Preparing for a Midlife Crisis: Section 92A at 40
38 Pages Posted: 10 Nov 2022
Date Written: October 31, 2022
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: Suggested Citation