Environmental Law

Section 2: Legislation that Protects the Environment

Residual Powers

As you have read, the Constitution Act, 1867 gives the federal government what are often called residual powers. This is because the statute says that jurisdiction over areas not specifically laid down in the Act is to go to the Government of Canada, not the provincial governments. The so-called residual-powers clause is at the beginning of Section 91. It reads as follows:

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

In other words, even though the guys who drew up the Act could not think of every area to give some level of jurisdiction over, they were smart enough to say that power over everything they had not thought of would go to the feds. Right?

That's right, but as you'll see next, the Constitution Act, 1867 does give the provinces control over enough areas that both levels of government have a solid claim to jurisdiction over environmental matters.

You can look at the entire Constitution Act, 1867 on the Internet. Read Sections 91 and 92 in particular, thereby seeing the entire division of power between the federal and provincial governments.

Check your knowledge by completing the Self-Assessment Something to Think About 03 on the next page.