Alberta Law Review (ALR)
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Mapping the Legal Framework for Oil Sands Development in Alberta
No full textOil sands development in Alberta has become a focal point for a challenging discussion on how to balance global energy demand with critical environmental, climate, and social considerations. This article contributes to the discussion by providing a detailed account of the current legal framework for oil sands development in Alberta. It begins with policy and land-use planning, moves through the mineral and surface rights disposition stages, and then considers the project review, approval, and final reclamation stages. Throughout, it discusses what has changed (and what has not changed) in the legal framework since the last comprehensive review was undertaken in 2007, and underscores important areas of concern moving forward
Legal Ethics for Government Lawyers: Confronting Doctrinal Gaps
No full textDespite the recent growth in the Canadian literature on legal ethics for government lawyers, the leading conceptual models have yet to be applied to resolve many of the most important legal questions facing government lawyers. In this article, I identify four key situations where the obligations of government lawyers as lawyers appear to clash with their obligations as public servants. I provide both a doctrinal analysis of how the current law applies in those situations and proposals for how the law can be clarified and improved. This analysis both provides much needed guidance to government lawyers and promotes a greater understanding by law societies as regulators, as well as other key stakeholders, of the unique challenges facing government lawyers and the need for legislative and regulatory reform
The Case of the Reasonable Hypothetical Sex Worker
No full textThis article critically considers the expanded use of reasonable hypotheticals in challenging the constitutionality of criminal offences under section 7 of the Canadian Charter of Rights and Freedoms (Charter). The author consolidates concerns raised by judges and scholars over use of the device and explains how these concerns are amplified in the first two constitutional challenges to three of Canada’s new criminal prostitution laws with potentially significant consequences for constitutional limitations on what can and cannot constitute a crime. The reasonable hypothetical is a device originally used by courts to evaluate the constitutionality of mandatory minimum sentences under section 12 of the Charter based on the circumstances of a reasonable hypothetical offender, rather than those of the actual offender before the court. Judges later expanded the use of the device to evaluate the constitutionality of criminal offences under section 7 based on the circumstances of a reasonable hypothetical accused, rather than those of the actual accused before the court. However, the process through which constitutionality is evaluated differs, raising distinct concerns about the use of hypotheticals in evaluating the constitutionality of criminal offences that have largely gone unexamined and unacknowledged. Concerns raised by judges and scholars about the use of reasonable hypotheticals fall into three categories: (1) the “air of unreality,” where the rights violation at issue does not arise on the facts of the case before the court; (2) the nature and scope of evidence that can, should, or must be before the court in cases where the device is used; and (3) the appropriate remedy where an impugned law applies in a constitutional manner to the offender or accused before the court, but in an unconstitutional manner in hypothetical circumstances. Each of these categories of concern is aggravated in the first two constitutional challenges to some of Canada’s new criminal commodification offences; the way hypotheticals are used in section 7 cases obscures the experiences of victims and complainants and allows courts to adjudicate constitutionality and remedy constitutional breaches based solely on hypotheticals and expert evidence. The author suggests that if courts continue to allow accused in criminal proceedings to use reasonable hypotheticals to challenge the constitutionality of offences under section 7 of the Charter, they undertake their evaluation of constitutionality with the benefit of adjudicative fact evidence about the circumstances of the case before them, to directly address how rights, interests, and values in tension with those of the hypothetical rights claimant may be relevant to a potential section 1 justification and tailor a remedy that meaningfully attends to the experiences of victims and complainants
Cryptocurrencies and the Regulatory Challenge, Allan C. Hutchinson (London, U.K.: Routledge, 2022)
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Recent Legislative and Regulatory Developments of Interest to Energy Lawyers
No full textThis article provides an overview of recent regulatory and legislative developments of interest to Canadian energy lawyers from April 2021 to March 2022. It includes discussions of recent regulatory decisions and related judicial decisions, as well as changes to regulatory and legislative regimes impacting energy law. This article also discusses and comments on a number of ongoing regulatory and legislative developments to watch in the coming year. Topics discussed include the opportunities and challenges posed by decarbonization efforts, Aboriginal law, standard of review, and other natural resource and power developments
Youth Justice and Cognitive Diversity: A Review of Law and Neurodiversity: Youth with Autism and the Juvenile Justice Systems in Canada and the United States, Dana Lee Baker, Laurie A. Drapela & Whitney Littlefield (Vancouver: UBC Press, 2020)
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A "Century" Overdue: Revisiting the Doctrine of Spoliation in the Age of Electronic Documents
No full textSpoliation in the context of civil litigation occurs when a party intentionally destroys, mutilates, alters, or conceals evidence, typically documents, that are relevant to litigation. Spoliation has become easier than ever with the advent and rise of electronically stored information. This article gives a brief overview of the history of spoliation and criteria required to trigger the need to preserve documents relevant to litigation. Following this overview, the article identifies the issues with the current remedies for spoliation in Canada and points to the advances the United States has made to address this pressing issue. The article concludes with recommendations for further research into spoliation in Canada
Alberta\u27s Renewable Energy Market: Developing Contract Issues
No full textGovernments and corporations around the world have increasingly demonstrated leadership in tackling climate change, resulting in new decarbonization policies and initiatives and new corporate environmental, social, and governance mandates. At the same time, wind and solar capital costs have decreased and new technologies, such as battery storage, are becoming more prevalent, thereby increasing the flexibility and utility of renewable energy generation. Developers and investors have already expended significant capital to further the development of renewable generation with, according to the International Energy Agency, renewable energy investment reaching its highest level ever in 2021 — $367 billion internationally. This trend is only expected to increase if the global decarbonization goals are to be realized.
Within Canada, Alberta is at the forefront of renewable energy development due in part to its unique power industry structure — a deregulated, competitive, wholesale power market with non-discriminatory system access — which has attracted corporate off-takers and buoyed investment in renewable energy projects in the province, supported by corporate power purchase agreements. The pace of development is striking, and Alberta has rapidly become a preferred destination for renewable energy investment. The Alberta Electric System Operator says that 22 percent of the energy generated in Alberta in 2021 came from renewable energy sources. This is predictedto rise sharply — for instance, there are 61 solar projects currently under development in Alberta that could be completed by the middle of the decade.
This article examines several emerging contracting and development challenges currently facing renewable energy projects in Alberta, and aims to provide concrete, practical advice on several discrete contractual issues. Topics covered include, among others: (1) force majeure issues faced by project developers; (2) diverse carbon offset/renewable attributes programs and implications for power purchase arrangements; (3) developments pertaining to ethical procurement, including forced labour and the use of tracing protocols; and (4) the need for increased flexibility in contractual arrangements to accommodate the pairing of wind and solar with storage resources. Although this article is based primarily on experiences gained while developing renewable energy projects in Alberta, the analyses and solutions presented can be applied in many jurisdictions
Inalienable Properties: The Political Economy of Indigenous Land Reform, Jamie Baxter (Vancouver: UBC Press, 2020)
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The Beaufort Sea Boundary Dispute: A Consideration of Rights of Inuit in Canada and the United States
No full textCanada and the United States are involved in a long-standing dispute concerning the maritime boundary of the Beaufort Sea, located north of Canada and the State of Alaska. With rising global temperatures and the resulting interest in the potential newly accessible resources in the Beaufort Sea, there is increased political pressure to resolve the dispute within the next few years. A likely resolution of this dispute is that the two countries “agree to disagree” and enter into various co-management agreements governing the Beaufort Sea region. This article maintains that if an “agreement to disagree” is reached between Canada and the US regarding the Beaufort Sea boundary dispute and the result is various joint management of the region governing the protection and exploitation of its natural resources, then Inuit in Canada and the US have a right to negotiate such agreements as affected parties. This article considers the rights and entitlements of Inuit in Canada and the US to meaningfully participate in international negotiations regarding agreements governing the Beaufort Sea and its resources. This article analyzes the comparative legal rights of Inuit in Canada and US to share in the Beaufort Sea’s resources, protection, and management. The author discusses the relevant land claim agreements and legislative schemes, common law and constitutional rights in judicial precedents, international legal norms, and policy arguments that support Inuit communities’ right to sit at the table with Canada and the US to negotiate international agreements to resolve this dispute. The Arctic, including the Beaufort Sea, is the home of Inuit, and they possess legal rights to participate in shaping Arctic governance policy