Sections 91 and 92 of the Constitution Act, 1867 separate powers between the federal government and provinces. Environmental law is a subject matter where both levels of government can enact laws. Nevertheless, the lack of definite division has been the subject of litigations, as federal and provincial laws can overlap and conflict. This is where constitutional principles on the division of powers come into play. This issue can be illustrated from the recent case Reference re Environmental Management Act (BC), 2019 BCCA 181.
In this case, the Province of British Columbia proposed an amendment to the Environmental Management Act by imposing a permit for persons in possession of heavy oil above a threshold, where a director can attach conditions to the permit and prosecute persons in contravention. Although the Province of B.C. argued that the amendment related to property and civil rights, the B.C. Court of Appeal held that it was invalid because it could affect the entire operation of the Trans Mountain pipeline—an interprovincial undertaking.
To reach this finding, the BCCA conducted a thorough review of constitutional principles relating to the division of powers.
Constitutional principles
The validity of a law is first determined by questioning whether the law falls, in its “pith and substance” within a government’s authority under either section 91 or 92 of the Constitution Act, 1867. This requires the analysis of the purpose and effects of the law. If the true dominant purpose of the law is not within the respective jurisdiction of the legislature, then the law is ultra vires. This doctrine also helps determine whether a law is colourable.
The dominant purpose of a law does not always correspond to a definite head of power; a law may fit within both federal and provincial matters (para. 5). In such cases, the “double aspect” doctrine allows the co-existence of conflicting subjects. This is also referred to as co-operative federalism; while the separation of powers must still be respected, subject matters shall not always be strictly compartmented. The BCCA states that the double aspect doctrine recognizes that some laws may be regarded as being “in relation to” both the federal and provincial levels of government (para. 16).
In addition, the “ancillary powers” doctrine applies in Canada because of the division of powers. This doctrine allows the intrusion of a law into a head of power into which the legislature does not have jurisdiction, as long as the intrusion is limited, i.e. that the effects are incidental.
During this review, the BCCA noted that “environmental protection” is not a head of power allocated to either level of government (para. 12). The BCCA decided to apply the pith and substance doctrine (para. 13), where legal or practical effects of a law are a more reliable guide to its constitutional validity than the law’s apparent and stated intention (para. 14).
Where validly enacted laws of two levels of government conflict, or the purpose of the federal law is “frustrated” by the operation of the provincial law, the latter becomes inoperable to the extent of the inconsistency. This is the paramountcy doctrine, which has recently been relaxed by the Supreme Court of Canada by encouraging co-operative federalism and a flexible approach to constitutional interpretation (para. 17).
Finally, interjurisdictional immunity applies when, for example, a valid law of a province encroaches upon a matter under exclusive federal jurisdiction. This doctrine renders the exercise of the power inapplicable to the extent of the impairment caused on the other government’s jurisdiction (para. 18).
Analysis
Before starting its analysis, the BCCA proceeded by considering major environmental laws, both federal and provincial. It noted that a web of federal statutes and regulations applies to all aspects of interprovincial pipelines, in parallel of various provincial statutes aimed at environmental protection, such as the EMA and the Environmental Assessment Act. This web of legislation creates a challenge in enacting laws to protect the environment.
The BCCA relied on the Supreme Court’s clarification that, before considering interjurisdictional immunity, courts ought to first determine the pith and substance of a law. This determination is not to be confused with whether the law impairs a vital part of the federal jurisdiction over interprovincial undertakings. Should the law relate to a federal head of power, the analysis ends here; as in the present case (para. 92).
Nevertheless, the BCCA acknowledged that federal undertakings are not constantly immune from provincial environmental laws because both levels of government have jurisdiction in this area. In rejecting the idea that the protection of the environment primarily relates to the protection of property (section 92(13) of the Constitution Act, 1867), the BCCA concluded that environmental protection is too important and too diffuse to belong to one level exclusively or absolutely (para 93).
Although the amendment is framed as a law of general application, the BCCA found that it is intended, and its sole effect it to set conditions, for and if necessary, prohibit the possession and control of increased volume of heavy oil in the province. In practice, TMX alone would be concerned by this amendment. The existence of a federal undertaking is fundamental to the outcome of this decision. Indeed, if TMX was inexistent, the amendment could be valid because it would not affect a federal undertaking.
Although the BCCA does not deem the amendment to be colourable, its immediate and existential threat to a federal undertaking, such as permitting requirements or possible prohibition, are not incidental effects.
Hence, the amendment is invalid because it had the potential to affect the entire operation of TMX, which results of the regulation of a federal undertaking. Indeed, the amendment would have caused the project to stop until it obtained a permit, if granted, which would have undermined the role of the National Energy Board.
The regulation of environmental law remains challenging in Canada. While jurisdiction over environmental law is shared, provinces seem constrained by constitutional principles.
Alexia Cadoret is currently articling at Jonathan Waddington PLC, in Vancouver.