The rash of new cellphone towers being built across Canada has led concerned citizens and several municipalities — including Guelph — to speak out against such developments, on the grounds that they devalue property and pose potential safety risks.
The health impacts of the towers have not been widely analyzed in Canada. However, the European Parliament passed a resolution in 2009 that notes in its preamble that wireless technology emits electromagnetic fields “that may have adverse effects on human health.”
Provinces exercise exclusive power over “property and civil rights” under s. 92 (13) of the Constitution Act, 1867, which they can delegate to the municipalities, which have no constitutional status. Since cell towers are a sort of property, it would seemingly appear that provinces have jurisdiction over them. However, telecommunications has been interpreted exclusively as a federal power despite not being enumerated in the Constitution.
In the Supreme Court’s Radio Reference of 1931, a majority of the justices ruled that telecommunications is an exclusive federal power. Justice Robert Smith, for instance, decided that legislation regarding radio technologies does not deal directly with property or civil rights in the province. Since it does not fall under any enumerated ground, most of the justices found that such regulations fall under the federal government’s power, since all powers not specifically enumerated are granted to the federal government under the “residual powers” doctrine. However, two out of the five justices found that Parliament’s jurisdiction was not exclusive, since the “receiving apparatus” is a piece of equipment, or property, that must be erected within the province.
More recently, in the 2007 Ontario Superior Court decision Telus vs. Toronto, Telus challenged a bylaw issued by the municipality of East York that required its council to approve all developments, including telecommunications, within its jurisdiction. Telus argued that telecommunications regulations are a strictly federal matter. The judge agreed, deciding that the bylaw had the potential to “impair, paralyze, or sterilize” the firm’s activities, and so the regulation was ruled not to apply to telecommunications.
While not directly related, a parallel can be drawn to the Supreme Court case of Quebec (Attorney General) vs. Lacombe. In this case, the presence of aerodromes (landing areas for aircraft) on Gobeil Lake in Quebec posed concerns for the citizens of the municipality. Acting on a number of noise complaints raised by its citizens, the municipality passed a regulation prohibiting the operation of aerodromes on the lake. However, the federal Department of Transport had previously authorized aerodromes to be operated within the area.
A constitutional challenge was issued to the bylaw on the grounds that it violated the federal government’s power over aviation. The province argued, however, that the power over property and civil rights justified the encroachment upon the federal aviation power. The Supreme Court decision ultimately found the bylaw unconstitutional, with the majority ruling that it violated the federal power over aviation, and that this right was paramount.
Similarly, in the GST Act Reference, the Supreme Court weighed in on the question of whether the system of federal tax collection infringed upon the Alberta legislature’s property and civil rights powers. The court ultimately found that the GST Act was within Parliament’s jurisdiction. Justice Gérard La Forest stated: “I might add that it is hard to imagine a tax that would not affect property and civil rights.”
The majority decision noted that the sole purpose of the act is to raise revenues, a matter which falls exclusively within Parliament’s jurisdiction. Any effects produced on matters of provincial jurisdiction were noted to be irrelevant.
While telecommunications are a federal power, the Canadian Radio-television and Telecommunications Commission (CRTC) in the past has required applicants for broadcasting licences to comply with municipal regulations. In its 1987 decision 87-376, the CRTC approved the location of a transmitter site conditional upon “evidence that (the applicant) has satisfied the zoning and land use requirements of the municipal authority with respect to the use of that site.”
The Federation of Canadian Municipalities and the Canadian Wireless Telecommunications Association jointly developed a protocol to create a harmonized process to review antenna siting procedures. This includes a requirement to provide notice to communities when a tower is to be built. A number of municipalities have gone further and passed motions against cellphone towers.
Markham, for instance, rejected a cell tower application in May, and has recommended that Industry Canada do the same. Of course, the ultimate decision will rest with the federal department.
Richmond Hill also passed a motion requesting the rejection of a Bell tower in late March.
And in May, Industry Canada gave the green light for the construction by Rogers Communications of a 40-metre telecommunications tower to go up on Gordon Street at Kortright Road in Guelph, despite a public outcry from nearby residents and businesses.
Proponents of increased deference to municipalities also exist in Parliament. Terence Young, the MP for Oakville, spoke in favour of issuing new regulations to allow municipalities to reject proposed cell towers close to homes, schools, health care facilities or daycare centres.
Despite the previous judicial decisions confirming the federal power over telecommunications, municipalities have still attempted to exert their authority within constitutional boundaries. Oakville, for instance, passed a motion requiring a 200-metre distance between cell towers and “sensitive land uses” such as homes. However, Industry Canada said it would overrule the 200-metre setback. Young encouraged Oakville’s councillors to “stick to their guns on this issue and maintain their position on the 200-metre setback” to Ottawa, even if they are overruled in the future.
He is absolutely right. Regardless of the constitutional supremacy of the federal government in this case, municipalities should continue to pass regulations as their constituents desire.
There has clearly been an interest in the issue by citizens in certain municipalities. It is the municipal government that is arguably the most accessible to its constituents and the one best able to advocate on their behalf.
Regulations and rejections of applications by municipalities also act as a message both to Industry Canada and to the telecommunications companies. It can engage citizens who otherwise care little about politics and show them that their local government is heeding their concerns. It may also encourage Industry Canada to reject the application.
Hopefully, Industry Canada will become more receptive to the concerns of local communities in making its final decisions, even though it is not constitutionally bound to do so.