Sources of Jurisdiction and Control

AuthorElaine L. Hughes, Arlene J. Kwasniak, Alastair R. Lucas
Arlene J Kwasniak
This chapter considers who or what has the r ight in law to manage and
control public lands and resources. It explores the following sources
of jurisdiction and control over public lands and resources: legisla-
tive jurisdiction, meaning the authority to pass laws to regulate uses
and matters concerning public land s and resources; Crown ownership
jurisdiction, deriv ing from the ownership of Crown public lands or
resources; and Aborigin al jurisdiction, deriv ing from Aboriginal title,
rights, or interests concern ing public lands or resources. The chapter
contains a separate sect ion on the Canadian terr itories, Yukon, North-
west Territories, and Nunavut, as their history, constitutional status,
and control over public lands and resources dif fer from provinces. Note
that private rights of control or authority deriving from a private per-
son or entity holding an interest or disposition in public lands or re-
sources are dealt with in Chapter 7.
Legislative juri sdiction belongs to those with the r ight to make laws
and policies f‌lowing from laws t hat apply to public lands and resources.
Determining who or what has the right to regulate and set policy for
public lands and resources is no different from determining who or
what has the right to regulate or set policy for any other matter in Can-
ada. The place to start is wit h the Canadian Const itution as set out in
the Constitution Act, 1867.1
The Canadian Constitution allocates heads of legislative power be-
tween the federal and the provincial governments. The framers of the
Constitution intended the allocation to be exclusive in the sense that
if the Constitution gives one level of government the right to legi s-
late a matter, it excludes the other level from legislating that matter. If
one level of government passes an enactment governi ng a matter over
which the Constitution gives the other level exclusive power to legis-
late, a court may strike down the law as being ultra vire s, meaning
beyond authority given by the Constitution. To determine which level
of government — federal or provincial — has t he right to regulate land
and resource use in Can ada requires looking at which level of govern-
ment holds constitutional power to regulate the se matters. These powers
include the following:
The federal government may legislate
1) the public debt and federal public property (s 91(1A));
2) trade and commerce (s 91(2)),
3) to raise money by taxation (s 91(3)),
4) navigation and shipping (s 91(10)),
5) seacoast and inland f‌isheries (s 91(12)),
6) regarding Indian s and lands reser ved for the Indians (s 91(24)),
7) the cri minal law (s 91(27)),
8) extra provi ncial works and undertakings (s 92(10)(a)),
9) works for the general advantage of Canada (s 92(10)(c)),
10) to establish peace, order, and good government (opening and con-
cluding clauses of s 91), and
11) to implement any international t reaty that Great Britain entered on
behalf of Canad a (s 132).
Provinces may legi slate
1) the management and sale of provincial public lands including tim-
ber and wood thereon (s 92(5)),
2) local works and undertakings (s 92(10)),
3) property and civil right s in the provinces (s 92(13)),
4) loc al or private matters (s 16),
1 Constitution Act, 1867, formerly the British North Americ a Act, 1867 (UK) 30 & 31
Vict, c 3, reprinted i n RSC 1985, Appendix II, No 5.
Sources of Juri sdiction and Control 55
5) penalties for violating provincial law (s 92 (15)), and
6) the exploration, development, management, and subject to overrid-
ing or conf‌licting federal legislation, the export to other provinces
and taxation of non-renewable natural resource s and electrical
energy (s 92A).
In 1867, when the heads of power lists were developed, not every
possible subject matter was or could be considered (e.g., environmental
matters generally, aeronautics, telecommunication). Where it is not
clear which level of government has jurisdiction over a subject matter,
our courts use methods to re solve the question.2
First, they seek to determine whether the matter truly fall s within
the power of only one of the two levels. In determining t his, courts will
apply interpretation rules where they f‌irst characterize the e ssence of
the regulated subject matter. Then they consider whether the subject
matter falls under provincial or federal constitutional authority. For
example, they might ask whether a provincial law prohibiting timber
imports into a province in essence deals with regulating provincial
property, timber resources (a matter within prov incial authority), or
whether it really has to do with trade and commerce (a matter within
federal authority). If the essence of the law is the former, they will f‌ind
the provincial law to be valid, but if it is the latter, they will declare
the law to be ult ra vires the Constitution. However, sometimes this f‌irst
step will not yield a def‌initive resolution.
Second, courts could f‌ind that both levels m ay validly legislate
some aspect of the matter. For example, consider water pollution. Prov-
inces may pass legislation regulating water pollution, since provinces
have constitutional right s to legislate to protect provincial and private
property and civil r ights. As well, the federal government may pa ss
legislation regulating water pollution that interferes with f‌ish habitat
since it has the constitutional right to legislate over inland and coastal
f‌isheries. Both levels of laws m ay operate concurrently. However, if they
directly conf‌lict, our courts will apply the doctrine of para mountcy to
conf‌irm the operation of the federal l aw and to order the provincial law
to be inoperative to the extent that it conf‌licts with the federal law.
Third, courts may obser ve that the Constitution does not clearly
confer legislative authority to either level of government. In such cas e,
a court may f‌ind that the federal government should have legislative
2 This chapter pre sents but a brief summar y of these rules. For more ana lysis and
information , see a constitutional text , such as those of Peter Hogg, the late st
at the time of wr iting being Peter Hogg, Constit utional Law of Canada, Student
Edition (Toronto: Carswel l, 2015).

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