Principles of Interpretation
Cooperative Federalism
A key objective of counsel was persuading the Court how to interpret the relationship between federal and provincial law. How do jurists address laws that appear to contradict one another? Should judges take a “narrow,” textual reading of the laws or a broader view about the intent of legislatures, or the spirit of the “fathers of Confederation”? Should the Court weigh the practical effects of their judgment on the industries as a deciding factor? The OWA and its fellow appellants urged the Court to interpret the federal and provincial laws in the context of “cooperative federalism.”
Counsel for the appellants argued that the Supreme Court should consider the nature of cooperative federalism in formulating its judgement. Cooperative federalism was described by the AG for Saskatchewan:
“as a normative principle, as an aspirational principle. …. cooperative federalism actually has some analogies there because it seeks harmony or, if I may, reconciliation between provincial and federal powers. ….I would just say generally what it attempts to do, it tries to counteract the constraining impacts of doctrines, such as paramountcy and inter-jurisdictional immunity. ..
If I could just say generally, what it seeks to do is to give provinces the greatest amount of freedom possible in our division of powers and in doing that it allows for regulatory Innovation, innovation that allows our country to grow. And it is very consistent with the underlying idea of a living tree Constitution.”
Justice Moldaver: Well sorry is the test reasonableness in terms of the interpretation of the statues and the other constitutional issues, and so on, or do we have to be correct?
Mr. Lenz: The test is correct but in the context of the Constitution the test is– it’s presumed that the federal government didn’t intend to override the provincial legislation and when there are two statutes. (Emphasis added)
Justice Moldaver: That begs the question, doesn’t it? You know, when there’s two possible meanings and then we apply the notion that we should make them live together, I mean is that the governing principle of the statutory interpretation? I’m just trying to understand this.
Mr. Lenz: Our view is that it is not merely statutory interpretation, it’s statutory interpretation in the context of cooperative federalism where there is a presumption that the federal government doesn’t intend to override provincial statutes unless that’s absolutely express.
Justice Brown: Do you see co-operative federalism -over here- as being anything more than a principle of statutory interpretation?
Mr. Lenz: Oh, of course, I do, Justice Brown. Cooperative federalism is what underpins our Confederation, it’s what makes this country work, it’s what binds this country together.
Justice Brown: Can we try to nail it down a little more precisely?
Mr. Lenz: Well, in the present case what it is, in my submission, is if—this is how I would put it. If there are two reasonable interpretations of a statute and one renders the other inoperable and the other doesn’t, the Court ought to prefer the one that doesn’t render provincial law operative.
Justice Brown: So it is a principle of interpretation then?
Mr. Lenz: I believe it is as well, yes.
Justice Brown: Well no that sounds like that is all it is. And maybe I’m happy with that. But if that is what it is as you have described, it is confined to an interpretation, to a principle to which it applies in the law.
Mr. Lenz: Justice Brown with respect, I disagree that it’s just interpretation. I think it is a bigger concept and I realize that..
Justice Brown: Well it can’t just be the vibe of the thing, it has to
Mr. Lenz: It’s a principle.
Justice Brown: I mean, if it means something then what does it mean?
Mr. Lenz: Yes. For present purposes it’s a principle of interpretation, but it’s a very important one is what I would say.
Justice Brown: Okay.
Lead counsel for the appellants then went on to describe the firm foundation of provincial resource regulation.
I think that—or my submissions are as well that this area of regulation of natural resource has some unique features that the Court ought to also consider in determining this principle of constitutional interpretation. It’s a difficult area to regulate, it’s highly technical, it’s heavily regulated in Alberta already, it involves a danger to the public if it’s not properly done. The regulation of natural resource and the management of natural resources involves of necessity intrusion into private property, it involves of necessity disturbance of the surface, both to get access and to drill the well bore; it involves a large number of stakeholders in Alberta, it covers a large portion of the province, thousands of hectares, and I think this is the most important point for the purposes of today’s argument.
The management of natural resources in Alberta has to deal with boom and bust cycles. It is inevitable that companies in this industry will go through periods in which they are cash rich and periods in which they are cash flow insolvent. When oil goes to $9.00 a barrel nobody is making money, everyone is losing money; when oil goes to $100 a barrel, even the worst companies are making money. That is a feature of the industry, an intractable feature of the industry that has to be managed by the Province of Alberta under 92(A).
While the parties to the case agree that federal and provincial legislation have been validly enacted, the justices have to reach consensus not only the tests to follow but the overarching theme to unite the jurists’ opinion of which of the two legal structures must give way to the other.