located in a designated agricultural zone. In St-Louis, the Québec Court of Appeal held there was no actionable conflict between the Commission’s enabling statute and the federal aviation legislation.
Having lost before the Administrative Tribunal, Laferrière and Gervais took their case before the Court of Québec and then to the Québec Superior Court. Both courts upheld the Commission’s order based, in part, on the St-Louis decision.
COPA’s Freedom to Fly Fund financed the effort by our then Legal Counsel, Mr. Dan Cornell (now the Honourable Justice Cornell) along with Québec lawyer, Messr. Pierre Beauchamp, to appeal the matter to the Québec Court of Appeal. Mr. Cornell had extensive experience with the federal jurisdiction issues on behalf of COPA. Messr. Beauchamp added his expertise to Mr. Cornell’s and also dealt with Québec civil law procedures.
The Québec Court of Appeal agreed with the position asserted by COPA, overturned the lower court decisions and found that the doctrine of interjurisdictional immunity precluded the Commission from ordering the removal of the aerodrome. In so doing, the Court of Appeal concluded that its own decision in St-Louis should be overturned.
The Attorney General of Québec appealed that decision to the SCC, thus setting the stage for the highest court in the country to clarify which level of government ultimately had jurisdiction over aerodromes.
In 2002, Anabelle Lacombe and Jacques Picard commenced an air excursion business out of Long Lake, Québec. In 2005 they moved their operations to Gobeil Lake, which was also used by cottagers. Lacombe and Picard obtained a Transport Canada license to operate the air service out of Gobeil Lake. They also registered their water aerodrome pursuant to the Canadian Aviation Regulations.
In response to complaints from cottagers, the municipal by-laws were amended to effectively prohibit aviation on Gobeil Lake. In the belief that federal jurisdiction alone applied, Lacombe and Picard continued their operations. In 2006, the municipality sought and obtained an injunction from the Québec Superior Court ordering Lacombe and Picard to cease their aviation activities on Gobeil Lake.
COPA again got involved and the Superior Court ruling was appealed to the Québec Court of Appeal along with the Laferrière case. As in Laferrière, the Court of Appeal ruled that the municipal by-laws could not apply to the aerodrome because of the doctrine of interjurisdictional immunity. Again, the Attorney General of Québec appealed to the SCC. COPA now had a second case to make its point to the highest court in the land.
These cases were of concern to many levels of government, including several provinces, a municipality and the federal government, each of which retained lawyers to make submissions to the SCC. COPA’s position was supported by the federal government as well as lawyers on behalf of the Greater Toronto Airports Authority (“GTAA”).
It should be noted that in 2000, the GTAA, successfully argued that municipal development charges and building code guidelines sought to be imposed by the City of Mississauga did not apply to the redevelopment project at Pearson International Airport. The Ontario Court of Appeal accepted GTAA’s argument (which in part was based upon some of the arguments and precedents developed over the years by COPA and its counsel, Mr. Dan Cornell) that the entire redevelopment project fell under the federal aeronautics power (the “GTAA” decision). The GTAA was keenly interest in the Laferrière and Lacombe cases as it did not want to see its hard-fought case before the Ontario Court of Appeal effectively overturned by the SCC.
Accordingly, the SCC had to deal with conflicting decisions from the Courts of Appeal of British Columbia, Ontario and Quebec which had come to different conclusions in considering the same basic question. In Canada, one of the functions of the SCC is to resolve such conflicting decisions, particularly when they have national importance.
It should also be noted during the course of the appeal to the SCC, Messr. Laferrière was killed in a tragic, unrelated aircraft accident on April 27, 2009. As a result, COPA replaced Laferrière and Gervais as respondents in the proceedings. It is for this reason that the case, while known as Laferrière at the lower levels, is now cited as Québec (Attorney General) v. COPA or simply COPA at the SCC level.
The Decisions of the SCC
Both majority decisions in favour of COPA’s position were written by the Chief Justice of Canada herself, the Honourable Justice McLachlin. Some of the more important aspects of the cases are described below.
The Chief Justice stated that “Air transportation is an indispensable part of modern life” and that the question to be answered in both COPA and Lacombe was: “…which level of government has the final say on where airfields and aerodromes may be located.” The SCC ruled that the final say rested with the federal government.
While the SCC acknowledged that its decision in COPA would limit the ability of provincial and municipal authorities to unilaterally address the challenges aviation poses to agricultural land use regulation, it stated that Parliament’s exclusive power to decide the location of aircraft landing facilities was vital to the viability of aviation in Canada and endorsed earlier rulings that the transportation needs of the country could not be allowed to be hobbled by local interests.
Of particular importance to COPA and its members is the fact that the SCC refused to provide any less protection to small private aerodromes under the federal aeronautics power than it did to larger commercial or public airports. The Chief Justice acknowledged that high levels of regulation are applied to airports and commercial aviation, but that Parliament had adopted a different, permissive approach to private aviation. Thus, except for built-up areas, private citizens are permitted to construct aerodromes without applying for permission from the federal government. The SCC held that provincial and municipal laws and regulations could not be permitted to impair the permissive scheme Parliament had adopted in dealing with small, private aerodromes.
The Attorney General of Québec argued that the APA did not impair Parliament’s power because if a restriction on a particular aerodrome within the APA occurred with which Parliament did not agree, Parliament could step in and pass legislation designating where that specific aerodrome could be constructed within the agricultural zone, overriding the provincial legislation. The SCC rejected this argument.
The Chief Justice stated that “If s. 26 [of the APA] applied, it would force the federal Parliament to choose between accepting that the province can forbid the placement of aerodromes on the one hand, and specifically legislating to override the provincial law on the other hand. This would seriously impair the federal power over aviation, effectively forcing the federal Parliament to adopt a different and more burdensome scheme for establishing aerodromes than it has in fact chosen to do.”
Since Parliament has chosen to adopt a permissive “hands off” attitude towards the establishment of aerodromes without prior permission (subject to the restriction that it cannot be done in a “built-up” areas under CAR 302.01(1)) the COPA decision affirms that citizens have the freedom to build aerodromes as they choose and that freedom will be protected by the courts against encroachment by provincial (and municipal) attempts to intervene.
The SCC also expressly rejected the argument of the Attorney General of British Columbia who asserted that a distinction should be drawn between international and national “airports”, which he conceded were protected under the federal aeronautics power as nationally important, and “aerodromes”, which he argued were not of national importance and thus were not so protected.
The Chief Justice stated that even local aspects of aviation come under federal jurisdiction because the subject matter of aerial navigation is ‘non-severable’”. The Chief Justice noted that in Johannesson, Justice Kellock had stated “just as it is impossible to separate intra-provincial flying from inter-provincial flying, the location and regulation of airports cannot be identified with either or separated from aerial navigation as a whole.” After citing this passage, the Chief Justice stated:
“This view reflects the reality that Canada’s airports and aerodromes constitute a network of landing places that together facilitate air transportation and ensure safety.”
In summary and of note to COPA and its members, the decision in COPA means:
a) the current permissive federal scheme for the establishment of aerodromes is protected, free from interference by provincial and municipal laws and by-laws; and
b) both large “airports” and small “aerodromes” are equally protected under the exclusive federal power over aeronautics.
The legal basis for the decision in COPA is the constitutional doctrine of interjurisdictional immunity. The Constitution Act, 1982 sets out the division of powers between the federal and provincial governments in broad terms. There is, inevitably, overlap between federal and provincial powers. Over the last 143 years, the courts have developed various constitutional doctrines to assist in sorting out the division of powers and how to deal with the overlap. One of these doctrines is interjurisdictional immunity.
The theory behind the doctrine of interjurisdictional immunity is that at the heart of a given federal power lies a core of essential elements that should not be impaired by provincial law. This is so even if the provincial laws are otherwise within the legitimate constitutional jurisdiction of the provinces. The exercise carried out by the SCC in COPA was an examination of what lay within the core of the federal aviation power (i.e. what is essential or the “basic, minimum and unassailable content”). The SCC then looked at whether the provincial legislation in question unacceptably interfered with that core. For the interference to be unacceptable, it must do more than “effect” that federal power. To be unacceptable, it must reach the level of “impairing” the federal power. If so, then the provincial legislation will be held not to apply to the subject matter of the core of the federal power.
The following diagram may help to explain how there can sometimes be uncertainty or conflicts over who has jurisdiction over aspects of aeronautics.
At its simplest, flying an aircraft is part of that exclusive federal core. Part of flying is taking off and landing. Thus, where one can take off and land (i.e. the location of aerodromes and airports) is part of that exclusive federal core. The SCC held in COPA that a provincial law which effectively prohibits aerodromes unacceptably impairs the federal core power and thus, that provincial law, which is otherwise valid, cannot apply to aerodromes.
To give an example of where that line around the core is drawn, one can review a 1979 SCC case known as Construction Montcalm. At issue was whether provincial minimum wage laws applied to workers building runways at Mirabel airport. The SCC held that the decision to build the airport, the design of the airport, its dimensions and the materials incorporated into the various buildings, runways and structures were within the exclusive federal power over aeronautics (i.e. were within the core). However, how much was paid to the workers paving the runways was held not to be an essential element of aeronautics and thus, the provincial law could (and did) apply. The SCC went on to state that the items that would be permanently reflected in the finished product of the airport and thus have a direct effect upon its operational qualities and therefore upon its suitability for the purposes of aeronautics remained under the federal power.
In the diagram above, the dimensions of the runway and even the type of the concrete used is within the “core”. How much one pays the workers to lay that concrete falls outside the core and can be affected by provincial law.
The decision in COPA certainly gives guidance in laying out the landscape of the aeronautics power and affirming the principal that there is an unassailable core to that power. It also unequivocally determines that the question of whether and where to locate aerodromes falls within the protected core. The decision does not and cannot, however, provide a comprehensive list of what lies within, and what lies just outside, that core. That will the subject of future cases trying to apply the decision in COPA. Examples of such unknowns include shorelines, provincial parks, wind farms, neighbours, taxation etc where other levels of government believe that they may have at least a shared jurisdiction with the federal government or some right to regulate or restrict non-core aeronautical activity. Aerodromes associated with water are a particular issue because there is a shared responsibility between the federal and provincial governments for the management of water resources and the environment associated with water, which is why, for example, there are restrictions on aircraft activities in some provincial parks. And in some cases, federal departments other than Transport Canada have control over aviation (for example the Department of Fisheries control of shorelines) and Acts other than the Aeronautics Act apply (for example the Canada Shipping Act and its rules concerning vessels can apply to aircraft, once they land on the water).
The Lacombe Decision
The SCC found that the effect of the by-laws in question was to prohibit certain aviation activities, and only those aviation activities, in certain parts of the municipality. The SCC concluded that the real purpose of the by-laws was to regulate water aerodromes within its territory and thus, the “pith and substance” of the by-law was the regulation of aeronautics.
The regulation of aeronautics is beyond the competence of municipal and provincial governments and therefore the by-laws were deemed to be ultra vires.
In essence, the municipality took a “potshot” at aviation and was not subtle in so doing. The SCC did not accept that this was an attempt at zoning (a valid municipal function) as the by-laws were found to have breached the first principle of zoning in that it treated similar parcels differently and different parcels the same.
But this naturally raises the question of what would have happened if the municipality had not blundered carelessly beyond its jurisdiction but had done a better job of implementing its anti-aviation by-laws in the guise of proper zoning and land use planning, being a normally valid exercise of municipal power (which derives such power from the province which constitutionally has this power). The answer lies in the Chief Justice’s statement that: “A prohibition on aerodromes, even as part of a broad class of land uses, would result in an unacceptable narrowing of Parliament’s legislative options. As in COPA, this would have the effect of impairing the core of the federal power over aeronautics. Under the doctrine of interjurisdictional immunity, the prohibition in by-law 210 would be inapplicable to Lacombe and Picard’s aerodrome.”
However crafted and justified on zoning/planning principles, any such by-law which impairs a core federal power, namely determining whether and where to locate an aerodrome, would be determined to be inapplicable.
What We Achieved
There should be no doubt that these two decisions are victories for Personal Aviation as well as other sectors of aviation. The 1951 SCC decision in Johannesson established the exclusive federal jurisdiction over aviation and in particular, the location of aerodromes. These two new decisions, and particularly COPA, unequivocally reaffirm Johannesson 59 years after it was decided. As noted above, the decisions are sprinkled with a number of assertions concerning aviation, including Personal Aviation in particular, that express its importance and the value of protecting same. The decision in COPA expands upon and clarifies Johannesson in that it is clear that the protection afforded the exclusive federal power over aviation includes private aerodromes and that the permissive manner in which the federal government has chosen to deal with privately owned aerodromes is to be protected from provincial and municipal interference.
These two decisions also apply, adopt and/or reaffirm earlier decisions that are helpful to the aviation community (i.e. Montcalm, Hansen, Longhurst,) but whose usefulness had been overshadowed by the decisions in Van Gool and St-Louis. The SCC’s express rejection of St-Louis and Van Gool is a result COPA has been working towards since those adverse decisions were handed down many years ago.
What Members Should Do If They are facing Opposition to Their Aerodromes
Before you establish an aerodrome, it is wise to inform those who could be affected. Although the SCC decisions make it clear that you have the right to establish an aerodrome, many who are not familiar with these cases or involved in aviation will not understand the concept of interjurisdictional immunity or your rights. It is better to inform them early rather than face a stop work order or other legal action. Our Guide to Private Aerodromes has been amended to include the SCC decisions and this article. In the past, we found that by providing the opposition with a copy of the Guide, which includes the many legal cases involved with this issue, it will head off a possible legal challenge which can be costly, even if one is ultimately found to have been acting within his or her rights.
If you have tried to educate the opposition using our Guide and they wish to pursue legal action, that is the time to bring your issue to our attention. We do not have the resources to take every case to the Supreme Court of Canada, but we may be able to assist you, depending on the circumstances. It is much better to bring issues to our attention early instead of having us deal with them when a court date has been set or indeed, a decision has already been rendered and the jurisdictional issues described above have not been initially raised or properly argued by counsel knowledgeable in this area of law. In such cases, we may choose to not intervene.
We Still Need the Freedom to Fly Fund:
The SCC decisions should not be viewed as the end of COPA’s efforts. In the past, even in the face of decisions such as Johannesson, municipal and provincial governments persistently and stubbornly attempted to curtail and control aviation activities, which indeed is why decisions such as Van Gool and St-Louis occurred and why it was necessary to pursue the COPA and Lacombe cases. Although the SCC decisions go a long way to prevent frivolous challenges, there may still be some who will want to try. In addition, there are cases that were put on hold pending the outcome of the SCC hearing, and there may still be some work to do.
Also, there are challenges unrelated to federal jurisdiction, or at least open for debate, such as the effect that wind farms have on aviation, that have our attention and will require funding for safety assessments.
The Freedom to Fly Fund has as a goal to maintain a $1 million war chest to let people know that we are serious and have the means to fight. This war chest has served well as a deterrent. We would like to maintain a reserve, over and above this amount, in order to fund projects and legal actions that continue to challenge our freedom to fly. The work to bring the cases to the SCC has depleted the reserve so that we are now back to the $1 million mark. We need your continuing support to keep the war chest in shape and provide a reserve. You can contribute on an individual basis at any time or when renewing your membership, or just call the office to contribute using your credit card. We also encourage our Flights to organize fund raising events to help replenish the reserve.
We have achieved this success with the member-supported Freedom to Fly Fund. Let’s all do our part to ensure that it remains in place for future challenges.
The decisions can be found here:
Contact: Kevin Psutka firstname.lastname@example.org 613-236-4901 X102