Whose right is it anyway?

Greetings friends,

I know recently there have been questions regarding the rights of municipalities in relation to federal government mandates.  I want to answer these questions regarding municipal rights and federal rights; recognition of municipalities by provincial and federal levels of government; issues that arise from not being recognized by the federal government; and why this affects you.

Municipal land rights and federal land rights

Municipalities and the federal government have an unusual relationship. They need each other but sometimes act at odds since the interests of one may not the interests of the other.  Federal paramountcy laws and the doctrine of inter-jurisdictional immunity makes the federal government, and its agencies and Crown corporations, often look like the aggressor in its relationship with municipalities regarding land use. The federal government has the right to propose land use, choose the location for building, and consider if local community involvement will be sought; it does not have to consider the impact of its choices on the surrounding community. The municipality has the right to challenge these land use claims but it must show that this development will severely impact the city or goes against provincial or federal laws which fall outside of inter-jurisdictional immunity or paramountcy laws.

 Municipalities recognition by Federal and Provincial

Under the Constitution Act 1982 municipalities are not recognized as a level of government. Therefore, as far as the federal government is concerned the municipalities are solely the responsibility of the provinces in which they reside and has cited this as to why federal legislation does not recognize the role municipalities play. This applies even in provinces such as British Columbia and Ontario which have statutorily recognized municipalities as levels of government which are responsible for matters in their jurisdictions.

 Issues that arise from not being recognised by the federal government

Because the federal government does not have to recognize this creates tension between municipality interests and federal interests when their responsibilities overlap. Such is the case with the federal government, Canada Post, and municipalities. Postal service is a federal responsibility, as such an agency was established via legislation by the federal government to oversee the delivery of mail: Canada Post. This is a crown corporation which has all the rights under section 16 of the Canada Post Corporations Act, 1985, of a natural person including the power to acquire, hold, lease, sell, or dispose of real or personal property. It is important to note that, “there is no provision for municipal representation on [Canada Post’s] Board of Directors” even though “regulations authorized by the [Canada Post Corporations Act, 1985] will affect municipal property by allowing for the placement of Canada Post receptacles within road allowances and/or other municipal properties” (Bench, M., 2007, p. 8) and yet municipalities can do very little to circumvent this in court.

Essentially, at best, federal legislation may require that the federal government, agency or crown corporation engage in public consultation; or allow the municipality to nominate a person whom will sit as director of the project; or take into account the current surrounding land usage when building the project. At worst, they can steamroll the municipality because they have that right as set by legislation.

 

Why should you care?

Much of these seems like too much legal manoeuvring or too abstract to really matter. But it does matter, and here’s why you should care.

  1. Economic impact –

Federal agencies and entities have a far-reaching effect on the local economy and community. They can enable career opportunities or cause economic instability but it all depends on how well they research and know the community they are building in. Municipal governments are more in touch with the commercial and economic heartbeat of their area and know the needs and priorities of the people living there, which means the federal agency’s project would benefit from real communication with municipal officials.

 

  1. Land Use –

Plans by the federal government should take into account the effects their developments will have on the surrounding community. Federal legislation says they do not have to, which affects your quality of life if you live beside or near a new federal land use change. Usually developers have to concede to municipal zoning and land use and get permission from the municipal government to build, not so with federal agencies which can build anything from airports to military bases.

 

  1. Environmental Impact –

In the event of an environmental disaster or contamination leak from a federal property, the federal government/agency which owns the property has no legal obligation to inform the municipality that anything has occurred. This is also applies to air quality and noise control.

 

  1. Payments in Lieu of Taxes –

The Payments in Lieu of Taxes Act, 1985, enacted in 2000, was supposed to provide a steady payment system between federal facilities and municipalities and ensure that the federal government pay equivalent property taxes to the municipality. Instead, problems/loopholes in the legislation allow federal agencies bypass paying taxes and allowed them to set their own assessments of the value of the land they own thereby pay far less than the fair market value of the land (Bench, 2007).

 

  1. Emergency Services –

While some federal agencies provide their own emergency services (e.g. Some military bases, airport authorities, port authorities, etc.) others rely extensively on the local municipality to provide their emergency support. In Ontario, according to the Fire Protection and Prevention Act, 1997, municipalities are legally obligated to provide fire response services on federally held lands, even though the holder of those lands do not pay fair property taxes which is how municipal emergency response units are funded (as per the previous section). In order to circumvent being held liable, municipalities have had to enter ‘service provision agreements’ and in only some cases have been able to negotiate a compensation clause.

 

References

Bench, M. E. (2007). How Municipalities Deal with Federal Agencies Located Within Their Boundary. pp 1-86. Retrieved from https://www.cba.org/abc/sections_municipal_f/pdf/Bench%20-%20Federal%20PILTS.pdf

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