Works and Undertakings
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In Canada, the Local Works and Undertakings clause under section 92(10) of the Constitution Act, 1867 divides communication and transportation-related matters between both the federal and provincial governments. Section 92(10) itself gives a residual power over "local works and undertakings" to the exception of subject matters enumerated in section 92(10)(a), (b), and (c).
Section 92(10) states:
- 10. Local Works and Undertakings other than such as are of the following Classes:
- : (a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:
- : (b) Lines of Steam Ships between the Province and any British or Foreign Country:
- : (c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.
The three classes exceptions of exceptions, however, do not bestow the federal government its authority. Rather the federal government derives its jurisdiction over the three matters by vitue of section 91(29). grants power over "Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces."
A "work" is typically said to meant to mean physical objects or "things", while an "undertaking" consists of an "arrangement under which physical things are used".Radio Reference [1932] A.C. 304 This includes arrangements or services such as labour unions and airport authorities.
Connection
A work or undertaking will be under federal control under section 92(10) where it is connecting the province with something outside of the province. This does not mean that physical connection is sufficient. An undertaking will be considered "connecting" where business operations extend beyond the provincial border, or has a close operational relationship with an inter-provincial undertaking see Hogg, 22.4
Declaratory power
Section 92(10)(c) provides the federal government with the 'declaratory power, which means that the Parliament of Canada may declare a Worknote that this includes all types of Works, even outside of transport and communication, but does not include Undertakings to be "for the general Advantage of Canada" or "for the Advantage of Two or more of the Provinces" thereby taking control over the subject matter.
Whenever Parliament invokes the power it gains not only jurisdiction over the work but also any necessarily incidental operations. In Ontario Hydro v. Ontario (1993), the government had invoked the declaratory for regulating Ontario Hydro's nuclear plant. The Supreme Court held that declaration gave Parliament the work "as a going concern" which involved jurisdiction over worker at the plant and the labour unions.
As of 2006, the declaratory power has been invoked at least 472 times. see Hogg, 22.8
See also
Notes
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