Alberta Law Review (ALR)
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Under Construction: A Close Examination of Recent Construction Law Developments and Their Impact on the Oil and Gas Industry
No full textThis article surveys recent construction-related case law pertaining to the oil and gas sector, and examines how these decisions impact the law of bonding, tendering, liens, and arbitration. The authors review jurisprudence, legislation, and contractual language in these areas, and provide a critical analysis of the law in order to suggest improvements and anticipate future innovations. The authors also provide practical advice regarding mechanisms that owners, contractors, and subcontractors can employ to protect themselves from risks and uncertainties in contemporary construction law, with a view to avoiding disputes and if necessary, resolving them. This article serves both as an illustration of the structure of contemporary construction law as-built, and as a blueprint for those aspects of the law that are still under construction
Urban Indigenous Courts: Possibilities for Increasing Community Control Over Justice
No full textThe settler colonial justice system of the Canadian state continues to inflict immense harm on Indigenous people. One response to these harms could be the creation of urban Indigenous courts in line with the Truth and Reconciliation’s call for Indigenous justice systems that are expressions of self-determination. While any initiative that operates within the confines of the mainstream justice system has significant limitations, the practices of existing courts that avoid convictions, apply Indigenous legal principles, and cede genuine control to Indigenous people and communities demonstrate the potential for a meaningful break from the status quo. The creation of an urban court could facilitate a resurgence of Indigenous justice while mitigating the harm caused by the settler colonial justice system
Supreme Court of Canada Cases Strengthen Argument for Municipal Obligation to Discharge Duty to Consult: Time to Put Neskonlith to Rest
No full textCan municipalities infringe Aboriginal or treaty rights without consulting the affected Indigenous group? In Neskonlith Indian Band v. Salmon Arm (City), the British Columbia Court of Appeal answered this question in the affirmative, finding that the city of Salmon Arm did not need to consult the Neskonlith First Nation about impacts from the construction of a shopping mall. In what was technically obiter dicta, the Court permitted the municipal project to proceed, and told the First Nation that its only recourse was to complain to the provincial government in a separate proceeding
The Judges Reference and the Secession Reference at Twenty: Reassessing the Supreme Court of Canada\u27s Unfinished Unwritten Constitutional Principles Project
No full textUpon the 20-year anniversary of the Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island and the Reference re Secession of Quebec, the author reflects on the methodology utilized by the Supreme Court of Canada to reach dramatic conclusions on the basis of unwritten constitutional principles in these cases. An analysis of several decisions leading up to the Judges Reference and the Secession Reference establish a pattern of reasoning from the abstract to the concrete, from unwritten principle to unwritten rule. However, these decisions lack in methodological self-reflection as they utilize unwritten principles to reach particular outcomes without situating the analysis in a larger interpretive framework. The author seeks to clarify this uncertainty by suggesting a methodological framework entitled “reasoning from constitutional essentials.” This methodology can assist in understanding the analytical framework used by courts to identify and reach conclusions on the basis of unwritten constitutional principles
Instrumental Rationality and General Deterrence
No full textThe Supreme Court of Canada concluded in R. v. Nur that the use of general deterrence in sentencing is not “rationally connected”to its objective of lowering crime levels. Although this conclusion was drawn in the Charter section 1 context, its logic applies with equal force at the section 7 stage of analysis. As a law bearing no rational connection to its purpose is arbitrary, the author contends that judicial reliance on general deterrence in sentencing runs afoul of section 7 of the Canadian Charter of Rights and Freedoms. This conclusion is significant not only because it would forestall judicial use of general deterrence, but also for what it reveals about the relationship between the instrumental rationality principles. Commentators maintain that the Supreme Court’s “individualistic” approach to instrumental rationality resulted in the arbitrariness principle becoming subsumed by overbreadth. Yet, challenging the general deterrence provisions with overbreadth is not possible given the discretion given to judges to avoid its unnecessary application. The fact that a law can be arbitrary but not overbroad provides support for the Supreme Court’s insistence upon keeping the principles distinct. It also, however, requires that the Supreme Court adjust its position with respect to its method for proving arbitrariness
Overview of the New Legal Era for Development Projects in the Newfoundland and Labrador Offshore
No full textPetroleum projects offshore Newfoundland and Labrador continue to hold promise. The 20-year history of these projects developed within a legal and regulatory context that is currently being overhauled. This article outlines key similarities among Newfoundland and Labrador’s original offshore petroleum projects, describing them as projects of a legal era that is drawing to a close. The article then proceeds to recount the key features of a new legal and regulatory landscape that the up-and-coming offshore petroleum projects will face. Major elements of this new legal era include: changes in supporting legal structure, shortened lead time between discovery and development, new entrants (including increased interest from major international companies), new locations, and changes to the environmental assessment regime
Cannabis, Reconciliation, and the Rights of Indigenous Peoples: Prospects and Challenges for Cannabis Legalization in Canada
No full textThe provisions of the federal Cannabis Act came into force on 17 October 2018, opening a new era of cannabis management in Canada. We examine cannabis in Canada through the lens of reconciliation and the rights of First Nations, Métis, and Inuit peoples. There is potential for Indigenous communities to benefit from cannabis legalization, but also a very real risk that the new legal framework will simply perpetuate existing injustices. We show that the new legislation is inadequate both in terms of lack of consultation with Indigenous communities, as well as in terms of substantive provisions — and omissions — in the legislation itself