Jurisdictional Uncertainty and Pipelines: Is a Judicial Solution Possible

  • Steven A. Kennett


This article addresses the problem of jurisdictional uncertainty over pipelines. Some commentators have suggested that Judicial interpretations of s. 92(10)(a) of the Canadian Constitution, the federal works and undertakings power, are inadequate and have proven unworkable. The author outlines these deficiencies, but maintains that the existing legal tests can be reformulated to provide greater jurisdictional certainty. The key, the author maintains, is to acknowledge the conceptual distinction between works and undertakings. Then, for each case a two-step analysis is proposed, in which the court must first identify the work or undertaking in question and then classify it as intraprovincial or extraprovincial. The implications of this new model are then explored in the practical context of the NOVA pipeline system.