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Public Law I: Nov. 11/05 The Regulation and Taxation of Natural Resources, The Environment and Other Division of Powers

Canadian Industrial Gas and Oil [Kit, p. 303] Central Canada Potash [Kit, p. 306] O’Harra v. B.C. [Kit, p. 397] CN v. Courtois [Kit, p. 398] AGT v. Canada [Kit, p. 399]. Friends of Oldman River v. Canada [Kit, p. 403] Ont. Hydro v. Lab. Rel’s Broad [Kit, p. 407]

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Public Law I: Nov. 11/05 The Regulation and Taxation of Natural Resources, The Environment and Other Division of Powers

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  1. Canadian Industrial Gas and Oil [Kit, p. 303] Central Canada Potash [Kit, p. 306] O’Harra v. B.C. [Kit, p. 397] CN v. Courtois [Kit, p. 398] AGT v. Canada [Kit, p. 399] Friends of Oldman River v. Canada [Kit, p. 403] Ont. Hydro v. Lab. Rel’s Broad [Kit, p. 407] Stevenson article on federalism & intergovernmental relations Public Law I: Nov. 11/05The Regulation and Taxation of Natural Resources, The Environment and Other Division of Powers Issues

  2. 1973: OPEC inc’d world price of oil Windfall gains by oil companies in Canada Sask gov’t wanted diff between old price and new price Expropriated oil & gas land tracts, and imposed royalty surcharge equal to diff 7-2: Sask leg ultra vires Martland + 6: Indirect tax, because paid for by consumers Tax really an export tax; 98% of Sask oil exported to US, E Can Dickson: S. 109 Price sets the tax, so tax paid by the companies, not consumers Decision led to S. 92A (amendment in 1982) Can. Ind Gas & Oil v. Sask, 1977 (CIGOL)

  3. S.109 All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same. Section 109, CA 1867

  4. Background 1960s: potash mines developed in Sask; Sask can supply world for 1500 years. Other major producer: New Mexico, but mines less efficient By 1967, Sask potash selling in US at well below NM prod price Most NM companies had interests in Sask mines NM and Sask worked out a pro-rationing scheme to restrict Sask output so that NM mines could operate Gov’t in Ottawa not opposed, so no court challenge 1971: Sask changed pro-rationing formula; Cent Can Potash tried to force gov’t to honour old plan through mandamus. CCP went to court; Ottawa intervened Cent Can Potash & AG Can v Sask, 1979

  5. All 7 judges on panel, led by Chief Justice Laskin, found the Sask scheme unconstitutional. Provinces own natural resources, but this does not give them the power to control interprovincial or international trade and commerce. Any legislation that is in pith and substance an attempt to regulate interprovincial and international trade and commerce is ultra vires provincial powers. These two decisions led to a great deal of resentment on the part of the Western provinces, and led directly to the demand to include S. 92A in the constitutional package agreed to in November, 1981. (See Section 92A on web page under "Constitution Acts, 1867 to 1982.") Cent Can Potash continued

  6. Section92A:NON-RENEWABLE NATURALRESOURCES,FORESTRY RESOURCES AND ELECTRICAL ENERGY • 92A. (1) In each province, the legislature may 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.

  7. Section 92a (cont’d) • (2) In each province, the legislature may make laws in relation to the export from the province to another part of Canada of the primary production from non-renewable natural resources and forestry resources in the province and the production from facilities in the province for the generation of electrical energy, but such laws may not authorize or provide for discrimination in prices or in supplies exported to another part of Canada.

  8. Section 92A (cont’d) • (3) Nothing in subsection (2) derogates from the authority of Parliament to enact laws in relation to the matters referred to in that subsection and, where such a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflict. • (4) In each province, the legislature may make laws in relation to the raising of money by any mode or system of taxation in respect of (a) non-renewable natural resources and forestry resources in the province and the primary production therefrom, and (b) sites and facilities in the province for the generation of electrical energy and the production therefrom….

  9. Impugned: a prov cabinet order under the B.C. Inquiry Act appointing a prov commission to inquire into injuries sustained by a man while in custody at a police station. Issue: does the inquiry invade federal jurisdiction over criminal law? Police officers thought it did, and petitioned B.C. Sup Ct to declare order ultra vires. Police lost in BC Sup Ct, BC CA, and appealed to SCC. Dickson +7: inquiry does not invade federal jurisdiction Inquiry’s purpose to “get to the bottom”of alleged police misconduct for disciplinary purposes. If inquiry had been to determine criminal liability, or to inquire into a federal institution, or had violated rights, it would be ultra vires. Estey (dissenting): real purpose of inquiry is to identify wrongdoers preliminary to prosecution. Therefore, order is ultra vires. This decision is a precedent for the Westray decision of 1995. O’Harra v. British Columbia (1987)

  10. Impugned: Quebec Occupational Health and Safety Act, as it applies to an investigation of an accident involving two CN trains. Issue: Can a province investigate an industry under federal jurisdiction, and make recommendations for changes to ensure safety? Quebec CA: an investigation by a provincial body might be OK if recommendations not binding on fed. Undertakings. SCC (Beetz + 6, unanimous): the real issue is whether the province has the constitutional authority to investigate a federal undertaking. Provinces do not have this power. The federal Occupational Health and Safety Act applies, not the provincial one. (summons duces tecum – a summons to attend with particular documents) CN v. Courtois (1988)

  11. Impugned: authority of CRTC over Alberta Government Telephones (AGT) AGT (now Telus) was a provincial crown corp, provincially regulated. CNCP telecommunications wanted an order from CRTC in 1982 to facilitate interchange of communications. AGT objected, claiming crown immunity. Questions: a) is AGT an interprovincial undertaking under 92(10)(a)? B) If so, is AGT subject to CRTC regulations? Dickson + 4: AGT falls under federal jurisdiction under 92(10)(a). Although AGT does not have services outside Alberta, its customers can all make long-distance calls, and so the services it sells are really interprovincial in nature. AGT can claim crown immunity, but CRTC regulations can be changed to include it. This decision astounded many lawyers, according to Hogg. Wilson (dissenting): AGT cannot claim crown immunity. AGT v. Canada (CRTC) (1989)

  12. Friends of Oldman River v. Canada • Friends of Oldman River - an environmental group opposed to AB Gov’t’s plan to build a dam on the Oldman River west of Lethbridge (on Indian res) to store water for irrigation.  (Supported by folk singer Ian Tyson, who has a ranch in Southern Alberta.) -AB gov’t did its own environmental assessment. -Feds have regulatory authority under:     -S. 91(10), “navigation & shipping”     -S. 91(12), “sea coast & inland fisheries,” &     -S. 91(24), “Indians, and lands reserved for Indians” -Fed. Environmental Assessment & Review Process Guidelines Order requires fed. Dept’s of Transport & Fisheries to screen “undertakings” for env impact.  Only navigation impact reviewed; fed dept’s of Env & Fisheries didn’t do env assessment. 1987:  fed Min of Transport approved -1988:  project commenced. 1989:  Friends asked Fed Ct for orders of certiorari of fed approval, & mandamus. Friends lost in trial div., but won in appeal div; fed approval order quashed. Appealed to SCC by fed gov’t

  13. Oldman River continued • SCC:  8-1 upheld order for cert & order to quash (but  here mandamus inappropriate) -La Forest + 7:  Fed Guidelines Order requires fed gov’t to assess env impact of an undertaking under all relevant heads of fed power.  In this case, impact on fisheries and Indian lands was not reviewed. The Alberta crown is not immune; otherwise provinces could ignore fed jurisdiction -“The environment” is not a separate head of power.  Both prov’s and fed’s can regulate aspects that fall within their own powers.  Fed Guidelines Order only pertains to fed powers -- 91(10), (12) & (24). -The aspect of the Guidelines Order order which regulates fed agencies is intra vires either under 91(10), (12) & (24), or POGG. -Fed powers can’t be used in a colourable fashion to interfere with prv powers. -Legitimate use of Guidelines may impact prov powers as long as the pith and substance of the fed action takes place under 91(10), (12) or (24). The Friends acted as expeditiously as possible; the fed & prov gov’t’s caused unnecessary delays to their litigation.

  14. A society of employees of Ont Hydro applied for certification to represent employees to Ont Lab Rels Bd; opposed by a coalition of employees. Coalition argued that because nuclear power plants are federal undertakings under 92(10)(c), they must be certified under Canada Labour Code. Ont LRB agreed. Decision challenged by Society (supported by unions), and Ont Hydro. La Forest + 2, & Lamer: an industry under 92(10)(c) is under federal jurisdiction for labour relations. Sopkina +2 (dissenting): Parliament’s jurisdiction over a “declared” work extends only to what is integral to the federal interest in the work. Parliament is interested in regulating nuclear power, not labour relations. (La Forest, however, argues that the two subjects are intricately connected.) Ontario Hydro v. Ontario (Labour Relations Board) (1993)

  15. Is decentralization only a result of JCPC? Since 1949, SCC balanced Prov revenues 5.9% of GNP (1960) 17.1% GNP (1995) Feds: 16.5 – 19.1% Causes of decentralization: Institutions Geography Cultural diversity Quebec nationalism Party system Jurisdictional conflict Immigration, pensions, fisheries, ab land claims, prosecutions, training programs Garth StevensonFed’ism & IntGov Rels

  16. Fiscal conflict Free trade, tax collection, cond grants, energy, trans payments Intergovernmental mechanisms for dispute resolution Judicial review Cooperative federalism (WWII – 1960) Executive federalism (1960 – present) Central agencies Intergovernmental affairs departments First Ministers Conferences Why is Canada the most decentralized country in the industrialized world? Stevenson continued

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