INTRODUCTION

There is in Canada today considerable public debate and uncertainty regarding both the wisdom and validity of federal laws and regulations that affect oil and gas development. This brief article, which borrows from a longer report prepared for the International Institute for Sustainable Development (“IISD”),^[1] outlines when and how Canada’s federal government can regulate such development. As further set out below, while provincial legislatures have broad legislative authority over oil and gas development within their territorial limit, Parliament — and through it the federal government of the day — can also make laws and regulations in relation to those aspects of oil and gas development that engage federal jurisdiction. Indeed, oil and gas development can engage over a dozen classes of federal legislative authority, both directly and indirectly. Oil and gas development on federal lands, in the offshore, and on Indigenous reserves, as well as its interprovincial and international transport and export, all fall directly under federal legislative authority. Indirectly, such development engages federal jurisdiction over navigation, fisheries, Indigenous Peoples and their interests in land (including but also beyond reserves), transboundary water pollution, migratory birds, and certain aspects of climate change. Oil and gas development is also affected by the exercise of federal jurisdiction over taxation, spending, patents, and bankruptcy and insolvency.

This article proceeds as follows. Part I discusses the general principle of federalism within the Canadian state, while Part II sets out the rules that Canadian courts apply when assessing the constitutional validity of a given law or regulation (whether federal or provincial). Part III summarizes the rules and principles surrounding nine relevant sources of federal legislative authority. Part IV concludes.

PART I: GENERAL PRINCIPLES OF FEDERALISM

Canada is a federal state. This means that the jurisdiction to make laws (also called legislative power or legislative authority) is divided between the federal and provincial legislatures. This “division of powers” is primarily set out in Sections 91 (federal) and 92 and 92A (provincial) of the Constitution Act, 1867.^[2] These sections each set out a list of over twenty “classes of subjects,” also called “heads of power” assigned to the federal and provincial legislatures, respectively. The relationship between the federal and provincial legislatures is one of equal partners, not of subordination. When making laws each level of government is autonomous; neither level is under any obligation to accommodate the policy preferences of the other.

Legislative authority does not amount to, or confer, a right to anything — including a right to develop natural resources.^[3] Rather, it simply enables the relevant government to pass laws in relation to “matters coming within the classes of subjects” listed in Sections 91, 92, and 92A. For example, the protection of fish habitat has been deemed a “matter” that falls within the scope of 91.12. (Sea Coast and Inland Fisheries) and is therefore something that Parliament may pass laws in relation to — and indeed has. As another example, the development, conservation and management of non-renewable natural resources are “matters” found in 92A(1) that provincial legislatures may pass laws in relation to — and this includes oil and gas development. Again, however, it does not follow that the provinces or private proponents have some unfettered right to such development: such development can be subject to, and constrained by, valid laws by both levels of government.

Two other types of federal authority or power merit a brief mention here. They are mentioned here because their use is primarily limited by political, rather than legal, constraints. The first is the authority to spend money, or the spending power: “[t]he federal (and provincial) spending power is that of a natural person.”^[4] Both levels of government have the ability to spend money — and to attach conditions for such spending, including conditions on the receipt of such spending. In the oil and gas context, the most conspicuous examples might be the relatively recent purchase of the Trans Mountain pipeline^[5] and the provision of over $1 billion in COVID relief funding to the provinces to address the oil and gas sector’s significant closure liabilities.^[6]

The second authority is the “declaratory power” in Section 92(10)(c), pursuant to which Parliament may declare a “work” wholly situated in one province to be “for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.” This power has been used “no less than 472 times, the majority of which have been in respect of local railways.”^[7] That being said, this power is regarded as generally inconsistent with Canada’s federal structure: “[i]t has been used very rarely in recent times.”^[8]

PART II: CHARACTERIZATION, CATEGORIZATION, DOUBLE ASPECTS, AND INCIDENTAL EFFECTS

The general framework that Canadian courts apply when assessing whether a given law or regulation is constitutional (i.e., whether it falls within the legislative authority of the government that passed it) is referred to as the division of powers analysis. This analysis consists of (i) characterization and (ii) categorization.^[9] Two additional and relevant doctrines are the “double aspect” doctrine and the “incidental effects” doctrine. These doctrines enable the concurrent application of federal and provincial laws and regulations in various contexts, provided always that those laws and regulations respect the rules of the head of power pursuant to which they were passed. In the event of a conflict or inconsistency between such federal and provincial laws, the federal law will prevail on the basis of the doctrine of federal paramountcy.^[10]

(i) Characterization

At the first step, a court examines the relevant law or regulation (or relevant portions thereof)^[11] and seeks to identify its essence — what the case law refers to as its “pith and substance.”^[12] This, then, is the “matter” (sometimes also referred to as the subject matter) that is subsequently categorized as falling within one of the potentially relevant heads of power in Sections 91, 92, or 92A. To determine pith and substance, “two aspects of the law must be examined: the purpose of the enacting body and the legal effect of the law.”^[13]

As a recent example, in References re: Greenhouse Gas Pollution Pricing Act^[14] and after assessing its legal and practical effects, a majority of the Supreme Court of Canada concluded that the “true subject matter” of the Greenhouse Gas Pollution Pricing Act SC 2018, c. 12, s. 186 (“GGPPA”) was “establishing minimum national standards of GHG price stringency to reduce GHG emissions.”^[15] This was the “matter” or “subject matter” that the Court subsequently classified as falling within Parliament’s residual POGG power. Importantly, the majority rejected other characterizations, such as the regulation of GHGs, generally, and even national standards for GHGs, generally, as overly broad characterizations of the GGPPA, favouring instead the “most precise” characterization of the subject matter of the legislation.^[16]

(ii) Categorization

Once a law has been characterized as above (i.e., its matter has been identified), the courts then determine the head(s) of power into which the matter falls: “If the matter of the law is ‘properly classified [i.e., categorized] as falling under a head of power assigned to the adopting level of government, the legislation is [constitutional] and valid.’”^[17] It is at this stage that some awareness and understanding of provincial heads of power becomes critical to the analysis: a federal law or regulation that purports to regulate some aspect of oil and gas production, processing, or transportation will not be categorized with a view only to potential federal heads of power but rather with awareness of, and sensitivity to, relevant provincial heads of power: “Classes of subjects [i.e., heads of power] should be construed in relation to one another… In cases where federal and provincial classes of subjects contemplate overlapping concepts, meaning may be given to both through the process of ‘mutual modification.’”^[18]

(iii) Double aspect

While there was once a time that Canadian courts applied a “watertight compartments” approach to the division of powers, whereby overlap between federal and provincial heads of power was strenuously avoided, this has long since given way to a more flexible approach that recognizes that the same fact situation can have both a federal and provincial aspect pursuant to what is called the “double aspect doctrine.”^[19] The “double aspect doctrine” allows the same set of facts to be regulated from different perspectives or aspects, with the federal government employing heads of power falling within Section 91 and provincial governments using heads of power within Sections 92 or 92A.

That being said, in the recent Reference re: the Impact Assessment Act, a majority of the Supreme Court cautioned that while the application of the double aspect doctrine allowed concurrent operation of federal and provincial laws, this did not amount to concurrent jurisdiction: “If a fact situation can be regulated from both a federal perspective and a provincial perspective, it follows that each level of government can only enact laws which, in pith and substance, fall under its respective jurisdiction.”^[20]

As is further discussed in Part III, some heads of power, e.g., the criminal law power, have rules about both the substance and form of such laws.^[21] Other heads of power have been described as being in relation to a resource (e.g., the fishery resource) or an activity (e.g., interprovincial railways), which can also have implications for their scope and breadth.

(iv) Incidental effects

Finally, Canadian courts have also recognized that valid legislation may, to some degree, touch on matters beyond the legislature’s jurisdiction without becoming unconstitutional:

[A law’s] secondary objectives and effects have no impact on its constitutionality: “merely incidental effects will not disturb the constitutionality of an otherwise [constitutional] law”… By “incidental” is meant (sic) effects that may be of significant practical importance but are collateral and secondary to the mandate of the enacting legislature… Such incidental intrusions into matters subject to the other level of government’s authority are proper and to be expected.^[22]

The “incidental effects” doctrine recognizes that “it is in practice impossible for a legislature to exercise its jurisdiction over a matter effectively without incidentally affecting matters within the jurisdiction of another level of government. For example…it would be impossible for Parliament to make effective laws in relation to copyright without affecting property and civil rights.”^[23] Thus, federal laws and regulations in relation to fisheries, navigation, or Indigenous Peoples may incidentally affect the development of oil and gas without being rendered unconstitutional. For example, the need to obtain authorization under the federal Fisheries Act RSC 1985 c. F-14 (Fisheries Act) to destroy fish habitat can affect — and indeed has affected — the timing of the construction of an oil sands mine.^[24]

PART III: FEDERAL HEADS OF POWER RELEVANT TO OIL AND GAS

As noted above, when construing the scope of federal legislative authority and whether a given law or regulation falls within the scope of that authority, Canadian courts are cognizant of provincial legislative authority and seek to maintain the balance of federalism reflected in those sections and the policy choices underpinning them: “Each head of power was assigned to the level of government best placed to exercise the power.”^[25]

Provincial legislative authority in relation to oil and gas development is both broad and deep. In many respects, the provinces’ legislative jurisdiction over “property and civil rights” (92.13) is itself sufficient to ground the vast majority of resource-related laws and regulations. As noted by the Supreme Court, “the regulation of trade and industry within the province generally (with certain exceptions) falls within the province’s jurisdiction over property and civil rights.”^[26] Provisions with respect to public lands (92.5), local works and undertakings (92.10), and matters of a local nature (92.15) provide any required supplementation in this context. Indeed, provincial legislative authority under Section 92 is so broad that it has led commentators to question whether subsection 92A(1), which explicitly refers to the development of non-renewable resources and electricity generation, actually added anything to provincial powers: “[Section 92A] seems to cover a lot of the ground already covered by section 92…since the activities it mentions…were almost certainly within provincial legislative jurisdiction before the adoption of the resources amendment.”^[27]

With provincial legislative authority briefly set out, this section now turns to an examination of nine federal heads of power (all federal heads of power noted in the introduction are discussed in the longer report mentioned at the outset of this article).

91.1A. The public debt and property

Parliament has legislative authority over public debt and property. Federal public property, in this context, includes “national parks, military bases and the sea that lies beyond the geographic boundaries of any province or territory.”^[28] While geographically limited, this authority is important, especially in relation to offshore oil and gas development off Canada’s coasts.^[29] Where federal lands are concerned, the federal government has essentially the same broad authority over oil and gas development as the provinces do with respect to development on their own lands.

91.2. The regulation of trade and commerce

Parliament has legislative authority over the regulation of trade and commerce but, out of concern for preserving provincial authority over “property and civil rights” (s 92.13), this head of power has been interpreted relatively narrowly.^[30] It consists of two branches: a general trade and commerce power, and power over international and interprovincial trade and commerce. With respect to the first branch, authority is restricted to matters that are “qualitatively different from anything that could practically or constitutionally be enacted by the individual provinces either separately or in combination.”^[31] The Supreme Court of Canada relies on five principal criteria in making this determination.^[32]

With respect to the second branch, international and interprovincial trade and commerce, most of the case law considers the question of interprovincial, rather than international, trade. Consequently, the latter space appears governed by political convention rather than clear doctrine developed through litigation. The Canada Energy Regulator (“CER”) has been delegated the authority to regulate the export of oil and gas, which it does pursuant to Part 7 of the Canada Energy Regulator Act SC 2019, c. 28, s. 10 (“CERA”). The question that arises is when the exercise of this authority might transgress incidentally affecting provincial policies and preferences in relation to resource development to encroaching on provincial authority in relation to such development. This question has taken on increased urgency as a result of recent developments in the United States and the current trade dispute in particular. Decisions made about exports in this context would seem to fall squarely within federal jurisdiction over international trade.

Outside of that context (i.e., outside of an international trade dispute), the federal government has banned the export of some products, such as asbestos. This ban, however, is also anchored in a prior listing of asbestos as a “toxic substance” under the Canadian Environmental Protection Act, 1999 SC 1999 c. 33 (“CEPA, 1999”).^[33] Conversely, when controversy over potential bulk freshwater exports from Canada to the United States hit a highwater mark at the turn of the 21^st century, the federal government insisted that only the provinces were constitutionally capable of enacting bans on such exports.^[34] The latter position seems most directly analogous to the oil and gas context; while CO₂ and other GHGs have also been listed as toxic substances, neither oil nor natural gas have been listed as such.

91.3. The raising of money by any mode or system of taxation

The federal government has broad authority to make laws in relation to taxation, both direct and indirect.^[35] In a legal opinion prepared for the government of Manitoba and publicly released in the run-up to the Supreme Court’s hearing in References re: GGPPA, this power was described as “extremely broad and generally subject to restriction only on the grounds that the measure in question can be classified as something other than a tax.”^[36] (As a reminder, the GGPPA was ultimately classified as a regulatory charge and a matter of “national concern”, i.e., something other than a tax.)

While this power is constrained in a few other ways as well (e.g., Section 125 of the Constitution prohibits the taxation of lands and property belonging to either the federal or provincial governments), its relevance to oil and gas development should be plain. At the turn of the 21st century, the Income Tax Act RSC 1985 c. 1 (5^th Supp.) and, more specifically, amendments to the Income Tax Act and its regulations were used to promote oil and gas development, especially oil sands development (e.g., through accelerated capital cost allowances).^[37] More recently, the oil and gas sector received generous tax credits to facilitate the deployment of carbon capture, utilization, and storage (“CCUS”) facilities.^[38] The extent to which this power is used to incentivize any economic activity is entirely within the federal government’s discretion.

91.10. Navigation and shipping

The federal government has legislative authority over navigation and shipping, which has been interpreted broadly: “Courts have interpreted the federal power generously in recognition of the national importance of the maritime industry, thereby permitting the development of uniform legal rules that apply across Canada.”^[39] To understand the scope of this power, it is necessary to understand the scope of the public right of navigation in Canada. A common law public right of navigation exists wherever a water body is navigable.^[40] Only Parliament is competent to legislate in relation to this common law right, including authorizing its interference as a result of a work such as a dam or bridge. In the oil and gas context, Transport Canada relies on various permits pursuant to the Canada Navigable Waters Act RSC 1985, c. N-22 (“CNWA”) to authorize interferences with navigation in relation to various forms of infrastructure, e.g., a bridge, pipeline crossing, or water intake. A recent search of the federal Common Project Registry lists over 100 CNWA authorizations issued to the oil and gas sector in British Columbia, Alberta, and Saskatchewan (completed or in progress).^[41] The federal government also regulates all shipping, including of oil and liquefied natural gas (“LNG”), under the Canada Shipping Act S.C. 2001, c. 26, which jurisdiction proved relevant in the litigation surrounding the Trans Mountain pipeline expansion project.^[42]

91.12. Sea coast and inland fisheries

The federal government has broad jurisdiction over sea coast and inland fisheries. The fisheries power “includes not only conservation and protection, but also the general ‘regulation’ of the fisheries, including their management and control. They recognize that “fisheries” under s. 91(12)…refers to the fisheries as a resource; “a source of national or provincial wealth”…a “common property resource” to be managed for the good of all Canadians.”^[43]

This legislative authority provides the basis for the federal Fisheries Act, RSC 1985 c. F-14. While the Fisheries Act is primarily concerned with fisheries management, there is an entire part — “Fish and Fish Habitat Protection and Pollution Prevention” (Sections 34–43) — that is concerned with impacts to fish, fish habitat, and pollution prevention, and that has come to represent the de facto national water quality regime in Canada. Of particular importance to oil and gas, Section 36 prohibits the deposit of deleterious substances in waters frequented by fish, which is virtually all waters in Canada, unless authorized by regulations. Pursuant to this regime, the federal government has enacted numerous effluent regulations for most sectors, including metal and diamond mining, pulp and paper, and municipal wastewater, and is currently developing regulations for oil sands processed water.

Other relevant provisions of the Fisheries Act include Section 34.2, which provides the federal Minister of Fisheries and Oceans with the authority to direct flows (relevant to water withdrawals for oil sands processing, fracking, as well as to future remediation and reclamation planning), and Section 35, which prohibits the harmful alteration, disruption or destruction (“HADD”) of fish habitat unless authorized by the Minister or by regulations. Every oil sands mine has required a Section 35 authorization, often requiring the destruction of several thousand hectares of fish habitat. HADD authorizations are also generally required for infrastructure in water, including bridges, pipeline crossings, and water intakes. A recent search of the federal Common Project Registry yielded 17 Fisheries Act authorizations issued to the oil and gas sector in Western Canada since 2018.

91.21. Bankruptcy and insolvency

Parliament has the authority to legislate matters relating to bankruptcy and insolvency. In the exercise of this jurisdiction, Parliament enacted the Bankruptcy and Insolvency Act RSC, 1985, c. B-3 (“BIA”). The BIA “outlines, among other things, the powers, duties and functions of receivers and trustees responsible for administering bankrupt or insolvent estates and the scope of claims that fall within the bankruptcy process.”^[44] More fundamentally, and as recently explained by the Supreme Court, “subject to reasonable conditions, the BIA permits an honest but unfortunate debtor to be freed from the burdens of indebtedness and to reintegrate into economic life.”^[45]

Parliament’s authority to set the rules of bankruptcy and insolvency is directly relevant to the oil and gas sectors’ significant and presently unfunded and unsecured environmental liabilities (i.e., the costs of closing, remediating, and reclaiming sites and facilities). Adjusted for inflation, these have been estimated to be as high as $320 billion in Alberta alone (both conventional and non-conventional).^[46] At present, in the absence of robust liability management regimes at the provincial level,^[47] the BIA appears to invite oil and gas companies to neglect or ignore their environmental liabilities for as long as possible, and to then try to walk away from them through a combination of a “brisk trade in junk assets” and the bankruptcy process^[48] — an approach that appears far removed from the honest but unfortunate debtor. This was the subtext to the relatively recent and high-profile Redwater litigation in Alberta (known formally as Orphan Well Association v. Grant Thornton Ltd.).^[49] There is also no shortage of abandoned industrial sites throughout Canada, including the Giant Mine in the Northwest Territories, whose remediation and reclamation — in the billions of dollars — now weigh on the public purse.^[50] Needless to say, Parliament’s jurisdiction over bankruptcy and insolvency could be recalibrated to try to prevent the externalization (directing the costs onto the public) of what should be private costs, rather than to facilitate it.

91.27. The criminal law

A law or regulation will be valid criminal law if “in pith and substance: (1) it consists of a prohibition (2) accompanied by a penalty and (3) backed by a criminal law purpose.”^[51] These requirements have been interpreted flexibly by Canadian courts in upholding various important federal regimes: “Parliament’s criminal law power is broad and plenary… The criminal law must be able to respond to new and emerging matters, and the Court ‘has been careful not to freeze the definition [of the criminal law power] in time or confine it to a fixed domain of activity.’”^[52]

CEPA, 1999’s “toxic substance” regime, upheld as a valid exercise of the criminal law power,^[53] is particularly relevant to oil and gas development. In 2005, the federal government designated six kinds of GHGs as “toxic substances” pursuant to the Act, unlocking its machinery and its regulation-making powers to be applied to the problem of climate change. Since then, the federal government has enacted several important regulations under the Act.

In Syncrude v Canada, which involved a challenge by Syncrude to the constitutionality of the Renewable Fuels Regulations (SOR/2010-189) (“RFR”), passed pursuant to CEPA, 1999, the Federal Court of Appeal had no difficulty concluding that fighting climate change was a valid criminal law purpose: “It is uncontroverted that GHGs are harmful to both health and the environment and as such, constitute an evil that justifies the exercise of the criminal law power.”^[54] The RFR also did not contravene the criminal law power’s form requirements (a prohibition backed by a penalty) even though they incorporated market-based compliance mechanisms to increase their flexibility. In prior challenges to federal laws passed under the criminal law power, some provinces have argued that the existence of a relatively complex regulatory scheme is contrary to the form requirement. A critical question in this context is whether the relevant prohibition is “confined to ensuring compliance with the [legislative] scheme,” which would make it impermissibly regulatory in nature, or whether it would “stand on [its] own, independently serving the purpose” of the law or regulation in question.^[55] The RFR meets this requirement because the effect of its prohibition “on a yearly, Canada-wide, basis” is that “2% less fossil fuel is consumed.”^[56]

The federal government recently enacted the Clean Electricity Regulations (“CER”),^[57] which will limit the GHG emissions from power plants (including natural gas power plants, beginning in 2035) and has been developing regulations to establish a GHG emissions cap on the oil and gas sector.^[58] Both the CER and the proposed oil and gas GHG emissions cap contain a prohibition against emitting a certain level of GHGs, subject to conditions. Like the RFR, then, such prohibitions would appear to “stand on their own, independently serving the purpose” of combatting the “evil” (or apprehended harm) of anthropogenic climate change by reducing overall GHG emissions and are not merely about ensuring compliance with these regimes. While prohibitions on GHGs are bound to affect the generation of electricity or the production of oil and gas, such impacts would be incidental and therefore constitutional.^[59]

92.10(a) Interprovincial Works and Undertakings

The federal government has legislative authority over interprovincial works and undertakings. This includes interprovincial railways and pipelines. The nature of this jurisdiction can be gleaned from its history, and specifically its explicit carving out from provincial jurisdiction over local works and undertakings: “While the preference in s. 92(10) was for local regulation of works and undertakings, some works and undertakings were of sufficient national importance that they required centralized control.”^[60] Parliament’s legislative authority in relation to interprovincial works and undertakings, including interprovincial oil or gas pipelines, can be described as comprehensive, encompassing all relevant social, economic and environmental considerations.^[61]

91. Residual power: Peace, order, and good government

On its face, the opening paragraph of Section 91 broadly authorizes the federal government to “make Laws for the Peace, Order, and good Government of Canada.” Read literally, the list of federal “classes of subjects” (heads of power) that follows is intended to clarify (“for greater certainty”) this broad legislative authority “but not so as to restrict the Generality of the foregoing Terms.” The only explicit limit on the general POGG power is the explicit exclusion of those “classes of subjects” (heads of power) assigned to the provinces in Section 92. Nevertheless, over the past several decades the POGG power has received a restrictive interpretation. Presently, it consists of two branches: the emergency branch and the national concern branch. The emergency branch provides a broad constitutional basis for addressing national emergencies, but any legislation so passed must be temporary in nature (until the emergency passes).^[62] The contours of, and test for, the “national concern” branch were recently revised in References re: GGPPA,^[63] where a majority of the Supreme Court of Canada upheld the GGPPA on the basis that “establishing minimum national standards of GHG price stringency to reduce GHG emissions” was a matter of national concern.^[64]

Previously recognized matters of national concern include marine pollution^[65] and interprovincial river pollution.^[66] In Reference re: IAA, the Supreme Court held that the federal government could not rely on the matter of national concern identified in Reference re: GGPPA to constitutionally anchor the IAA’s application to the GHG emissions of major projects.^[67] Consequently, any subsequent reliance on the POGG power in relation to climate change, whether under the IAA or elsewhere, requires establishing a new matter of national concern by satisfying the revised three-part test:

1. Threshold question: Is there an evidentiary basis for asserting that a given matter is of national importance?
2. Singleness, distinctiveness, and indivisibility: Can the matter be distinguished from matters falling within provincial jurisdiction, with a view towards provincial inability to address the matter in particular; and
3. Scale of impact: balancing provincial and federal interests at stake.

PART IV: CONCLUSION

While oil and gas development clearly falls within provincial legislative authority, the foregoing discussion makes clear that numerous federal legislative authorities may also be implicated, both directly and indirectly. Oil and gas development on federal lands, in the offshore, and on Indigenous reserves, as well as its interprovincial and international transport and export, all fall directly under federal legislative authority. Indirectly, oil and gas development implicates and engages federal jurisdiction over navigation, fisheries, Indigenous Peoples and lands reserved for them, transboundary river pollution, migratory birds, and federal aspects of climate change. The discussion above and the examples provided also shows that, with some exceptions, over the past two decades federal legislative authority has been used to facilitate and promote natural resource development, including oil and gas development.

• * Martin Z. Olszynski, Associate Professor, Chair in Energy, Resources and Sustainability, University of Calgary Faculty of Law.
• ¹ See Martin Z. Olszynski, General Rules and Principles of Federal Legislative Authority in Relation to Oil and Gas Development in Canada, (Winnipeg: International Institute for Sustainable Development, 2025), online (pdf): <iisd.org/system/files/2025-02/canada-federal-authority-oil-gas-development.pdf>.
• ² Constitution Act, 1867 (UK), 30 & 31 Vic, c 3, s 91, reprinted in RSC 1985, Appendix II, No 5.
• ³ Bankes, Nigel & Andrew Leach, “The Word ‘Exclusive’ Does Not Confer a Constitutional Monopoly, Nor a Right to Develop Provincial Resource Projects” (1 November 2023), online (blog): <ablawg.ca/2023/11/01/the-word-exclusive-does-not-confer-a-constitutional-monopoly-nor-a-right-to-develop-provincial-resource-projects>.
• ⁴ Peter W. Hogg, Constitutional Law of Canada, 5^th ed §57:4 and §6:8 (Scarborough: Osgoode Hall Law School of York University, 2007).
• ⁵ Thomas Gunton, Assessment of fossil fuel subsidies in Canada: A case study of the Trans Mountain Pipeline. (Winnipeg: International Institute for Sustainable Development, 2024), online (pdf): <iisd.org/system/files/2024-09/fossil-fuel-subsidies-trans-mountain-pipeline.pdf>.
• ⁶ For a discussion regarding this funding, see Bankes, Nigel et al, “Governance and Accountability: Preconditions for Committing Public Funds to Orphan Wells and Facilities and Inactive Wells” (24 April 2020), online: <ablawg.ca/2020/04/24/governance-and-accountability-preconditions-for-committing-public-funds-to-orphan-wells-and-facilities-and-inactive-wells>.
• ⁷ Supra note 4 at §22.10.
• ⁸ Ibid.
• ⁹ Reference re Impact Assessment Act, 2023 SCC 23 [Reference re: IAA].
• ¹⁰ References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at paras 129–30 [References re: GGPPA]. A detailed discussion of the paramountcy doctrine is beyond the scope of this article.
• ¹¹ Canadian Western Bank v Alberta, 2007 SCC 22 at para 25 [Canadian Western Bank].
• ¹² Reference re: IAA, supra note 9 at para 61.
• ¹³ Western Canada Bank, supra note 11 at para 27.
• ¹⁴ References re: GGPPA, supra note 10.
• ¹⁵ Ibid at para 80.
• ¹⁶ Ibid at paras 57, 80.
• ¹⁷ Reference re: IAA, supra note 9 at para 110.
• ¹⁸ Ward v Canada (Attorney General), 2002 SCC 17 at para 30 [Ward].
• ¹⁹ Reference re: IAA, supra note 9 at paras 117, 119.
• ²⁰ Ibid at paras 120–21.
• ²¹ Desgagnés Transport Inc. v Wärtsilä Canada Inc., 2019 SCC 58 at para 41 [Desgagnés Transport].
• ²² Canadian Western Bank, supra note 11 at para 28.
• ²³ Ibid at para 29.
• ²⁴ See Imperial Oil Resources Ventures Limited v Canada (Fisheries and Oceans), 2008 CanLII 382 (FC).
• ²⁵ Canadian Western Bank, supra note 11 at para 22.
• ²⁶ Ward, supra note 18 at para 42.
• ²⁷ Nigel Bankes & Andrew Leach, “Preparing for a mid-life crisis: Section 92A at 40” (2023) 60:4 Alberta L Rev 853 at 863.
• ²⁸ Isabelle Brideau et al., The Distribution of Legislative Powers: An Overview, (Ottawa: Library of Parliament, 2022), Publication No. 2019-35-E, online (pdf): <lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/HillStudies/PDF/2019-35-E.pdf>.
• ²⁹ For an overview of relevant legislation and agreements, see Government of Canada, “Legislation and Regulations – Offshore Oil and Gas” (last modified 7 January 2025), online: <natural-resources.canada.ca/energy-sources/fossil-fuels/legislation-regulations-offshore-oil-gas>.
• ³⁰ Reference re PanCanadian Securities Regulation, 2018 SCC 48 at para 100. See also Peter W. Hogg, Constitutional law of Canada, 5^th ed., (Scarborough: Thomson Carswell, 2019) § 20:3.
• ³¹ Attorney General of Canada v Canadian National Transportation, Ltd., 1983 2 SCR 206 at p 267.
• ³² Reference re: Pan-Canadian Securities, supra note 30 at para 103: “(1) Is the law part of a general regulatory scheme? (2) Is the scheme under the oversight of a regulatory agency? (3) Is the law concerned with trade as a whole rather than with a particular industry? (4) Is the scheme of such a nature that the provinces, acting alone or in concert, would be constitutionally incapable of enacting it? (5) Would a failure to include one or more provinces or localities in the scheme jeopardize its successful operation in other parts of the country?”.
• ³³ See Export of Substances on the Export Control List Regulations, SOR/2013-88 and Prohibition of Asbestos and Products Containing Asbestos Regulations, SOR/2018-196.
• ³⁴ Martin Z.P. Olszynski, “The commodification of Canadian water: Exploring international trade implications” (2006) 69 Sask L Rev, 221.
• ³⁵ Supra note 30, § 31.1.
• ³⁶ Bryan P. Schwartz, “Legal Opinion on the Constitutionality of the Federal Carbon Pricing Benchmark & Backstop Proposals” (6 October 2017), Prepared for the Government of Manitoba, online (pdf): <gov.mb.ca/asset_library/en/climatechange/federal_carbon_pricing_benchmark_backstop_proposals.pdf>; See also Reference re: GGPPA, supra note 10 at para 219.
• ³⁷ Ketchum, Ken, Robert Lavigne, & Reg Plummer, “Oils Sands Tax Expenditures” (2001) Department of Finance Canada, Working Paper 2001-17, online (pdf): <publications.gc.ca/collections/collection_2008/fin/F21-8-2001-17E.pdf>.
• ³⁸ Bill C-69, An Act to implement certain provisions of the budget tabled in Parliament on April 16, 2024, 1^st Sess, 44^th Parl, 2024, online: <parl.ca/documentviewer/en/44-1/bill/C-69/royal-assent>.
• ³⁹ Desgagnés, supra note 21 at para 45.
• ⁴⁰ Friends of the Oldman River Society v Canada (Minister of Transport), 1992 CanLII 110 SCC, [1992] 1 SCR 3.
• ⁴¹ See Government of Canada, “Common Project Search: Registry Results” (last modified 19 February 2025), online: <common-project-search.canada.ca/search-recherche?view=map>.
• ⁴² Tsleil-Waututh Nation v. Canada (Attorney General) 2018 FCA 153. See Martin Z. Olszynski and David V. Wright, “Tsleil-Waututh Nation v. Canada (Attorney General): Clarifying the (F)Laws in Canada’s Pipeline Approval Process” (2019) 22:4 Can Envtl L Reports 8.
• ⁴³ Ward, supra note 18 at para 41.
• ⁴⁴ Orphan Well Association v Grant Thornton Ltd., 2019 SCC 5 at para 178.
• ⁴⁵ Poonian v British Columbia (Securities Commission), 2024 SCC 28 at para 1.
• ⁴⁶ De Souza, Mike et al, “Cleaning up Alberta’s oil patch could cost $260 billion, internal documents warn” (last modified 21 November 2018), online: <globalnews.ca/news/4617664/cleaning-up-albertas-oilpatch-could-cost-260-billion-regulatory-documents-warn>.
• ⁴⁷ See Martin, Olszynski, Leach Andrew, & Yewchuk Drew, “Not fit for purpose: Alberta’s oil sands and the mine financial security program” (2023) 16:36 University of Calgary School of Public Policy Research Paper; Drew, Yewchuk, Fluker Shaun, & Olszynski Martin, “A made-in-Alberta failure: Unfunded oil and gas closure liability” (2023) 16:36 University of Calgary School of Public Policy Research Paper.
• ⁴⁸ Jeef, Lewis et al, “Hustle in the oil patch: Inside a looming financial and environmental crisis” (last modified 22 October 2020), online: <theglobeandmail.com/canada/article-hustle-in-the-oil-patch-inside-a-looming-financial-and-environmental>.
• ⁴⁹ Supra note 43.
• ⁵⁰ Federally, see Auditor General of Canada, Contaminated Sites in the North, (Commissioner of the Environment and Sustainable Development to the Parliament of Canada, 2024), online (pdf): <oag-bvg.gc.ca/internet/docs/parl_cesd_202404_01_e.pdf>.
• ⁵¹ Reference re: Genetic Non-Discrimination Act, 2020 SCC 17 at para 67.
• ⁵² Ibid at para 69.
• ⁵³ R. v Hydro-Québec, 1997 CanLII 318 (SCC).
• ⁵⁴ Syncrude Canada Ltd. v Canada (Attorney General), 2016 CanLII 160 (FCA) at para 62 [Syncrude].
• ⁵⁵ Reference re Firearms Act (Can.), 2000 CanLII 31 (SCC), [2000] 1 SCR 783 at para 38.
• ⁵⁶ Syncrude, supra note 54 at para 79. See also Nathalie J. Chalifour, “Canadian climate federalism: Parliament’s ample constitutional authority to legislate GHG emissions through regulations, a national cap and trade program, or a national carbon tax” (2016) 36 NJCL, 331 at 357; Stewart Elgie, “Kyoto, the Constitution, and carbon trading: Waking a sleeping BNA bear (or two)” (2007) 13:1 Rev Const Stud at 108.
• ⁵⁷ Environment and natural resources, “Canada’s clean electricity future” (last modified 14 mars 2025), online: <canada.ca/en/services/environment/weather/climatechange/climate-plan/clean-electricity.html>.
• ⁵⁸ For a description of these proposed regulations, see Environment and natural resources, “Oil and gas sector greenhouse gas pollution cap” (last modified 14 mars 2025), online: <canada.ca/en/services/environment/weather/climatechange/climate-plan/oil-gas-emissions-cap.html>.
• ⁵⁹ Syncrude, supra note 54 at pp 506–7.
• ⁶⁰ Consolidated Fastfrate Inc. v Western Canada Council of Teamsters [2009] 3 SCR 407 at paras 36–37.
• ⁶¹ Reference re: IAA, supra note 9 at para 176. See also Martin Olszynski, “Testing the jurisdictional waters: The provincial regulation of interprovincial pipelines” (2018) 23:1 Rev Const Stud at 91.
• ⁶² R. v Crown Zellerbach Canada Ltd., [1988] 1 SCR 401 at pp 431–32.
• ⁶³ Reference re: GGPPA, supra note 10.
• ⁶⁴ Ibid at para 80.
• ⁶⁵ R. v Crown Zellerbach Canada Ltd., supra note 61.
• ⁶⁶ Interprovincial Co-operatives Ltd. v The Queen, [1976] 1 SCR 477.
• ⁶⁷ Reference re: IAA, supra note 9 at paras 182–89.