ASD 2003-009: 2003.10.15
Aerodrome Certification based on "public interest" grounds.
The purpose of this directive is to provide guidance on the considerations to apply and procedures to follow when considering an application for the certification of an aerodrome on "public interest" grounds.
CAR 302.01(1)(c) provides for the certification of an aerodrome where the Minister is of the opinion that meeting the requirements necessary for the issuance of an airport certificate would be in the public interest and would further the safe operation of an aerodrome.
Since certification should always further the safe operation of an aerodrome, the application of CAR 302.01(1)(c) is dependent on the Minister being satisfied that certification would be in the "public interest".
As explained in Civil Aviation Directive No. 1, the concept of "public interest" has no fixed meaning in law and depends on the facts of and circumstances surrounding the particular application. What is clear is that the simple "private" interests of the aerodrome owner/operator seeking certification are not sufficient in themselves to meet the "public interest" test. The Minister has to consider a broad range of factors, consistent with his general responsibilities and authorities for aeronautics, including aerodrome activities, under the Aeronautics Act.1
1In its current form, the Aeronautics Act provides that the Minister responsible for the development and regulation of aeronautics and the supervision of all matters connected with aeronautics. The safety of air transportation has always been considered paramount in this regard. The Aeronautics Act is currently under review and is expected to be amended to state in more specific terms what the objectives of the Act, and the Minister’s corresponding liabilities are.
The attached procedures (Appendix “A”) and guidance material (Appendix “B”) are to be applied when an application is made for the certification of an aerodrome, based on public interest grounds.
The issuance of an airport certificate on public interest grounds will only be considered by Transport Canada, based on an application made by;
the aerodrome owner/operator; or
Transport Canada, Aerodrome Safety.
Note: An aerodrome with a control tower will require certification based on the grounds of public interest.
It is the responsibility of the applicant to provide evidence that certification would be in the public interest. In this regard, the applicant needs to follow a documented process for obtaining the input of all potentially affected stakeholders, including:
the local governments(s)/land use authority(ies);
aerodrome users and service providers;
other aerodrome and airport operators in the vicinity of the aerodrome;
the local business community;
local homeowner association(s);
the affected public at large; and
the aerodrome operator where the process has been initiated by Transport Canada.
The application needs to set out:
why the current facilities (certified and uncertified) are inadequate, in terms of providing for and supporting economic and efficient air services;
anticipated economic impacts on the aerodrome that would result from its certification;
anticipated economic impacts on aerodrome users and other stakeholders;
anticipated environmental impacts; if any, and how these would be managed;
the identification of what stakeholders are in favour of, and which are opposed to certification; and
how certification of the aerodrome would improve aviation safety.
On receipt of an application containing all of the above information, Transport Canada will consider whether certification of the aerodrome would be in the public interest. This decision will take into account:
whether existing facilities are inadequate to serve current and prospective user needs;
whether certification would result in positive net benefits for the aerodrome, users and stakeholders in general;
whether the decision has the potential to set a precedent and create other similar situations;
whether environmental impacts can be effectively managed; and
whether the owner/operator or any of their principals have an unsatisfactory aviation record, making the assumption of additional regulatory responsibilities inappropriate.
Where the local government(s)/land use authority(ies) are opposed to aerodrome certification, certification action must not proceed without the approval of Headquarters.
Aerodromes meeting the public interest test must, of course, meet the applicable standards or otherwise be capable of being issued a certificate under CAR 302.03.
Once an aerodrome is certified on “public interest” grounds by Transport Canada, it is subject to the same inspection/audit requirements as are other certified airports.
The guidance material and procedures set out in this circular must be applied whenever an application is made to certify an aerodrome on public interest grounds, as provided for in CAR 302.01(1)(c). Each application must be considered on its own merits. The interests of all stakeholders must be taken into account when determining whether certification would be in the “public interest”.
Jennifer J. Taylor, Director
Air Navigation Services and Airspace
Generally speaking, the concept of public interest has no fixed meaning in law and its scope may be broadened or narrowed according to the circumstances. It is clear, however that the simple protection of a “private interest” will not satisfy the public interest test. Consideration must be given to how the certification of the aerodrome will impact on other members or segments of the regulated community as well as on the public at large.
GENERAL FACTORS JUSTIFYING USE OF "PUBLIC INTEREST"
In exercising his discretion to form an opinion on his interpretation of public interest, the Minister must decide within the context of the facts and law put before him what is and what is not in the public interest.
The Minister should exercise his discretion only after considering each case on its own merits. Policy is relevant, but only insofar as applied to the fact; and in making this determination, the Minister should undertake the analysis outlined in Appendix "B".
The following general factors require review and documentation as the first step in determination of the applicability of public interest to the certification of an aerodrome:
all factors relating to the Minster’s responsibilities respecting aeronautics found in subsection 4.2 of the Aeronautics Act and relating to the general regulatory powers respecting aeronautics found in subsection 4.9 of the Aeronautics Act.
all factors relating to the aviation record of the applicant of a Canadian aviation document found in subsection paragraph 6.71(1) of the Aeronautics Act.
all factors relating directly to the adequacy of transportation service, to its essential conditions of economy and efficiency, and to appropriate provision for and best use of transportation facilities.
all factors relating to aviation public health and safety, as well as a general public benefit, need or welfare.
All factors that support the basic legal principal that justice should always be done and be seen to be done.
Where one of these factors cannot be supported, the use of public interest for certification or denying certification is not justified.
SPECIFIC FACTORS JUSTIFYING USE OF "PUBLIC INTEREST"
The determination of whether or not certifying an aerodrome in the public interest must be made with respect to the circumstances of each individual case and be within the jurisdictional limitations of the Aeronautics Act.
It is not sufficient for certification of a site that the aerodrome be considered "safe" and "commercially viable" for the applicant.
The factors relating to the impact of safety on the community at large must be examined.
The consequence of an aerodrome being certified must be considered in terms of the needs of, or benefits to the aviation public and the local community; consequences which may be of commercial or practical convenience, or necessity of the operation.
Certification of an aerodrome under the public interest applicability of CARs Part III, Subpart 302 should enhance the aviation industry in general and be in the interest of the majority of stakeholders and not just the aerodrome or the community.
It must take into consideration the impact of the decision on the applicant, the general public and other members of the aviation industry.
The economic impact of certification of the aerodrome as well as the status quo should be examined both from the aerodrome operator’s perspective as well as the community at large.
Substantiation of meeting these factors shall be documented through a consultation process involving all affected parties.
It is the responsibility of the initiator of the request for certification of an aerodrome under public interest to substantiate the above requirements. This would normally be either Transport Canada or the aerodrome operator.
Transport Canada, Aerodrome Safety must ensure that it has the resources available to conduct the required airport inspection program for the new airport.
THE LEGAL ANALYSIS INVOLVED IN MAKING THE DETERMINATION OF "PUBLIC INTEREST" UNDER THE ACT
What is the meaning of the term "Public Interest" in the Aeronautics Act?
There is no statutory definition for "public interest".
Instead, the Minister has been delegated the authority by Parliament to use his discretion to make an opinion on what constitutes public interest.
How does the Minister exercise his discretion?
He must have regard to all of the relevant facts and law.
He must not be swayed by irrelevant considerations.
He must have regard to the letter and purpose of the legislation that gives him the power to act.
How does the Minister determine what are relevant considerations?
He must make his examination of the facts and law in terms of the letter and spirit of the Act.
He must make this determination in relation to the policies found in the Act.
Where are the Policies found in the Aeronautics Act?
Section 4.2 provides the clearest policy.
The Minister is responsible for the development and regulation of aeronautics, and the supervision (enforcement) of all matters connected with aeronautics.
The primary objective of regulation under the Act is to maintain an acceptable level of safety.
The primary objective of supervision under the Act is to ensure compliance with regulatory standards.
The Minister has a heavy responsibility towards the general public to ensure safety of air carrier operations.
The Minister has a duty of care towards the general public to enforce legislative and regulatory requirements in the interest of public safety.
The Minister has a very broad discretion to consider any factor when interpreting public interest, so long as it relates to the matter at hand.
What is the Primary Public Interest under the Aeronautics Act?
The safety of the air travel by strict compliance with the rules of safety.
Responsibilities of the Minister.
The Minister must make his determination with the following policies in mind:
The Minister is responsible to the public for regulation and supervision of aviation activities so as to promote safety.
The Act enables a detailed regime of regulation intended to promote an acceptable level of aviation safety.
Pilots, air carriers and other participants in the aviation industry are expected to comply with those regulations, and thereby achieve an acceptable level of aviation safety.