Quebec (Attorney General) v. Canadian Owners and Pilots Association

Quebec (Attorney General) v. Canadian Owners and Pilots Association
Collection
Supreme Court Judgments
Date
2010-10-15
Neutral citation
2010 SCC 39
Report
[2010] 2 SCR 536
Case number
32604
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 32604
Decision Content
SUPREME COURT OF CANADA
Citation: Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536
Date: 20101015
Docket: 32604
Between:
Attorney General of Quebec
Appellant
and
Canadian Owners and Pilots Association
Respondent
‑ and ‑
Attorney General of Canada, Attorney General of Ontario,
Attorney General of New Brunswick, Attorney General of British Columbia,
Pierre Lortie, judge of the Court of Québec, Commission de protection du
territoire agricole du Québec, Administrative Tribunal of Québec (Territory and Environment Division), City of Shawinigan, William Barber, Louise Barber,
Rusty Barber, Louise Sokolik, Michel Sokolik, Berthe Ducasse,
Jocelyne Galardo, Chantale Trépanier, Bruce Shoor and
Greater Toronto Airports Authority
Interveners
Official English Translation: Reasons of LeBel and Deschamps JJ.
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 75)
Dissenting reasons:
(paras. 76 to 78):
Dissenting reasons:
(paras. 79 to 93):
McLachlin C.J. (Binnie, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring)
LeBel J.
Deschamps J.
______________________________
Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536
Attorney General of Quebec Appellant
v.
Canadian Owners and Pilots Association Respondent
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of New Brunswick,
Attorney General of British Columbia,
Pierre Lortie, judge of the Court of Québec,
Commission de protection du territoire agricole du Québec,
Administrative Tribunal of Québec (Territory and Environment Division),
City of Shawinigan, William Barber, Louise Barber,
Rusty Barber, Louise Sokolik, Michel Sokolik,
Berthe Ducasse, Jocelyne Galardo, Chantale Trépanier,
Bruce Shoor and Greater Toronto Airports Authority Interveners
Indexed as: Quebec (Attorney General) v. Canadian Owners and Pilots Association
2010 SCC 39
File No.: 32604.
2009: October 14; 2010: October 15.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for quebec
Constitutional law — Division of powers — Interjurisdictional immunity — Federal power over aeronautics — Provincial legislation prohibiting land use in designated agricultural region for any purpose other than agriculture without prior authorization — Aerodrome built on agricultural land without authorization — Whether legislation intra vires province — If so, whether legislation constitutionally inapplicable to the extent it prohibits aerodromes in agricultural zones — An Act respecting the preservation of agricultural land and agricultural activities, R.S.Q., c. P‑41.1, s. 26 — Constitution Act, 1867, ss. 91 , 92(13) , (16) , 95 .
Constitutional law — Division of powers — Federal paramountcy — Federal power over aeronautics — Provincial legislation prohibiting land use in designated agricultural region for any purpose other than agriculture without prior authorization — Aerodrome built on agricultural land without authorization — Whether doctrine of federal paramountcy can be invoked — An Act respecting the preservation of agricultural land and agricultural activities, R.S.Q., c. P‑41.1, s. 26 — Constitution Act, 1867, ss. 91 , 92(13) , (16) , 95 .
L and G built an aerodrome, which is registered under the federal Aeronautics Act , on their land zoned as agricultural in the province of Quebec. Section 26 of the Quebec Act respecting the preservation of agricultural land and agricultural activities (“ARPALAA”) prohibits the use of lots in a designated agricultural region for any purpose other than agriculture, subject to prior authorization by the Commission de protection du territoire agricole du Québec. Since L and G did not obtain the Commission’s permission prior to constructing the aerodrome, the Commission ordered them to return their land to its original state pursuant to s. 14 ARPALAA. L and G challenged the Commission’s decision on the ground that aeronautics is within federal jurisdiction. The Administrative Tribunal of Québec, the Court of Québec and the Superior Court all upheld the decision, but the Court of Appeal found that interjurisdictional immunity precluded the Commission from ordering the dismantling of the aerodrome.
Held (LeBel and Deschamps JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Binnie, Fish, Abella, Charron, Rothstein and Cromwell JJ.: Section 26 ARPALAA is valid provincial legislation. When both its purpose and effect are considered, s. 26 is, in pith and substance, legislation about land use planning and agriculture. This matter falls within provincial jurisdiction under s. 92(13) (property and civil rights), s. 92(16) (matters of a merely local or private nature), or s. 95 (agriculture) of the Constitution Act, 1867 .
By virtue of the doctrine of interjurisdictional immunity, s. 26 ARPALAA, while valid, is inapplicable to the extent that it impacts the federal power over aeronautics, which is supported by the federal general power to make laws for the peace, order, and good government of Canada in s. 91 of the Constitution Act, 1867 . The federal aeronautics jurisdiction encompasses not only the regulation of the operation of aircraft and airports, but also the power to determine the location of airports and aerodromes. This power is an essential and indivisible part of aeronautics and, as such, lies within the protected core of the federal aeronautics power. Since s. 26 purports to limit where aerodromes can be located, it follows that it trenches on the core of the federal aeronautics power. However, in an era of cooperative, flexible federalism, the application of the doctrine of interjurisdictional immunity requires a significant or serious intrusion on the exercise of the federal power. The test is whether the provincial law impairs the federal exercise of the core competence. Here, in prohibiting the building of aerodromes on designated agricultural land unless prior authorization has been obtained from the Commission, s. 26 may prevent the establishment of new aerodromes or require the demolition of existing ones. The ARPALAA effectively removes the total area of the designated agricultural regions from the territory that Parliament may designate for aeronautical uses. This is not an insignificant amount of land, and much of it is strategically located. Although s. 26 does not sterilize Parliament’s power to legislate on aeronautics — the doctrine of paramountcy would permit Parliament to legislatively override provincial zoning legislation for the purpose of establishing aerodromes —, it nevertheless seriously affects the manner in which the power can be exercised. If s. 26 applied, it would force the federal Parliament to choose between accepting that the province can forbid the placement of aerodromes on the one hand, or specifically legislating to override the provincial law on the other hand. This would seriously impair the federal power over aviation, effectively forcing the federal Parliament to adopt a different and more burdensome scheme for establishing aerodromes than it has in fact chosen to do.
The doctrine of federal paramountcy would not apply in this case. Paramountcy may flow either from the impossibility of complying with both federal and provincial laws or from the frustration of a federal purpose. Here, there is no operational conflict, since the federal legislation did not require the construction of an aerodrome and it is possible to comply with both the provincial and federal legislation by demolishing the aerodrome. There is also no evidence establishing that a federal purpose regarding the location of aerodromes is frustrated by the provincial legislation. The federal regulations provide that the Minister responsible may determine that the location of each registered aerodrome is in the public interest, but they do not disclose any federal purpose with respect to the location of aerodromes.
Per LeBel J. (dissenting): The power to determine the locations of airports and aerodromes is not engaged here in a way that would be inconsistent with the doctrine of interjurisdictional immunity. The building of a landing strip at a location of a company’s choosing and the administrative registration of an aerodrome cannot be considered acts or rights that fall within the core of the federal aeronautics power.
Per Deschamps J. (dissenting): Section 26 of the ARPALAA is constitutionally applicable to aerodromes. The evidence as a whole does not show that the application of the provincial agricultural zoning rules would have the effect of impairing activities that fall within the core of the exclusive federal aeronautics power. The area of the space on which the construction of an aerodrome is or may be authorized is sufficient in relation to the entire territory of Quebec and, what is more, there are major small‑scale aviation centres outside the protected agricultural zones. Furthermore, the record contains no evidence that the Commission’s practices have the effect of prohibiting the establishment of aerodromes on all agricultural land in Quebec or of impairing the operation of such facilities. Finally, there is no actual conflict with a federal rule that would render s. 26 ARPALAA inoperative, as the registration of the aerodrome creates no positive right with which the provincial legislation would be incompatible.
Cases Cited
By McLachlin C.J.
Applied: Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; Reference re Anti‑Inflation Act, [1976] 2 S.C.R. 373; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494; R. v. Swain, [1991] 1 S.C.R. 933; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Johannesson v. Rural Municipality of West St. Paul, [1952] 1 S.C.R. 292; Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R. 581; distinguished: Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241; considered: British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23, [2007] 2 S.C.R. 86; referred to: Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453; St‑Louis v. Commission de protection du territoire agricole du Québec, [1990] R.J.Q. 322; Union Colliery Co. of British Columbia v. Bryden, [1899] A.C. 580; R. v. Morgentaler, [1993] 3 S.C.R. 463; Attorney‑General for Canada v. Attorney‑General for Quebec, [1947] A.C. 33; Consolidated Distilleries Ltd. v. Consolidated Exporters Corp. Ltd., [1930] S.C.R. 531; Reference re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198; Canadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367; John Deere Plow Co. v. Wharton, [1915] A.C. 330; Great West Saddlery Co. v. The King, [1921] 2 A.C. 91; Attorney‑General for Manitoba v. Attorney‑General for Canada, [1929] A.C. 260; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Ordon Estate v. Grail, [1998] 3 S.C.R. 437; In re Regulation and Control of Aeronautics in Canada, [1932] A.C. 54; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; Greater Toronto Airports Authority v. Mississauga (City) (2000), 50 O.R. (3d) 641, leave to appeal refused, [2001] 1 S.C.R. ix; Comox Strathcona (Regional District) v. Hansen, 2005 BCSC 220, [2005] 7 W.W.R. 249; Venchiarutti v. Longhurst (1989), 69 O.R. (2d) 19, aff’d (1992), 8 O.R. (3d) 422; Re The Queen in Right of British Columbia and Van Gool (1987), 36 D.L.R. (4th) 481; Lacombe v. Sacré‑Cœur (Municipalité de), 2008 QCCA 426, [2008] R.J.Q. 598; Dick v. The Queen, [1985] 2 S.C.R. 309; Commission du Salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2005 SCC 13, [2005] 1 S.C.R. 188; Re Orangeville Airport Ltd. and Town of Caledon (1976), 11 O.R. (2d) 546; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Bank of Montreal v. Hall, [1990] 1 S.C.R. 121.
By Deschamps J. (dissenting)
Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453.
Statutes and Regulations Cited
Act respecting the preservation of agricultural land and agricultural activities, R.S.Q., c. P‑41.1, ss. 1.1, 3, 14, 22, 26, 80, 90, Schedule A.
Aeronautics Act, R.S.C. 1985, c. A‑2, s. 4.9 (e).
Canadian Aviation Regulations, SOR/96‑433, ss. 301.03(1), 301.05 to 301.09, 302.01(1).
Cities and Towns Act, R.S.Q., c. C‑19.
Constitution Act, 1867, ss. 91 , 92 , 95 .
Municipal Code of Québec, R.S.Q., c. C‑27.1.
Authors Cited
Abel, Albert S. “The Neglected Logic of 91 and 92” (1969), 19 U.T.L.J. 487.
Mundell, D. W. “Tests for Validity of Legislation under the British North America Act: A Reply to Professor Laskin” (1955), 33 Can. Bar Rev. 915.
APPEAL from a judgment of the Quebec Court of Appeal (Brossard, Thibault and Vézina JJ.A.), 2008 QCCA 427, 48 M.P.L.R. (4th) 26, [2008] Q.J. No. 1597 (QL), 2008 CarswellQue 14277, reversing a decision of the Superior Court, 2006 QCCS 3377, [2006] J.Q. no 5998 (QL), 2006 CarswellQue 5622, upholding a decision of the Court of Québec, 2002 CanLII 41590, [2002] J.Q. no 4771 (QL). Appeal dismissed, LeBel and Deschamps JJ. dissenting.
Alain Gingras and Sébastien Rochette, for the appellant.
Pierre J. Beauchamp, Dan Cornell and Emma Beauchamp, for the respondent.
Ginette Gobeil, for the intervener the Attorney General of Canada.
Hart M. Schwartz and Josh Hunter, for the intervener the Attorney General of Ontario.
Gaétan Migneault, for the intervener the Attorney General of New Brunswick.
R. Richard M. Butler and Jean M. Walters, for the intervener the Attorney General of British Columbia.
Louise Mousseau and Lisette Joly, for the intervener Commission de protection du territoire agricole du Québec.
Annie Pagé, for the intervener the City of Shawinigan.
Pierre Bordeleau, for the interveners William Barber, Louise Barber, Rusty Barber, Louise Sokolik, Michel Sokolik, Berthe Ducasse, Jocelyne Galardo, Chantale Trépanier and Bruce Shoor.
Mahmud Jamal, for the intervener the Greater Toronto Airports Authority.
No one appeared for the interveners Pierre Lortie, judge of the Court of Québec, and the Administrative Tribunal of Québec (Territory and Environment Division).
The judgment of McLachlin C.J. and Binnie, Fish, Abella, Charron, Rothstein and Cromwell JJ. was delivered by
The Chief Justice —
I. Introduction
[1] Air transportation is an indispensable part of modern life. Yet as our dependence on aircraft has grown, the demands of aviation have increasingly collided with other interests. Aircraft must take off and land. For this they need soil or water. The soil or water they use is not available for other purposes. The question posed in this and the companion appeal, Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453, is which level of government has the final say on where airfields and aerodromes may be located.
[2] The federal government has jurisdiction over matters relating to air travel under its general power “to make Laws for the Peace, Order, and good Government of Canada”: s. 91 of the Constitution Act, 1867 , also known as the “POGG” power. In these appeals, the province of Quebec argues that notwithstanding this settled proposition, provincial legislation governing the placement of airfields and aerodromes should prevail. In essence, this dispute pits the local interest in land use planning against the national interest in a unified system of aeronautical navigation.
[3] The case concerns an aerodrome that was built by two private citizens on land zoned as agricultural and was registered under the federal Aeronautics Act, R.S.C. 1985, c. A-2 . The Province says this violates its law and the aerodrome must be removed. The Canadian Owners and Pilots Association (“COPA”) and the Attorney General of Canada argue that the Province should not be able to shut down the aerodrome, for a variety of reasons. First, they say that the provincial legislation, insofar as it affects the location of aerodromes, is ultra vires, and hence invalid. Second, they say that the location of aeronautical facilities lies at the protected core of the federal aeronautics power, which the doctrine of interjurisdictional immunity protects from any adverse provincial effect. Third, they say that, in any event, if the provincial legislation were valid and applicable, it would be inoperative under the doctrine of federal paramountcy.
[4] Like the Quebec Court of Appeal, I conclude that the provincial legislation limiting non-agricultural land uses in designated agricultural regions is valid. However, I find that the provincial law impairs the protected core of the federal jurisdiction over aeronautics, and is inapplicable to the extent that it prohibits aerodromes in agricultural zones. My conclusion renders it unnecessary to consider federal paramountcy, but in any event, I find that this doctrine has no application on the facts of this case. Consequently, I would dismiss the appeal on the basis of interjurisdictional immunity.
II. Background
[5] Bernard Laferrière and Sylvie Gervais owned a wooded lot near the city of Shawinigan. In 1998, they cleared part of their lot and built a grass airstrip. They also constructed a hangar adjacent to the airstrip for the storage, assembly and maintenance of aircraft. However, Laferrière and Gervais’s new aerodrome was situated in a designated agricultural region. On July 13, 1999, the Commission de protection du territoire agricole du Québec (“Commission”) ordered them to return their land to its original state. In response, Laferrière and Gervais challenged the Commission’s jurisdiction to prevent them from operating an aerodrome.
[6] The Administrative Tribunal of Québec upheld the ruling of the Commission. In reaching this decision, the Tribunal applied St‑Louis v. Commission de protection du territoire agricole du Québec, [1990] R.J.Q. 322 (C.A.), holding that there was no actionable conflict between the Commission’s enabling statute and any federal aviation legislation. The Court of Québec and the Quebec Superior Court both also upheld the decision of the Commission on similar grounds: 2002 CanLII 41590 (C.Q.) and 2006 QCCS 3377 (CanLII). Additionally, the Superior Court found that Laferrière and Gervais were estopped from challenging the decision of the Commission because they knew in advance that they were purchasing land in a designated agricultural region. The Quebec Court of Appeal allowed the appeal, overturned St-Louis, and found that interjurisdictional immunity precluded the Commission from ordering Laferrière and Gervais to dismantle their aerodrome: 2008 QCCA 427, 48 M.P.L.R. (4th) 26.
[7] Tragically, Laferrière was killed on April 27, 2009, when a small airplane of his own design crashed in Madison County, New York. Following Laferrière’s untimely death, COPA replaced Laferrière and Gervais as the respondent in this appeal. COPA is a national organization dedicated to the protection and promotion of personal aviation.
III. The Legislative Backdrop
A. The Provincial Scheme
[8] The provincial statute at issue in this appeal is An Act respecting the preservation of agricultural land and agricultural activities, R.S.Q., c. P‑41.1 (“ARPALAA” or “Act”). Pursuant to s. 22 of the ARPALAA, the provincial government is responsible for designating certain areas as agricultural regions. (Sixty-three thousand square kilometres, or four percent of the province of Quebec, has been assigned to 17 protected agricultural zones. Schedule A of the ARPALAA designates the lot owned by Gervais as land that falls within a designated agricultural region.) Section 3 of the ARPALAA establishes the Commission to “secure the preservation of the agricultural land of Québec”. The Commission administers the use of lots within these designated agricultural regions.
[9] Section 26 of the ARPALAA prohibits the use of lots in a designated agricultural region for any purpose other than agriculture, subject to prior Commission authorization to the contrary. In case of contravention, s. 14 empowers the Commission to order that the lots be restored to their former condition. The penal provision in s. 90 authorizes significant fines for violations of s. 26.
[10] Laferrière and Gervais did not obtain the permission of the Commission prior to constructing an aerodrome on their land, and hence failed to comply with the requirements of the Act.
B. The Federal Scheme
[11] Parliament exercises its power over aeronautics in the following way. The Aeronautics Act , through various provisions, seeks to regulate aeronautics throughout Canada. High levels of regulation are maintained with respect to airports and commercial aviation.
[12] For private aviation, which is the focus of this appeal, Parliament has adopted a different approach. Except in the built-up areas of cities and towns, people are permitted to construct private aerodromes without applying for permission. Owners and operators have the option of registering their aerodromes with the Minister of Transport. Though privately operated, these registered aerodromes must maintain federal standards and are available to anyone who needs to land. As such, they function as part of a nationwide aviation system.
[13] Laferrière and Gervais had registered their aerodrome under the federal Aeronautics Act .
IV. Issues
[14] The issues are:
1. The validity of the provincial legislation;
2. The applicability of the provincial legislation under the doctrine of interjurisdictional immunity;
3. The operability of the legislation under the doctrine of federal paramountcy.
V. Analysis
A. Validity of the Provincial Legislation
[15] The Attorney General of Canada and COPA argue that the provincial law is invalid because it affects where aerodromes can be constructed. Such effects, they say, lie outside provincial powers, making the law ultra vires. The zoning law is not challenged in its entirety; only the application of s. 26 to prohibit aerodromes is impugned. Where only one part of a law is challenged, the focus is on the subject of the impugned provisions themselves: Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, at para. 56. The issue is therefore whether s. 26 of the Act is valid.
[16] The first step in determining if the law is ultra vires is to determine its “matter”. The matter of a law is in essence “an abstract of the statute’s content”: A. S. Abel, “The Neglected Logic of 91 and 92” (1969), 19 U.T.L.J. 487, at p. 490. Having determined the matter of a statute, the next step is to determine whether the matter comes within the powers of the body that enacted the impugned legislation: Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373, at p. 450; Kitkatla, at para. 52. If the law is found to be invalid, it may be saved under the ancillary powers doctrine (also known as the ancillary doctrine: see Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494, at para. 45), if it is sufficiently integrated within an otherwise valid legislative scheme: see Lacombe.
(1) Identifying the Matter of the Impugned Legislation
[17] The matter of a law is identified by determining its dominant characteristic: R. v. Swain, [1991] 1 S.C.R. 933, at p. 998. This is commonly known as a pith and substance analysis, in reference to the judgment of Lord Watson in Union Colliery Co. of British Columbia v. Bryden, [1899] A.C. 580 (P.C.), at p. 587. In essence, this analysis requires the court to ask “[w]hat in fact does the law do and why?”: D. W. Mundell, “Tests for Validity of Legislation under the British North America Act: A Reply to Professor Laskin” (1955), 33 Can. Bar Rev. 915, at p. 928.
[18] As LeBel J. explained in Kitkatla, at para. 53, there are two aspects to the characterization of a law: “A pith and substance analysis looks at both (1) the purpose of the legislation as well as (2) its effect.” The purpose of a law may be determined by examining intrinsic evidence, like purposive clauses and the general structure of the Act, as well as extrinsic evidence, such as Hansard or other accounts of the legislative process: Kitkatla, at para. 53. The effect of a law is found in both the legal effect of the text and the practical effects that flow from the application of the statute: R. v. Morgentaler, [1993] 3 S.C.R. 463, at pp. 482‑83. Merely incidental effects will not generally affect the pith and substance analysis: Attorney-General for Canada v. Attorney-General for Quebec, [1947] A.C. 33 (P.C.), at p. 44; Global Securities, at para. 23.
[19] The purpose of the ARPALAA is to “secure a lasting territorial basis for the practice of agriculture . . . in the agricultural zones established by the regime” (s. 1.1). Section 26 supports this purpose by prohibiting non-agricultural uses of lots in these zones, whether or not the lots are actually used for agriculture, unless exceptional uses receive prior approval from the Commission.
[20] The effect of s. 26 mirrors this purpose: it is to prohibit non-agricultural uses of lots in designated agricultural regions, absent prior approval by the Commission. Section 26 may incidentally affect aeronautics. However, its main impact is to preserve agricultural lots and regulate land use within agricultural regions, through the Commission.
[21] Considering both purpose and effect, s. 26 is, in pith and substance, legislation about land use planning and agriculture. That is its matter.
(2) Assigning the Matter to a Head of Legislative Power
[22] Having characterized the pith and substance of s. 26 of the ARPALAA, the next step is to ask whether the impugned provision, thus characterized, relates to a provincial head of power. Land use planning and agriculture may fall within provincial jurisdiction under s. 92(13) (property and civil rights), s. 92(16) (matters of a merely local or private nature), or s. 95 (agriculture) of the Constitution Act, 1867 . It follows that s. 26 is valid provincial law.
[23] This is so even though s. 26 has an incidental effect on agriculture, notwithstanding concurrent federal jurisdiction over agriculture under s. 95 of the Constitution Act, 1867 : see Consolidated Distilleries Ltd. v. Consolidated Exporters Corp. Ltd., [1930] S.C.R. 531, per Anglin C.J.; Reference re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198, per Pigeon J. For the purpose of the vires analysis, it matters only that s. 26 of the ARPALAA, in pith and substance, comes within the powers of the province.
[24] I conclude that s. 26 of the Act is valid provincial legislation.
B. Interjurisdictional Immunity
[25] The next question is whether s. 26 of the Act, having been found valid, applies in a situation where it impacts on the federal power over aeronautics. The Attorney General of Canada and COPA argue that it does not. They rely on the doctrine of interjurisdictional immunity, which they submit protects core federal competences from impairment by provincial legislation.
[26] Interjurisdictional immunity was initially developed in the context of federal undertakings (Canadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367 (P.C.)) and federally incorporated companies (see John Deere Plow Co. v. Wharton, [1915] A.C. 330 (P.C.); Great West Saddlery Co. v. The King, [1921] 2 A.C. 91 (P.C.); Attorney‑General for Manitoba v. Attorney‑General for Canada, [1929] A.C. 260 (P.C.)). However, the doctrine was then applied more widely, and was understood to protect a certain minimum content of every federal head of power: Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749, at p. 839; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at p. 18, per Dickson C.J.; Ordon Estate v. Grail, [1998] 3 S.C.R. 437. Following Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, the prevailing view is that the application of interjurisdictional immunity is generally limited to the cores of every legislative head of power already identified in the jurisprudence (paras. 43 and 77).
[27] The first step is to determine whether the provincial law — s. 26 of the Act — trenches on the protected “core” of a federal competence. If it does, the second step is to determine whether the provincial law’s effect on the exercise of the protected federal power is sufficiently serious to invoke the doctrine of interjurisdictional immunity.
(1) Does Section 26 of the Provincial Act Trench on the Protected Core of a Federal Competence?
[28] The jurisprudence establishes that Parliament has power over aeronautics. Because commercial aviation was not foreseen in 1867, aviation is not articulated as a head of power under s. 91 of the Constitution Act, 1867 . However, it has been held to be a matter of national importance and hence supported under the federal POGG power.
[29] The matter was settled in 1951 in Johannesson v. Rural Municipality of West St. Paul, [1952] 1 S.C.R. 292. In five separate opinions, the Supreme Court of Canada unanimously held that Parliament has exclusive jurisdiction to regulate the field of aviation, confirming earlier dicta that aerial navigation is a matter of national interest and importance: In re Regulation and Control of Aeronautics in Canada, [1932] A.C. 54 (P.C.).
[30] Johannesson established that Parliament not only has power over aeronautics, but has exclusive jurisdiction to determine the location of aerodromes. As Estey J. explained, “the aerodrome, as the place of taking off and landing, [is] an essential part of aeronautics and aerial navigation” (p. 319).
[31] This proposition was most recently affirmed in Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R. 581, at para. 72, per Iacobucci J.: the federal aeronautics jurisdiction “encompasses not only the regulation of the operation of aircraft, but also the regulation of the operation of airports”. Elaborating, Iacobucci J. held that this aspect of federal jurisdiction extends to the location and design of airports. See also Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754, at pp. 770-71.
[32] The Attorney General of British Columbia, intervener, conceded that airports come under the POGG power because of their national dimension, but argued that local aerodromes are excluded from POGG because they are not themselves matters of national importance. In support, he noted that the Aeronautics Act distinguishes between aerodromes and airports, and argued that most interprovincial and international flights pass through airports, rather than aerodromes.
[33] This argument cannot prevail. As Kellock J. noted in Johannesson, the local aspects of aviation come under federal jurisdiction because the subject matter of aerial navigation is “non‑severable”. Using the term “airport” interchangeably with “aerodrome”, he held that “just as it is impossible to separate intra‑provincial flying from inter‑provincial flying, the location and regulation of airports cannot be identified with either or separated from aerial navigation as a whole” (p. 314). This view reflects the reality that Canada’s airports and aerodromes constitute a network of landing places that together facilitate air transportation and ensure safety.
[34] It is thus clear that the federal jurisdiction over aeronautics encompasses the power to determine the location of aerodromes. The next question is whether this power lies at the protected core of the federal power.
[35] The test is whether the subject comes within the essential jurisdiction — the “basic, minimum and unassailable content” — of the legislative power in question: Bell Canada, at p. 839; Canadian Western Bank, at para. 50. The core of a federal power is the authority that is absolutely necessary to enable Parliament “to achieve the purpose for which exclusive legislative jurisdiction was conferred”: Canadian Western Bank, at para. 77.
[36] In Canadian Western Bank, Binnie and LeBel JJ. explained that the jurisprudence will frequently serve as a useful guide to identify the core of a federal head of power, and they concluded that interjurisdictional immunity should “in general be reserved for situations already covered by precedent” (para. 77).
[37] Here precedent is available and resolves the issue. This Court has repeatedly and consistently held that the location of aerodromes lies within the core of the federal aeronautics power. In Johannesson, which concerned a municipal by-law that prevented the plaintiff from constructing an aerodrome on the outskirts of Winnipeg, the Court held that the location of aerodromes is an essential and indivisible part of aeronautics. As noted above, Estey J. held that aerodromes are “an essential part of aeronautics and aerial navigation” (p. 319). The location of aerodromes attracts the doctrine of interjurisdictional immunity because it is essential to the federal power, and hence falls within its core: see Canadian Western Bank, at para. 54; Construction Montcalm, at pp. 770‑71; Air Canada, at para. 72; Greater Toronto Airports Authority v. Mississauga (City) (2000), 50 O.R. (3d) 641 (Ont. C.A.); Comox Strathcona (Regional District) v. Hansen, 2005 BCSC 220, [2005] 7 W.W.R. 249; Venchiarutti v. Longhurst (1989), 69 O.R. (2d) 19 (H.C.J.), aff’d (1992), 8 O.R. (3d) 422 (C.A.).
[38] Again in Construction Montcalm this Court held that while some provincial laws will be applicable to airports because they do not impair an essential part of a federal competence, the location of an airport comes within Parliament’s core of exclusive federal jurisdiction: “To decide whether to build an airport and where to build it involves aspects of airport construction which undoubtedly constitute matters of exclusive federal concern” (p. 770 (emphasis added)).
[39] The Province sought to undermine the strength of these precedents on the basis that lower courts have declined to follow Johannesson on two occasions: Re The Queen in Right of British Columbia and Van Gool (1987), 36 D.L.R. (4th) 481 (B.C.C.A.); St‑Louis. This Court’s decision in OPSEU constructively overruled Van Gool: see Hansen, at paras. 21-23. As for St-Louis, I agree with the Quebec Court of Appeal in the companion case of Lacombe v. Sacré-Cœur (Municipalité de), 2008 QCCA 426, [2008] R.J.Q. 598, that it must be rejected because it wrongly held that incidental effects cannot trigger the doctrine of interjurisdictional immunity: see Bell Canada, at p. 842, per Beetz J.
[40] I conclude that the location of aerodromes lies at the core of the federal aeronautics power. Long-standing precedent establishes that where aircraft may take off and land is a matter protected by the doctrine of interjurisdictional immunity. Since s. 26 of the ARPALAA purports to limit where aerodromes can be located, it follows that it trenches on the core of the federal aeronautics power.
[41] The remaining question is whether the impact of s. 26 on the federal power is sufficiently serious to attract the doctrine of interjurisdictional immunity.
(2) Does Section 26 of the Act Unacceptably Interfere With a Federal Competency?
[42] It is not enough that s. 26 of the ARPALAA strike at the heart of a federal competency; it must be shown that this interference is constitutionally unacceptable. This raises the issue of how serious an interference must be to render a provincial law inapplicable.
[43] After a period of inconsistency, it is now settled that the test is whether the provincial law impairs the federal exercise of the core competence: Canadian Western Bank, per Binnie and LeBel JJ. This decision resolved a debate about whether the provincial law must “sterilize” the essential content of a federal power (the language used in Dick v. The Queen, [1985] 2 S.C.R. 309, at pp. 323‑24), or whether it is sufficient that the provincial law “affect” a vital part of the management and operation of the undertaking (Commission du Salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767, at p. 774; Bell Canada, at pp. 859-60). See also Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 955, per Dickson C.J., Lamer J. (as he then was) and Wilson J.
[44] The impairment test established in Canadian Western Bank marks a midpoint between sterilization and mere effects. The move away from the “affects” test of Bell Canada reflects growing resistance to the broad application of interjurisdictional immunity based on modern conceptions of cooperative federalism and a perceived need to promote efficacy over formalism. As Binnie and LeBel JJ. put it in Canadian Western Bank, “[t]he Constitution, though a legal document, serves as a framework for life and for political action within a federal state, in which the courts have rightly observed the importance of co‑operation among government actors to ensure that federalism operates flexibly” (para. 42). (See also Dickson C.J. in OPSEU, at p. 18.) To quote Binnie and LeBel JJ. in Canadian Western Bank:
A broad application [of interjurisdictional immunity] . . . appears inconsistent, as stated, with the flexible federalism that the constitutional doctrines of pith and substance, double aspect and federal paramountcy are designed to promote. . . . It is these doctrines that have proved to be most consistent with contemporary views of Canadian federalism, which recognize that overlapping powers are unavoidable. [para. 42]
[45] “Impairment” is a higher standard than “affects”. It suggests an impact that not only affects the core federal power, but does so in a way that seriously or significantly trammels the federal power. In an era of cooperative, flexible federalism, application of the doctrine of interjurisdictional immunity requires a significant or serious intrusion on the exercise of the federal power. It need not paralyze it, but it must be serious.
[46] The question is whether applying s. 26 of the ARPALAA to prohibit aerodromes would impair the exercise of the core of a federal power, in this case Parliament’s ability to decide when and where aerodromes should be built.
[47] I conclude that the s. 26 prohibition does impair the federal power to decide when and where aerodromes should be built. It prohibits the building of aerodromes in designated agricultural regions unless prior authorization has been obtained from the Commission. As the facts of this case illustrate, 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.
[48] Section 26 of the ARPALAA significantly restricts, or impairs, Parliament’s power to determine where aerodromes may be constructed. Section 26 of the ARPALAA does not sterilize Parliament’s power to legislate on aeronautics; the doctrine of paramountcy would permit Parliament to legislat