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Interjurisdictional Immunity
The Paramountcy Doctrine
The essence of the paramountcy doctrine is that two pieces of
legislation meet, regulate the same activities, and conflict. When they do, the federal legislation is paramount,
prevails and renders the provincial legislation inoperative.
Interjurisdictional Immunity
Interjurisdictional immunity is different. The interjurisdictional
immunity doctrine does not premise a meeting of legislation competently
enacted by Parliament and a province.
Rather, the interjurisdictional immunity
doctrine becomes relevant where valid legislation of general application
embraces a thing, person or undertaking specifically within the
jurisdiction of the other order of government. This could occur where
provincial legislation of general application applies to an interprovincial undertaking, an Indian, or a federally
established park. The provincial legislation regulates the federal thing,
person or undertaking along with everything else to which it applies in the
province. As a more specific example, a provincial wildlife statute
regulates hunting throughout the province.
It applies to Indians as well as to everyone else. The statute is
obviously valid, but questions are raised concerning its application to
Indians because s. 91(24) confers exclusive legislative jurisdiction in
relation to Indians on Parliament.
The questions become acute when provincial laws
of general application significantly impact the thing, person or
undertaking within federal jurisdiction. This may happen without the
provincial legislation meeting any federal legislation regulating the thing
or person, and without the provincial legislation contradicting federal
legislation. For example, members of
a First Nation follow a traditional lifestyle; hunting and trapping form a
significant part of their economy and lifestyle. No federal legislation deals with Indian
hunting. But the provincial Wildlife
Act requires a licence, and limits the kill. The impact is significant.
In this situation the paramountcy doctrine is not
relevant since there is no conflict between federal and provincial
legislation. Nevertheless, the interjurisdictional
immunity doctrine is relevant. It prevent the provincial law of general
application from applying to the federal thing, person or undertaking. It
would render the provincial Wildlife Act inapplicable.
The interjurisdictional immunity doctrine differs from the
paramountcy doctrine in that interjurisdictional
immunity is activated even where there is no meeting of legislation or
contradiction between federal and provincial statutes. Interjurisdictional
immunity only requires that the provincial legislation impact federal
things, persons or undertakings significantly. The doctrine renders inapplicable legislation
of general application which affect affects the
rights and obligations, impacts the status, or regulates the essential
parts of things, persons or undertakings exclusively within the core of the
jurisdiction of the other order of government.
Avoiding Confusion
It is easy to confuse the interjurisdictional
immunity doctrine with paramountcy.
Federal jurisdiction is sometimes implemented by statutes that
intend there should be no interference by supplementary or conflicting
provincial standards. In such cases
the federal statute intends to express “completely, exhaustively or exclusively
what shall be the law governing the particular conduct or matter to which
[the federal legislature’s] attention is directed;” Ross v. Reg.
of Motor Vehicles. Provincial
statutes that seek to provide supplementary rules would contradict the
purpose of the federal legislation.
Any provincial statute which attempted to enter a field exhaustively
regulated by such a federal statute would be rendered inoperative by
the paramountcy doctrine. One might
be tempted to say that the provincial statute is rendered inapplicable. That, however, is inaccurate because this
is a paramountcy situation. As a paramountcy situation, the provincial law
is rendered inoperative, not inapplicable as would be the
case in an interjurisdictional immunity
situation. The rule for paramountcy
is that paramount federal statutes render conflicting provincial statutes
inoperative. The interjurisdictional
immunity doctrine is not engaged.
How Much Impact is Required?
There is some question as to how much impact provincial statutes
must have on federal undertakings, things, or persons before the provincial
law is rendered inapplicable. The original approach was that the provincial
law had to “sterilize” the federal undertaking. The legislation had to inflict the
regulatory equivalent to a death blow to the federal undertaking to be
rendered inapplicable. This was
modified in later cases: the legislation needed only to “impair” the
federal undertaking.
Various descriptions of this were developed in
the cases: the legislation would be rendered inapplicable if it “affected a
vital part of the federal undertaking.”
These various verbal concoctions can be seen in the materials reproduced
in Constitutional Law of Canada (9th ed. 2007), at p. 368
ff. There is a significant split on this issue in the Supreme Court
opinions in the Canadian Western Bank and Lafarge cases that
appear there. The split appears to be motivated by controversy as to views
about federalism, how extensive the interjurisdictional
immunity doctrine should be, and how far the doctrine should be permitted
to grow.
Two Views
On one view interjurisdictional immunity applies in two
circumstances. It applies when the
adverse impact of a law adopted by one level of government impairs the “core” of the
legislative power of the other lever of government – the basic, minimum and
unassailable content of the power in question. It also applies when the
adverse impact of a law adopted by one level of government impairs the
vital or essential part of an undertaking duly constituted by the other
level of government.
In this view impairs
is contrasted with affects; impairment is a more stringent
condition. The requirement of
impairment is satisfied even if the impairment does not go so far as to sterilize
or paralyse the other government’s core competence or undertaking.
This is the
view of Justices Binnie and Lebel
in Canadian Western Bank, in Constitutional Law of Canada (9th
ed. 2007), p. 368.
On a second
view interjurisdictional immunity applies to
render inapplicable an impugned provincial law which affects a vital
aspect of the core of a federal power or undertaking. On this view
affects means that the provincial law “intrudes heavily” upon core
areas of federal
jurisdiction or federal subject matters.
This is the
view of Justice Bastarache in Lafarge, Constitutional
Law of Canada
(9th ed. 2007), p. 378, at para
108. Justice Bastarache
left open the question of whether indirect effects could engage the interjurisdictional immunity doctrine. This question was discussed in Irwin
Toy.
Incidental or Implementing Regulation
Whatever view eventually prevails, it is free
from doubt that in order to render statutes inapplicable, the impacts that
engage the interjurisdictional immunity doctrine
must be significant. The
requirement is that legislation significantly embrace
things, undertakings or persons exclusively in the jurisdiction of the other
order of government. On any view,
the interjurisdictional immunity doctrine will
not render inapplicable insignificant impacts caused by legislation
of general application.
Nor will the interjurisdictional immunity
doctrine render inapplicable provincial laws that assist to implement
rights belonging to persons specifically within federal jurisdiction. This may become quite important
concerning the interface that persons possessing aboriginal rights may have
with the network of provincial statutes and regulations that apply to
hunting, land and related matters. This issue was discussed in R. v. Morris,
Constitutional Law of Canada
(9th ed. 2007), p. 872.
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