Federal Legislative Authority in Relation to Oil and Gas Development in Canada
General rules and principles
This report sheds light on debates regarding federal authority to regulate oil and gas development in Canada. It begins by explaining the general principles of power sharing across federal and provincial governments, before outlining the extent to which several areas of federal legislative authority could be used to regulate activities related to oil and gas development.
Key Findings
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Oil and gas development is not exclusively the domain of provincial legislative authority. The federal legislature, and through it the federal government of the day, can regulate specific aspects of oil and gas development that engage federal legislative powers as set out in Canada's Constitution.
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Federal regulation of oil and gas development must, in essence, be about matters that fall within federal jurisdiction, although such regulation may have incidental effects on matters falling within provincial jurisdiction.
Oil and gas development in Canada affects and engages over a dozen areas of federal jurisdiction, both directly and indirectly. Specifically, oil and gas development on federal lands, offshore, and on Indigenous reserves, as well as the interprovincial and international transport and export of oil and gas, all fall directly under federal legislative authority. Indirectly, oil and gas development implicates and engages federal jurisdiction over navigation, fisheries, Indigenous Peoples and their interests in land (beyond reserves), transboundary river pollution, migratory birds, and certain aspects of climate change (e.g., federal carbon pricing and prohibitions on greenhouse gas emissions under the federal criminal law power). Oil and gas development is also affected by the exercise of federal jurisdiction over taxation, spending, patents, and bankruptcy and insolvency. This report outlines the general rules and principles that influence how the federal government can regulate such areas of activity.
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