Alberta Law Review (ALR)
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A Playbook for International Risk Mitigation: Investor-State Treaties and Contractual Protections
Full text linkInternational energy ventures are frequently long-term, costly, and risky endeavours. Because the opportunities they offer are immense, one must go where the resource or prospect is, often in challenging jurisdictions. This can put those looking to pursue opportunities in the difficult position of having to balance commercially lucrative opportunities while mitigating risk and protecting project viability in unfamiliar environments. This challenge is compounded by many recent changes in Canada, and globally, concerning protections available for energy companies (for example in bilateral investment treaties or multilateral investment treaties such as the Energy Charter Treaty) and how traditional protections are applied in a modern context. This article will explore recent developments in investor-state disputes and what those trends mean for companies involved in extractive resources and energy sectors
Just Words? Judicial Reasons as Remedy in Administrative Law
Full text linkThis article examines how judicial reasons function remedially in administrative law following Canada (Minister of Citizenship and Immigration) v. Vavilov. While reasons traditionally explain decisions, they have always had a remedial function through their normative and expressive force. Vavilov’s “culture of justification” increased the remedial function of reasons by making them central not only to judicial oversight but to administrative decision-making itself. In this post-Vavilov framework, courts now write reasons that not only justify outcomes but provide the framework for administrative redetermination, transforming them into functional remedies
From "Guideline Order" to "Impact Assessment": The Evolution of Federal Environmental Assessment Legislation in Canada
Full text linkFederal and provincial governments across Canada have enacted comprehensive environmental assessment processes to evaluate the benefits and burdens of significant proposed infrastructure and resource activities. In recent years, federal processes have become a focal point for jurisdictional tensions, including conflicts over the regulation of major projects, natural resource development, and greenhouse gas emissions. In the wake of the Supreme Court of Canada’s landmark 2023 reference opinion in Reference re Impact Assessment Act, this article follows the evolution of federal environmental impact legislation from its inception during the 1980s to the impugned legislation. Beginning with the development of the Environmental Assessment and Review Process Guidelines Order and its subsequent 1992 legal challenge at the Supreme Court in Friends of the Oldman River Society v. Canada (Minister of Transport), we provide a high-level overview of the successive legal and procedural frameworks governing environmental assessment in Canada. Special attention is given to jurisdictional issues considered in the 2023 Supreme Court reference opinion and anticipated amendments to the present iteration of the governing legislation
The Precautionary Principle as a Justification for Limiting Constitutional Rights
Full text linkThis article examines the use of the precautionary principle in the context of section 1 of the Canadian Charter of Rights and Freedoms (Charter) during the COVID-19 pandemic. The author argues that the definitions of the precautionary principle used in the COVID-19 cases are unacceptably vague and that the propositions labelled in this way do not, for the most part, have a valid role to play when assessing a rights limitation under section 1. Only the “weakest” form of the principle, which states that scientific uncertainty does not preclude state action, should be allowed to play a role in section 1 analysis — although any contribution it makes at this level will likely be negligible. All other forms of PP — more specifically, “strong” forms asserting that scientific uncertainty about the probability or magnitude of a potential harm constitutes a justification for state action, or that there exists a duty to act in the face of such uncertainty — should be granted no free-standing role in the section 1 analysis. Continued uncritical use of the precautionary principle in this context would be a mistake as it risks weakening the justification for rights limitations under the Charter
Dignity in Death: A Comparative Account of the United States, Canada, and the Netherlands
Full text linkDignity is held up by many countries as a foundational legal norm. But nations which share this norm apply it in contradictory ways. This article explores how the United States, Canada, and the Netherlands have constructed and expressed different conceptions of dignity in the context of medical assistance in dying. At a structural level, differing conceptions of dignity are reflected in unique approaches to constitutional interpretation and federalism in each jurisdiction. Further, each jurisdiction has different sets of actors who express and advocate for their own conceptions of dignity and have played different roles in the development of MAID policy. Differing conceptions of dignity are also reflected in the religion, public opinion, and political history of each jurisdiction. The seemingly incoherent approaches to dignity across jurisdictions are reflective of constitutional structures and actors, which contribute to internally consistent — albeit contested — conceptions of dignity
Canada\u27s New Supply Chains Act & International Comparisons
No full textCanada’s Fighting Against Forced Labour and Child Labour in Supply Chains Act (2024) marks a shift from voluntary corporate social responsibility to legislated transparency. It mandates annual reporting from entities producing or importing goods into Canada, including energy companies, on policies and risks related to forced and child labour. This article analyzes the Act’s structure, interpretive challenges, and compliance issues from its first reporting cycle. It compares Canada’s model to international regimes — transparency laws, mandatory due diligence, and import bans — and critiques its limited enforcement.The article also explores implications for multinational supply chains, investor scrutiny, and reputational risk, offering practical steps for Canadian companies to strengthen compliance and align with global standards
The Coherence of Constructive Takings: A Response to Peter Wills
Full text linkIn a recent article, Peter Wills advances provocative claims regarding the Supreme Court of Canada’s elucidation of constructive takings doctrine in Annapolis Group Inc. v. Halifax Regional Municipality (Annapolis). This article responds to four key claims in Wills’ critique. First, it argues that the Annapolis judgment adheres to, and indeed exemplifies, the traditional method of common law adjudication. Second, it contends that a claim for compensation for a constructive taking is properly classified as a private law action, specifically, a tort. Third, it rebuts Wills’ allegation that the action is untenable and incoherent when evaluated as a species of tort. Fourth, it concludes that Wills fails to substantiate his criticisms of constructive takings doctrine and that legislative intervention to abolish the action would not make the common law more coherent. In truth, the critique is founded upon a mechanical, Benthamite model of the common law, whereas the Annapolis judgment is faithful to the classical approach to common law adjudication and its robust, juridical conception of coherence