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Case Comment: British Columbia (Attorney General) v. Lafarge Canada Inc.
Published in the June 2007 issue of Transportation Notes - View Article
On May 31, 2007, the Supreme Court of Canada rendered its decision in a matter in which the scope of the federal government’s right to legislate in respect of maritime matters was in question. The issue was whether the Vancouver Port Authority (VPA) acted within its proper powers when it specified the terms on which a proposed development would be allowed on lands which it administered in the Vancouver harbour area.
The VPA is a creature of a federal statute and the federal government has undoubted exclusive jurisdiction to legislate with respect to “navigation and shipping”. VPA purported to authorize the development, by Lafarge Canada, of a concrete batching facility in an area of the Vancouver harbour know as the Sterling Shipyard site. A group of unhappy ratepayers sought to block the development and eventually attracted the support of the government of the province. Thus began a five year judicial saga which was finally resolved last week.
For the ratepayers, it was argued that authority to regulate the development rested with the City of Vancouver, pursuant to provincial legislation. If this argument had succeeded it would have had serious, and we would say quite negative, ramifications for the federal government’s authority to regulate marine matters. It would likewise have affected the federal aeronautical power.
The case, British Columbia (Attorney General) v. Lafarge Canada Inc., was argued over 18 months ago. Such a lengthy delay is unusual. It now appears that it was not the result which was problematic. Early in the decision the Justices who wrote the majority reasons state that the appeal is easily resolved in favour of the VPA and Lafarge on the basis of a constitutional doctrine known as “federal paramountcy.” The reason for the lengthy delay in the release of the decision appears to have arisen from a difference in opinion, as among the Justices, of the scope of another constitutional doctrine, referred to as “interjurisdictional immunity”. All seven Justices who participated in the decision agreed in the result, but there was a six/one split on the doctrinal point.
The essence of the rather complicated issues appears to be as follows:
The validity of the VPA’s regulation of port related activities must be decided on a case-by-case basis and is factually driven.
When considering the validity of proposed regulation, the federal navigation and shipping power should be broadly construed.
The proposed regulation in this case was sufficiently integrated with marine matters to pass muster.
But (according to the majority) it did not fall within the “core or vital functions of VPA” and accordingly the provincial regulatory scheme would have applied in the absence of federal regulation. (This is the interjurisdictional immunity issue on which the seventh Justice took a different view.)
However, as a federal regulatory scheme was in place, it took precedence over the provincial scheme.
British Columbia (Attorney General), v. Lafarge Canada Inc.
2007 SCC 23