 [Kit, p. 397] • CN v. Courtois [Kit, p. 398] • AGT v. Canada [Kit, p. 399] • Friends of Oldman River v. Canada [Kit, p. 403] • Ont. Hydro v. Lab. Rel’s Broad [Kit, p. 407] Can. Ind Gas & Oil v. Sask, 1977 (CIGOL) • 1973: OPEC inc’d world price of oil – Windfall gains by oil companies in Canada – Sask gov’t wanted diff between old price and new price – Expropriated oil & gas land tracts, and imposed royalty surcharge equal to diff • 7-2: Sask leg ultra vires •) Section 109, CA 1867 •. Cent Can Potash & AG Can v Sask, 1979 • • 1971: Sask changed prorationing formula; • Cent Can Potash tried to force gov’t to honour old plan through mandamus. • CCP went to court; Ottawa intervened Cent Can Potash continued • All 7 judges on panel, led by Chief Justice Laskin, found the Sask scheme unconstitutional. • Provinces own natural resources, but this does not give them the power to control interprovincial or international trade and commerce. • Any legislation that is in pith and substance an attempt to regulate interprovincial and international trade and commerce is ultra vires provincial powers. • These two decisions led to a great deal of resentment on the part of the Western provinces, and led directly to the demand to include S. 92A in the constitutional package agreed to in November, 1981. • (See Section 92A on web page under "Constitution Acts, 1867 to 1982.") Section 92A: NON-RENEWABLE NATURAL RESOURCES, FORESTRY RESOURCES AND ELECTRICAL ENERGY •. Section 92a (cont’d) •. Section 92A (cont’d) •. • …. O’Harra v. British Columbia (1987) • • • • • • –. CN v. Courtois (1988) • Impugned: Quebec Occupational Health and Safety Act, as it applies to an investigation of an accident involving two CN trains. • Issue: Can a province investigate an industry under federal jurisdiction, and make recommendations for changes to ensure safety? • Quebec CA: an investigation by a provincial body might be OK if recommendations not binding on fed. Undertakings. • SCC (Beetz + 6, unanimous): the real issue is whether the province has the constitutional authority to investigate a federal undertaking. Provinces do not have this power. The federal Occupational Health and Safety Act applies, not the provincial one. • (summons duces tecum – a summons to attend with particular documents) AGT v. Canada (CRTC) (1989) • Impugned: authority of CRTC over Alberta Government Telephones (AGT) • AGT (now Telus) was a provincial crown corp, provincially regulated. CNCP telecommunications wanted an order from CRTC in 1982 to facilitate interchange of communications. AGT objected, claiming crown immunity. • Questions: a) is AGT an interprovincial undertaking under 92(10)(a)? B) If so, is AGT subject to CRTC regulations? •. • This decision astounded many lawyers, according to Hogg. • Wilson (dissenting): AGT cannot claim crown immunity. Friends of Oldman River v. Canada • Friends of Oldman River - an environmental group opposed to AB Gov’t’s plan to build a dam on the Oldman River west of Lethbridge (on Indian res) to store water for irrigation. (Supported by folk singer Ian Tyson, who has a ranch in Southern Alberta.) -AB gov’t did its own environmental assessment. -Feds have regulatory authority under: -S. 91(10), “navigation & shipping” -S. 91(12), “sea coast & inland fisheries,” & -S. 91(24), “Indians, and lands reserved for Indians” -Fed. Environmental Assessment & Review Process Guidelines Order requires fed. Dept’s of Transport & Fisheries to screen “undertakings” for env impact. Only navigation impact reviewed; fed dept’s of Env & Fisheries didn’t do env assessment. 1987: fed Min of Transport approved -1988: project commenced. 1989: Friends asked Fed Ct for orders of certiorari of fed approval, & mandamus. Friends lost in trial div., but won in appeal div; fed approval order quashed. Appealed to SCC by fed gov’t Oldman River continued • SCC: 8-1 upheld order for cert & order to quash (but here mandamus inappropriate) -La Forest + 7: Fed Guidelines Order requires fed gov’t to assess env impact of an undertaking under all relevant heads of fed power. In this case, impact on fisheries and Indian lands was not reviewed. The Alberta crown is not immune; otherwise provinces could ignore fed jurisdiction -“The environment” is not a separate head of power. Both prov’s and fed’s can regulate aspects that fall within their own powers. Fed Guidelines Order only pertains to fed powers -- 91(10), (12) & (24). -The aspect of the Guidelines Order order which regulates fed agencies is intra vires either under 91(10), (12) & (24), or POGG. -Fed powers can’t be used in a colourable fashion to interfere with prv powers. -Legitimate use of Guidelines may impact prov powers as long as the pith and substance of the fed action takes place under 91(10), (12) or (24). The Friends acted as expeditiously as possible; the fed & prov gov’t’s caused unnecessary delays to their litigation. Ontario Hydro v. Ontario (Labour Relations Board) (1993) • •. •. Objectives of Lecture 1) Provide the constitutional and legislative framework for how jurisdiction over Indians in Canada operates. 2) Define who is an “Indian” and what is meant by “Lands Reserved for Indians”. 3) Examine key judicial decisions regarding jurisdiction over Indians in Canada.. Legislative Framework Section 88 of the Indian Act in “Regular Language” Provincial laws of general application apply to Aboriginals except under the following circumstances: • • • • If they conflict with existing treaty rights If they conflict with any existing federal legislation If they conflict with any provisions in the Indian Act If they conflict with any order, rule, regulation or by-law made under the Indian Act Who Is An “Indian”? Are Indians “Indians”? Are the Inuit “Indians”? Are the Mét. Who Is An “Indian”? Inuit May Not Be “Indians” Are the Inuit ). Who Is An “Indian”? The Métis may not be “Indians” Note: In Blais, the Supreme Court did not decide whether the Métis were “Indians” for the purposes of s. 91(24) of the Constitution Act, 1867.” Who Is An “Indian”? The Métis may not be “Indians” Why is each level of government claiming the other has jurisdiction over the Métis? Do you think the Métis are“Indians”?. Judicial Decisions On Jurisdiction Four B. Manufacturing Ltd. v. United Garment Works of America, [1980] 1 S.C.R. 1031.. Judicial Decisions On Jurisdiction Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.. Judicial Decisions On Jurisdiction Ratio: There are four important ratios to note about this case. (for this class’ purposes). They. 1) 2) s. 91(24) Does Not Create Federal Enclaves: Section 91(24) of the Constitution Act, 1867 does not create a federal enclave of power, meaning that the provinces can enact laws of general application that apply to Indians.). Summary of Provincial Laws Of General Application Ways In Which Provincial Legislation is Applicable B). Referential Incorporation Through s. 88 of Indian Act: Provincial laws can apply to Indians if they have been referentially incorporated into federal legislation through s. 88 of the Indian Act. Nov. 25: Vaughan, Cairns & Russell • After 1949: many academics condemned JCPC for bad jurisprudence, and decentralist tendencies. • Browne defended JCPC as applying correct rules of construction. • 1971: Alan Cairns defended results of JCPC decisions from a sociological perspective • Peter Russell defended JCPC results from a “balance” perspective, & pointed out Fathers of Confederation had differing views • Vaughan claims Browne, Cairns and Russell are all wrong; BNA Act was centralist, and JCPC guilty of bad jurisprudence Vaughan’s argument • G.P. Browne argues that the JCPC was correct in determining that there are 3 bases of power: POGG, list in s. 91, and s. 92. • Vaughan: there are really just 2 (POGG & s.91 list are inseparable), and so JCPC was wrong. • Browne: JCPC followed stare decisis. • Vaughan: JCPC did not consist of fools or knaves, but politicians attempting to “enunciate a basis for provincial legislative authority.” • JCPC ignored the intent Fathers of Confed., who created a centralist state in reaction to U.S. Civil War. Section 91 • •, [29 enumerated heads] • “deeming” paragraph: •aughan (continued) • Danger of judges becoming legislators (eg. “Persons” case: Edwards v. A-G for Canada, 1930). Living tree. “large and liberal interpretation” for constitution •