D. The National Concern Branch
| Author | Patrick J. Monahan - Byron Shaw |
| Pages | 270-279 |
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As noted in Chapter 7, in the 1920s, the Privy Council under Lord Haldane had characterized pogg as an emergency power that was applicable only in response to exceptional national crises such as war. However, in the Canada Temperance Federation case in 1946, the Privy Council expressly rejected Lord Haldane’s narrow emergency theory of pogg and held that pogg authorized Parliament to deal with matters of inherent national concern:
[T]he true test must be found in the real subject matter of the legislation: if it is such that it goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole ... [as, for example, in the Aeronautics case and the Radio case], then it will fall within the competence of the Dominion Parliament as a matter affecting the peace, order and good government of Canada, though it may in another aspect touch on matters specially reserved to the provincial legislatures.16The Canada Temperance Federation case provides that matters which must "from ... [their] inherent nature be the concern of the Dominion as a whole" fall under the federal Parliament’s pogg power. But what criteria or indicia are used to identify inherently national matters? Subsequent cases applied the national concern doctrine without clearly setting out the criteria applicable.
In Johannesson v. West St. Paul (Rural Municipality),17the Supreme Court of Canada determined that the regulation of aeronautics was a matter of inherent national concern. In reaching this conclusion, the Court noted the tremendous growth in interprovincial and international air travel since the end of the First World War. The Court also noted that the extension of air links between the settled parts of the country and the north was essential to the opening up of the country and the development of the resources of the nation. According to Locke J., "[i]t requires merely a statement of these well recognized facts to demonstrate that the field of aeronautics is one which concerns the country as a whole. It is an activity which ... must from its inherent nature be a concern of the Dominion as a whole."18While these observations
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were certainly correct, the Court - as well as the Privy Council before it - had on many previous occasions rejected arguments in favour of federal jurisdiction based on the national importance of an activity or industry. The Court in Johannesson made no attempt to reconcile the decision with the earlier jurisprudence.
Nor was the scope of the national concern doctrine clarified in subsequent cases. The Court did not apply the national concern doctrine again until 1966, in Munro v. Canada (National Capital Commission).19
Munro concerned the validity of the National Capital Act, federal legislation that created a National Capital Commission with zoning and expropriation powers in the Ottawa-Hull region. Zoning and expropriation powers are traditionally regarded as matters falling within provincial jurisdiction over property and civil rights. It was argued that the federal legislation was ultra vires, since it purported to confer these powers on a federal agency. The Supreme Court rejected this argument and upheld the Act, placing particular emphasis on the purposes underlying the creation of the national capital region. According to section 10 of the National Capital Act, the purpose of the National Capital Commission was to ensure that the "nature and character of the seat of the Government of Canada may be in accordance with its national significance." The Court asked whether this was a matter that could possibly fall under provincial jurisdiction under section 92 of the Constitution Act, 1867. The answer, according to the Court, was virtually self-evident: only the national government could possibly undertake responsibility for ensuring that the capital region was developed "in accordance with its national significance." The provinces, either individually or collectively, could not undertake this national responsibility, since provinces are necessarily limited to provincial concerns and interests. "I find it difficult," held Cartwright J., "to suggest a subject matter of legislation which more clearly goes beyond local or provincial interests and is the concern of Canada as a whole than the development, conservation and improvement of the National Capital Region in accordance with a coherent plan in order that the nature and character of the seat of the Government of Canada may be in accordance with its national significance."20A similar analysis was applied in Reference Re Offshore Mineral Rights (British Columbia),21decided a year later. The case concerned the ownership and control of the minerals in the seabed under Canadian
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waters off the British Columbia coast. In holding in favour of the federal government, the Supreme Court relied in part on the residuary branch of pogg, emphasizing the fact that the territorial sea fell outside the boundaries of any particular province. Ownership rights must, therefore, be accorded to Canada, which had become a sovereign state under international law in the early twentieth century and succeeded to rights previously held by Britain. However, the Court also relied on the national concern branch of pogg, stating that "[t]he mineral resources of the lands underlying the territorial sea are of concern to Canada as a whole and go beyond local or provincial concern or interests."22The difficulty with these cases was twofold. First, they failed to elaborate the criteria that should be used to identify matters of inherent national concern. Second, the decisions are difficult to reconcile with cases in which matters of significance to the country as a whole had nevertheless been found to be subject to exclusive provincial jurisdiction under the property and civil rights power. As such, the precise scope and significance of the national concern branch remained somewhat uncertain.
W.R. Lederman wrote a seminal article that appeared in the Canadian Bar Review in 1975. 23 Lederman propounded a theory of the "spirit and philosophy of our Canadian system for the division of legislative powers." This spirit and philosophy, which Lederman traced through numerous court decisions, was based on the idea that governments should be granted jurisdiction over limited and discrete subject areas. In Lederman’s view, there was a need "to keep the power-conferring phrases of our federal-provincial division of powers at meaningful levels of specifics and particulars."24Overly general or all-encompassing categories were inappropriate as a basis for allocating jurisdiction, since they would grant sweeping powers to a single level of government and could "lead to constitutional chaos or to the end of federalism."25
Lederman offered a number of examples of the kinds of sweeping categories he regarded as inappropriate as a basis for dividing jurisdiction in a federal state. One such category was culture: Lederman noted that today "everything is cultural," including literature, automobiles, tools,
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computers, home comforts, lifestyle, and the Boeing 747.26If culture were recognized as an area of exclusive jurisdiction of either the provinces or the federal government, it would effectively spell the end of the division of powers. Lederman suggested that all-pervasive categories such as environmental pollution, economic growth, quality of life, language and culture "cannot be allowed to dominate our distribution-of-powers system from within." Instead, these general categories should be regarded as "outside the system ... [and] subdivided into appropriate parts so that necessary legislative action can be taken by some combination of both federal and provincial statutes."27Lederman’s theory of the spirit and philosophy of Canadian federalism was soon...
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