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- Irwin Law: Constitutional Law (Fourth Edition)
- Part Four - The Courts and Canadian Federalism
- Chapter 12 - The Constitution and Transportation
E. Other Sources of Federal Authority
Author | Patrick J. Monahan - Byron Shaw |
Pages | 398-401 |
Page 398
Three other enumerated classes of subjects assigned to Parliament in section 91 of the Constitution Act, 1867 deal explicitly with matters related to the field of transportation. These classes are:
· beacons, buoys, lighthouses, and Sable Island (section 91(9));
· navigation and shipping (section 91(10)); and
· ferries between a province and any British or foreign country or between two provinces (section 91(13)).
Federal authority over transportation matters is also supplemented by section 108, which provides for federal ownership of public works and property set out in the Third Schedule of the Constitution Act, 1867.87
Although the Third Schedule transfers to the federal government all
Page 399
improvements or public works associated with rivers and waterways, the ownership of the rivers themselves remains with the provinces.88
The provinces may legislate with respect to the use of these waters, as long as their legislation does not interfere with federal legislation in relation to navigation and shipping.
The most important source of federal authority from the above catalogue of powers is section 91(10), "Navigation and Shipping." The language in the section is unqualified, suggesting that federal authority could be extended to all aspects of the subject. However, for many years, the courts have interpreted section 91(10) as being subject to the same limits that had been developed with respect to federal undertakings under section 92(10)(a).89For example, in Agence Maritime v. Canada (Labour Relations Board),90the Supreme Court held that local shipping was subject to provincial labour relations legislation.91Similarly, ferries that operated largely within the waters of British Columbia were held to be within provincial jurisdiction for purposes of labour legislation.92
The courts interpreted federal authority over navigation and shipping as extending primarily to interprovincial and international undertakings.
A more recent decision of the Supreme Court may be taken to suggest a somewhat broader reading of federal authority over navigation and shipping. In Whitbread v. Walley,93the issue was whether certain limitations of civil liability contained in the Canada Shipping Act ap-plied to a pleasure boat operated within provincial waters. The Supreme Court unanimously held that the provisions in the Canada Shipping Act applied uniformly to all shipping, including local shipping as well as pleasure boats. La Forest J., writing for the Court, distinguished the federal power over navigation and shipping in section 91(10) from the federal authority over works and undertakings in section 92(10)(a). Whereas federal jurisdiction over works and undertakings...
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