B. Basic Division of Responsibilities over Transportation

• Author: Patrick J. Monahan - Byron Shaw
• Pages: 377-379

Page 377

In general terms, the Constitution Act, 1867 allocates jurisdiction over interprovincial and international transportation to the federal gov-

Page 378

ernment, while reserving responsibility for intraprovincial transportation to the provinces. This territorial approach to transportation is reflected most clearly in section 92(10) of the Constitution Act, 1867. Section 92(10) provides that the provinces have exclusive jurisdiction over "Local Works and Undertakings" except "Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province."

Other provisions in the Constitution Act, 1867 which allocate jurisdiction to the federal Parliament include: "Beacons, Buoys, Lighthouses, and Sable Island" (section 91(1)); "Navigation and Shipping" (section 91(10)); "Ferries between a Province and any British or Foreign Country or between Two Provinces" (section 91(13)); power to declare local works for the "general Advantage of Canada" (section 92(10)(c)); and where certain public works and property in each province were transferred to Canada, including canals, public harbours, railways, and military roads (section 108).²

On its face, the federal power over trade and commerce in section 91(2) would appear to be relevant to the field of transportation. However, as discussed in Chapters 9 and 10, the courts have construed this provision narrowly, and it has never been interpreted as adding significantly to federal authority in the area of transportation.³Federal authority over criminal law in section 91(27) has also permitted the federal government to establish a set of criminal prohibitions and sanctions relating to the operation of motor vehicles, vessels, and aircraft.⁴

Provincial authority in relation to transportation matters flows from section 92(10) ("Local Works and Undertakings"); section 92(13) ("Property and Civil Rights in the Province"); and section 92(16) ("Matters of a merely local or private Nature in the Province").

Page 379

In addition to the enumerated heads of power dealing with transportation, the courts have also been called on to supplement the division of powers as new modes or methods of transportation have arisen. Of greatest significance in this regard is air travel, which was unknown in 1867 and was therefore not mentioned in the original division of powers. As discussed below, the courts have interpreted the federal Parliament’s power to...