No-Fly Zoning Doesn’t Fly

The Supreme Court of Canada (the “SCC”) has confirmed that the federal government, by virtue of its constitutional jurisdiction over aeronautics, has the exclusive authority to regulate the location of aerodromes. Municipalities and provinces have no authority to do so.

In a pair of judgments just released, the SCC struck down zoning regulations that attempted to prohibit the location of aerodromes in certain areas. The cases, which both arise from Quebec, differ somewhat in their facts and in the legal reasoning applied by the SCC but, in the result, both cases confirm the general principle that the authority to regulate the location of aerodromes belongs exclusively to the federal government.

The Aeronautics Act uses the term “aerodrome” to refer generally to any facility where aircraft take off and land, while “airport” has a more specific meaning, and refers to aerodromes that are licensed by Transport Canada.

In Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39 (“COPA”), the regulation at issue was contained within the provincial Act respecting the preservation of agricultural land and agricultural activities, legislation similar in purpose to British Columbia’s Agricultural Land Commission Act. Specifically, the legislation prohibited any non-agricultural use of designated land, including use for the purpose of an aerodrome, without the prior approval of a provincial commission.

A small, private aerodrome was built on agricultural land without approval of the commission. Upon learning of it, the commission ordered the dismantling of the aerodrome and the return of the land to its natural state. The owners of the aerodrome challenged the commission’s order, and so began a lengthy court battle. The province succeeded in the lower courts, but the Quebec Court of Appeal ruled in favour of the owners, and the SCC agreed.

While the general scheme of the legislation, being the preservation of agricultural land, was valid as being within the constitutional authority of the province, the SCC held that the provisions prohibiting non-agricultural uses without commission approval were inapplicable to aerodromes, in accordance with the doctrine of interjurisdictional immunity.

The doctrine of interjurisdictional immunity prevents one level of government from interfering with or impairing the core of a power enjoyed by the other level of government. Merely trivial or incidental effects will not engage the doctrine, but the doctrine will be engaged where there is a significant or serious intrusion into an area of exclusive legislative jurisdiction. In the opinion of the SCC, the legislation at issue in the COPA case had the effect of interfering significantly with the federal government’s authority over aeronautics, and for that reason the SCC ruled the legislation did not apply to aerodromes.

In the companion case of Quebec (Attorney General) v. Lacombe, 2010 SCC 38 (“Lacombe”), the regulation at issue was an amendment to a municipal zoning bylaw. The amendment was enacted specifically to prohibit aerodromes in a certain zone, at the urging of the owners of summer homes on a tranquil, rustic lake in rural Quebec. An excursion company had been operating a water aerodrome on the lake for several years, under a licence from Transport Canada. Up until the amendment, the zoning bylaw had been silent with respect to aerodromes.

Once the amendment was enacted, the municipality applied to the courts for an injunction to prevent the excursion company from continuing to operate its aerodrome. Although initially successful, the municipality lost its case in the Quebec Court of Appeal, and eventually in the SCC.

The SCC ruled that the zoning amendment was, in “pith and substance”, aimed directly at a subject of exclusive federal jurisdiction, namely aeronautics. As such, the zoning amendment was “ultra vires”, i.e., beyond the power of the province and the municipality to which the land use planning function had been delegated, and was therefore invalid. Given that conclusion, it was not necessary for the SCC to consider the application of the doctrine of interjurisdictional immunity; however, the SCC noted that even if the zoning amendment had been valid in a general sense, it would have been constitutionally inapplicable to aerodromes under the doctrine of interjurisdictional immunity, like the regulation in the COPA case.

For nearly eighty years, the highest courts in Canada have consistently viewed the subject matter of aeronautics as belonging exclusively to the legislative authority of the federal government. In COPA and Lacombe, the SCC has re-examined the issue in a 21st Century context, and left little doubt that the federal government, under its aeronautics power, has exclusive authority to regulate the location of aerodromes.

This result is consistent with the conclusion of the B.C. Supreme Court in Comox-Strathcona (Regional District) v. Hansen, 2005 BCSC 220, which held invalid a zoning bylaw that prohibited private airports. It also drives a final nail into the coffin for the B.C. Court of Appeal’s anomalous decision in British Columbia v. Van Gool (1987), 36 M.P.L.R. 303, where a bylaw regulating private airports was upheld.

Local governments faced with unwanted aerodromes may attempt to influence the situation through persuasion, but they cannot do so through regulation.