The Greenhouse Gas Pollution Pricing Act^[1] (GGPPA), the constitutionality of which was upheld by a majority of the Supreme Court,^[2] expanded federal power at the resistance of most provinces. The revised Impact Assessment Act^[3] (IAA) and the new Building Canada Act^[4] have raised similar concerns. Even if these laws are upheld as constitutional, however, it must be remembered that, much like the GGPPA, particular exercises of discretion under the statutes may well be held to be ultra vires as extending beyond legitimate federal authority. By way of illustration, the federal government likely cannot justify regulating the building of a particular residential neighbourhood under the Building Canada Act even if declared to be in the “national interest”.

This article will address how the phenomenon of statutes being constitutional, but applications of them being unconstitutional, works in practice. First, the “national concern” branch of the “peace, order and good government” power will be discussed. Second, case law that interprets the statutory term “national interest” will be considered. Third, a reminder will be given how all exercises of discretion under these and similar statutes may be challenged for being unconstitutional, even if the statute remains constitutional. While this is quintessentially considered in the Charter context, it can apply just as much to the division of powers.

1. “NATIONAL CONCERN”

Section 91 of the Constitution Act, 1867 gives the federal Parliament power to enact laws for the “peace, order and good government” (POGG) of Canada. Is any law passed by Parliament not for the “peace, order and good government” of Canada? One would hope not. To avoid this general power completely overwhelming provincial powers, doctrinal guardrails have had to constrain it.^[5] Two “branches” have accordingly emerged in the case law as to when a use of this “POGG” power is appropriate:

1. the “emergency branch”; ^[6] and
2. the “national concern” branch.

Cases such as R v Crown Zellerbach Canada Ltd^[7] and the GGPPA Reference^[8] address the latter, which will be the topic of this article. In assessing whether a particular law falls within this power, a court must characterize and then classify the law. It is important to keep these two steps separate. The characterization identifies the matter that the statute addresses. The law can then be classified, based on considering:

1. Whether it addresses a threshold matter of national importance;^[9]
2. The matter must be characterized as having a “singleness, distinctiveness, and indivisibility” that is qualitatively different than provincial concern;^[10] and
3. There must be provincial inability to regulate the area, as the legislation should be of such a nature that the provinces would be incapable of enacting it, and the failure of a single province to act would jeopardize the national scheme while having “grave” extraprovincial consequences.^[11]

There must also be a final evaluation that the federal impact is reconcilable with the division of powers.^[12]

Examples of cases where this has been upheld include Johannesson v Municipality of West St Paul,^[13] Munro v National Capital Commission,^[14] and Ontario Hydro v Ontario (Labour Relations Board).^[15] In these cases, the Supreme Court held that the federal government has exclusive jurisdiction over aeronautics; the establishment and management of the National Capital Region (a defined area consisting of the seat of the federal government and its surroundings); and the production, use, and application of atomic energy. But this has not been upheld in Re: Anti-Inflation Act^[16] and the Reference re Impact Assessment Act.^[17] In the former case, a divided majority of the Supreme Court found the containment and reduction of inflation insufficiently specific to be of national concern; in the latter, the Court held that interprovincial environmental effects (i.e., assessing and regulating designated projects to minimize potential adverse effects, and directing how federal authorities assess potential significant adverse effects of federal projects) are too general to be of national concern.

2. NATIONAL INTEREST

Unlike “national concern”, “national interest” is not a constitutionally defined term. Rather, it is found in a variety of statutes. Some of these include matters that are clearly in federal jurisdiction, and the term “national interest” is used in the operationalizing statute: the clearest example in this regard may be immigration.^[18] At other times, however, the “national interest” may be the reason that the federal government asserts jurisdiction pursuant to the POGG power: the Building Canada Act is perhaps the clearest example, though it arguably falls under the trade and commerce and navigation and shipping powers as well.

The term “national interest” will need to be interpreted in the context of each statute in which it appears in accordance with principles of statutory interpretation.^[19] While the use of the term across different statutes may indicate a certain commonality between meaning,^[20] a statute addressing the “national interest” in railways^[21] is quite likely to have a different meaning than a statute concerning the “national interest” in national security.^[22] In Ottawa Police Services v Diafwila^[23], Miller JA noted that the term is likely to be highly contextual in its interpretation. At the same time, a certain threshold level — analogous if not synonymous to the “threshold” in national concern constitutional case law — is likely to be present.

3. THE STATUTES MAY BE CONSTITUTIONAL—BUT THE APPLICATION MAY NOT BE

The Government of Alberta has commenced a fresh constitutional challenge to the revised Impact Assessment Act.^[24] Irrespective of the outcome of that case, however, it must be remembered that all exercises of discretion under the IAA, as well as exercises of discretion under the GGPPA and Building Canada Act, must also comply with the division of powers. This is because the federal government may not do indirectly, through administrative discretion, what it cannot do directly, through legislation.^[25]

This observation — that exercise of administrative discretion may be unconstitutional even if the enabling statute is constitutional — has been made in different contexts in recent years. These have often concentrated on the Charter. For instance, there is nothing unconstitutional about a law society bylaw mandating civility in the legal profession. However, once that bylaw affects an individual’s freedom of expression, the application becomes constitutionally suspect.^[26]

How courts should review instances of the intersection with administrative discretion and the Charter has been enormously controversial in administrative law in recent years due to the Doré framework,^[27] the fate of which was explicitly left open in Vavilov.^[28] In Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment),^[29] the Supreme Court held that administrative decision-makers always need to consider “Charter values” even in cases where a Charter right is not affected. However, in York Region District School Board v Elementary Teachers’ Federation of Ontario, ^[30] the Court held that whether a Charter right is impacted by an administrative decision must be reviewed by a court on a correctness standard, which appears not to accord with Doré. The best, though imperfect, way to reconcile these cases would appear to be that:

1. assessing whether a particular administrative decision limits a Charter right is to be reviewed on a correctness standard using orthodox constitutional analysis;
2. assessing whether that limit is reasonably justified by s 1 of the Charter requires considering Doré rather than Oakes; and
3. administrators have a free-standing duty to consider “Charter values” and failure to do so risks their decisions being held to be unreasonable.^[31]

On federalism grounds, there are similarly cases where courts find administrative decisions and their legislation either intra vires (e.g., Gateway Bible Baptist Church et al v Manitoba et al^[32]) or ultra vires (e.g., Director (EAP) v Alberta (Provincial Court)^[33]). In Gateway Bible Baptist Church, impugned COVID-19 Public Health Orders could operate pursuant to the provincial Public Health Act^[34] because they neither conflicted with, nor frustrated the purpose of, the Criminal Code.^[35] In Director (EAP), however, a Provincial Court justice’s mediation order was ultra vires because the Provincial Court Act and Alberta Rules of Court did not grant her inherent authority; only superior courts have inherent authority, and the Provincial Court has not acquired such jurisdiction in any way. Holding otherwise would expand the provincial government’s ability to create a superior court, offending the division of powers. This is despite the fact that the creation of the Provincial Court per se is clearly constitutional.

Treaty 8 Tribal Association v Barley^[36] is especially on point, as the legislation was intra vires but the exercise of administrative discretion was not. This was an application for judicial review of a federal adjudicator’s decision that the applicant association was a federal undertaking for the purpose of applying the Canada Labour Code^[37] in the context of an alleged unjust dismissal. Tremblay-Lamer J quashed the adjudicator’s decision, concluding that the applicant is a provincial entity and the Code did not apply to the respondent’s complaint. She noted that the standard of review must be correctness for constitutional questions involving the division of powers. In this case, the applicant’s activities — providing services and advice, facilitating economic projects, and coordinating negotiations for First Nations — were not part of the core of s 91(24) of the Constitution Act, 1867 concerning “Indians and lands reserved to Indians”. While the Canada Labour Code is constitutional, it could not apply to the issues raised by the application. The adjudicator would have declined federal jurisdiction if she applied the proper test.

As noted in Vavilov, Dunsmuir v New Brunswick, and Treaty 8 Tribal Association, no deference is owed to a determination that a particular administrative decision offends the division of powers.^[38] This is because a level of government may not do indirectly through administrative action what it cannot do directly through legislation. This is unlike disputes over the compliance of administrative decisions with the Charter. In the Charter context, a “reasonable limit” on a Charter-right is context-specific, and there is accordingly some logic for deference to the administrator.^[39]

How do we know that a particular exercise of administrative discretion under the GGPPA, Building Canada Act, or IAA complies with the division of powers? This will obviously need to be addressed in more detail in the future. However, individual housing decisions are extremely unlikely to pass constitutional muster, being quintessentially tied to property and civil rights and not obviously transcending provincial borders. Characteristics from the POGG case law are likely helpful indicia that particular exercises of administrative discretion are constitutionally compliant. However, as Miller JA noted in Diafwila,^[40] the terms are not synonymous and we should not expect perfect overlap.

CONCLUSION

There is economic and investment uncertainty concerning the ambit of the Building Canada Act and the IAA. But even assuming both statutes are constitutional, it is clear that individual uses of them must also be intra vires of the federal government. Rowe J already noted that this is a requirement for the GGPPA in his dissenting reasons in the GGPPA Reference. Wagner CJ, for the majority, responded by noting that “the underlying premise of my colleague’s comments — that regulations made pursuant to an enabling statute must be consistent with the division of powers and further the purpose of the statute — is uncontroversial”.^[41] In other words, basic principles of administrative and constitutional law still exist to guard against federal overreach in these areas.

• *Associate Professor & Associate Dean Graduate Studies, Faculty of Law, University of Alberta. This article is based on a presentation given at the 2026 ERQ Energy Law Forum on May 5, 2026. The author thanks the feedback given at that conference, as well as research assistance provided by Gabriela Holko, generously supported by the University of Alberta’s Roger S Smith Award.

  ¹ Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 [GGPPA].

• ² References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 [GGPPA Reference].

• ³ Impact Assessment Act, SC 2019, c 28, s 1.

• ⁴ Building Canada Act, SC 2025, c 2, s 4.

• ⁵ Peter Hogg & Wade Wright, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters Canada, 2020) at s 17:1.

• ⁶ Re: Anti-Inflation Act, 1976 CanLII 16 (SCC) [Anti-Inflation Reference].

• ⁷ R v Crown Zellerbach Canada Ltd, 1988 CanLII 63 (SCC) [Crown Zellerbach].

• ⁸ GGPPA Reference, supra note 2.

• ⁹ Ibid at para 142.

• ¹⁰ Ibid at para 145, citing Crown Zellerbach, supra note 7 at 432.

• ¹¹ GGPPA Reference, supra note 2 at para 160, citing Crown Zellerbach, supra note 7 at 432.

• ¹² GGPPA Reference, supra note 2 at para 165.

• ¹³ Johannesson v Municipality of West St Paul, 1951 CanLII 55 (SCC).

• ¹⁴ Munro v National Capital Commission, 1966 CanLII 74 (SCC).

• ¹⁵ Ontario Hydro v Ontario (Labour Relations Board), 1993 CanLII 72 (SCC).

• ¹⁶ Anti-Inflation Reference, supra note 6.

• ¹⁷ Reference re Impact Assessment Act, 2023 SCC 23 [IAA Reference].

• ¹⁸ Immigration and Refugee Protection Act, SC 2001, c 27, ss 42.1(1)-(2); See, e.g., Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at paras 88–89.

• ¹⁹ See, e.g., Philip Bryden, et al, Public Law: Cases, Commentary, and Analysis, 5^th ed (Toronto: Emond Montgomery, 2025), Chapter Ten.

• ²⁰ See, e.g., the link between the Canadian Security Intelligence Service Act, RSC, 1985, c C-23 and the Emergencies Act, RSC, 1985, c 22 4^th Supp, as discussed in Canada (Attorney General) v Canadian Civil Liberties Association, 2026 FCA 6.

• ²¹ See, e.g., An Act respecting the Saint John and Quebec Railway, SNB 1918, c 9, s 5.

• ²² See, e.g., Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 [Agraira] at paras 87–88.

• ²³ Ottawa Police Services v Diafwila, 2016 ONCA 627 [Diafwila], citing Agraira, supra note 22.

• ²⁴ IAA Reference, supra note 17; Reference re Impact Assessment Act (Canada), 2025 ABCA 75.

• ²⁵ Baker v Canada (Minister of Citizenship and Immigration) (CA), 1996 CanLII 3884 (FCA) at para 20, var’d on other grounds, [1999] 2 SCR 817.

• ²⁶ Doré v Barreau du Québec, 2012 SCC 12.

• ²⁷ See the tension between Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment), 2023 SCC 31 and York Region District School Board v Elementary Teachers’ Federation of Ontario, 2024 SCC 22, discussed in, e.g., Gerard J Kennedy, “Charter Values and Canadian Administrative Law: A Doctrinal Journey” (Legal Education Society of Alberta, 2026) [Kennedy].

• ²⁸ Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 57.

• ²⁹ Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment), 2023 SCC 31.

• ³⁰ York Region District School Board v Elementary Teachers’ Federation of Ontario, 2024 SCC 22.

• ³¹ Kennedy, supra note 27.

• ³² Gateway Bible Baptist Church et al v Manitoba et al, 2021 MBQB 219, aff’d 2023 MBCA 56, leave to appeal ref’d, 2024 CanLII 20245 (SCC).

• ³³ Director (EAP) v Alberta (Provincial Court), 2017 ABQB 3.

• ³⁴ Public Health Act, CCSM c P210.

• ³⁵ Criminal Code, RSC 1985, c C-46.

• ³⁶ Treaty 8 Tribal Association v Barley, 2016 FC 1090 [Treaty 8 Tribal Association].

• ³⁷ Canada Labour Code, RSC 1985, c L-2.

• ³⁸ Dunsmuir v New Brunswick, 2008 SCC 9 at para 58; Vavilov, supra note 28 at para 55.

• ³⁹ Kennedy, supra note 27.

• ⁴⁰ Diafwila, supra note 23 at para 56.

• ⁴¹ Supra note 2 at para 220.