Guelph Mercury

Municipalities fighting good fight on cell tower locations

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.

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