Supreme Court reaffirms jurisdiction over aviation
October 19, 2010 By Carey Fredericks
Oct. 19, 2010, Ottawa - Two decisions, that will have a profound effect on Canadian aviation for the foreseeable future, were released on 15 October by the Supreme Court of Canada. The issue in both cases, as summarized by the Honourable Chief Justice of Canada, was “which level of government has the final say on where airfields and aerodromes may be located”.
In both cases the Court held that final say rested exclusively with the Federal Government. In so doing, the Court held that the provincial laws and municipal by-laws that sought to restrict or prohibit the establishment of aerodromes were inapplicable.
In the first of the two cases, the owners of an aerodrome were ordered by the Commission de protection du territoire agricole du Québec to remove their airstrip and restore their land to its original state. The Commission was of the view that the use of the land as an aerodrome was not one of the uses permitted pursuant to the Québec Act respecting the preservation of agricultural land and agricultural activities, R.S.Q. c. P-41.1.
The Commission’s order for removal was upheld by the Administrative Tribunal of Quebec as well as the Superior Court of Québec. That decision was overturned by the Quebec Court of Appeal following which the Attorney General of Québec appealed to the Supreme Court of Canada.
In the second case, the municipality of Sacré-Coeur passed a zoning by-law prohibiting the waters of Gobeil Lake from continuing to be used as a water aerodrome. A local company had established a water aerodrome on part of the lake and had obtained a license from Transport Canada to operate therefrom. The municipality obtained an injunction from the Quebec Superior Court of Justice ordering the company to cease its activities claiming the operation was contrary to the zoning by-law. The Superior Court decision was overturned by the Quebec Court of Appeal. Again, the Attorney General of Quebec appealed to the Supreme Court of Canada.
The Canadian Owners and Pilots Association (“COPA”) www.copanational.org, on behalf of thousands of aerodrome owners across Canada, intervened in both cases at earlier stages. Indeed in the second case, the aerodrome owner in question passed away and COPA successfully sought to take his place in the court proceedings. COPA asserted that provincial and municipal governments did not have the jurisdiction to restrict or prevent property owners from establishing aerodromes. COPA asserted that jurisdiction rested exclusively with the Federal Government. The Supreme Court of Canada agreed.
In delivering its decision the Supreme Court of Canada observed that the Federal Aeronautics Act and the Canadian Air Regulations thereunder were permissive and allowed Canadians to construct private aerodromes without applying for prior permission. The federal laws also allowed privately operated aerodromes to be maintained according to federal standards at which point they could become registered and available to anyone who needed to land thereupon. The Supreme Court of Canada refused to distinguish between smaller aerodromes and larger airports for national and international flights. The Court reasserted the rationale of its earlier decisions that the subject matter of aerial navigation was “non-severable” and that the location of airports and aerodromes cannot be separated from the subject of aerial navigation as a whole. The Court then concluded:
“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.”
The Supreme Court further held that the location of aerodromes lies within the core of the federal aeronautics power, that the provincial legislation in question sought to impair that power and as a result, was inapplicable to the aerodromes in question. In so doing, the Supreme Court of Canada expressly stated that earlier decisions by the British Columbia Court of Appeal and the Quebec Court of Appeal (in 1987 and 1990 respectively), which allowed certain provincial legislation to have an impact upon the federal power over aerodromes, should be considered overruled.
“This is a great day for Canadian Aviation”, said COPA President and CEO Kevin Psutka. “This issue has been debated for decades. The attempts by municipal and provincial governments to restrict aviation activities were becoming unrelenting as the years passed. It was necessary to take this debate back to the highest Court for resolution in order to put to rest the confusion created by previous lower court decisions. I am pleased with the results of this effort and thank the many supporters for their contributions to our Freedom to Fly Fund. Without such contributions, these legal challenges in support of the rights of Canadians to freely establish aerodromes would not have been possible.”