Works and Undertakings

In Canada, the Local Works and Undertakings clause under section 92(10) of the "Constitution Act, 1867" divides communication and transportation-related matters between both the federal and provincial governments. Section 92(10) itself gives a residual power over "local works and undertakings" to the exception of subject matters enumerated in section 92(10)(a), (b), and (c).

Section 92(10) states:

: "10. Local Works and Undertakings other than such as 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:":: "(b) Lines of Steam Ships between the Province and any British or Foreign Country:":: "(c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces."

Section 92(10)(a) and (b) gives the federal government authority over modes of inter-provincial and international transportation and communication, leaving intra-provincial transportation and communication to the provinces. Section 92(10)(c), however, applies to works of all types. The federal government derives its jurisdiction over the three matters by vitue of section 91(29). [ grants power over "Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces."]

A "work" is typically said to mean physical objects or "things", while an "undertaking" consists of an "arrangement under which physical things are used". ["Radio Reference" [1932] A.C. 304] This includes arrangements or services such as labour unions and airport authorities.

Connection

A work or undertaking will be under federal control under section 92(10) where it is connecting the province with something outside of the province. This does not mean that physical connection is sufficient. An undertaking will be considered "connecting" where business operations extend beyond the provincial border, or has a close operational relationship with an inter-provincial undertaking [see "Hogg", 22.4]

Declaratory power

Section 92(10)(c) provides the federal government with the declaratory power (or "federal declaratory power"), which means that the Parliament of Canada may declare a Work [note that this includes all types of Works, even outside of transport and communication, but does not include Undertakings] to be "for the general Advantage of Canada" or "for the Advantage of Two or more of the Provinces" thereby taking control over the subject matter. In general terms, the works thus described tend to be part of the national infrastructure.

Whenever Parliament invokes the power it gains not only jurisdiction over the work but also any necessarily incidental operations. In "Ontario Hydro v. Ontario" (1993), the government had invoked the declaratory for regulating Ontario Hydro's nuclear plant. The Supreme Court held that declaration gave Parliament the work "as a going concern" which involved jurisdiction over worker at the plant and the labour unions.

The declaration must be made by the passing of legislation, but in addition to declaring specific works, whole classes of work can be defined as being "for the general advantage of Canada" by default; the Atomic Energy Control Act, for example, deemed all nuclear power plants to fall into this category. From 1867 to 1961 there were 470 uses of the declaratory power, of which 84% related to railways.

As of 2006, the declaratory power has been invoked at least 472 times, [see "Hogg, 22.8"] but not since 1961, [ cite web|url=http://www.yorku.ca/igreene/sept2305.ppt |title=Preliminary Observations on the Law |accessdate=2007-09-15 |last=Greene |first=I |date=2005-09-23 |format=PPT |archiveurl=http://72.14.205.104/search?q=cache:xJ1eO8mFbdcJ:www.yorku.ca/igreene/sept2305.ppt | archivedate=2007-09-15] and of which 64% was related to railways.Facts|date=September 2007

See also

* "Capital Cities Communications v. CRTC" (1977)

Notes


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