Federal Legislation – Research Step One: Determine Jurisdiction
When researching legislation, the first step is to identify which government has jurisdiction over the area you are investigating. If you have already located potentially applicable legislation, the first step is to determine whether the bill, statute, or regulation in question is federal or provincial.
Why? Even though the federal and provincial governments both have law-making power, the laws they enact govern different areas and will have different levels of binding authority.
Federal legislation applies across all provinces, and includes criminal law, national defence, international trade and broadcasting. Provincial legislation only governs the province that enacted it, and includes highway traffic law, health care, education family and housing laws.
Law-making power is divided between the federal government and the provinces by the subject matters lists in ss. 91 and 92 of the Constitution Act, 1867. It is important to bear in mind that there may be some overlap, depending on the area being researched.
EXAMPLE 1: The power to make laws relating to "Banking, Incorporation of Banks, and the Issue of Paper Money” is allocated to the federal government under s.91.
- So, if you are researching the incorporation of banks, you will need to locate federal legislation.
EXAMPLE 2: the power to make laws concerning "Property and Civil Rights in the Province” lies within the exclusive jurisdiction of the provincial government under s.92.
- So, if you are researching landlord and tenant law, you will need to focus on provincial legislation.
EXAMPLE 3: Many issues in environmental law arise involve overlap between federal and provincial government laws. For example, the federal government has enacted legislation relating to water pollution and the use and disposal of toxic substances. Certain provincial statutes regulate and impose prohibitions over the discharge of particular contaminants. This overlap arises from the fact that property law and non-renewable natural resources are listed under s.92, whereas the federal government has law-making power over navigation, shipping, and fisheries.
- So, if you are researching this area you will need to examine both jurisdictions.
Making the federal-provincial distinction at the outset will therefore drive your research in the right direction, prevent gaps in your findings, and ensure you do not investigate legislation which does not even apply to your research question.