Do federal laws apply to the core of provincial jurisdiction?

The Alberta Court of Appeal recently issued its advisory opinion in the Reference on the Impact Assessment Act, with the majority opining that it is unconstitutional. The Canadian government has announced their intention to appeal this decision to the Supreme Court of Canada (SCC).

Partner Andrew Bernstein told the CBA National that he believes that this appeal to the SCC will be harder for Ottawa to litigate than in the Greenhouse Gas Pollution Pricing Act reference. It's unclear what they will do, particularly as there will be a new member of the top court by the time this arrives.

He suspects that the majority's use of language in the Court of Appeal decision was deliberate, knowing that Supreme Court will have the final say.

"They want the Supreme Court to understand just how emotionally fraught this topic is to people in the west," Andrew said.

"Their message is that we feel incredibly strong about this, and before you reverse us, you should understand just how high emotions run." 

Andrew said that he was disappointed in the ruling because it did not further explore the issues around interjurisdictional immunity.

"It's incredibly un-trodden ground," he added.

"Every single case involves provincial laws not applying to the core of federal jurisdiction. There are no cases and there has been no careful examination in the court about the circumstances in which the federal laws don't apply to the core of provincial jurisdiction, and that's a really interesting question."

This is an issue that will get more play at the Supreme Court, especially if the majority believes that the Act is within federal jurisdiction, at which point there is a secondary question about what it applies to.

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