Week 2: Constitutional Allocation of Constitutional Responsabilities

Question 1

What are the 3 elements of the supremacy of the Constitution?

Answer 1

1. Section 52(1) of the Constitution Act, 1982,states that the Constitution is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is inoperative to the extent of the inconsistency.
2. Federal and provincial government can only exercise powers conferred upon them by the constitution; otherwise, such exercise of power is void
3. The Constitution of Canada includes the Constitution Act, 1867, Constitution Act, 1982, as well as the Canadian Charter of Rights and Freedom

Question 2

Which body has express power to enact environmental law?

Answer 2

No legislature has express power to enact environmental law; laws relating to the environment must be tied to ANOTHER express allotation of power (land, oceans, etc…)

Question 3

How do you determine which parliement has jurisdiction to enact laws concerning air pollution?

Answer 3

It is constitutionally meaningless to attempt to determine conclusively wether the federal or the provincial government has jurisdiction over air pollution. An answer to the question would depend not only on factual matters such as the source, nature and consequences of particular air pollution, but also the precise form and scope of the law aimed at it

Question 4

What are the federal government heads of power that relate to the environment?

Answer 4

Federal heads of power stems from article 91 of the Constitution Act 1982. Several articles offer possibilities for environmental matter (examples in parenthesis):

(2) : Trade (Dangerous substances exports)
(10) Naviguation and Shipping (Canada Shipping Act regulates discharges from ships and transportation of dangerous substance)
(12) : Seacoast and inland fisheries (Fishery act, regulates discharges into water frequented by fish)
(24) : Indians and lands reserved for the Indians (can legislate over waste management in reserves)
(27) : Criminal law (Can criminalize actions dangerous for the environment)
(29) : Federal works and undertakings (Work related to federal heads of powers or exceptions to 92(10))

Question 5

Define the POGG Power

Answer 5

The Peace, Order and good Government of Canada stems from the introduction of article 91 of Constitution Act 1867. Lets the federal government regulate environmental matter of national concern. It must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern. Example, the Atomic Energy Control act regulate uranium, even though it is a natural resource found on land. Nuclear energy is of national concern.

Question 6

Name examples of federal legislation/act

Answer 6

Fisheries act
Canada environmental protection act
Species at risk act
Canada environmental assessment act
Pest control products act
Migratory Convention Act
Transportation of Dangerous Goods act
Canada Shipping Act
Atomic Energy Control Act

Question 7

What are the provincial heads of power related to the environment?

Answer 7

Heads of power steams from article 92 of Constitution Act 1982:
(5): Forest and it'S resources
(8): Municipalities
(9): Licenses
(10) Works and undertakings (some interprovincial exceptions go to the federal
(13) Property and civil rights 
(15) Enforcement
(16) Private or local matter
92A Non-renewable natural resources

Question 8

Name examples of provincial environmental legislation

Answer 8

BC Environmental management act
Alberta Environmental Protection and Enhancement Act
Ontario Environmental Protection Act (EPA)
Ontario Water Resources Act (OWRA)
Quebec Environment Quality Act
Ontario Environmental Assessment Act (EAA)
Ontario Pesticides Act

Question 9

What is the doctrine of paramountcy?

Answer 9

When there is a conflict between federal and provincial legislation, the latter is made inoperative as far as the conflict goes.

Overlapping does not render either inoperative, both needs to be complied to concurrently.

Question 10

How does municipal law making power work?

Answer 10

They receive power from article 92(8) after being created by the provinces. They do not exert constitutional power. They enact by-laws based on enabling legislation.

Question 11

What are the 6 sets of municipal powers?

Answer 11

• environment powers
• public health powers
• planning and zoning powers
• business licensing and regulation powers
• dangerous substances powers
• plenary powers (parking tickets etc)