Professional Documents
Culture Documents
BLAW 628
Units 7 and 8
November 16, 2015
Pipelines
Provincial or federal jurisdiction?
Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322
Undertakings are able to come under federal jurisdiction if they are a simple federal work of
undertaking under s. 92(10)(a) of the Constitution Act, 1867 which reads:
92.
In each Province the Legislature may exclusively make Laws in relation to Matters
coming within the Classes of Subjects next hereinafter enumerated, that is to say,
10.
Local works and undertakings other than such are of the following classes:
(a)
Lines of Steam or other Ships, Railways, Canals, Telegraphs
and other Works and Undertakings connecting the Province with any
other or others of the Provinces, or extending beyond the limits of
the
Province.
In order for the operations to be considered as a single federal undertaking under s. 92(10)(a)
they must be functionally integrated and subject to common management, control and direction.
Common ownership is in and of itself insufficient it must be coupled with function integration
and common management. To determine if the various operations are fully integrated and
managed in common is dependent on the facts in any particular case. In this case the fact that
Westcoasts gathering lines and processing plants are connected physically to the mainline is
insufficient to conclude it is one federal undertaking. In addition, common ownership is
insufficient. It is, however, clear that the business and facilities are managed in common as a
single enterprise.
Note also 92(10)(c):
(c)
for the
Such Works as, although wholly situate within the Province, are
before or after their Execution declared by the Parliament of Canada to be
general Advantage of Canada or for the Advantage of two or more of the
Provinces.
22
29-58
30
31-33
52
54
55.2
58
116
Application of Act, to all pipelines in Alberta, except within property of a refinery, etc.,
a pipeline where there is a CPCN or an exempting order (and other minor exceptions).
ERCB
Need a licence to construct.
Need licence to operate.
3.1
6
16
Read Preamble.
s. 10. Equivalency.
Note specifically Part 2 being ss. 11-42 Public Participation
s. 1721
s. 22-38
s. 32 reads:
32(1)
s. 39 & 40
re Injunction and Civil Cause of Action
Breach of statutory duty which is not a tort at common law is made actionable in court.
Pollution Protection
s. 56 The Minister may publish a notice in the Canada Gazette and in any other manner the
Minister considers appropriate a notice requiring a person or class of persons described in the
notice to prepare and implement a pollution prevention plan in respect of a substance or group of
substances on the List of Toxic Substances in Schedule 1, etc.
Note the case of Canada (Attorney-General) v. Hydro Quebec (1997), 217 N.R. 241 (S.C.C.).
The Supreme Court of Canada in relation to a predecessor of this legislation held that CEPA
provisions allowing Canada to determine what are toxic substances and to prohibit such
substances into the environment are valid under the criminal law power.
Except for inherently toxic substances, a substance is toxic if it enters or may enter into the
environment in a quantity or concentration or under conditions that:
Have or may have an immediate or long-term effect on the environment or its
biological diversity; constitute or may constitute a danger to the environment on
which life depends; or constitutes or may constitute a danger in Canada.
The Ministers will compile a virtual elimination list. The list will specify a level of
quantification for each substance on the list (64-65).
Cabinet can add a toxic substance to the List of Toxic Substances (90).
Interim Orders to put can ultimately result in adding a substance to the list of toxic substances
(94).
Where there occurs or is a likelihood of a release into the environment of a substance on the List
of Toxic Substances in Schedule 1 in contravention of a regulation or of an Order under the Act,
a person as defined shall provide a written report to an enforcement officer, protect the
environment and public safety or mitigate danger and notify the public (95).
Whistleblower (96)
Division 6
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If the source is not a federal source, it will consult with the province. If the province does
not take action, Canada can take action (166(2-3)). Note it is reciprocity based (166(4)).
This appears to be permissible under the POGG power, natural concern doctrine.
Note: Report to enforcement officer, report to official and intervention by enforcement
officer.
PART 8
PART 9
s. 207(1)
s. 272, 273 Note high amount of fines/jail. Penalties are less for negligent as opposed
to knowingly offences.
s. 274
Note this section. Offence just short of criminal negligence causing death or
bodily harm. Also criminal negligence of Criminal Code s. 220, 221.
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