Federalism In The Patch: Canada's Energy Industry And Constitutional Division Of Powers

Published date17 December 2020
Subject MatterGovernment, Public Sector, Energy and Natural Resources, Energy Law, Oil, Gas & Electricity, Constitutional & Administrative Law
Law FirmBurnet, Duckworth & Palmer LLP
AuthorMr Brendan Downey, Robert Martz and Paul Chiswell

Federalism and energy policy are once again dominating the national discussion. The situation is complicated by the emergence of the environment as an important constitutional subject that cuts across both sides of the division of powers allocated between federal and provincial governments by the Constitution. Due to their complexity, courts frequently rely upon flexible constitutionalism and the doctrine of cooperative federalism to resolve disputes. This article considers whether the interpretive tools available to the judiciary are capable of resolving current issues while preserving the logic and purpose of the balance between federal and provincial powers. The authors argue that, absent changes to the division of powers analysis, they are not. Rather, the application of these tools has already resulted in a shift in the balance of power towards the federal government and led to conflict and uncertainty which undermines the purpose and effectiveness of federalism.


The story of Canadian federalism is that of a constitutional tug-of-war that pulls and stretches at the logic of the division of powers allocated between Canada's federal and provincial governments. As this struggle evolves to answer novel constitutional questions and allocate new legislative matters to the appropriate legislative body, the potential consequences facing the provinces increase substantially. Due to their complexity, many of these questions cannot be resolved by simply looking to existing federal and provincial powers and determining that one or the other best captures a particular matter. Frequently, courts rely on flexible constitutionalism and the doctrine of cooperative federalism to hold that jurisdiction over a particularly complex or broad subject is shared between our two orders of government. While this approach has some benefits, it also increases the probability of jurisdictional conflict, which has a tendency to erode provincial autonomy in favour of federal authority and undermine the diversity that the division of powers seeks to establish.

In many ways, the constitutional tug-of-war is by design: the Constitution Act, 1867's1 textual emphasis on jurisdictional exclusivity has, together with the implicit overlap of certain broad legislative subjects, created a competitive dynamic between the provinces and the federal government.2 Competition is, therefore, a feature of federalism, encouraging Canadian governments to develop creative ways to expand...

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