Re Upper Churchill Water Rights Reversion Act
Encyclopedia
Reference Re Upper Churchill Water Rights Reversion Act [1984] 1 S.C.R. 297 is a famous constitutional reference question
put the Supreme Court of Canada
. The Court found that legislation passed by the government of Newfoundland
to take back water rights contracted out to the province of Quebec was unconstitutional. The decision had a huge impact on both provinces, as the Churchill Falls generating station
is one of the biggest producer of hydro-electric power in the region and the agreement guarantees Quebec will receive a majority of the revenue from the Falls until 2034.
, in Labrador
. In 1969, the company, controlled by the British Newfoundland Development Corporation
(BRINCO) entered an agreement with Hydro-Québec
, a public utility
owned by the government of Quebec
, 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 exploring 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the Upper Churchill Water Rights Reversion Act that reverted ownership of the Falls to the provincial government and repealed the Act that granted the land to the CF(L)Co and expropriated the company's assets, including Hydro-Québec's participation in the joint venture.
The province submitted a reference to the Newfoundland Court of Appeal which found it intra vires (within the power of) the province.
the province and should be struck down. In performing pith and substance
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, (i.e. 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.
Reference question
In Canadian law, a Reference Question 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 concerns the constitutionality of legislation....
put the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
. The Court found that legislation passed by the government of Newfoundland
Newfoundland and Labrador
Newfoundland and Labrador is the easternmost province of Canada. Situated in the country's Atlantic region, it incorporates the island of Newfoundland and mainland Labrador with a combined area of . As of April 2011, the province's estimated population is 508,400...
to take back water rights contracted out to the province of Quebec was unconstitutional. The decision had a huge impact on both provinces, as the Churchill Falls generating station
Churchill Falls Generating Station
The Churchill Falls Generating Station is a hydroelectric power station located on the Churchill River in Newfoundland and Labrador. The underground power station can generate 5,428 MW, which makes it the second-largest in Canada, after the Robert-Bourassa generating station. The generating station...
is one of the biggest producer of hydro-electric power in the region and the agreement guarantees Quebec 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 (CFLCo) developed hydro-electric generators at the Churchill FallsChurchill Falls
Churchill Falls are waterfalls named after former British Prime Minister, Winston Churchill. They are high, located on the Churchill River in Newfoundland and Labrador, Canada....
, in Labrador
Labrador
Labrador is the distinct, northerly region of the Canadian province of Newfoundland and Labrador. It comprises the mainland portion of the province, separated from the island of Newfoundland by the Strait of Belle Isle...
. In 1969, the company, controlled by the British Newfoundland Development Corporation
British Newfoundland Development Corporation
The British Newfoundland Development Corporation, or BRINCO was incorporated by a consortium of British companies in 1953 which undertook industrial development opportunities in the Canadian province of Newfoundland and Labrador...
(BRINCO) entered an agreement with Hydro-Québec
Hydro-Québec
Hydro-Québec is a government-owned public utility established in 1944 by the Government of Quebec. Based in Montreal, the company is in charge of the generation, transmission and distribution of electricity across Quebec....
, a public utility
Public utility
A public utility is an organization that maintains the infrastructure for a public service . Public utilities are subject to forms of public control and regulation ranging from local community-based groups to state-wide government monopolies...
owned by the government of Quebec
Government of Quebec
The Government of Quebec refers to the provincial government of the province of Quebec. Its powers and structure are set out in the Constitution Act, 1867....
, 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 exploring 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 that reverted ownership of the Falls to the provincial government and repealed the Act that granted the land to the CF(L)Co and expropriated the company's assets, including Hydro-Québec's participation in the joint venture.
The province submitted a reference to the Newfoundland Court of Appeal which found it intra vires (within the power of) the province.
Supreme Court of Canada Judgment
The Court stated that the Act was ultra viresUltra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
the province and should be struck down. In performing pith and substance
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...
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, (i.e. 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.
See also
- Churchill Falls generating stationChurchill Falls Generating StationThe Churchill Falls Generating Station is a hydroelectric power station located on the Churchill River in Newfoundland and Labrador. The underground power station can generate 5,428 MW, which makes it the second-largest in Canada, after the Robert-Bourassa generating station. The generating station...
- Newfoundland and Labrador HydroNewfoundland and Labrador HydroNewfoundland and Labrador Hydro is a provincial Crown corporation that generates and delivers electricity for Newfoundland and Labrador, Quebec, and the north-eastern areas of the United States. It also delivers voice and data services to customers in some areas...
- Hydro-QuébecHydro-QuébecHydro-Québec is a government-owned public utility established in 1944 by the Government of Quebec. Based in Montreal, the company is in charge of the generation, transmission and distribution of electricity across Quebec....
- Churchill Falls (Labrador) Corporation Limited