Residuary power Constitutional Law. Section 91, Constitution Act, 1867 “It shall be lawful for [Parliament] to make Laws […] in relation to all Matters.

Presentation on theme: "Residuary power Constitutional Law. Section 91, Constitution Act, 1867 “It shall be lawful for [Parliament] to make Laws […] in relation to all Matters."— Presentation transcript:

1 Residuary power Constitutional Law

2 Section 91, Constitution Act, 1867 “It shall be lawful for [Parliament] to make Laws […] in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the […] Provinces; for greater Certainty, but not so as to restrict the Generality of the foregoing […] the exclusive Legislative Authority of […] Parliament […] extends to all Matters coming within the Classes of Subjects […] enumerated […]” © Copyright 2013 Tolga R Yalkin

3 National Concern Doctrine 1.Does the proposed matter have a “singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern?” 2.Would the impact of the proposed matter on “provincial jurisdiction [be] reconcilable with the fundamental distribution of legislative power under the Constitution?” 3.If the proposed matter is not recognized, would provincial “failure to deal effectively with the control or regulation” of it have an “effect on extra ‑ provincial interests?” © Copyright 2013 Tolga R Yalkin

4 New matters Catalogue of new matters Incorporation of Fed Companies [1915] Emergencies [1922] Radio [1932] Continental Shelf [1984] National Capital Region [1959] Marine dumping [1988] Aeronautics [1952] 91. It shall be lawful for Parliament to make Laws in relation to: 2A. The Incorporation of Companies with Federal Objects. 7A. National Emergencies. 5A. The Regulation of Radio Broadcasting. 12A. The Exploration and Exploitation of the Continental Shelf. 11A. The Development, Conservation, and Improvement of the NCR 12B. The Regulation and Control of Marine Dumping. 13A. The Regulation and Control of Aeronautics. © Copyright 2013 Tolga R Yalkin

5 National emergencies There must be a national emergency; and The law must be temporary. © Copyright 2013 Tolga R Yalkin

6 Questions What is emergency? When does emergency arise? How long does emergency last? How long after emergency ended does power continue? When is law temporary? © Copyright 2013 Tolga R Yalkin

7 Residuary power National Concern doctrine: –“singleness, distinctiveness and indivisibility” –impact on provincial jurisdiction reconcilable with the division of powers –failure to regulate have extraprovincial effects Recognition of a new matter changes constitutional distribution of powers Emergency power –National emergency –Temporary © Copyright 2013 Tolga R Yalkin

8 END © Copyright 2013 Tolga R Yalkin