Where did our Constitution come from?
History & Background to the Constitution Act, 1867
The country of Canada was formally created by the British North American Act or BNA Act in 1867, a statute which created the Dominion of Canada, four provinces (Ontario, Quebec, Nova Scotia and New Brunswick)[1] and established Canada’s first constitution, the Constitution Act, 1867, which set out the powers of the Federal Parliament and each of the province’s legislatures. [2]
Federalism Focused
The Constitution Act, 1867, was crucial for the creation of the country of Canada as a whole and for setting the stage for all of our laws and regulations, including those that deal directly with the environment. It also divided power between the provinces and the federal government – known as federalism.[3] The principle of federalism is one of the constitutional principles most relevant to environmental law, a complicated area of law that often involves overlapping legislation.
Federalism divides sovereignty (or power) between two levels of government – the Canadian federal parliament and the provincial legislatures, with the heads of power set out in Sections 91 & 92 of the Constitution Act, 1867.
Check out this page for a list of all of the constitutionally divided federal and provincial powers. Once you have reviewed this list, let us know if you noticed anything missing?
What about the Environment?!
In 1867, the environment was not considered by politicians or lawmakers as a subject in need of regulation. At that time, people would have considered aspects of the environment that needed to be controlled or regulated, such as fishing or navigation, but did not consider the environment to require regulation on its own. [4] This means that today, regulating the environment requires lawmakers to fit environmental issues into one of the enumerated heads of power. Some examples that have been used include: fisheries, non-renewable resource management, and provincial property and civil rights.
Since only the federal and provincial governments are specifically included in the Constitution, any other law-making bodies, including municipalities, are awarded their power by the provinces. For example, the province of Alberta delegates control over certain areas of law and regulation to its towns and cities through the Municipal Government Act. [5]
Alberta can only grant a municipality powers that are already under provincial jurisdiction. This means that the province cannot award a municipality with any powers that reside solely with the federal government. Regardless of this limitation, municipalities have ended up with a significant amount of power over environmental issues. For example, municipalities control waste removal and disposal, as well as land development. [6] The province becomes significantly less involved in day to day decision making once an area of law or regulation has been delegated to Albertan cities and towns, however, it is important to remember that all of this power ultimately comes from the Constitution. [7]
Another area where we can find constitutional powers is called the ‘Unwritten Constitution’. These are constitutional conventions or unwritten rules that may not be inscribed in law but that are essential for the consistent functioning of our governments. [8] For example, the rule that the Canadian Prime Minister must have the support of the elected legislature is a constitutional convention. [9] It is unwritten but essential for the continuance of responsible government. Another example is the rule that the judges on the Supreme Court of Canada must be regionally appointed (e.g. from the Western provinces or the Maritimes) to represent a broad group of Canadians.[10] These rules are not found in any law but are politically essential. In the 1981 Supreme Court of Canada decision that ultimately resulted in the creation of the Constitution Act, 1982, the Supreme Court of Canada said that, “constitutional conventions plus constitutional law equal the total constitution of the country.” [11]
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[1] Government of Canada, “Federalism in Canada” online: https://www.canada.ca/en/intergovernmental-affairs/services/federation/federalism-canada.html.
[2] Constitution Act, 1867, (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.
[3] Government of Canada, “Federalism in Canada”.
[4] Jeff Surtees, “Who’s The Boss? – Jurisdiction Over the Environment in Canada” (2 March 2017) LawNow online: http://www.lawnow.org/whos-the-boss-jurisdiction-over-the-environment-in-canada/.
[5] Municipal Government Act, RSA 2000, c M-26.
[6] Municipal Government Act, s 7.
[7] Municipal Government Act, s 5.
89] Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada (as she then was), Unwritten Constitutional Principles: What is Going On? (1 December 2005) Supreme Court of Canada online: https://www.scc-csc.ca/judges-juges/spe-dis/bm-2005-12-01-eng.aspx.
[9] House of Commons Canada, “Confidence Convention” Government of Canada online: https://www.ourcommons.ca/About/Compendium/ParliamentaryFramework/c_d_confidenceconvention-e.htm.
[10] Supreme Court of Canada, “Frequently Asked Questions (FAQ)” at #12 online: https://www.scc-csc.ca/contact/faq/qa-qr-eng.aspx#f12.
[11] Re: Resolution to amend the Constitution, [1981] 1 SCR 753 at 883-884; W.H. McConnell, Gerald L. Gall & Richard Foot, “Constitutional History” (4 March 2015) The Canadian Encyclopedia online: http://www.thecanadianencyclopedia.ca/en/article/constitutional-history/.
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