Watering Down the Power to Regulate “Navigation and Shipping”

Author: Peter Swanson


Watering-Down-Power-to-Regulate-Navigation-and-ShippingCanada as a federation divides the power to create laws between the federal parliament and the provincial legislatures. The power to create laws in relation to various subjects (e.g. criminal conduct, banking, fisheries, shipping, etc.) is set out in the Constitution Act, 1867 (formerly the British North America Act). The two key provisions dividing the power to legislate between parliament and the provincial legislatures are sections 91 and 92 of the Constitution Act, 1867.

Of course, the powers are described in terms significant in 1867. Not surprisingly, what was important from a legislative point of view in 1867 may not be important today. Conversely, what is important today, may not have even existed as a legislative issue in 1867. As we all know, there have been a lot of significant changes over the past 142 odd years, including dramatic changes in the way business operates, the way governments attempt to regulate business, concern over the environment, technological advances such as the advent of airplanes, automobiles, telecommunications, the internet, as well as innumerable societal changes. Needless to say our Constitution as concluded in 1867 does not expressly address many of these issues. Nor does our Constitution necessarily reflect the desire and motivation of our current federal and provincial governments from a legislative/regulatory point of
view. Consequently, the interpretation of our Constitution, and in particular the provisions dividing legislative powers between parliament and the provincial legislatures, continues to be a source of legal uncertainty, and continues to spawn court challenges seeking to have laws (both federal and provincial) declared invalid, or held inapplicable to a given set of facts. There are countless examples of such cases, including many that have arisen in the field of maritime law.

About Peter Swanson

Peter is a founding partner of the firm with over 30 years of professional legal experience. He practices primarily in the fields of maritime and health law. Peter’s maritime case work involves vessel arrest and security, carriage of goods by sea, enforcement of maritime liens, civil and regulatory liability for ship source pollution, collision, port state intervention, immigration, bodily injury,… view full profile »