D. Implementation of International Trade Agreements
| Author | Patrick J. Monahan - Byron Shaw |
| Pages | 310-316 |
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A number of academic commentators95have suggested that the General Motors test would support federal legislation implementing such international trade agreements as the Canada-U.S. Free Trade Agreement (fta) and the North American Free Trade Agreement (nafta).96This section considers the scope of Parliament’s authority to implement international trade agreements, as well as its jurisdiction to enact legislation to strengthen the Canadian economic union and to reduce interprovincial barriers to trade.
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Canada has entered into a number of important and far-reaching international trade agreements, including the Canada-U.S. and North American free trade agreements, as well as the Agreement Establishing the World Trade Organization. While these treaties deal with a number of matters that are clearly within federal jurisdiction, such as tariffs and border measures, they also deal with matters that might otherwise be regarded as falling within provincial jurisdiction. As a result, questions have been raised about the ability of Parliament to enact legislation implementing these agreements.
In analyzing the constitutional issues relating to international trade agreements, it is important to distinguish between the power to enter into the treaties as opposed to the power to implement treaties. The federal government has plenary authority to negotiate and enter into international agreements on Canada’s behalf. This authority is not limited to matters that fall under federal jurisdiction according to the domestic division of powers. The federal executive’s power to enter into international agreements derives from the imperial Crown’s delegation of prerogative powers over foreign affairs to the governor general of Canada.97Treaty implementation usually involves the enactment of legislation incorporating the provisions of a treaty into the domestic law of Canada. Although Canada is bound by a treaty as a matter of international law, the terms of a treaty are not automatically incorporated into the domestic law of Canada.98Therefore, to the extent that the domestic law of Canada is inconsistent with the terms of a treaty,
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it will be necessary to enact a statute that will bring domestic law into conformity with the terms of the treaty.99
Section 132 of the Constitution Act, 1867 provides that the Parliament of Canada has exclusive authority to enact legislation necessary in order to implement treaties signed by Britain on Canada’s behalf. However, the drafters of the Constitution Act, 1867 did not anticipate that Canada would eventually acquire the status of a fully independent state and enter into treaties with foreign states on its own behalf. Accordingly, the Constitution Act, 1867 does not expressly address the legislative authority of Parliament or the provinces to implement treaties. In the Labour Conventions case,100the Privy Council decided that the authority to implement treaties is divided between Parliament and the provincial legislatures in accordance with their respective legislative jurisdiction. In other words, if the subject matter of the treaty deals with a matter falling within provincial jurisdiction in accordance with section 92, only the provinces may enact legislation implementing that treaty into domestic law and vice versa.
The Labour Conventions case has proven extremely controversial, particularly among English-Canadian commentators. The decision has been criticized as effectively handcuffing Canada in its attempts to negotiate international treaties, since the federal government cannot guarantee that treaties dealing with matters under provincial jurisdiction will be implemented.101There have been calls over the years for the courts to overrule the decision.102On the other hand, experience has shown that the Labour Conventions case has not precluded Canada
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from negotiating comprehensive trade agreements, including wto, fta, and nafta.
The question that arises is how the Labour Conventions rule applies in cases of comprehensive trade agreements such as wto, the fta, and nafta. To the extent that the agreements deal with matters falling within federal authority, such as tariffs and border measures, federal legislation implementing the agreements would fall under federal jurisdiction. Federal legislation implementing the fta and nafta is primarily concerned with the amendment of federal laws that would otherwise have been inconsistent with these...
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