Volk Aerodrome Landfill Part III: Look Who’s Afraid of the Big Bad Wolf

Who’s afraid of the Big Bad Wolf?  The Big Bad Wolf?  The Big Bad Wolf? Who’s afraid of the Big Bad Wolf? Tra la la la la.

Yesterday’s New Tecumseth Council meeting was unfortunately what I had expected – and disappointing.

As has become typical for my blog posts on this issue, there’s lots to read and lots to discuss.  At the top here I summarize the key facts, issues and questions.  For those of you who really want to dig in, keep on reading!  And do please comment at the very bottom of this post.

The skinny on Monday’s discussion and eventual passed resolution on the matter is this:

New Tech Council blinked.

They aren’t willing to bet the bank they can assert their regulatory authority over landfill, in the face of only one lower court decision (Scugog) that (in obiter dicta) ruled against the Federal Government’s jurisdictional authority over regulating the manner in which site alteration is performed.

The loud clapping following David Francis’ excellent deputation (that, in essence, characterized this operation as a de facto land fill operation as opposed to an aerodrome expansion) was followed later with a room full of silent attendees following Council’s slightly modified approval of the Staff’ recommendation.

I can’t say I blame Council for its timidness:

- Palmisano’s lawyer has repeatedly made the threat to sue for lost revenues.  And this operation makes LOTS of revenues from fill.

- The Scugog case is a lower court decision that may be distinguished on some key facts.

- Other jurisprudence that deals with Transport Canada’s jurisdictional authority is quite strong:  The Feds trump all, whether it be for aerodrome operation or construction.

But it is clear to me, perfectly clear, that Scugog established that fill operations on an aerodrome are not within Federal authority.  Why?  Because the Federal Minister of Transport, Chuck Strahl, said so in a letter to John O’Toole, Ontario MPP with regard to Scugog on January 26, 2011.  I quote:

“The Aeronautics Act relates to safety, security and land-use zoning.  Neither the Governor in Council nor the Minister of Transport has authority under the Act to regulate an aerodrome operator with respect to the use or movement of soil/fill unless the soil/fill has an impact on the safety or security of aeronautics”.

In the following paragraph he states that alleged contaminated soil in and of itself does not give the Minister of Transport to take action. “unless it has an impact on the safety or security of aeronautics”.  Thank you Minister of Transport.

And thank you to M.P. Simcoe-Grey, Kellie Leitch, for writing to the Tecumseth Pines Owner’s Association (click to download here). In it she clearly points the issue back to the municipality.

So while New Tecumseth can repeatedly request involvement, clarification, and even exercising authority from Transport Canada (in other words: point the issue back), they have all they need.  Municipalities can regulate fill on aerodromes so long as it doesn’t impact the aerodrome’s safety or security. Clearly neither the concerned citizens nor the Town is seeking to do that. Most importantly, nor do they desire to prevent the facility’s expansion plans.

This disappointing decision by Council smacks of being bullied by a “big bad wolf”.

That is, a well financed fill-operator-come-aerodrome-operator that has very smartly learned to exploit a gap in Federal, Provincial and Municipal jurisdictional authority.

... but not for long. MTO is set to re-open access next week.

What happens now?

MTO is expected to have its issues with traffic resolved within a week, with the potential for the site entrance to open up late next week (essentially 300 trucks/day with restricted hours and mandatory paid duty police and paved entrance way to assist in dirt control).

If there is any hope at all that the site will be properly evaluated and monitored for fill, it’s this:

- The MOE had their Regional Hydrogeologist visited the site. He is preparing comments that will be released to the Town by next week.

- Soil analytical reports have been provided to the MOE and are bring reviewed by staff in the Barrie MOE office.  Copies of the soil analytical reports will be forwarded to the Town.

If these reports show there has been contaminated fill deposited at the site and/or that the water table(s) has or will be negatively effected, municipalities do have powers recognized by the Supreme court to deal with issues that effect the health and well being of their citizens. If the MOE samples identify contaminants that effect human health and it is affecting the surrounding community then there could be a case.

Don’t Be Afraid of the Big Bad Wolf.

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Here I describe in more detail the events and discussion at the meeting. Please read my discussion following where I pose some thought-provoking, forward-looking questions, seeing that at present, Federal authority seems to rule supreme over aerodromes.

Click here to download the Staff recommendation here.

The report includes a fairly detailed analysis from the Staff’s legal counsel summarizing the Canadian jurisprudence with regard to federal authority over aerodrome and airport operation and construction.

The staff report is well written and summarizes their position very well. The Staff recommendation that was passed, modified slightly by Council, is that:

“…staff and the Town Solicitor continue to work with the property owner and its solicitor and the Provincial agencies to ensure that matters within the Town’s Site Alteration and Fill By-law are addressed to the satisfaction of the Town”.

The modification was at the request of one Councillor to include verbiage to express Council’s desire for the Federal Government (Transport Canada specifically) to exercise its authority over the aerodrome facility.

Staff legal counsel researched the jurisprudence of cases covering the jurisdictional challenge of the Federal legislation. Mr. Feeley said it’s undetermined how a court case would turn out:

1) The Scugog case is the only one where the court determined there is room for the Municipality’s fill bylaw to be effective.   But as he points out, the owner was not adding fill to an existing aerodrome.  And he only announced he was building one following being challenged on the quality of fill being dumped (the owner actually had a fill permit from the municipality).

2) The Scugog judgment is from a low court; the jurisprudence that reinforces the control of the Federal Government is from high courts.

Staff counsel recommended working with the owners to deliver voluntary adherence to the by-law, for in essence asking a court for an injunction is far too risky, given these facts.

The Town CAO specifically commented on the Moraine Act, verbally and in the report:  While the Act can’t prevent fill, it can restrict it. However, as it’s Provincial legislation, under the argument that the jurisprudence establishes complete Federal authority over aerodromes and aerodrome construction, the Moraine Act is of no effect here.

This all said, the MOE had their Regional Hydrogeologist visit the site. He is preparing comments that will be released to the Town by next week. Also, soil analytical reports have been provided to the MOE and are bring reviewed by staff in the Barrie MOE office.  Copies of the soil analytical reports will be forwarded to the Town.

MTO is expected to have its issues with traffic resolved within a week, with the potential for the site entrance to open up late next week (essentially 300 trucks/day with restricted hours and mandatory paid duty police and paved entrance way to assist in dirt control).

Disappointing to be sure: I had expected and hoped that with New Tecumseth Council’s “wake up call” to its responsibilities to enforce its land fill bylaw, Building Code and Moraine Act, that they would have rules in favour of seeking a court injunction to halt the operation until the owner can submit to both the fill and building permit processes. (Click here for New Tecumseth’s Land Fill By-law)

There were actually some good Council comments and questions. Most prominently, which resulted in the modified recommendation, is that if the Federal Government had complete jurisdiction over all of these activities, where are they? They need to regulate and in fact they are doing nothing. In fact, they don’t require anything until an aerodrome owner decides to update their registration (as with a new landing strip).

However, as I describe in some detail in the introduction to this post: Despite Transport Canada’s silence, New Tecumseth has all it needs to substantiate its authority in this circumstance.

What happens if Federal jurisdiction remains complete?

I really don’t know exactly where this will go. But this aerodrome loophole is allowing fill operators to avoid the Moraine Act, the Building Code, or any municipal Fill Bylaw, simply by “expanding” an existing aerodrome operation. All they need to do is announce their intent; they need not register with Transport Canada.   And in this case, Transport Canada has so far not been directly cooperative in helping fine-tune these jurisdictional issues.

So if we assume the status quo prevails, let’s try to imagine how Tecumseth Pines residents seek redress to ensure soil safety, water table stability and if there are damages to either, damages:

- If the Federal Government has complete control over what appears to be all activities on aerodromes, then aren’t they open for all kinds of liability if they don’t actively regulate these activities, as if they have the conscience of a municipality?

- Building codes don’t apply; Moraine Act doesn’t apply; Conservation authority legislation doesn’t apply.

Is this not a license for public endangerment?  

- If so, Tecumseth Pines, if it has deep enough pockets, could, or should, sue Transport Canada in tort. For damages and negligence.

- Is this the only remedy here?  It seems so.  And it won’t happen.

- And Transport Canada, so far, has not directly weighed in to clear the air.

Here’s the worst:  Scugog and now, this Volk case, are establishing that so long as a fill operator can reasonably show that he is developing an aerodrome (whether in fact he is or not) ANYBODY can tell a municipality he is developing one, so hands off.  Transport Canada doesn’t need to be notified of the apparent plan – only once facilities have been upgraded and it’s license and listing are upgraded.

This cannot continue – I don’t know how, but this must be fixed.

More:

Volk Aerodrome Landfill Part II:  New Tecumseth has woken up

Volk Aerodrome Landfill Part I:  Why municipalities need to wake up