Rule nixes parts of
provincial laws that
encroach on feds
CRISTIN SCHMITZ OTTAWA

The Supreme Court of Canada has breathed some life back into the doctrine of inter-juris-dictional immunity in twin constitutional cases that will assist Ottawa in future div-ision-of-powers battles with the provinces.

On Oct. 15 Chief Justice Beverley McLachlin, on behalf of the court’s majority, dismissed companion appeals by the Attorney General of Quebec.

The province unsuccessfully pitted its land use and zoning laws against the federal power over aeronautics in two cases where citizens built small private aerodromes on their land which was reserved for agricultural or recreational use.

In Quebec A.G. v. Canadian Owners and Pilots Association (COPA), the court split 7-2 ( Justices Louis LeBel and Marie Deschamps dissenting) to hold that two owners of property near Shawinigan, Que., who built a private grass airstrip and hangar in the designated agricultural region, were not required to comply with the order of the Commission de protection du territoire agricole du Quebec (commission) to return the land to its original state.

The Supreme Court accepted the validity of the province’s legislation, which prohibits the use of lots in a designated agricultural region for any purpose other than agriculture (unless prior permission for an alternative use is obtained from the commission).

However Chief Justice McLachlin agreed with the Quebec Court of Appeal that the doctrine of interjurisdictional immunity precluded the commission from ordering the dismantling of the aerodrome.

“I find that the provincial law
impairs the protected core of
federal jurisdiction over aero-
nautics, and is inapplicable to
the extent that it prohibits aero-
dromes in agricultural zones,”
the chief justice wrote. “I con-
clude that the location of aero-
dromes lies at the core of the
federal aeronautics power.
Long-standing precedent estab-
lishes that where aircraft may
take off and land is a matter pro-
tected by the doctrine of inter-
jurisdictional immunity. Since s.
26 of An Act respecting the pres-
ervation of agricultural land
and agricultural activities pur-
ports to limit where aerodromes
can be located, it follows that it
trenches on the core of the fed-
eral aeronautics power.”
The chief justice concluded
that interjurisdictional immun-
ity protected the federal power
from s. 26 because to apply that
provision “would force the fed-
eral Parliament to choose
between accepting that the prov-
ince can forbid the placement of
aerodromes on the one hand, or
specifically legislating to over-
ride the provincial law on the
other hand. This would seriously
impair the federal power over
aviation, effectively forcing Par-
liament to adopt a different and
more burdensome scheme for
establishing aerodromes than it
has in fact chosen to do so.”
The doctrine of interjurisdic-
tional immunity renders a valid
provincial law inapplicable to
the extent it impairs the core of
a federal power.

“The majority noted that the
question is whether the provin-
cial law ‘trenches on the pro-
tected core of federal compe-
tence’ and states that this
requires ‘a significant or serious
intrusion on the exercise of the
federal power.’ ”
He added “the focus is on the
exercise of the federal legislative
power — on ‘Parliament’s legis-
lative freedom’…[but] the court
may consider ‘the practical
effect’ of the challenged law in a
particular case.”
Quebec Department of Jus-
tice spokesperson Joanne Mar-
ceau told The Lawyers Weekly
the province is still “analyzing
the scope of the judgment.” She
declined further comment.

In the second case, Quebec (A.G.) v. Lacombe, a company carried on the business of air excursions on Gobeil Lake in the municipality of Sacre-Coeur, Que., since 2005. It was licensed by the federal Department of Transport to provide the services. It registered its aerodrome under the Canadian Aviation Regulations. Gobeil Lake is used by vacationers for swimming, fishing and other recreational pursuits. The municipality applied for an injunction ordering the company to stop its aviation activities on the basis that operating the aerodrome and business violated a 1995 zoning by-law.

The Quebec Court of Appeal ruled that the by-law was valid but could not apply to the aerodrome because the doctrine of interjurisdictional immunity.

Dividing 8-1 (Justice Deschamps dissenting), the Supreme Court dismissed the Attorney General of Quebec’s appeal, albeit for different reasons than the court below.

For the majority, Chief Jus-
tice McLachlin held that the by-
law is ultra vires because its pith
and substance was about the
regulation of aeronautics and, as
such, fell outside provincial
jurisdiction. While the preamble
of the by-law stated that its pur-
pose was to find a balance
between the activities of sum-
mer home owners and more
commercial land uses, the evi-
dence revealed that the real
objective of the by-law was not
related to zoning, but to regulat-
ing the location of water aero-
dromes in the municipality.
Regulating the location of aero-
dromes is a matter of exclusive
federal jurisdiction under
Ottawa’s authority to regulate
air travel pursuant to its s. 91
Constitution Act general power
to make laws “for the peace,
order and good government of
Canada.”
Therefore the doctrine of
interjurisdictional immunity
did not come into play, the chief
justice held.