Constitutional Law – Division of Powers –
This case concerns an aerodrome built by two private citizens on
lands zoned "agricultural" in Québec. The Province
argued that the placement of the aerodrome at issue violated its
planning law, namely that land designated "agricultural"
by the Province had to be used for that purpose, subject to prior
authorization from a provincial board for other uses.
The Court applied the doctrine of interjurisdictional immunity,
even though the doctrine received much theoretical diminishment by
the Court in Canadian Western Bank v. Alberta, 2007 SCC
22. Interjurisdictional immunity may render an otherwise valid
provincial law inapplicable as the effects of its application
entrench on the core of a protected power within Parliament's
jurisdiction. The test is whether the impugned law comes within the
"basic, minimum and unassailable content", or essential
jurisdiction, of the legislative power in question.
The Majority found that the provincial laws designating
agricultural land were in pith and substance intra vires
provincial jurisdiction, by virtue of ss. 92(13), (16) and 95 of
the Constitution Act, 1867, but that the incidental
effects of its application impaired the well-established
"core" of the federal jurisdiction over aeronautics under
the POGG power, which has been identified in Supreme Court
jurisprudence to include the ability to determine the location of
airports and aerodromes. The provincial law was therefore deemed
inapplicable, by virtue of the doctrine of interjurisdictional
immunity, to the extent that it prohibits aerodromes on lands zoned
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