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Canada/ 5.1 General legislation  

5.1.2 Division of jurisdiction

In a recent case, the Supreme Court of Canada described the division of legislative powers with respect to culture. In Kitkatla Band v British Columbia (Minister of Small Business, Tourism and Culture) [2002] 2 S.C.R. 146, the Court, in a unanimous decision, declared:

[51]        The Constitution of Canada does not include an express grant of power with respect to "culture" as such. Most constitutional litigation on cultural issues has arisen in the context of language and education rights. However, provinces are also concerned with broader and more diverse cultural problems and interests. In addition, the federal government affects cultural activity in this country through the exercise of its broad powers over communications and through the establishment of federally funded cultural institutions. Consequently, particular cultural issues must be analysed in their context, in relation to the relevant sources of legislative power.

This passage gives a good indication of the constitutional division of powers relating to "culture": the federal government's role is through the exercise of legislative powers, and through the establishment of federally funded institutions. However, the Court did not mention another lever of federal policy, the federal spending power, which also enables the government to be involved in cultural activities throughout the country. The spending power, as its name implies, is strictly a power to spend money and while, a government may influence a recipient of the grant or contribution through the imposition of terms and conditions on spending, the government has no explicit authority to legislate or to regulate the activity of the recipient. However, the federal government does regulate or influence cultural activities through such measures as copyright law, taxation and trade laws, treaties and agreements. Self-government arrangements also recognise Aboriginal governments as jurisdictional players in the cultural sphere with law making authorities over Aboriginal cultures and languages. The provinces also have the right under the Constitution to regulate the activities of artists and local businesses and undertakings within the province with respect to culture, as an aspect of their overall jurisdiction under the "property and civil rights" power (Section 92(14) of the Constitution Act, 1867).

Chapter published: 24-11-2008

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