The Potash decision, together with the CIGOL decision we discussed in the last class, 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.
Here's Section 92A, another constitutional amendment to the division of powers that came about as a reaction to judicial decisions:
92A. NON-RENEWABLE NATURAL RESOURCES, FORESTRY RESOURCES AND ELECTRICAL ENERGY
(1) In each province, the legislature may exclusively make laws in
relation to
(a) exploration for non-renewable natural resources
in the province;
(b) development, conservation and management of
non-renewable natural resources and forestry
resources in the province, including laws in
relation to the rate of primary production
therefrom; and
(c) development, conservation and management of
sites and facilities in the province for the
generation and production of electrical energy.
Export from
provinces of
resources
(2) In each province, the legislature may make laws in relation to the
export from the province to another part of Canada of the primary
production from non-renewable natural resources and forestry
resources in the province and the production from facilities in the
province for the generation of electrical energy, but such laws may not
authorize or provide for discrimination in prices or in supplies exported
to another part of Canada.
Authority of
Parliament
(3) Nothing in subsection (2) derogates from the authority of
Parliament to enact laws in relation to the matters referred to in that
subsection and, where such a law of Parliament and a law of a
province conflict, the law of Parliament prevails to the extent of the
conflict.
Taxation of
resources
(4) In each province, the legislature may make laws in relation to the
raising of money by any mode or system of taxation in respect of
(a)
non-renewable natural resources and forestry
resources in the province and the primary
production therefrom, and
(b)
sites and facilities in the province for the
generation of electrical energy and the production
therefrom,
whether or not such production is exported in whole or in part from the
province, but such laws may not authorize or provide for taxation that
differentiates between production exported to another part of Canada
and production not exported from the province.
"Primary
production"
(5) The expression "primary production" has the meaning assigned by
the Sixth Schedule.
Existing powers or
rights
(6) Nothing in subsections (1) to (5) derogates from any powers or
rights that a legislature or government of a province had immediately
before the coming into force of this section.
Friends of the Oldman River Society v. Canada (Min of Transport) 1992
Stevenson’s dissent:
-The provincial Crown is not bound by the fed legislation unless the
fed legislation specifically mentions it; the Guidelines order does not.
-The Friends waited too long to challenge fed approval, and dam is
already most built, so a challenge at this point is futile.
-In admin law, dec of motions judge to refuse injunction must be respected;
appeal cts shouldn’t second guess
-So the Friends won, but then the feds conducted an environmental assessment as required by the Supreme Court, & eventually approved the dam anyway. Was the litigation worth the cost to the environmental movement? Some say yes, because this decision confirmed the importance of governments following their environmental legislation. As well, the environmental movement gained a very high profile through the publicity this case generated. Others would argue no -- the environmental movement would have been better off saving the enormous cost of litigation, and focusing on more effective lobbying of politicians at the federal and provincial level (and getting involved more in party politics themselves). What do you think?