Preparing for a Midlife Crisis: Section 92A at 40

38 Pages Posted: 10 Nov 2022

See all articles by Nigel Bankes

Nigel Bankes

University of Calgary - Faculty of Law; University of Tromso - Faculty of Law

Andrew Leach

University of Alberta - Department of Economics; University of Alberta - Faculty of Law

Date Written: October 31, 2022

Abstract

Section 92A, the resources amendment, was added to Canada’s foundational constitutional document in 1982 at the same time as Canada patriated its constitution from Westminster and adopted the Canadian Charter of Rights and Freedoms. The provision was designed to confirm and enhance the legislative and executive authority of provincial governments. As we approach the 40th anniversary of s 92A, Canada appears destined for another federation-defining conflict over resource-related issues including the construction of new pipelines, legislative and policy responses to greenhouse gas emissions, and the reach of federal environmental impact assessment legislation. This article begins by examining the events that led to the adoption of s 92A and next assesses both how litigants have invoked s 92A and how Canadian courts have interpreted its text in the 40 years since its adoption. Earlier decisions relied on s 92A to confirm the validity of provincial or municipal legislation but, in more recent cases, s 92A has been invoked to question the validity or applicability of federal legislation. Section 92A arose out of conflict with respect to trade in resources and the right to appropriate the economic rent associated with developing those resources. The current conflicts focus on the power to make laws with respect to the development and exploitation of those resources.

Keywords: climate change, constitutional law,9 2A, Canada, oil, energy, impact assessment, electricity

JEL Classification: Q48

Suggested Citation

Bankes, Nigel and Leach, Andrew, Preparing for a Midlife Crisis: Section 92A at 40 (October 31, 2022). Forthcoming, Alberta Law Review, Vol. 60, No. 4, 2023, Available at SSRN: https://ssrn.com/abstract=4262958 or http://dx.doi.org/10.2139/ssrn.4262958

Nigel Bankes

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4
Canada

University of Tromso - Faculty of Law ( email )

Tromsø, 9037
Norway

Andrew Leach (Contact Author)

University of Alberta - Department of Economics ( email )

8-14 Tory Building
Edmonton, Alberta T6G 2H4
Canada

University of Alberta - Faculty of Law ( email )

Law Centre (111 - 89 Ave)
University of Alberta
Edmonton, Alberta T6G 2H5
Canada

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