Preparing for a Mid-Life Crisis: Section 92A at 40

Abstract

Section 92A, the resources amendment, was added to Canada’s foundational constitutionaldocument 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 fortieth anniversary of section 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 section 92A and next assesses both how litigants have invoked section 92A and how Canadian courts have interpreted its text in the 40 years since its adoption. Earlier decisions relied on section 92A to confirm the validity of provincial or municipal legislation, but, in more recent cases, section 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.