Environmental Law

Section 2: Legislation that Protects the Environment

The Constitution Act , 1867

In 1982, the BNA (British North America) Act was transferred to Canada and became the Constitution Act , 1867. So just how does the Constitution Act , 1867 divide up owners between the levels of government? Put simply, Section 91 of the Act gives the federal government 29 areas of jurisdiction. It also gives the federal government the power to make laws for the "Peace, Order and good Government of Canada." Section 92, meanwhile, gives the provincial governments jurisdiction over 16 areas.

The provinces, in turn, have delegated some areas of jurisdiction to municipal governments such as cities, towns, and counties. For instance, municipal governments have control over areas like garbage quotas, lawn-watering restrictions, building regulations, the hours during which stores can remain open, and noise laws.

Unfortunately , while the people who drafted the Constitution Act, 1867 worked hard to prevent any jurisdictional disagreements between the levels of government, they simply could not foresee the issues that would develop after their time. The inevitable result is that disputes have arisen between federal and provincial governments over who controls what. One example of this involves the control of offshore resources, like fish and petroleum products. Another example is communications, which was placed under federal control in 1867. Today, with the world dependent on instant communication and technology, the provinces generally feel they need more control of this vital part of our modern world.

But what happens when jurisdictional disputes arise? If discussion fails, they end up in courts and the courts have usually used the residual powers clause to grant jurisdiction to the federal government. Understandably, perhaps, this has not always made the provinces happy.