Oldman River Society Case

Several decisions of the Supreme Court relate to environmental protection: Dryden Chemicals, Crown Zellerbach and Friends of the Oldman River Society. In the Dryden Chemicals case a majority of the Supreme Court decided that a Manitoba statute that envisaged arresting pollution in interprovincial waters in the province did not fall under provincial jurisdiction. Only the federal government could enact measures to prevent acts in one province causing harm in another one. The harmful substances dealt with were dumped into waters outside Manitoba and eventually found their way into the latter province. In the Crown Zellerbach case a majority of Supreme Court judges affirmed that the federal Parliament could invoke the national concern doctrine to prevent the dumping of refuse in the sea except in accordance with a permit. The federal statute on the dumping of substances in the sea was held valid. Three judges dissented on the basis that the federal law violated provincial jurisdiction.

In the Friends of the Oldman River case (1992), the Supreme Court held that the Governor-in-Council was competent to make an order on the method of assessment in environmental matters. The federal Parliament had the requisite authority to so act in relation to the project in question under one of its heads of power as set out in the Constitution: it could invoke the incidental doctrine or even, if need be, its residuary power. In this instance, by virtue of its jurisdiction over navigable waters in Article 91 of the Constitution Act, 1867, the federal government could proceed to assess the dam being built on the Oldman River. The project involved as well fisheries and lands reserved for the Indians, also enumerated in Article 91. Federal jurisdiction, however, was not absolute. The provinces could also exercise jurisdiction in the environmental area grounding their legislative authority on Article 92 of the Constitutional Act, 1867, and making use of their incidental powers.