In the last issue of LawNow I talked about some of the reasons environmental law can be challenging to understand. One of those reasons was that different levels of government in Canada have power to make rules about different things. In this article I want to discuss the basics of who has jurisdiction over the environment in Canada.
Canada is one country but we are also ten provinces and three territories. Inside the provinces and territories, we have municipalities, cities and towns, each with a physical geographic area and a government or council that makes rules (I'm using "rules" to refer to all enforceable laws and regulations to keep it simple). Within the provinces and territories, rules are also made by a wide variety of other organizations called by different names, including agencies, boards or authorities. These organizations can look a lot like governments. Sometimes they have authority to make enforceable rules in specific geographic areas (for example, the 36 Conservation Authorities in Ontario). Sometimes they have authority to make rules over a certain kind of activity (for example the Sterile Insect Release Board in British Columbia that has the power to order entire orchards cut down if they don't comply with pest control rules). There are many examples of rulemaking authorities like these across the country.
Before Canada was created as a country in 1867, we were a British colony. The document that created the country was a British statute called the British North America Act. (which you will usually hear called the BNA Act). In the BNA Act, authority for the things that the British government thought were important 150 years ago were divided between the federal government and the four provinces that were first created. Section 91 of the Act lists the federal powers, section 92 lists the provincial powers. In 1982, at the insistence of Alberta under Peter Lougheed, and in response to the federal National Energy Program, a new section 92A was added, giving the provinces the exclusive power to make laws for exploration, development, conservation and management of non-renewable and forestry resources.
Each level of government is only allowed to make rules about things included on its list of powers. If one level of government thinks another level of government has made a rule that is outside its allowed area, they can ask a court to rule that the law is ultra vires (Latin for "beyond the powers) of that level of government....