Alberta Law Review (ALR)
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Rethinking “Duty”: The City of Toronto, A Stretch of the Humber River and Indigenous-Municipal Relationships
No full textAs urban centres are increasingly the predominant sites of human activity, neglect of Indigenous-municipal relationships has far reaching consequences affecting all our lives. This article asks how cities, in their relationships with Indigenous people, can look beyond uncertainty about their existing legal obligations to build relationships that may serve as the basis for subsequent legal agreements. The article focuses on activities led by Indigenous people taking place in an urban park space in Toronto. It examines the municipal government’s response and its more recent approach to relationship building, arguing that recognition of Indigenous law is necessary for an Indigenous-municipal relationship centred on reconciliation
Sexual Regulation and the Law: A Canadian Perspective, Richard Jochelson and James Gacek, eds. (Bradford, Ont: Demeter Press, 2019)
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Protecting Parliamentary Sovereignty and Accountability in a Dualist Federation
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The Supreme Court, Functional Bilingualism, and the Indigenous Candidate: Reconciling the Bench
No full textThe recent reforms to the Supreme Court of Canada appointment process have created potential barriers to Indigenous candidates. This article reviews the appointment process and its two objectives of functional bilingualism and increased diversity. Given the lack of progress on diversity, particularly with respect to Indigenous representation, a rebalancing of appointment criteria is required. Reconciliation, in both the legal and evolving public policy sense, requires Indigenous participation in legal institutions. Furthermore, arguments in favour of functional bilingualism, such as specific legal expertise and incorporation of distinct cultural viewpoints, transfer seamlessly to Indigenous and other minority representation at the Supreme Court. The functional bilingualism requirement should remain, but accommodation for Indigenous candidates is integral to reconciliation
Drop Dead or a Slow Death? An Analysis of Rule 4.33 of the Alberta Rules of Court
No full textFrom 2010 to 2013, the "Drop Dead Rule" in the Alberta Rules of Court underwent major amendments that resulted in new jurisprudence for resolution of all such applications. In this article, we conduct quantitative and qualitative analyses of the consequences of these amendments and the causes of these consequences. We find that the increase in applications, the longer time to resolution, and the inequitable impact on impecunious plaintiffs result in outcomes contrary to the objectives stated in the Foundational Rules. We provide evidence of the extent of these failures and recommendations on how to amend the Drop Dead Rule to result in fairer, more just, timelier, and more cost-effective resolutions
Recent Legislative and Regulatory Developments of Interest to Energy Lawyers
No full textThis article provides an overview of regulatory and legislative developments in Canada between June 2019 and April 2020. The authors reviewed decisions, regulations, policies, and federal and provincial legislation. Topics of note include a Canada (Minister of Citizenship and Immigration) v. Vavilov clarification on the standard of review, climate change-focused legislative change such as the passing of Bill C-69, market access challenges, Alberta Energy Regulator decisions and the review of the Alberta Energy Regulator, developments with respect to carbon tax legislation, changes to Aboriginal law, and updates to utilities and electricity regulation
Enjoy the Silence: Pseudolaw at the Supreme Court of Canada
No full textPseudolaw is a collection of legal-sounding but false rules that purport to be law, employed by groups including the Detaxer and Freemen-on-the-Land movements. While pseudolaw is universally rejected by Canadian courts, no Supreme Court of Canada decision addresses these concepts. This study reviews 51 unsuccessful Supreme Court leave applications that potentially involve pseudolaw to determine what pseudolaw issues were raised, whether those issues were comprehensible, and therefore if by its silence the Supreme Court has implicitly rejected these concepts.
Some pseudolaw-related leave applications were not comprehensible to a legally trained reader; however, the remainder clearly imply that the Supreme Court of Canada has been exposed to the cornerstone concepts of modern pseudolaw, including “Strawman” Theory, and has rejected these ideas as not having national significance
Federalism in the Patch: Canada’s Energy Industry and Constitutional Division of Powers
No full textFederalism and energy policy are once again dominating the national discussion. The situation is complicated by the emergence of the environment as an important constitutional subject that cuts across both sides of the division of powers allocated between federal and provincial governments by the Constitution. Due to their complexity, courts frequently rely upon flexible constitutionalism and the doctrine of cooperative federalism to resolve disputes. This article considers whether the interpretive tools available to the judiciary are capable of resolving current issues while preserving the logic and purpose of the balance between federal and provincial powers. The authors argue that, absent changes to the division of powers analysis, they are not. Rather, the application of these tools has already resulted in a shift in the balance of power towards the federal government and led to conflict and uncertainty which undermines the purpose and effectiveness of federalism