Section 92A of the Constitution Act, 1867

Last updated April 14, 2024

Section 92A of the Constitution Act, 1867 (French : article 92A de la Loi constitutionnelle de 1867) is a provision of the Constitution of Canada relating to provincial jurisdiction over natural resources. It was added to the Constitution Act, 1867 in 1982, as part of the Patriation of the Constitution.

The Constitution Act, 1867 is the constitutional statute which established Canada. Originally named the British North America Act, 1867 , the Act continues to be the foundational statute for the Constitution of Canada, although it has been amended many times since 1867. It is now recognised as part of the supreme law of Canada.

Constitution Act, 1867

The Constitution Act, 1867 is part of the Constitution of Canada and thus part of the supreme law of Canada.^[1] It was the product of extensive negotiations by the governments of the British North American provinces in the 1860s.^[2]^[3] The Act sets out the constitutional framework of Canada, including the structure of the federal government and the powers of the federal government and the provinces. Originally enacted in 1867 by the British Parliament under the name the British North America Act, 1867,^[4] in 1982 the Act was brought under full Canadian control through the Patriation of the Constitution, and was re-named the Constitution Act, 1867 .^[5] Since Patriation, the Act can only be amended in Canada, under the amending formula set out in the Constitution Act, 1982 .^[6]

Text of section 92A

Section 92A reads:

Laws respecting non-renewable natural resources, forestry resources and electrical energy
92A (1) In each province, the legislature may exclusively make laws in relation to
(a) exploration for non-renewable natural resources in the province;
(b) development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; and
(c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.
Export from provinces of resources
(2) In each province, the legislature may make laws in relation to the export from the province to another part of Canada of the primary production from non-renewable natural resources and forestry resources in the province and the production from facilities in the province for the generation of electrical energy, but such laws may not authorize or provide for discrimination in prices or in supplies exported to another part of Canada.
Authority of Parliament
(3) Nothing in subsection (2) derogates from the authority of Parliament to enact laws in relation to the matters referred to in that subsection and, where such a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflict.
Taxation of resources
(4) In each province, the legislature may make laws in relation to the raising of money by any mode or system of taxation in respect of
(a) non-renewable natural resources and forestry resources in the province and the primary production therefrom, and
(b) sites and facilities in the province for the generation of electrical energy and the production therefrom,
whether or not such production is exported in whole or in part from the province, but such laws may not authorize or provide for taxation that differentiates between production exported to another part of Canada and production not exported from the province.
Primary production
(5) The expression primary production has the meaning assigned by the Sixth Schedule.
Existing powers or rights
(6) Nothing in subsections (1) to (5) derogates from any powers or rights that a legislature or government of a province had immediately before the coming into force of this section.^[7]

Section 92A is found in Part VI of the Constitution Act, 1867, dealing with the distribution of legislative powers. It was added to the Constitution Act, 1867 in 1982, by the Constitution Act, 1982, and has not been amended since its enactment.

Purpose and interpretation

Section 92A was added to the Constitution Act, 1867 at the insistence of the provinces of Saskatchewan and Alberta, as part of the Patriation agreement in 1982.^[8] The provision was in response to two decisions of the Supreme Court of Canada in the 1970s, which limited the ability of the provinces to regulate the use of their natural resources.^[9]^[10] Section 92A was enacted by the Constitution Act, 1982 as an amendment to the Constitution Act, 1867.^[11]

Sixth Schedule: Text

The term "primary production" used in s. 92A is defined by the Sixth Schedule to the Constitution Act, 1867. It reads as follows:

THE SIXTH SCHEDULE
Primary Production from Non-Renewable Natural Resources and Forestry Resources
1. For the purposes of section 92A of this Act,
(a) production from a non-renewable natural resource is primary production therefrom if
(i) it is in the form in which it exists uponits recovery or severance from its natural state, or
(ii) it is a product resulting from processing or refining the resource, and is not a manufactured product or a product resulting from refining crude oil, refining upgraded heavy crude oil, refining gases or liquids derived from coal or refining a synthetic equivalent of crude oil ; and
(b) production from a forestry resource is primary production therefrom if it consists of sawlogs, poles, lumber, wood chips, sawdust or any other primary wood product, or wood pulp, and is not a product manufactured from wood.^[12]

Like section 92A, the Sixth Schedule was added as an amendment in 1982.^[13]

Related Research Articles

The British North America Acts, 1867–1975 are a series of Acts of Parliament that were at the core of the constitution of Canada. Most were enacted by the Parliament of the United Kingdom and some by the Parliament of Canada. Some of the acts were repealed in Canada by the Constitution Act, 1982. The rest were renamed the Constitution Acts and amended, with those changes only having effect in Canada. The Canadian versions of the Constitution Acts make up the Constitution of Canada, and can only be amended in Canada.

The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of patriating the constitution, introducing several amendments to the British North America Act, 1867, including re-naming it the Constitution Act, 1867. In addition to patriating the Constitution, the Constitution Act, 1982 enacted the Canadian Charter of Rights and Freedoms; guaranteed rights of the Aboriginal peoples of Canada; entrenched provincial jurisdiction over natural resources; provided for future constitutional conferences; and set out the procedures for amending the Constitution in the future.

The Constitution Act, 1867, originally enacted as the British North America Act, 1867, is a major part of the Constitution of Canada. The act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system. In 1982, with the patriation of the Constitution, the British North America Acts which were originally enacted by the British Parliament, including this Act, were renamed. However, the acts are still known by their original names in records of the United Kingdom. Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resources.

Section 92 of the Constitution Act, 1867 is a provision in the Constitution of Canada that sets out the legislative powers of the legislatures of the provinces of Canada. The provincial powers in section 92 are balanced by the list of federal legislative powers set out in section 91 of the Constitution Act, 1867. The dynamic tension between these two sets of legislative authority is generally known as the "division of powers". The interplay between the two lists of powers have been the source of much constitutional litigation since Confederation of Canada in 1867.

Section 125 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to taxation immunities of the federal and provincial governments. The section provides that the property of the provincial and federal governments are not subject to taxation.

Section 93A of the Constitution Act, 1867 is a provision of the Constitution of Canada, extinguishing the right to publicly funded denominational and separate schools in the province of Quebec. It was enacted as a bilateral constitutional amendment in 1997.

Section 94 of the Constitution Act, 1867 is a provision of the Constitution of Canada allowing the federal Parliament to implement uniform laws relating to property and civil rights, and procedure in the civil courts, in three of the original provinces: New Brunswick, Nova Scotia, and Ontario. The power under section 94 cannot be used without the consent of those provinces, as those subject matters are normally within exclusive provincial jurisdiction. The power has never been used.

Section 94A of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to old age pensions and supplemental benefits. It was originally added to the Constitution Act, 1867 in 1951, dealing with old age pensions. It was expanded by a further constitutional amendment in 1964 to include supplemental benefits, such as disability benefits and benefits for young survivors of pensioners.

Section 95 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to federal and provincial legislative jurisdiction over agriculture and immigration.

Section 97 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to the qualifications for judges of the provincial superior, district and county courts in the common law provinces.

Section 98 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to the qualifications for judges of the provincial superior, district and county courts in the province of Quebec.

Section 99 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to the tenure and retirement age of the provincial superior court judges in Canada.

Section 21 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to the composition of the Senate of Canada. The section sets out the total number of senators, currently set at 105. Section 21 originally provided that the Senate would be composed of 72 senators, but that number has gradually increased as new provinces and territories joined Confederation.

Section 37 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to the composition of the House of Commons, the lower house of the federal Parliament of Canada.

Section 69 of the Constitution Act, 1867 is a provision of the Constitution of Canada creating the Legislature of the province of Ontario, which did not exist prior to 1867. The Constitution Act, 1867 created Ontario, including the institutions of the new provincial government, such as the Legislature.

Section 102 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to the financial administration of the Government of Canada.

Section 147 of the Constitution Act, 1867 is a provision of the Constitution of Canada dealing with the representation of Prince Edward Island and Newfoundland in the Senate of Canada, in the event either of those two colonies joined Canada after 1867.

Section 89 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to the first elections after Confederation in the provinces of Ontario, Quebec and Nova Scotia.

Section 126 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to consolidated revenue funds of the provinces.

Section 52 of the Constitution Act, 1867 is a provision of the Constitution of Canada which gives the federal Parliament the power to increase the number of members in the House of Commons, provided any increase respects the principle of proportionate provincial representation in the House of Commons.

References

↑ Constitution Act, 1982, s. 52(1).
↑ Donald Creighton, The Road to Confederation (Toronto: Macmillan Publishing, 1864; revised ed., Oxford, Oxford University Press, 2012.)
↑ Christopher Moore, 1867 — How the Fathers Made a Deal (Toronto: McClelland & Stewart, 1997).
↑ British North America Act, 1867, 30 & 31 Victoria, c. 3 (UK).
↑ Constitution Act, 1982, s. 52, s. 53, and Schedule, Item 1.
↑ Constitution Act, 1982, Part V.
↑ Constitution Act, 1867, s. 92A.
↑ Robert D. Cairns, Marsha A. Chandler, and William D. Moull, "The Resource Amendment (Section 92A) and the Political Economy of Canadian Federalism" (1985) 23 Osgoode Hall Law Journal 253, at pp. 263–266.
↑ Canadian Industrial Gas & Oil Ltd. v. Government of Saskatchewan, [1978] 2 SCR 545.
↑ Central Canada Potash Co. Ltd. et al. v. Government of Saskatchewan, [1979] 1 SCR 42.
↑ Constitution Act, 1982, s. 50.
↑ Constitution Act, 1867, Sixth Schedule.
↑ Constitution Act, 1982, s. 51.