Sources of Jurisdiction and Control

• Author: Elaine L. Hughes, Arlene J. Kwasniak, Alastair R. Lucas
• Pages: 53-88

53

CHA PTER 3

SOURCES OF

JURISDICTION

AND CONTROL

Arlene J Kwasniak

A. INTRODUCTION

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.

B. LEGISLATIVE JURISDICTION OVER PUBLIC

LANDS A ND R ESOURCES

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.

PUBLIC LANDS A ND RESOURCES LAW IN CA NADA54

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).