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By Peter Menyasz
June 21 — Canada's top court has upheld the federal government's constitutional power to regulate telecommunications infrastructure, reassuring wireless companies that federal approvals can't be thwarted by local governments.
The Supreme Court of Canada's rejection of a Quebec city's community's effort to block construction of a cellular telephone antenna approved by federal regulators confirms exclusive federal jurisdiction over telecommunications policy, legal experts say (Rogers Communications Inc. v. City of Chateauguay, Supreme Court of Canada, No. 36027, 06/16/16).
There is nothing new about federal control over telecommunications, but the ruling clarifies that municipalities cannot interfere with the placement of essential communications infrastructure, regardless of local interests, Casey Chisick, a partner in the Toronto office of Cassels Brock & Blackwell LLP, said June 21.
“It will cause the telecom industry to breathe a sigh of relief,” Chisick told Bloomberg BNA in an email. “It will make it easier for companies to plan their networks with confidence.”
The ruling pitted the relatively unsexy legal principle of the constitutional division of powers in Canada against the health and welfare of Chateauguay's residents, he said. The court recognized that the municipality's action, whatever the reasons, blocked Rogers from building the antenna, which wasn't acceptable from a constitutional perspective, he said.
Leslie Mitton, a partner in the Ottawa office of Fasken Martineau DuMoulin LLP, agreed June 21 that the Supreme Court's decision to hear the case, and its ruling, confirm the supremacy of the federal power over radiocommunication.
That principle is well known, but there has been considerable local concern over the siting of radiocommunication equipment and some “aggressive” actions by municipal governments to try to block construction of towers, Mitton told Bloomberg BNA.
“It's very important to have a decision by the Supreme Court,” she said.
The federal policy on siting radio towers includes a requirement for consultation with local authorities, but communities that oppose the facilities have tried to block them, she said. The Supreme Court upheld June 16, in an 8-1 ruling. the approval granted by Industry Canada for national wireless provider Rogers Communications Inc. to build an antenna system in Chateauguay, Quebec. It overturned a ruling by the Quebec Court of Appeal that upheld the municipal government's passage of a resolution blocking the project based on concerns over the health of nearby residents.
“Even if this measure addressed health concerns raised by certain residents, the fact remains that it would constitute a usurpation of the federal power over radiocommunication,” Justices Richard Wagner and Suzanne Cote said in writing the majority ruling.
“The siting of antenna systems is part of the core of the federal power over radiocommunication,” the court said, “any other conclusion would make it impossible for Parliament to achieve the purpose for which this power was conferred on it.”
The ruling is a win for Canadian consumers in having access to the fastest wireless speeds and best connections possible, David Watt, senior vice-president, regulatory, with Rogers Communications, said June 20. “We appreciate the decision and will always respect the communities we invest and operate in, meeting and beating health and environmental standards,” Watt told Bloomberg BNA in an e-mailed statement.
The situation is also governed by the interjurisdictional immunity doctrine, based on a precedent set in a 1905 decision in Toronto Corporation v. Bell Telephone Co. of Canada that found siting of telecommunications infrastructure was covered by the federal communications power, the ruling said.
“It is the appropriate and specific siting of antenna systems that ensures the orderly development and efficient operation of radiocommunication in Canada,” it said.
In a dissenting opinion, Justice Clement Gascon agreed the municipality couldn't override federal authority to approve the tower, but argued the current environment of “cooperative federalism” between Canada's various levels of government suggests that consideration must be given to lower governments' concerns, such as health and welfare.”
To contact the reporter on this story: Peter Menyasz in Ottawa at firstname.lastname@example.org
The ruling is available at http://bit.ly/1sKXL6y.
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