The doctrine of paramountcy is a rule developed by the courts to resolve conflicts between federal and provincial laws. The doctrine dictates that in cases of conflict the federal law is paramount to, or takes precedence over, the provincial law. The provincial law may remain valid, however, the portion that conflicts with federal law is rendered “inoperative” ¹.

In the event of an apparent conflict between federal and provincial laws, courts apply a two-step test to determine whether the doctrine applies. Step One asks whether both laws are a valid exercise of their respective powers. Does the matter (or “pith and substance”) of the law fall within the jurisdiction/heads of power of the enacting government ² ?

Step Two asks whether there is, in fact, a conflict. Caselaw has found that laws may conflict in different ways. A conflict may arise because there is an express contradiction between the two laws (i.e. “compliance with one is defiance of the other”) ³. It may also occur where it is possible to comply with both laws but the effect of the provincial law would be to frustrate the purpose of the federal law ⁴. In the event both laws are valid and there is a conflict between them the doctrine of paramountcy applies ⁵.

Note that since the doctrine of paramountcy only applies where federal and provincial legislation are in conflict, it would have limited application with respect to the rights of nature. The doctrine of paramountcy would only apply if the rights of nature were enshrined in provincial legislation that was in conflict with federal legislation (or vice versa). Still, the notion of paramountcy itself is useful in that it provides a decisive method to resolve conflict. Read on for how it can also be used in legislation.

The notion of paramountcy can also be legislated. That is, where drafters of a piece of legislation wish to ensure that all or part of it will prevail over (or be secondary to!) other legislation that touches on the same subject matter, they can add a provision stating as much. For example, section 17 of the Alberta Land Stewardship Act ⁶ provides for the resolution of conflicting provisions, and states that where “there is a conflict of inconsistency between this Act and any other enactment, this Act prevails” ⁷. This means that when provisions of ALSA bump up against other legislation, the ALSA provisions should take precedence.

There is already precedent for paramountcy to be legislated in the environmental realm. The Environmental Rights Actof Nunavut and the Northwest Territories, which purports to recognize the right to protect the integrity, biological diversity and productivity of the ecosystems in the Northwest Territories, includes a clause that states: “[w]here there is a conflict between the terms of this Act and the terms of any other enactment, this Act shall prevail to the extent of the conflict” ⁸.

Note this tool is separate and distinct from the doctrine of paramountcy. To reiterate, the doctrine of paramountcy applies where federal and provincial legislation are in conflict, whereas a paramountcy clause is included in legislation and is valid so long as the legislation is lawful (e.g. where the enacting legislature has jurisdiction). In the event the rights of nature are enshrined in legislation, the inclusion of a paramountcy clause would ensure that the rights of nature prevail over other legitimate rights.