''Reference Re Upper Churchill Water Rights Reversion Act (Nfld)''

984 Year 984 ( CMLXXXIV) was a leap year starting on Tuesday (link will display the full calendar) of the Julian calendar. Events By place Europe * Spring – German boy-king Otto III (4-years old) is seized by the deposed Henry II ( ...

1 S.C.R. 297 is a famous constitutional

reference question In Canadian law, a reference question or reference case (formally called abstract review) is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question concer ...

put to the

Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...

. The Court found that legislation passed by the government of

Newfoundland Newfoundland and Labrador (; french: Terre-Neuve-et-Labrador; frequently abbreviated as NL) is the easternmost province of Canada, in the country's Atlantic region. The province comprises the island of Newfoundland and the continental region ...

to take back water rights contracted out to the province of

Quebec Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirtee ...

was unconstitutional. The decision had a huge impact on both provinces, as the

Churchill Falls generating station The Churchill Falls Generating Station is a hydroelectric underground power station in Labrador. At 5,428 MW, it is the sixteenth largest in the world, and the second-largest in Canada, after the Robert-Bourassa generating station in northw ...

is one of the biggest producers of hydro-electric power in the region and the agreement guarantees

will receive a majority of the revenue from the Falls until 2034.

Background

By an Act of the Province of Newfoundland, the

Churchill Falls (Labrador) Corporation The Churchill Falls (Labrador) Corporation, also known as CF(L)Co or CFLco is a Canadian electric company. The company was founded in 1961 and is based in St. John's, Newfoundland and Labrador. Churchill Falls (Labrador) Corporation Limited opera ...

(CFLCo) developed hydro-electric generators at the

Churchill Falls Churchill Falls is a high waterfall on the Churchill River in Labrador, Canada. Formerly counted among the most impressive natural features of Canada, the diversion of the river for the Churchill Falls Generating Station has cut off almost ...

, in

Labrador , nickname = "The Big Land" , etymology = , subdivision_type = Country , subdivision_name = Canada , subdivision_type1 = Province , subdivision_name1 ...

. In 1969, the company, controlled by the

British Newfoundland Development Corporation {{Infobox company , name = BRINCO , logo = , logo_size = , image = , image_caption = , trading_name = British Newfoundland Development Corporation , native_name = , native_name_lang = ...

(BRINCO) entered an agreement with

Hydro-Québec Hydro-Québec is a public utility that manages the generation, transmission and distribution of electricity in the Canadian province of Quebec, as well as the export of power to portions of the Northeast United States. It was established by the ...

, a

public utility A public utility company (usually just utility) is an organization that maintains the infrastructure for a public service (often also providing a service using that infrastructure). Public utilities are subject to forms of public control and r ...

owned by the

government of Quebec A government is the system or group of people governing an organized community, generally a state. In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is a ...

, to sell a large majority of the power generated by the Falls at a low fixed rate for the next 65 years. After buying out BRINCO's shares in 1974, the government of Newfoundland began to explore ways to get a greater portion of the power generated from the Falls. In 1980, the legislature passed the ''Upper Churchill Water Rights Reversion Act'', which reverted ownership of the Falls to the provincial government, repealed the Act that granted the land to the CF(L)Co, expropriated the company's assets, including

's participation in the joint venture.Hydro-Québec owns 34.2% of CF(L)Co. The province submitted a reference to the

Newfoundland Court of Appeal The Court of Appeal of Newfoundland and Labrador is at the top of the hierarchy of courts for the Canadian province of Newfoundland and Labrador. The Court of Appeal derives its powers and jurisdiction from the Court of Appeal Act. The independe ...

, which found it

intra vires ('beyond the powers') is a List of Latin phrases, Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may ...

(within the power of) the province.

Supreme Court of Canada judgment

The Court stated that the Act was

ultra vires ('beyond the powers') is a Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...

the province and so struck it down. In performing

pith and substance Pith and substance is a legal doctrine in Canadian constitutional interpretation used to determine under which head of power a given piece of legislation falls. The doctrine is primarily used when a law is challenged on the basis that one level of ...

analysis on the legislation by looking at the Act's purpose and effect, the Court found that the Act was colourable. That is, the form of the Act appears to address a valid matter but in substance actually addresses a matter outside its authority. The "Pith and Substance" of the Act, its dominant feature or purpose, was to interfere with the right of Hydro-Québec granted by the agreement with Churchill Falls Corp to receive power from across the provincial border.

Background

Supreme Court of Canada judgment

See also

References

External links

Further reading