Quebec passed otherwise valid land use law which purported to restrict the placement of aerodromes or airfields. The Court held this to be an improper trenching on federal power.
By virtue of the doctrine of interjurisdictional immunity the Quebec legislation 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.
The Court writes:
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. 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 Beetz 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.
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[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).
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[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.
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[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., [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.
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