Sources of Authority: Provincial-Level Land-Use Planning Powers

AuthorHoward Epstein
The materials in this chapter address the main provincial systems of
land-use regulation, th at is, those in which the provincial government
itself is the exclusive regulator, or in which it takes the lead but shares
its power w ith municipalit ies.
Always a prelimina ry question is the extent of provincial jur isdiction.
Thus, it is necessary to consider the extent of provincial jurisdiction in
conjunction with federal jurisdict ion, as set out in Chapter 4.1
Among the main provincial land-use regulatory regimes, some are
well known, such as those for natural resources (agriculture, forestry,
mining, and energy) and heritage propertie s, but there are many more.
As with federal-level regulat ion, the direct provinci al regulatory schemes
are abundant.
1 An adjunct issue i s the boundaries of federa l lands within a provi nce, though
questions of the b oundaries between prov inces do arise. Thi s chapter is to be read
in conjunction wit h constitutional law mat ters for purposes of determ ining which
matters are subje ct to regulation by which of the se nior levels of government. See,
generally, Chapter 4. This i s especially import ant regarding resou rces: see Gérard V
La Forest, Natural Reso urces and Public Property Unde r the Canadian Constitut ion (To-
ronto: University of Toronto Press, 1969) at 44. For example, t he Railway Belt land s,
establishe d to facilitate constr uction of the transcont inental railroad , involved various
transfers b etween the two senior level s of government, with a long hist ory involving
some complications, i ncluding for Aborigina l law. See, for example, Campbell v Brit ish
Columbia (Attorney General), 1994 CanLII 2365 (BCSC) and c ases cited therein.
Environmental assessments and other environment al laws are a
leading example of provincia l-level regulation of land-use.
To some extent, this chapter looks again at the interaction between
municipal control and provincial laws, encountered e arlier in Chap-
ter 2. In general, unless there i s actual functional conf‌lict in t he rules
adopted, if both levels of government have authority over some topic,
then not only may both sets of rules co-exist, but municipal rules may
be more stringent than provi ncial ones.2
The topic also raises the policy question of what is the appropriate
level of government at which particular activ ities ought to be regulated.
That is, what makes for eff‌iciency and accountability in the allocation
of regulatory responsibilities? The answers are not always clear, and re-
gimes of shared juri sdiction are common as are changes in t he overall
In most provinces, the provincia l Crown is the owner of signif‌icant
areas of land. As ow ner, it is able to determine what land uses will b e
permitted. Both for Crown la nds and for private lands, some provinces
have attempted direct, large-scale land-use planning exercises, mainly
British Columbia, Quebec, and Ontario. In the 1990s, British Colum-
bia undertook extensive public consultation about land use i n the face
of serious tension over forestry and mi ning uses. Since the provinci al
Crown owns some 90 percent of the land in British Columbia, a prov-
ince with vast rur al area, and given Aboriginal clai ms and the criticism
by the environmental, hunting, f‌ishing, and tourism interest s, creat-
ing the Commission on Resources and the Environment (CORE) made
sense. In Ontar io, legislation such as the Places to Grow Act and the
Greenbelt Act has focused on directing development, in broad terms, in
the areas of greatest population density. In both provinces, sustainabil-
ity has been a major factor in creating policy.
Because the provincial Crown is a major owner of land, its poli-
cies are important. To a certain e xtent, the applicable rules exist in
statutory silos (for example, mining, forestry, water, endangered spe-
cies, archaeology, parks) even though an overall ecosystem approach is
warranted, and achievable, given the adva nces in the state of scientif‌ic
and technical knowledge. “Public land law” i s not a commonly cited
term in Canada, unlike the United States, but has started to emerge as
a topic with the recent text Public Land s and Resources in Canada.3
2 See, for example, Pr ince George (City) v Payne, [1978] 1 SCR 458; Edmonton
(City) v Tegon Developments Ltd (1981), 121 DLR (3d) 760 (SCC); Croplife Canada
v Toronto (City) (2005), 10 MPLR (4th) 1 (Ont CA); and especiall y 114957 C ana -
da Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40 [Spraytech].
3 Elaine L Hughes, Arle ne J Kwasnia k, & Alastair R Lucas, P ublic Lands and Re-
sources in Canada (Toronto: Irwin L aw, 2016).
Sources of Authorit y: Provincial-Level L and-Use Planning Powers 235
There are four main aspects to provi ncial direct ownership of land for
planning purp oses. The f‌irst is the extent to which it chooses to subject
itself to municipal or intern al provincial-level jurisdict ion. The second
is its voluntary acceptance of env ironmental assessment processes. The
third is the way i n which it chooses to impose r ules regarding use of its
lands. The fourth is acquisition and sale restrictions.
1) Crown Not Bound
The Crown is not bound by rules, even its own r ules, unless it specif‌ies
that it is. This f‌lows from the general doctr ine of Crown immunity and
from statutory provisions such as O ntario’s Legislation Act, where sec-
tion 71 provides, “No Act or regulation binds Her Majesty or affects Her
Majesty’s rights or prerogatives unless it expressly states an intention
to do so.”4 Likewise, the Crown is not bound by municipal land-use
enactments in any province, because it has not chosen to place itself
in that position. Those leasing Crow n land do not share this immun-
it y.5 The most provincial governments have assented to is to take into
account municipal policies; for example, in Nova Scotia, the Municipal
Government Act says, “A department of the Province, before car rying
out or authorizing any development in a municipality, shall consider
the planning document s of the municipality.6
There are some exceptions. For example, in Alberta, under both
the Dangerous Goods Transportation and Handling Act7 and the Drain age
Districts Act,8 the Crown is specif‌ied as being bound, in the former as
to the required safety sta ndards and in the latter a s to being obliged to
make payments as a landowner towards the constr uction and mainten-
ance of drainage works.
2) Environmental Assessment
An important exa mple of the Crown choosing to bind itself regarding
land use is for environmenta l assessments. Thus, Ontario’s Environmental
4 Legislation Act, 2006, SO 2006, c 21, Sched F. See also the Crow n Agency Act,
RSO 1990, c C.48 for elaboration of wh at are Crown agencies.
5 Squamish (District) v Great Pacif‌ic Pumice In c, 2000 BCCA 328.
6 SNS 1998, c 18, s 197; see also Onta rio’s Municipal Act, 2001, SO 2001, c 25, s 3
and Planning Act, RSO 1990, c P.13, ss 50(3) & (4).
7 RSA 2000, c D- 4, as amended.
8 RSA 2000, c D-16.

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