What is the Division of Powers?
On July 1, 1867, the first constitutional document, the British North America Act, was passed.. This Act, passed by the Parliament of the United Kingdom, united the separate territories in what is now Canada into one single country. It also set out the division of powers and the structure of the government of Canada and eventually became known as the Constitution Act, 1867.
The Constitution sets out the federal system. This system divides constitutional jurisdiction (or control) between two levels of government – provincial governments who have control over matters set out in section 92 and the federal government with control over section 91 matters. According to the division of powers, each level of government has the jurisdiction to legislate on their respective subject matters. If they try to pass a law on a subject matter that falls outside of their control, it can be declared unconstitutional. Sections 91 (federal powers) and 92 (provincial powers) set out the responsibilities assigned to the two levels of government. Issues arise; however, because the categories set out in these sections are not exclusive of all possible topics and are broad, which can result in both levels of government passing overlapping pieces of legislation or disagreeing on who has control.
There is also no direct reference to the environment in the Constitution. Practically, this has resulted in environmental laws at both the federal and provincial level.
Federal Powers
Some of the subsections that fall under federal control and that are most relevant to the environment include:
- trade and commerce;
- sea coast and inland fisheries
- Indians and Lands reserved for the Indians, (note that while we now use the term “Indigenous peoples” the constitution still uses the word “Indians”);
- the Criminal Law; and
- “such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.” Section 91 also assigns what is referred to as the ‘residual power’ to the federal government. This means that the federal government may “make Laws for the Peace, Order, and Good Government of Canada.”
Peace, Order and Good Government or POGG is a broad category of powers assigned to the federal government. Over time, control over aeronautics, radio, and official languages have been classified as falling under federal control through the POGG power. Further, through the lens of having “national dimensions” certain matters, including those usually considered a provincial issue can become a federal issue.
Professor Peter Hogg explains that the POGG power can be divided into three branches:
• The emergency branch allows the federal government to pass legislation in the event of an emergency.
• The gap branch allows the federal government to legislate over any subject matter that does not fall under one of the headings in sections 91 or 92.
• The national concern branch allows the federal government to legislate over any subject that becomes a concern to the country as a whole. Some examples have included aviation, the national capital region, marine pollution, and minimum pricing standards for greenhouse gas emissions.
Provincial Powers
Provincial powers are set out in section 92 of the Constitution Act. These include:
- the management and sale of public lands and the timber and wood located on the same lands;
- local works and undertakings;
- property and civil rights; and
- generally all matters of a local or private nature.
In addition, section 92A assigns the provinces the power to “exclusively make laws in relation to (a) exploration for non-renewable natural resources in the province; (b) development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; and (c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.”
What about topics that are not included on this list?
There are three steps to decide whether a legal issue that is not set out specifically in the Constitution should fall under federal or provincial control.
- First, we do a test for validity. This test asks: was the legislation properly enacted in relation to a ‘matter’ falling validly within the appropriate head of power?
- Second, we test for operability. Operability considers two overlapping laws, usually a valid federal law and a valid provincial law and asks whether there is a conflict between the two. If a conflict is identified, the doctrine of paramountcy steps in to render the provincial law inoperable. The doctrine of paramountcy states that in the event both a province and the federal government enact laws covering the same or a similar subject, and there is a conflict, the federal law stands.
- Third, applicability tests individual sections in a law. For example, while the law as a whole may be valid, certain sections may be changed if they infringe upon matters that lie at the core of the other level of government’s jurisdiction. This is known as the doctrine of interjurisdictional immunity. The doctrine of interjurisdictional immunity recognizes that the division of powers is based on an “allocation of exclusive powers” meaning that subjects are intended to fall within the jurisdiction of one level of government rather than both at once.