A question of jurisdiction

In Canada, public and private aerodromes are a matter of federal jurisdiction — which means that, while local and provincial authorities may have input into aerodrome construction, they don’t have the power to halt it. Now, however, that jurisdiction is being called into question, with potentially far-reaching changes for the country’s aviation sector.

That’s according to the Canadian Owners and Pilots Association (COPA), which is sounding the alarm over two new developments that, it claims, could undermine federal jurisdiction over aerodromes. One of these developments is a recently announced rulemaking project that would require the proponent of an aerodrome to conduct consultations with affected communities and local land use authorities, prior to aerodrome construction. The other is a Dec. 18, 2013, Transport Canada advisory circular (AC) that urges aerodrome proponents to comply with all applicable provincial legislation and municipal by-laws, but in language that COPA president Kevin Psutka said is “ill-advised” and bodes poorly for the regulatory changes to come.

“The issue that’s at play here is federal jurisdiction,” Psutka told Canadian Skies. “It’s the [federal] government’s obligation and their right to exclusively govern aviation in the country.” He said the ambiguous language in the AC suggests an abdication of that responsibility, which could result in “tremendous damage” for the aviation sector if similar ambiguity makes it into law. “If they [Transport Canada] don’t get the words right, they will destroy the airport infrastructure in this country. They would do untold damage as the lawyers take over,” he said.

Transport Canada’s rulemaking project is outlined in a Jan. 6, 2014, Preliminary Issue and Consultation Assessment (PICA), which identifies a “lack of consultation requirements on aerodrome matters” that it says is “contrary to true participatory decision making.” According to the PICA, Transport Canada has been receiving an increasing number of challenges pertaining to the construction and operation of certified and non-certified aerodromes, including complaints about noise, location and land use from local authorities and members of the public who are requesting federal intervention. In response, the agency is proposing regulations that would “strengthen the public’s awareness and involvement in aerodrome construction projects.”

Psutka stressed that his organization is not opposed to such consultations on principle. “In fact, our Guide to Private Aerodromes encourages aerodrome owners to meet with local authorities and the public to minimize misunderstanding and fear,” he wrote in a Jan. 15 letter to Transport Canada Regulatory Affairs chief Marie-Anne Dromaguet. He expressed concern, however, that Transport Canada’s regulatory changes could give local authorities the power to block aerodrome development in a way that is detrimental to aviation safety and commerce — in contrast to the current permissive environment, which gives Canadians the right to establish an aerodrome and make improvements to it, subject only to federal regulations.

“Any proposal which requires provincial, municipal or local land-use authority authorization or approval for the ‘construction and operation’ of aerodromes is not merely a minor tweaking of current regulations, but is a fundamental change,” Psutka wrote, adding, “The core aspects of aeronautics must be broad enough to permit aerodrome owners to develop an aerodrome without interference from those who have no appreciation of aviation or have anti-aviation agendas.”

Of course, rulemaking is a lengthy process, and it could be years before actual regulatory changes take shape. Consequently, it is difficult to say exactly how the changes will affect the Canadian aviation industry. However, Psutka said the Dec. 18 AC provides reasons to be worried.

While the AC recognizes that Canada’s federal government has jurisdiction over aerodromes through the Aeronautics Act, it states, “For those structures or activities that are determined not to be integral to aviation, it is expected that the proponent of an aerodrome comply with all applicable provincial legislation and municipal by-laws” (emphasis original). For Psutka, the devil is in the details. He suggested that the interpretation of an aerodrome provided in the Dec. 18 AC “is very narrow and can be used in support of local jurisdiction over hangars,” conceivably allowing local authorities to exert pressure on aerodrome proponents and aircraft owners by denying them building permits. Moreover, he said, the AC appears to compromise federal jurisdiction over aerodromes by stating that questions over jurisdictional issues should be referred to a lawyer, rather than to Transport Canada.

“If Transport Canada relinquishes the role of arbitrator or decision-maker, the fate of many aerodromes and indeed the aerodrome system will be in the hands of lawyers,” he wrote in his letter to Dromaguet. “Those with the financial means will likely win and those who cannot afford to fight will lose.”

Psutka also objected to Transport Canada’s decision to forgo a focus group for the aerodrome rulemaking project, which the agency justified on the grounds that “the subject matter is not technical in nature and subject matter expertise is internal to Transport Canada.” 

Transport Canada told Skies that it has been proceeding in accordance with its Canadian Aviation Regulatory Advisory Council (CARAC) process, which is “committed to the early assessment and identification of expected impacts of regulatory projects in an effort to streamline the rulemaking process and to focus resources where required.”

As part of that process, the agency said, it held a series of pre-consultation sessions with industry stakeholders in December 2013, prior to the posting of the PICA. In his letter to Dromaguet, however, Psutka questioned “why the PICA was issued so soon, drawing the conclusion that a focus group is not required, when several key stakeholders had not been contacted.” He suggested that Transport Canada may have already decided that “there will be relatively little consultation on what COPA and likely others believe is a significant shift in policy with consequent negative impact on aviation.”

In response to questions from Skies, Transport Canada stated, “Although a focus group will not be convened for this particular project, the department has taken steps to ensure stakeholders have an opportunity to provide input.” In addition to extending the comment period on the PICA to provide additional time for stakeholders to comment on it, Transport Canada said it will schedule an industry consultation session in February to permit more comprehensive discussions on the proposed regulation. Following the February meeting, the proposed regulation will follow the CARAC process with the online publication of the notice of proposed amendment, which will provide another opportunity for industry stakeholders to provide comment.

Despite these assurances, Psutka responded, “It is apparent that Transport Canada does not appreciate the extent that the proposal will affect aviation. COPA welcomes the February session, but we will advocate for a focus group and strongly urge other affected industry partners to do so.”

To read AC-300-009E on the Transport Canada website, click here.

The PICA for the rulemaking project can be found here.

COPA’s written response to it, here