No abstract

Water resource management in Canada involves both the federal and provincial constitutional powers. The result has been a complex administration which is both poorly co-ordinated and confusing. In order to explain the features of the present structure the author examines the federal and provincial powers involved. He concludes by advocating the replacement of federal and provincial control by a basin-oriented system of resource management which is feasible under the existing constitution.

COMMENTS: NOW WHAT?

Section 15 of the Canadian Charter of Rights and Freedoms prohibits discrimination based on an open ended list of grounds. Ever since the section was proclaimed, courts have been wrestling with the question of which grounds of discrimination not specifically listed in s. 15 are nonetheless prohibited by it. It is now generally accepted that such grounds must be "analogous" to the listed grounds. However, there is no general agreement on what "analogous" means. Professor Gibson describes five distinct ways in which the courts have approached the question of analogousness before concluding that they might do better to avoid the question altogether.

Niccolo Machiavelli warned in The Prince about the perils of constitutional amendment: there is nothing more difficult to arrange, more doubtful of success, and more dangerous to carry through, than initiating changes in a state's constitution. 1 Machiavelli's words seem prophetic in relation to the persistent but ultimately star-crossed attempts by the governments of Canada and most provinces to amend the Canadian Constitution in conformity with the 1987 Meech Lake Accord. 2 In one respect Machiavelli was wrong, however. There is a way, in Canada and in other countries that treat their courts of last resort as constitutional oracles, in which constitutional change can be achieved with a minimum of difficulty and a certainty of success. This is the way of judicial amendment: constitutional "interpretations" of the Constitution by the ultimate judicial tribunal (the Supreme Court of Canada in my country now; the Judicial Committee of the British Privy Council in the past) that have the result of nullifying or radically altering the constitutional text or its authoritatively accepted meaning. Such amendments, with consequences every bit as momentous as those that are brought about through formal political processes, can be accomplished swiftly and surely, and on the initiative, with no obligation of prior public notice or consultation, of the nine mellowing men and women (or a majority of them) who sit on the Supreme Court.