E. Matters of Interprovincial Concern or Significance

• Author: Patrick J. Monahan - Byron Shaw
• Pages: 279-285

Page 279

In addition to the three branches of pogg described above, certain Supreme Court cases suggest that there is a fourth ground on which legislation might be upheld under the pogg power. This fourth branch involves the regulation of matters which have interprovincial impact or effects and which cannot be regulated on the basis of any of the enumerated powers in section 91 of the Constitution Act, 1867. One example of such a matter is polluting activity taking place in one province,

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which has effects in other provinces. In Crown Zellerbach, Le Dain J. simply noted in passing that it was conceded that Parliament would have authority to regulate polluting activity having extraprovincial effects. But Le Dain J. did not elaborate on the precise basis for Parliament’s legislative authority in this regard. The dissenting judgment of La Forest J., however, dealt with this point in more detail. La Forest J. noted that the federal pogg power, combined with the criminal law power, gave Parliament "very wide scope to control ocean pollution." La Forest J. suggested that the pogg power gave Parliament the authority to control pollution with extraprovincial effects, and this would include the power to regulate activity causing such pollution at its source:

The power above described [pogg] can be complemented by provisions made pursuant to the criminal law power... . While it would not be proper for me to enter into the validity of the provisions of the Clean Air Act ... which were upheld in Re Canada Metal Co. and the Queen, ... those provisions do indicate that a combination of the general federal legislative power and the criminal power could go a long way towards prohibiting the pollution of internal waters as well as those in territorial waters and the high seas.⁴⁹La Forest J. then stated that "the potential breadth of federal power to control pollution by use of its general power is so great" that the challenge for the courts may be the development of strategies to "confine its ambit." La Forest J. stated:

It must be remembered that the peace, order and good government clause may comprise not only prohibitions, like criminal law, but regulation. Regulation to control pollution, which is incidentally only part of the even larger global problem of managing the environment, could arguably include not only emission standards but the control of the substances used in manufacture, as well as the techniques of production generally, in so far as these may have an impact on pollution.⁵⁰Precisely because the federal general power to control pollution was potentially so broad, La Forest J. was unwilling to uphold the impugned

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section of the Ocean Dumping Control Act at issue in Crown Zellerbach. The section prohibited the depositing of any substance in waters, without regard to whether the substances actually had a polluting effect.

These passages must be read alongside the conclusion that "pollution" was too broad a matter to constitute a distinct matter of national concern. Thus, Parliament cannot claim to regulate pollution that causes effects outside the province on the basis of the national concern branch of pogg. Nor do the emergency or gap branches assist Parliament’s claim to regulate such polluting activity. As to the emergency branch, the Clean Air Act provisions referred to by La Forest J. were permanent rather than temporary legislation and thus could not be justified on the basis of the emergency power. Nor is there any gap in the division of powers in relation to pollution, since the provinces are perfectly capable of regulating all polluting activity within the province, regardless of whether the effects of such pollution are limited to that province alone. It must be, therefore, that Parliament’s power to...