The Canadian Constitution

Canada created its first constitutional document in 1867, known as the British North American Act or more simply, the Constitution Act, 1867.[1] This original document set out some of the founding principles of Canadian legislation and began dividing powers and responsibilities between the federal government and the provincial governments. This division of powers is called federalism.

Federalism means that legislative sovereignty (or power) is divided between a national legislature or Parliament (the federal government) and provincial legislatures.[2]

As more and more provinces joined Canada, they created their own laws and regulations in accordance with their designated powers.

The respective federal and provincial powers are set out in Sections 91 & 92 of the Constitution Act, 1867.

For reference we have listed some of them below:

Federal Powers:

10. Navigation and Shipping;

12. Sea Coast and Inland Fisheries;

24. Indians, and Lands reserved for the Indians;

27. The Criminal law.[3]

Provincial Powers:

5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon;

13. Property and Civil Rights in the Province;

16. Generally all Matters of a merely local or private Nature in the Province.[4]

To read the whole text, including the 1982 amendments, click here.
You will probably notice that none of these sections include the word “environment”.

In 1867, the environment wasn’t much of a consideration and certainly did not play a significant role in the drafting of the Canadian Constitution. However, the heads of power listed above do have some relationship with the environment.

Can you think of what these connections might be ?
If you would like to read more about the inclusion of the environment in our Constitution, check out our section on Constitutional Law here.

Since the Constitution Act, 1867, does not specify whether the federal or provincial governments are responsible for legislating the environment, how do the federal and provincial governments divide up the responsibility of environmental law?

This is an important and difficult question that often arises when trying to create high quality and effective environmental laws and there are a few legal concepts that you will want to understand in order to appreciate how complicated it can get.

  • Constitutional Supremacy: The Constitution is the supreme law of the society and any ordinary law (whether federal or provincial) that is inconsistent with the Constitution is of no force and effect. This means that if a law conflicts with the Constitution, it must be changed or it can no longer be considered law.[5]
  • Doctrine of Paramountcy: In Section 92(A)(3), the Authority of Parliament section of the Constitution Act, 1867, it states that where a law of Parliament (a federal law) and a provincial law conflict, the law of Parliament wins.[6] This is one example of the doctrine of paramountcy.

The doctrine of paramountcy is the idea that although federal and provincial powers are generally meant to be divided up, in the event that they do come into conflict, federal powers will win.[7] This has significant importance in environmental law because of the lack of clarity regarding which level of government is actually in charge. Notably, this is a limited idea and provincial and federal statutes may both govern similar areas of the law, so long as the fundamental purpose of the federal law is not affected.

  • Interjurisdictional Immunity: This is when a provincial law affects an industry, person, or thing that would otherwise fall under federal control. If a provincial statute governs an area of law that should be governed by the federal parliament, it could mean that the provincial statute, insofar as it relates to the federal head of power, may not be of any force and effect.[8]
  • Double Aspect Doctrine: This constitutional legal doctrine allows both provincial and federal laws to be written about the same subject matter. This concept first arose in the case Hodge v R. In that case, the Privy Council of England (the highest court in England) stated that subjects which in one aspect and for one purpose fall within Section 92 (provincial powers), may in another aspect and for another purpose fall within Section 91 (federal powers).[9] In a sense, the same topic could be governed by both levels of government. Since this case, the environment has often been governed by both the federal and provincial levels of government.

The Constitution Act, 1867, along with some guidance from constitutional principles, gives legislatures the power and guidance to draft environmental legislation across the country.

For a more in-depth discussion of the Canadian Constitution, check out our Constitutional Law section here .

<< International Law

Statutes >>

[1] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, s 91.

[2] Neil Craik et al, Public Law, 2d ed (Toronto: Emond Montgomery, 2011) at 81.

[3] Constitution Act, 1867, s 91.

[4] Constitution Act, 1867, , s 92.

[5] Neil Craik,  at 80.

[6] Constitution Act, 1867, s 92(A)(3).

[7] Canadian Western Bank v Alberta, 2007 SCC 22, para 124.

[8] Canadian Western Bank v Alberta, 2007 SCC 22, paras 32-33.

[9] Hodge v R, [1883] UKPC 59, [1883] 9 AC 117.

 

 

 

Fundamentals of Environmental Law

Lesson Plan: Fundamentals of Environmental Law
Lesson Plan: Canadian Charter of Rights and Freedoms
Lesson Plan: Tragedy of the Commons
Lesson Plan: Climate Litigation

Curriculum Connections

Newsletter