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Reference Re Upper Churchill Water Rights Reversion Act
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September 28 - October 1, 1982
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May 3, 1984
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{Link without Title} 1 SCR 297
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Newfoundland Court of Appeal
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Appeal allowed
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Where the pith and substance of provincial legislation is intra-provincial, it may have incidental extra-territorial effects
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1982-1984
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McIntyre J
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By an Act of the province of Newfoundland, the Churchill Falls (Labrador) Corporation developed hydro-electric generators at the Churchill Falls in
Labrador . In 1969, the company entered an agreement with
Hydro-Québec to sell a large majority of the power generated by the Falls at a low fixed rate for the next 65 years.
From 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the Upper Churchill Water Rights Reversion Act that reverted ownership of the Falls to the provincial government and repealed the Act that granted the land to the Churchill Falls Corp and expropriated the companies assets.
The province submitted a reference to the
Newfoundland Court Of Appeal which found it
Intra Vires (within the power of) the province.
The Court stated that the Act was
Ultra Vires 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, (ie. 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.
