The Supreme Court of Canada’s most recent decision on the division of federal and provincial powers helps clarify the extent to which local governments can control the locations of cell phone antennas and other radiocommunication infrastructure within their borders.
In Rogers Communications Inc. v Châteauguay (City), 2016 SCC 23 (“Rogers”), the Court found that, because The Constitution Act, 1867 gives the federal government exclusive control over radiocommunications, municipalities cannot exercise their powers in such a way as to prevent telecommunications companies from installing radiocommunications antenna.
Rogers Communications Inc. (“Rogers”) holds a spectrum licence from Industry Canada that authorizes it to provide radiocommunication services in specified frequency ranges. This licence also requires it to meet a number of obligations, one of which is to ensure adequate network coverage in the geographic regions attributed to it. Spectrum licence holders must have the final location of any antennas approved by the Industry Canada, but they do not have a power to expropriate land. They must enter into agreements with property owners that allow them to install antennas on private property.
In 2007, Rogers decided to construct a new radiocommunication antenna system within the City of Châteauguay. Rogers entered into a lease with the owner of a property in a residential neighbourhood (“411 Saint-Francis”) to install an antenna.
The location would not be approved by the Minister until Rogers complied with Industry Canada’s Radiocommunications and Broadcasting Antenna Systems Circular (the “Circular”) and consulted with Châteauguay to identify concerns about the proposed installation. Châteauguay did not want an antenna to be installed at 411 Saint Francis, because it was concerned that the antenna would have an adverse health impact on people in the surrounding neighbourhood.
In light of these issues, Châteauguay and Rogers tried to work together to find a new, more appropriate location for the antenna.
A property in an industrial zone was proposed, however the owner did not want to do business with Rogers. In response, Châteauguay commenced expropriation proceedings that would allow it to acquire the industrial zone property on Rogers’ behalf.
Shortly thereafter, the Minister authorized the installation at 411 Saint Francis and Rogers decided to go ahead with construction at that site.
Châteauguay still did not want to see an antenna installed at 411 Saint Francis and so it adopted a municipal resolution authorizing the service of a notice of establishment of a “reserve” that prohibited all construction at 411 Saint Francis for two years.
Rogers filed a motion contesting the notice, arguing that it was unconstitutional and had been passed in bad faith. At trial, the Superior Court found that Châteauguay had acted in bad faith, and annulled the notice. The Court of Appeal set aside the Superior Court’s judgment and also rejected Rogers’ constitutional arguments.
In front of the Supreme Court of Canada, Rogers argued the notice was unconstitutional because it attempted to control the siting of radiocommunications infrastructure. Rogers also argued that the notice did not apply to it by reason of the doctrine of interjurisdictional immunity. The doctrine of interjurisdictional immunity prevents actions taken by one level of government from “impairing” (strongly negatively impacting) a “core” undertaking of another level of government. If an action is found to impair a core undertaking, it is inapplicable insofar as it impairs the other level of government.
Was the notice constitutional?
On the question of whether the notice was unconstitutional, the Court had to decide whether its “pith and substance” (essential purpose) was to control the siting of radiocommunications infrastructure.
To answer this question, the Court had to consider intrinsic evidence, like the preamble of the resolution that authorized the notice, and extrinsic evidence, which would include the circumstances that led to the notice being issued. Here, the Court took the following extrinsic factors into account:
- the notice was not served until after the Minister approved the installation of the antenna at 411 Saint Francis;
- the notice was served immediately after Rogers refused to wait for the expropriation proceedings for the industrial zone properties to conclude; and
- the notice was served after Rogers announced that it would being installing the antenna at 411 Saint-Francis.
On the strength of this evidence the Court concluded that Châteauguay’s notice was clearly, in pith and substance, aimed at controlling the siting of radiocommunications infrastructures, and not, as Châteauguay claimed, protecting the health of its residents.
The Court also used this case as an opportunity to clarify the doctrine of interjurisdictional immunity.
Here, the Court found that the ability to choose appropriate locations for antenna systems is an essential (“core”) part of the federal undertaking to provide an efficient radiocommunication network across Canada. By preventing Rogers from constructing its antenna at 411 Saint-Francis, a location approved by the Minister, the Court found that the notice impaired the core of this federal powers. Because of the notice:
Rogers was unable to meet its obligation to serve the geographic area in question as required by its spectrum licence. In this sense, the notice of a reserve compromised the orderly development and efficient operation of radiocommunication and impaired the core of the federal power over radiocommunication in Canada.
As such, the notice was inapplicable to Rogers.
A note on expropriation:
Of note in this decision was the Court’s statement on Châteauguay’s authority to expropriate real property in order to “support” Rogers’ efforts to secure an appropriate site for its antenna. The Court found that:
When a municipality supports a spectrum licence holder by expropriating property, the pith and substance of the measures it takes is not the choice of the location of an antenna system, as that location has already been approved by the Minister… the municipality’s actions relate to the development of its territory, and there is no question from the perspective of the division of powers that it is entitled to do so.
This sort of expropriation may be acceptable from a constitutional standpoint, but it is important to keep in mind that the Local Government Act and Community Charter both state that the power to expropriate may only be exercised “for the purposes of fulfilling [a local government’s] powers, duties and functions”. This being the case, it is difficult to see how expropriating land, essentially on behalf of a spectrum licence holder carrying out its federal mandate could be seen to fulfill the local government’s powers, duties or functions.
The Circular still requires that spectrum licence-holders consult with local governments and take their concerns into account when determining appropriate locations for their radiocommunication systems. Accordingly, this decision is unlikely to a have major impact on local governments’ day-to-day interactions with spectrum license holders. Typically consultation works fairly well – as the Court pointed out, of the 1000+ antenna approvals issued by the Minister in 2014, only three resulted in an impasse between the municipality and the licence-holder.
This said, the underlying principles enunciated by the Supreme Court – namely that choosing an appropriate location for radiocommunication infrastructure is a core part of the federal power over radiocommunications – is worth noting. What it means for local governments is that, in the event that they are unable to agree with a spectrum licence-holder on the final location of a tower, it will be the licence-holder, by virtue of the doctrine of interjurisdictional immunity, the licence-holder has the final say.