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01 December 2010
On October 15 2010 the Supreme Court of Canada released two related decisions which affirm a point that had not been in serious doubt: the authority of the federal Parliament to legislate in respect of aeronautics is both wide and vigorous, and provincial laws which intrude into that domain are likely to be declared unconstitutional or inoperative.
The cases arose out of attempts by the province of Quebec (or, in one case, a municipality within that province) to restrict the locations in which an aerodrome may be maintained. The first case pitted the attorney general of Quebec against the Canadian Owners and Pilots Association(1) over the question of whether a provincial statute which sought to preserve identified lands for agriculture could preclude the operation of an aerodrome on those lands. In the second case the attorney general took up the fight for a municipality which sought to protect a recreational zone by restricting the operation of a water aerodrome on Gobeil Lake.(2) Resisting the municipality were two operators, joined by the association.
In each case the federal position prevailed, but three distinct positions were stated. Seven of the judges based their reasons on their view of one of the most debated doctrines of Canadian constitutional analysis - the doctrine of interjurisdictional immunity. The two remaining judges disagreed with respect to the conditions under which that doctrine applies and, in turn, disagreed with each other as to the appropriate result in this case. One found that the provincial statute should survive because of the basic constitutional concept of federal paramountcy, which usually gives preference to federal statutes in cases where the provinces and Parliament each legislate in respect of a matter and each has constitutional authority to do so. The other judge would have given the victory to the provincial laws. The dissenting decision by Justice Deschamps was sharp in its criticism of the majority and was clearly intended as a clarion call to reverse a disposition which Deschamps views as an inappropriate form of confrontational analysis, pitting the provinces against the federal authority without giving the former due respect. Justice LeBel (who ultimately sided with the federal power on the basis of paramountcy) endorsed Deschamps's view of what amounts to cooperative federalism. Thus, although these two particular cases were finally disposed of, the divisions represented in the judges' reasons make clear that significant difficulties remain in the resolution of similar cases.
Each case involved the establishment of a small aerodrome - an installation which, under the scheme defined by the Aeronautics Act, may be constructed without prior permission. The owner has the option of registering with the minister of transport and, if the aerodrome is registered, it must be operated in accordance with federal standards. In each case the aerodrome was registered. Also, in each case provincial legislation sought to suppress operations at the facility.
One of the first issues debated was the possible distinction between local aerodromes and airports that more obviously define the major commercial air routes in the Canadian transportation network. A number of interveners sought to make such a distinction, but these were defeated by application of the most venerable authority. A 60-year-old case which is most significant in establishing federal jurisdiction over aviation(3) involved just such a local aerodrome and the Supreme Court affirmed that such installations are part of a non-severable network. An attempt to re-examine this conclusion failed.
Another attempt to limit the federal power focused on a similar issue. Not only are the operations in question local in nature, but the nature of the limitations which the province wished to introduce were arguably insignificant. In the first case, which was based on protection of agricultural lands, it was noted that all of the lands which the province sought to protect amounted to about 4% of the province's territory. Similar arguments were advanced in the second case. Should this 'small impact' argument matter? The answer to this question relates to the requirements of the doctrine of interjurisdictional immunity.
There are circumstances in which each level of government in the Canadian federation can enact valid legislation. Where there is a direct or operational conflict between legislation enacted, the federal legislation prevails. However, where there is no such direct or operational conflict between existing legislation, may the provinces enact legislation which intrudes into the federal sphere? They may sometimes, but such legislation may not intrude into the protected core of federal jurisdiction. So far, this statement is uncontroversial. Furthermore, it is agreed that the regulation of aerodromes is a matter at the core of federal jurisdiction.
However, there is a caveat which states a limitation that is well illustrated by the facts of this case: not only must there be intrusion on a core competence, but an impairment test must be met. The divisive question is: 'Impairment of what?' Is it impairment of the federal power itself or rather impairment of activities of persons subject to the federal power? The majority says the former; the minority, the latter.
In applying these considerations to the aerodrome cases, it is easier to begin with the dissenting view. Clearly, persons who wish to operate aerodromes are subject, in their aviation undertakings, to federal authority. If one considers the class of such persons as a whole and asks whether their activities are impaired by the provincial restrictions, it is probable that the dissenting view will be taken (ie, an answer in the negative). Use of relatively small parcels of provincial land is denied, but that such a denial must result in impairment of the aviation activities of the class as a whole is far from evident. To make out the case for impairment would, at least, require factual evidence and arguably no such evidence was provided in the cases.
However, if one concentrates instead on impairment of the federal power itself, it is much easier to demonstrate impairment. As the majority put it, the prohibition in the agricultural protection statute impairs:
"the federal power to decide when and where aerodromes should be built... the effect may be to prevent the establishment of a new aerodrome or require the demolition of an existing one. This is not a minor effect on the federal power to determine where aerodromes are built."
A great deal may depend on the approach to impairment. The view favoured by the majority will generally make it easier for federal authority to prevail. Those who deplore this approach denounce it as inconsistent with cooperative federalism. Given that it found favour with seven of the nine judges in these two cases, it is likely to be in place for some time to come.
For further information on this topic please contact Gerard A Chouest or Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email (email@example.com or firstname.lastname@example.org).
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Gerard A Chouest