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R v Crown Zellerbach Canada Ltd, [1988] 1 SCR 401 (Link)

Facts:

s.4(1) of the Ocean Dumping Control Act prohibits dumping of certain things at sea, does not include fresh water such as lakes. Company owed logging business and was dumping things a water source, which was in the internal (along coast) waters of BC – there license did not cover the kind of dumping they were doing, and they were charged under fed law

Issue(s):

Does the fed legislation jurisdiction to regulate the dumping of substances at sea extend to the regulation of dumping in prov marine waters?

Ratio:

National Concern doctrine is separate and distinct from Emergency doctrine of POGG
*Emergency Branch provides a basis for what is necessarily legislation of a temporary nature
*National concern doctrine applies to both new matters and to which matters, although originally of a local or private nature in a province, have since, in the absence of a national emergency, become matters of a national concern

Test for a matter to qualify as a matter of national concern: matter of national concern that has singleness, distinctiveness or indivisibility that distinguishes it from matter s of a prov nature
**In determining above it is relevant to consider what would be the effect on extra-provincial interests of a prov failure to deal effectively w/ the control or reg of the intra-prov aspects of the matter – Provincial Inability Test

Analysis:

National Concern Doctrine
*It is separate and distinct from national emergency doctrine
*Applies to both new matters which did not exist at Confederation and to matters which, although originally matter of a local or private nature in a prov, have since, in the absence of national emergency, becomes matters of national concern

*Where matter falls w/in national concern doctrine of POGG Parl has exclusive jurisdiction or a plenary nature to leg in relation to that matter, including its intra-prov aspects
*Provincial Inability Test should not go as far as to say that there must be a plenary jurisdiction in one order of gov or the other to deal w/ any leg problem

Holding:

s.4(1) of Act is constitutionally valid as enacted bc of the national concern doctrine

Comments:

Summary of NC - Zellerback:
1. The national concern doctrine is separate from the national emergency doctrine, the latter of which only provides a constitutional basis for legislation of a temporary nature.
2. The doctrine applies to matters that did not exist at Confederation as well as to matters that were once matters of a local or private nature but have since become matters of national concern.
3. To qualify under the doctrine, a matter must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern, as well as a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution.
4. In determining whether a matter has sufficient singleness, distinctive-ness and indivisibility, it is relevant to consider the effect on extra- provincial interests of a provincial failure to deal effectively with the control or regulation of intra-provincial aspects of the matter.


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