14 Constitutional Distribution of Powers

Sometimes when we are working with legislation, we already know the act(s) or regulation(s) that apply in our situation. However, in many cases, we are starting from a position of only knowing that it is likely that there is applicable legislation that we should consider, but we have no idea what that legislation might be.

Using secondary sources to learn what legislation may apply is often a great way to determine what legislation, both obvious and more obscure, might be appliable to our question/situation.

However, it is also of vital importance that we understand, at least in broad strokes, the constitutional distribution of powers: This is the framework by which the Constitution acts set out what legislative topics are of Federal control, and what topics are of provincial control (and what topics have shared control). If we don’t know what level of government is responsible for legislation in a given area, we won’t know where to look for that legislation, or where it would have gone through the legislative process.

While we mainly think about distribution of powers in terms of the Federal/provincial split, it is also important that we consider two additional types of governing bodies that legislate and regulate our lives:

Band councils are a system of government imposed on Indigenous peoples via the Indian Act, RSC 1985, c I-5. From a legislative research perspective, band councils “administer[…] federally funded programs on First Nations reserves” and as such, they are often the source of bylaws and other legislation. However, it is of vital importance to recognize and acknowledge the deeply colonist and racist origins of the band system, where “[b]ands were established as a part of Canada’s early colonial policy whose aim was to assimilate Indians into colonial society by disrupting traditional forms of governance and imposing a municipal-style of local governance.” While many comparisons are made between municipal councils and band councils, the reality is that band councils have had far more responsibility downloaded on them, often without matching rights and resources to fulfil these responsibilities.

The other important governing bodies we need to consider are municipal councils: It is essential to consider that within a province, legislative control is further split between the province itself, and its municipalities. In Ontario, this happens via the Municipal Act, 2001, SO 2001, c 25, which sets out municipal powers, and limitations thereof. Much of the legislation that most directly impacts the way we live our lives, day-to-day, is municipal… Where can we park? What pets can we have?  Often, researchers focus solely on the Federal/provincial split, and key legislation at the municipal level is missed.


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Legal Research - A Practical Perspective Copyright © 2022 by Meris Bray is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License, except where otherwise noted.

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