Provincial Agricultural Land Use Regulations and Airport Lands – an Overview and Case Update
In Canada, split jurisdiction between provincial and federal governments has long been the subject of conflict and compromise. Questions over the applicability of their respective laws and regulations have served as the basis for many court cases stretching back to Confederation.
The Canadian federal government has exclusive constitutional jurisdiction over aeronautics[1], postal services, shipping, and telecommunications. Provincial governments control property and civil rights, including the designation of land for particular use[2]. One of the more contentious issues has been the applicability of provincial land use regulations to what are constitutionally federal undertakings, such as airports.
If you’re looking for a quick overview:
Key Constitutional Doctrines
As the Supreme Court of Canada (SCC) has emphasized, these jurisdictions are not watertight. Conflicts are inevitable, and over time, the SCC has developed legal frameworks to resolve them, including paramountcy and interjurisdictional immunity.
Paramountcy: This doctrine applies when there is a direct conflict between federal and provincial laws, making it impossible to comply with both, or when a provincial law frustrates the purpose of a federal law.
Interjurisdictional Immunity: This doctrine applies when a law of one level of government impairs the core of the other’s exclusive powers. It is applied narrowly and only in situations where provincial legislation would impair the core of a federal power, or vice versa.
The Leading Case: COPA
A pivotal case in this area is Quebec (Attorney General) v. Canadian Owners and Pilots Association (2010), also known as COPA. This case concerned a privately owned, federally registered aerodrome in Quebec, which had been ordered by the Quebec Commission for the Protection of Agricultural Land to remove structures built on provincially designated agricultural land.
The SCC held that the federal aeronautics power includes the authority to determine where aerodromes are located. Provincial land use designations that effectively restrict that power are inoperable to the extent of the conflict under interjurisdictional immunity.
COPA clarified that airports and their supporting infrastructure are integral to federal aeronautics powers. Even buildings with mixed or accessory uses fall under this protection.
Post-COPA
While COPA confirmed the application of interjurisdictional immunity to relieve federal undertakings of the obligation to comply with local and provincial zoning laws, the scope of what constitutes a federal undertaking under its aeronautics power remained to be fully delineated.
In the years since, the court has continued to clarify the scope of federal powers in determining whether provincial legislation impairs the core of the federal power over aeronautics. The Court has made clear that integral to this federal power are airports themselves and all supporting activities, without distinction between ground and airside land. Non-aviation activities are protected if they are an ‘accessory use’ subordinate to the main aviation use. Activities with no connection to the airport’s operations would likely fall outside federal protection.
Recent Case: Zhang v Nanaimo Airport Commission
IIn October 2024, a significant court decision provided further reinforcement for the applicability of interjurisdictional immunity in the context of provincial agricultural land zoning interfering with the federal powers over aeronautics[4].
This decision, favoring the Nanaimo Airport Commission (NAC) for which Avra Law advised[5], highlighted that interjurisdictional immunity prevents provincial land use restrictions from interfering with the operation of aerodromes and their supporting infrastructure, this time in relation to an easement.
Background:
Zhang owned property near the Nanaimo Airport, designated as Agricultural Land Reserve (ALR).
An easement granted in 2007 allowed NAC to install and maintain navigational lighting and other airport-related uses.
In 2023, NAC sought to exercise rights under this easement. Zhang petitioned to cancel it, claiming the ALR designation invalidated the easement.
Key Legal Question
The key question was whether the BC Agricultural Land Commission Act (ALCA) could nullify an easement registered under the BC Property Law Act (PLA) on the grounds that it conflicted with provincial agricultural land use rules, or whether the constitutional doctrine of interjurisdictional immunity meant that federal aeronautics powers took precedence over the provincial land-use designation.
Court's Decision
In its decision the Court, in applying the doctrine of Interjurisdictional Immunity, concluded that the easement was not subject to BC ALCA. The court referenced the precedent set by the Supreme Court of Canada in COPA, which deals with conflicts between agricultural reserve designations and federal aeronautics powers. The court affirmed that interjurisdictional immunity generally only applies in situations covered by precedent, providing additional clarity for aerodrome operators as Zhang adds to a growing list of precedents.
The case also highlighted a practical trend: provincial regulators are increasingly recognizing interjurisdictional immunity. In this instance, the BC Agricultural Land Commission acknowledged that “federally-regulated activities by the airport took precedence”, even on ALR land.
Practical Takeaways
Clarity: Provincial land-use regulations will generally yield to federal aeronautics powers for aerodrome-related purposes.
Caution at the Margins: Activities tangential or unrelated to aviation may still trigger provincial regulation. Seek legal advice if you’re considering expanding these activities.
Regulator Relations: Maintaining active, courteous interactions with provincial authorities, even when legally unnecessary, can be a beneficial strategy.
Conclusion
The evolving legal discourse on the applicability of provincial land use regulations to federal undertakings, particularly in aeronautics, highlights the complex interplay between federal and provincial jurisdictions in Canada. The Supreme Court of Canada’s doctrine of interjurisdictional immunity provides a key framework for resolving these conflicts. It ensures that federal powers, especially those related to aeronautics, are protected from provincial interference. Landmark decisions such as COPA and Zhang continue to define the scope of these doctrines and provide clarity and guidance for aerodrome operators, reinforcing the primacy of broad and exclusive federal jurisdiction over aeronautic matters.
Disclaimer: This post is for general information only and isn’t legal advice. For advice about your situation, please consult a qualified lawyer.
[1] Johannesson v. Municipality of West St. Paul [1952] 1 SCR 292.
[2] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 92(13), reprinted in RSC 1985.
[3] Quebec (Attorney General) v. Canadian Owners and Pilots Association, [2010] 2 SCR 536.
[4] Zhang v Nanaimo Airport Commission, 2024 BCSC 2061.
[5] The NAC was represented during the litigation by Hunter Litigation Chambers, with Avra Law providing expert advice.