This must be so if even Parliaments residual POGG
power, from which all provincial legislative authority is subtracted, can have an exclusive core.
The Court concluded that the statute did not fall under the federal trade and commerce power because this legislative authority "does not extend to the regulation by a licensing system of a particular trade in which Canadians would otherwise be free to engage in the provinces." (42) The Court also rejected the suggestion that the legislation fell under Parliament's POGG
power because POGG
must be interpreted as being limited by the specific heads of power listed in sections 91 unless "the subject-matter lies outside all of the subject-matters enumeratively entrusted to the province under s.
The federal government potentially has greater powers because of the residual power clause and the POGG
clause, but most of the time the federal government has been happy to allow the provinces to play the lead role when it comes to environmental regulation.
There is also a national emergency branch of POGG
. This branch is not relevant in this context as it is unlikely that the implementation of a trade agreement would be considered necessary temporary legislation, so the first prong of the test is irrelevant.
Alternatively, the national concern branch of the POGG
clause may provide the federal government with such power.
In addition to authority over federal lands and aquatic and migratory bird species, the Constitution Act also granted the federal government several broader powers over matters not clearly within provincial authority: Peace Order and Good Government (POGG
) and the Criminal Law Power.
On one hand, Parliament rejected the Royal Commissions emphasis on the Peace, Order, and Good Government (POGG
) power under section 91 of the Constitution Act, 1867 (5) as a justification for federal action, and instead relied upon the criminal law power.
(21) Another example of encroachment on the principle of negative autonomy of provinces can be found in the so-called "national concern" doctrine flowing from Parliament's power to adopt laws for "Peace, Order and Good Government" ((POGG
I have deliberately made repeated mention in this review of how Haldane's "general will" would emerge to the surface in times of war, as this precisely is how he describes peace, order and good government (POGG
) emergency authority in the Board of Commerce case (1922): "In special circumstances, such as those of a great war, such an interest might conceivably become of such paramount and overriding importance as to amount to what lies outside the heads in s.
Two aspects of "POGG
" are relevant: the dimension of national concern and the provision for emergency powers.
These include the treaty-making power, the trade and commerce power, and the peace, order and good government (POGG
Both the criminal law power and the Peace, Order and Good Government (POGG
) powers can be invoked in this context.