Stéphane Reynolds, lawyer for Cain Lamarre
stephane.reynolds@cainlamarre.ca
January 28, 2020

Shared jurisdiction for aeronautics

The federal government has exclusive jurisdiction over aeronautics

  • Aeronautical and airport activities fall under the exclusive jurisdiction of the federal government.
  • Section 91 of the Constitution Act, of 1867 stipulates that matters that do not fall directly within provincial jurisdiction shall fall within federal jurisdiction.
  • The Supreme Court ruled that this was the case for aeronautics in the landmark case of Johannesson v. Rural Municipality of West St.Paul, 1951 CanLII 55 (SCC), which has since been cited with approval on numerous occasions.
    • In 2010, the Supreme Court of Canada reiterated that: “Aeronautics is a matter of national importance which does not fall within any of the established categories and is therefore within the power of Parliament to make laws for the peace, order and good government of Canada”.

      Quebec (Attorney General) v. Lacombe, 2010 SCC 38

  • The federal government’s exclusive jurisdiction means that the provincial government (which includes municipalities and/or the designated manager) cannot legislate in this area if the effect would interfere with the activities covered by this exclusive jurisdiction.
    The Supreme Court has established that the test for applying the doctrine of exclusive jurisdiction “is whether the provincial legislation interferes with the federal government’s exercise of an activity falling within its core jurisdiction”. It points out that the term “hinders” is stronger than “affects”. It implies an impact that not only affects the core federal jurisdiction but also affects it in a way that seriously or substantially impairs federal jurisdiction.

    Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39

  • For this reason, municipal bylaws cannot regulate matters that fall within the core federal jurisdiction over aeronautics.
  • If a municipality adopts a bylaw that interferes with the federal government’s exercise of exclusive jurisdiction, the doctrine of jurisdictional exclusivity applies, and the municipal bylaw will be constitutionally inapplicable.
    • Refer, for example, to Ville de Mascouche v. 9105424 Canada Association (2018 QCCS 550), where the Superior Court determined that the effects of the Environment Quality Act constituted an obstacle to the aerodrome’s activities and that section 22 of the EQA was, therefore, constitutionally inapplicable.

The federal government has exercised its jurisdiction over aeronautics by adopting various pieces of legislation

  • The Aeronautics Act sets out the enabling authority of Canada’s Minister of Transport and the scope of his jurisdiction:
    • “4.2 (1) The Minister is responsible for the development and regulation of aeronautics, as well as the control of all sectors related to this field. […]
    • 4.3 (1) The Minister may authorize any person, individually or as a member of any class of persons, to exercise, subject to such restrictions and conditions as the Minister may specify, any of the powers, duties or functions of the Minister under this Part, except the power to make regulations, orders, safety measures or emergency directives. […]
    • 4.9 The Governor in Council may make regulations respecting aeronautics, and in particular respecting: […]
    • e) activities carried on at aerodromes and the location, inspection, registration, approval and operation of aerodromes;
    • f) noise from aerodromes and aircraft; […].
    • k.1) prohibiting the development or enlargement of aerodromes or any change in their operation[.]”
  • In addition, the Canadian Aviation Regulations provide as follows:
    602.105 “No person shall operate an aircraft at or in the vicinity of an aerodrome unless the aircraft complies with the applicable noise abatement procedures and noise control requirements specified by the Minister in the Canada Air Pilot or the Canada Flight Supplement, including:

a) preferential runways;
b) minimum noise routes;
c) hours during which aircraft use is restricted or prohibited;
d) arrival procedures;
e) departure procedures;
f) duration of flights;
g) prohibitions or restrictions on training flights;
h) VFR or visual approaches;
i) simulated approach procedures;
j) minimum altitude at which aircraft may be operated in the vicinity of the aerodrome.”

Municipal aeronautics initiatives

The scope of municipal action

  • Insofar as they affect the core activities of the aerodrome (airport) or aircraft flights, measures taken by the City of Drummondville or the designated manager must be approved by the federal government (Transport Canada) to be mandatory and binding. Otherwise, they will be constitutionally unenforceable.
  • This was confirmed in 2013 in Max Aviation inc. v. Développement de l’aéroport Saint‑Hubert, 2013 QCCA 551.
    • The application of a noise abatement measure depends on obtaining the sanction of the responsible minister and its subsequent incorporation into the Canada Flight Supplement before becoming mandatory.

Case law examples

  • Procureure générale du Québec v. Leclerc, 2018 QCCA 1567

    In this case, the Court of Appeal confirms that parachuting activities are at the heart of federal jurisdiction. The Court delineates this jurisdiction as follows:

    “[61] According to case law, the core of federal jurisdiction in aeronautics encompasses:
    • Regulating the operation of aircraft and airports;
    • Determining the location of airports;
    • Airport design, dimensions, materials to be used in the construction of buildings, runways and structures, and other such features;
    • The training of aircraft pilots.”
  • Procureure générale du Québec v. Leclerc, 2018 QCCA 1567

    The application for leave to appeal to the Supreme Court of Canada was dismissed on May 23, 2019, confirming the Court of Appeal’s decision;

    This therefore confirms that a zoning bylaw intended to prohibit certain activities (skydiving, flying school, etc.) is likely to be unenforceable insofar as the activities targeted touch on the core of federal jurisdiction over aeronautics.

  • In the first instance (Leclerc v. Lévis [Ville de], 2016 QCCS 6328), the Superior Court stated as follows:

    [127] Thus, the aerodrome, its location, its operation, the aircraft, the operation of the aircraft, the flight, including take‑off and landing, related aeronautical facilities such as hangars or fuel tanks, the safe management of the airspace, as well as the theoretical or practical training on the ground or in the air of those who use the airspace are all part of the core competence of aeronautics and are all essential and indivisible links in aeronautics and air navigation. It is therefore impossible to dissociate aeronautical activities from the aerodromes where they take place, and there is no justification for distinguishing between them. […]
    • The Superior Court also concluded that it is forbidden for a municipality to control the training of pilots and the type of aircraft used to do so since this is at the heart of the federal government’s jurisdiction over aeronautics.

Conclusion

Aeronautics fall under the exclusive jurisdiction of the federal government. Therefore, the powers of a municipality and/or the designated manager in this area are extremely limited, as any action that exceeds the municipality’s powers would be null and void.

Actions beyond municipal jurisdiction

  • Prohibit certain activities at an aerodrome (parachuting, flight schools, etc.);
  • Restrict or limit certain aerodrome‑related activities (flight hours, number of touch‑and‑go landings, types of aircraft used, etc.);
  • Regulate noise or air pollution from aircraft.

Actions that a municipality may take

  • Propose or support requests to the appropriate federal authorities for new obligations and/or standards to be adopted and included in Canada;
  • Flight Supplement (CFS);
  • Make airport users, including flight schools, aware of citizens’ complaints and requests;
  • Maintain channels of communication with citizens (Vigilance Committee).