Cent Can Potash & AG Can v Sask, 1979
-1960s:  potash mines developed in Sask; Sask can supply world for 1500 years.
-Other major producer:  New Mexico, but mines less efficient
-By 1967, Sask potash selling in US at well below NM prod price
-Most NM companies had interests in Sask mines
-U.S. gov’t threatened to restrict imports from Sask
-NM and Sask worked out a pro-rationing scheme to restrict Sask output so that NM mines could operate Gov’t in Ottawa not opposed, so no court challenge
-1971:  Sask changed pro-rationing formula;  Cent Can Potash tried to force gov’t to honour old plan through mandamus.
-CCP went to court; Ottawa intervened to argue that the Saskatchewan legislation encroached on federal jurisdiction.
-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.

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:


                                              (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
                                              (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
                                              (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
                         Taxation of
                                              (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

                                                        non-renewable natural resources and forestry
                                                        resources in the province and the primary
                                                        production therefrom, and
                                                        sites and facilities in the province for the
                                                        generation of electrical energy and the production

                                              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.
                                              (5) The expression "primary production" has the meaning assigned by
                                              the Sixth Schedule.
                         Existing powers or
                                              (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

-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
-Friends won in appeal div; fed approval order quashed
-appealed to SCC by fed gov’t
-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 prov 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.

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?