December 8, 2016

Supreme Court Federal Jurisdiction update


Supreme Court Federal Jurisdiction update

Donations to Special Action Fund urgently needed

By Kevin Psutka


In June 2008, an article co-authored by COPA’s General Counsel, Dan Cornell and myself explained that the matter of federal jurisdiction over aeronautics is now before the Supreme Court of Canada.

(See the June article at the following link)

Federal jurisdiction goes to Supreme Court of Canada

An appeal by the Province of Quebec challenges two decisions in Quebec that upheld exclusive federal jurisdiction over aeronautics. At the time of writing the previous article, the Supreme Court was considering whether or not to hear the cases. If they decided not to hear the cases, the decisions would stand and our work would be done. However, we recently learned that the Supreme Court will hear both cases and it is expected that this will occur within the next year.

I cannot emphasize enough the importance of these cases for our ability to establish and operate an airport or aerodrome in Canada without interference from the provinces, municipalities or neighbours.

The Quebec government appeal also challenges previous decisions, including a Supreme Court decision in 1952 (Johannesson v. West St Paul) that has been used in several cases since that time to uphold federal jurisdiction. Should the Court allow the appeal and consequently overturn the decisions, it most likely would set the stage for a significant change in the manner in which airports and aerodromes are established or retained. We would likely see many facilities restricted or closed if the appeal is successful.

As if it was timed to illustrate the importance of this issue for our freedom, COPA Manitoba and Nunavut Director Jerry Roehr brought to my attention recently the draft Selkirk and District Development Plan in which they specify guidelines for developing zoning bylaws as they relate to private aerodromes.

In a letter to the Planning Board, I pointed out that the Aeronautics Act and several court cases indicate that any zoning bylaws that their municipalities may pass would be ineffective and I offered to assist the District to amend the proposed Selkirk and District Development Plan to accurately reflect the federal jurisdiction with respect to private aerodromes.

The response from the Planning Board had just been received at the time of writing this article. They stated that although they “do not intend to regulate commercial types of airports like St. Andrews… The intent of the Development Plan is to regulate private landing facilities, and the associated land use issues they raise. These policies will be implemented through the development of municipal zoning by-laws by the Planning District’s member municipalities.”

The response goes on to say that “The Planning District will not remove the policies related to private landing facilities…” as they noted that the matter of federal jurisdiction is before the Supreme Court and they expect to receive further guidance from the Supreme Court.

In other words, they will proceed to permit municipalities to develop whatever by-laws they see fit until such time as the Supreme Court indicates otherwise.

You may be wondering why COPA has to stand up to federal jurisdiction challenges and why the government does not step forward to take up the lead in defending their turf. While we are doing everything we can to have the federal government intervene, COPA has been granted intervener status because we are recognized for having expertise in this area and we will make our case before the Supreme Court in order to ensure that the outcome is favourable to GA.

The success that we have achieved over the years in defending your freedom has been made possible through the proceeds of COPA’s member-funded Special Action Fund. The Supreme Court proceedings will place a severe financial strain on the Fund, which is already at a critical level due to increased demand.

We expect that the Fund will drop well below the $1 million level that we would like to retain as a war chest.

Members are responding to our appeal for donations but the amount coming in so far is not sufficient to sustain the $1 million principal. Without a strong Fund, we would have no power to make good on the goal to defend your freedom.

Please visit our website for more information about how the Fund has been employed to date and then click on the downloadable donation form at the bottom of the page.

There is also a donation form in our newspaper. When you renew your membership, please fill in an amount in the Special Action Fund space. Every donation is important and appreciated. Please help us help you.