On June 16, 2016, the Supreme Court of Canada decided a municipality’s “notice of reserve”, a mechanism to prevent construction, on land on which a telco wanted build a new radiocommunication antenna, is unconstitutional. Practically, telcos are required to consult with municipalities and land authorities when deciding where to site radiocommunication antennas; but radio towers are ultimately about radiocommunications – and the legal authority to decide where they are sited ultimately rests with the federal government. A municipality can’t use its development and land use planning authority to prevent, block or dictate that authority. Courts have indicated they will give municipalities latitude when interpreting the parameters of their authority, but this decision signals that latitude doesn’t extend to municipal authority that doesn’t exist. Municipalities and local governments should be mindful of the parameters of their authority, and increase their due diligence efforts around projects that occur within municipal boundaries – but over which they have no legal authority.
Here are three practical take-aways for municipalities and local governments.
- Telecommunications. Narrowly, a municipality can’t use its development and land use planning authority to prevent, block or dictate the location of telecommunications towers that a spectrum licence holder (effectively, a telco) wants to construct: the federal agency of Industry Canada ultimately governs the locating of such structures according to federal legislation.
- Parameters of Power. More broadly, this decision illustrates the tension between the increasing scope of municipal responsibilities and the parameters of municipal powers. Traditionally, municipalities have been constrained by a rigid interpretation of the parameters of their powers. More recently, courts have taken an approach to interpreting those powers variously described as generous, benevolent and flexible – but this case (and others) signal that approach doesn’t extent to create power that doesn’t exist in the first place. This applies to the parameters of municipal powers both vis-a-vis provincial and federal authority, and in the context of a variety of types of developments; for example, in the NS Court of Appeals’ 2015 decision in Northern Construction Enterprises Inc. v. Halifax (Regional Municipality), it was provincial authority and a quarry. And this decision will likely also affect other types of developments, such as some pipelines.
- Proactive Approach. Municipal and local governments should be well-versed in federal and provincial public consultation processes in areas over which those levels of government have exclusive power and be proactive in ensuring their citizens’ voices and concerns are heard and addressed through the appropriate process. They and their communities should also take proactive approaches to identifying and addressing issues of general welfare: seeking to impose restrictions in reaction to a proposed development will raise the question whether they are being enacted in bad faith.
In Rogers Communications Inc. v. Châteauguay (City), Rogers identified a site for a new antenna in the city of Châteauguay, QC. Rogers consulted the city on the site. The city initially raised concerns about non-conformity with zoning by-laws, aesthetics, and health and safety of the local population, but ultimately issued Rogers a construction permit to move ahead with the project. But public opposition ensued; the city revisited the public consultation requirements and reverted to its initial position opposing the development at the site. Throughout the debate, the city encouraged Rogers to build the new antenna at an alternate site that a third party owned and that appeared equally capable of hosting the antenna. The city began expropriation proceedings of the alternate site, but the process was delayed when the owner opposed the expropriation. Rogers went to Industry Canada, the federal agency charged with siting radiocommunications towers, seeking ministerial intervention to break the impasse. Industry Canada confirmed Rogers had satisfied its regulatory requirements and could proceed with building the antenna at the site it initially selected. But the city issued a “notice of land reserve” on the site, preventing the intended construction on the property. Rogers contested the notice of reserve. The lower court decided the city acted in bad faith and had abused its authority in making the notice. The city appealed; the Court of Appeal disagreed with the lower court, deciding the city acted for the legitimate municipal purposes of addressing the health and safety concerns of its citizens and to ensure the harmonious development of its territory. Rogers appealed to the Supreme Court of Canada – and won:
- Federal Power. Under Canada’s Constitution, radiocommunications, including the siting of antennas, is within the federal government’s exclusive power. Canada’s Radiocommunication Act grants a federal agency (Industry Canada) the authority to decide on the siting of radiocommunication antennas to ensure the operation and integrity of cellular telecommunication networks. Industry Canada has delegated the siting to operators, which must consult with municipalities and other land authorities to determine appropriate sites for new antennas. But if there’s no consensus, the federal Minister retains authority to make a final decision.
- Pith & Substance. The pith and substance of the city’s notice of reserve was the radiocommunication antenna’s location, not its citizens’ health and welfare or land use and development, because the city issued the notice in reaction to Industry Canada’s approval to Rogers’ request. The court will be “flexible and generous” in its interpretation of municipal measures – but not past the point that the measure’s pith and substance significantly restricts a power that’s exclusively federal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.