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Nov12-Nov19,2013 3NN6 Lecture Notes.docx

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McMaster University
Political Science
Greg Flynn

Started on: 11/12/2013 1:33:00 PM For Nov 12, 18,19, 2013 C LASS N OTES FOR : P OLI S CI 3NN6 McMaster University, Fall 2013 T UESDAY , NOVEMBER 12, 2013 POGG & TRADE & COMMERCE POST JCPC 1. SCC and POST JCPC ERA - Despite the opportunity to recast Canadian Federalism, it followed along the footsteps set our by the JCPC. - Established new law, but have generally followed along in the same path - Changes to mildly alter and clarify issues set out by the JCPC - Question. Does the government in question have the jurisdiction to enact the legislation that is doing? 2. PEACE, ORDER & GOOD GOVERNMENT a. G AP D OCTRINE – Filling gaps in the constitution; Jones v. A-G.N.B. [1975] 2 SCR 182 The constitution is silence on who gets to make the language laws  Deals with Language rights.  The Mayor decided that he would challenge the languages act;  Challenged on the basis that it was outside the jurisdiction on the federal parliament. Oldman River Soc. v. Canada [1992] 1 SCR 3 What about matters that are not set out directly, such as the environment? The environment is relatively recently where it became a formal policy concern. Long Oldman River involves various federal and provincial jurisdictions The federal government did not have the jurisdiction to pass its government laws The supreme court of Canada said that the Environment is something that needs to be handled by both levels of Government!  It’s not a subject matter of head of power, but it falls under all! Provinces can deal with environment for all matters under their power and the federal can deal with others - The act itself requires the federal government to conduct an environmental assessment when issues are raised  Issue was not necessarily about jurisdiction; Federal government argued in this case that they did not have jurisdiction to enact a bunch of laws that they’ve already enacted.  Environmental hearings did not address federal or aboriginal interests when Alberta wanted to build a damn.  Oldman River sued the federal government alleging that the statue in question was not discretionary, but the language suggested that if there was a project that intruded on federal jurisdiction. Language in question was mandatory, where it has to conduct the assessment.  Gap filled by the environment by both governments. Angie © McMaster University 1 Fall 2013 Started on: 11/12/2013 1:33:00 PM For Nov 12, 18,19, 2013 Offshore Mineral Rights of B.C [1967] SCR 792 – Similar result to JONES Issue was who had jurisdiction for natural resources that fell BEYOND the provincial boundaries. The Gap doctrine deals with incomplete assignments - Does not cover ―new‖ or ―novel‖ powers - The environment was decided under the Gap doctrine - What about those that consider being new? Apply the PARSONS test to see if it falls under 92 (if it does not, it falls under 91 and belongs to the federal government!) Re: NFLD Continental Shelf [1984] SCR 86 b. E MERGENCY D OCTRINE – Power that would allow the federal government to intervene in provincial affairs when there is a manner of emergency. i. The use of the emergency power doctrine gives the federal government jurisdiction to do what it wants! ii. Intervention does away with the division of POWERS during the emergency! iii. One level of government as it relates to the period of emergency Re: Anti-Inflation Act Manipulation of the economy to achieve this the goal of employment Proposal of wage and price controls; It set wage controls and price; and the provinces could opt into the regulatory regime if they so could desire. The anti-inflation was opposed; Whether the federal government has jurisdiction to implement anti-inflation act. BEETZ & 3 Ritchie LASKIN &4 Law Federal can Agree with Only decide on intervene in an BEETZ on law issues that are emergency before them. doctrine, but there is no such thing as a national concern Fact No emergency Agree with Emergency LASKIN on fact - Because Justice Beetz wrote the law, he is the majority opinion that there is no such thing as the national concern doctrine; because six judges said there was an emergency this gave the jurisdiction to pass the law. - Inflation is not a substantial issue or jurisdiction; but of matters and wages and therefore falls under section 91. - Emergency power is not confined to periods of war; but might occur in times of peace. - 5 IMPORTANT FACTORS THAT COME OUT OF THE INFLATION ACT! TEMPORARY Nature, TEMP PROBLEM, EXPLICIT USE of Emergency, APPREHENSION OF PROBLEM and not confined to periods of war! Angie © McMaster University 2 Fall 2013 Started on: 11/12/2013 1:33:00 PM For Nov 12, 18,19, 2013 - NOT CONFINED TO PERIODS OF WAR; CAN BE USED DURING PEACE TIME, APPREHENSION OF EMERGENCY. Has to be temporary solutions. - Extraordinary measures dictate the form on which it should be exercised. It is not to be left to ambiguity. - Federal government has to clearly articulate specifically, that is it acting on the emergency power - Temporary problem to deal with a temporary problem; - However the statue in question did not say that it was a response to the emergency. c. National Concern Doctrine - Since the time there have been primarily three cases decided; - Historically the Anti-Inflation reference falls between Munro and Crown Zellerbach (good reason to doubt the existence of the National Concern Doctrine) Johannesson v. West St. Paul [1952] SCR 292 A Slim majority cited the Canada Federation Temperance Case; field of aeronautics was a national concern; - Aeronautics began as a local concern, but now it has become as a national concern; - Imposing restrictions on the ability of individuals to operate Aero drone; (Airport) o Whether St. Paul could pass by laws regulating the ability for people to make airfields; - Federal government had previously entered International Treaties; which raised a question of who had the responsibility to deal with airplanes; - It would make sense to have a single regulator that regulates all airports; - The first application by the Supreme court; Munro v. N.C.C. [1966] SCR 663 Federal government sought about creating this national capital region; as a symbolic and factual seed of significance; - However, because of our historical make up, they decided that in establishing this region, it was important that it’d cross the regional boundaries between Ontario and Quebec (English and French provinces) as the national capital; - However, Quebec and Ontario could not agree on where it would be; - Served to expropriate land from individuals where it felt it was necessary for the creation of this capital commission; - Munro was a farmer who had his land expropriated by the capital commission; - That the capital commission could not expropriate land; because the federal government did not have the right over property.
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