Sep 16 2011

Constitution – Division of Powers

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It was determined in a 2009 decision (Alexandra Morton et al vs the A.G. of British Columbia and Marine Harvest)  that the BC Government was regulating fish farms without statutory authority. BC regulation of fish farms was unlawful, unconstitutional and invalid.

For many years, the expansion of Fish farms under the BC Liberal Government was not legal. Since we know that our Provincial Government did do something that by Constitutional authority it wasn’t supposed to do – it’s quite likely that the Province has authorized Municipal Governments to regulate (and/or undertake) other matters which the Province may have had no legal right to authorize.


Powers and responsibilities are divided between the federal and provincial Government by s.91 and 92 of the British North America Act which now forms part of the Canadian Constitution. The provinces were
assigned the responsibility for “municipal institutions” or local government in s. 92. The Province, in turn, assigns its powers to local government through provincial legislation.

The general rule is that local government does not have power to do anything except that which the legislation provides the authority to do. Letters Patent or Supplementary Letters Patent that create the municipality may modify or limit those powers. Powers given by a statute may be limited by another Provincial or Federal statute. Where there is a conflict between a Provincial statute and a local bylaw, the statute prevails. Local bylaws cannot regulate the use of Provincial or Federal lands (or Indian Reserves).

Apparently, both the Federal and Provincial Governments with all their lawyers and legal advice decided it was OK to circumvent the Constitution by using Memorandums of Understanding (MOUs) and legislation to protect industrial agriculture as well as regulation that lacked any kind of teeth or mandate to respect the precautionary principle or anything else that Citizens believe to be ethical. Governments did this willingly and continuously until one individual challenged the matter in Court.

When the Government intervened to stop the Court from reviewing Ms Morton’s challenge, it looked as though the Provincial Government and all their lawyers knew they were not respecting the Constitutional division of powers.  The Court reviewed the fish farm matter anyway and told the Governments they were wrong – they were out of line. That’s good news for Canadian Citizens.


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