British Columbia (Attorney General) v. Lafarge Canada Inc.

In Constitutional Issues in Maritime Law on (Updated )

The issue in this case was whether the Vancouver Port Authority was required to obtain a City development permit to build a cement plant on port lands. The Supreme Court of Canada noted that the development of waterfront lands could come under either federal or provincial jurisdiction but applied the doctrine of paramountcy and held that the City bylaw was not applicable. In reaching this conclusion the Court considered and rejected the doctrine of interjurisdictional immunity. The Court said the doctrine of interjurisdictional immunity should generally not be applied where the subject matter has a double aspect and both the federal and provincial governments have a compelling interest. Further, the Court said the interjurisdictional immunity doctrine does not apply to every element of a federal undertaking but is restricted to the “essential and vital elements” of the undertaking. Here, the land use controls in the Canada Marine Act were not a core or vital element of the federal power over navigation and shipping and therefore, the interjurisdictional immunity doctrine did not prevent the province and City from legislating. However, the Supreme Court went on to find that the preconditions for the application of the paramountcy doctrine were met. Those preconditions are: 1. valid and applicable federal law; 2. valid and applicable provincial law; and, 3. these valid laws are incapable of simultaneous enforcement. (Note: In separate reasons Justice Bastarache reached the same conclusion as the majority but did so solely on the basis of the interjurisdictional immunity doctrine.)