Division of Constitutional Powers

Canada is a federation of ten provinces and three territories. This means that the authority to make laws is divided between the Parliament of Canada and the provincial legislatures. The federal parliament can make laws for the whole of Canada in respect of matters assigned to it by the Canadian Constitution. As well, the federal parliament has responsibility for the three territories. A provincial legislature, likewise, can make laws relative to the subject matters over which it has been assigned jurisdiction.

There are also local or municipal governments. These governments are created under provincial law and can make by-laws dealing with a variety of local matters, such as zoning regulations and the issuance of construction permits.

Finally, particular arrangements have been developed for Aboriginal peoples in the various regions of Canada. For example, Aboriginal governments can exercise a range of governmental powers over reserve lands and other territories covered by specific agreements negotiated with the federal and provincial governments.

Part VI of the Constitution Act, 1867 deals with the distribution of legislative powers between the federal government and the provincial governments. Essentially, the Canadian Constitution provides the Parliament of Canada with control over certain matters of a general or national interest and the provincial governments with control over matters of provincial or local significance.

Section 91 of the Constitution Act, 1867 defines the legislative authority of the federal government. Among other things, the Parliament of Canada has the exclusive authority to make laws with respect to:

  1. the regulation of trade and commerce;
  2. the raising of money by any mode or system of taxation;
  3. navigation and shipping; and
  4. the sea coast and inland fisheries.

The legislature of each province may exclusively make laws in relation to certain matters enumerated in section 92 of the Constitution Act, 1867. One of these matters is the "Management and Sale of the Public Land Belonging to the Province and of the Timber and Wood Thereon." The 1982 Amendments to the Constitution explicitly recognized the Constitutional right of the provinces to manage their non-renewable natural resources, forestry resources and electrical energy (section 92A):

"92A.(1) In each province, the legislature may exclusively make laws in relation to:

  1. exploration for non-renewable natural resources in the province;
  2. 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 ..."

In addition, subection 92A.(2) provides to each provincial legislature the right "to 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 ...", provided that such laws do not authorize or entail discrimination in prices or in supplies exported to another part of Canada. Where such law of a province and a law of Parliament conflict, the law of Parliament prevails to the extent of the conflict.

Finally, further to the 1982 Amendments, provincial legislatures may make laws in relation to the raising of money by any mode or system of taxation in respect of non-renewable natural resources in the province, provided that such laws do not give rise to differential taxation between primary production transformed within the province and primary production exported to another part of Canada.

It is worth mentioning that the Canadian Constitution provides to the Parliament of Canada the residue of powers, or such classes of subjects that are not assigned exclusively to the legislatures of the provinces. As provided under paragraph 92.10(c), the federal government also has jurisdiction over "local Works and Undertakings declared by the Parliament of Canada to be for the Advantage of two or more of the Provinces."