21
Feb
10

Division of Powers

This is the first of many entries to come on the more specific issue of land use planning law.  In the coming days and weeks (as I prepare for my class presentation on cycling infrastructure) I will be going through the basics of planning law that is relevant to the promotion of cycling in Toronto.  First I’d like to start with a nice quote from an article called Our Common Past: An Interpretation of Canadian Planning History (July 1994, Plan Canada 12), by Jeanne M. Wolfe:

Planning is about change.

So true it is.  If we are going to get our heads around seriously improving cycling infrastructure in Toronto we are all going to have to come to terms with change.  For too long our cities have been designed for and dominated by cars.  With the many issues related to fossil fuel emissions, pollution, global warming, and accessibility, bike culture has re-emerged as a positive solution.  But its re-emergence is stymied by a lagging improvement in infrastructure.  How many cars would we see if there were no roads to drive them on? So… let’s embrace some change.

The first thing to consider with the law of land use planning is who’s got the authority?  Our system of federalism means that powers and legal jurisdiction are divided between the federal Parliament and provincial legislatures.  This is called the division of powers. To find out which level of government has the jurisdiction for particular areas, one must take a look at sections 91 and 92 of the Constitution Act, 1867.

Generally speaking, land use planning falls under the provincial head of power.  Subsections   8, 13 and 16 of section 92 make this clear:

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

8. Municipal Institutions in the Province.

13. Property and Civil Rights in the Province.

16. Generally all Matters of a merely local or private Nature in the Province.

Constitutionally, there are only two sovereign powers: the federal Parliament and the provincial legislatures.  This division means that municipalities are ‘constitutional orphans’.  By way of s. 92(8) then, it is the provinces that have the power to create cities.  And the provinces do create municipalities – which are essentially corporations – by way of acts of the legislature.  The Ontario Municipal Act, 2001, for example, sets out the rules governing municipalities in the province.  Toronto has a more specific statute called the City of Toronto Act, 2006.

Upcoming posts will look more deeply at the relevant planning law and powers of the province of Ontario.

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2 Responses to “Division of Powers”


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