Alberta Law Review (ALR)
Not a member yet
2493 research outputs found
Sort by
Forging a Clearer Path Forward for Assessing Cumulative Impacts on Aboriginal and Treaty Rights
No full textProject reviews have become the primary forum to discuss cumulative impacts of energy and resource development on Aboriginal and treaty rights. After thoroughly reviewing the case law and legislation, the authors assert that these impacts cannot be resolved through piecemeal measures like individual permitting decisions. Governments need to use broader actions such as effective land-use planning, regional assessments, and separate forums to address specific concerns with at-risk species. Further, clear policy and regulatory guidelines must be created with careful attention to promoting responsible development and avoiding stifling investment in Canada. By doing so, governments will be in a better position to consider environmental, Aboriginal rights, and treaty rights issues while establishing certainty for project proponents
Vulnerability, Canadian Disaster Law, and The Beast
No full textThis article argues that Canadian law plays a central role in creating and ameliorating conditions of disaster vulnerability. Using the circumstances surrounding the 2016 Fort McMurray wildfire for context, the article identifies and assesses the shared, structural features of Canada’s emergency management laws and their application to “natural” disasters. This article argues that these laws lag behind foundational social science research on disasters. It argues that Canadian emergency management laws fail to incorporate a multi-faceted vulnerability perspective, which leaves communities unnecessarily susceptible to disaster harm. This article offers some preliminary suggestions on how Canadian disaster law can begin to integrate a vulnerability perspective to rectify existing gaps and flaws at all stages of the disaster cycle
A Systematic Review of the Indian Mining Regulations in Comparison to Saskatchewan Mining Law Where the First Nations Holds Mineral Title
No full textThe Indian Mining Regulations were adopted in 1954, revised in 1961, and amended in 1968 and 1978 as a means to promote mineral resource development on First Nation reserves, where First Nations hold title to the mineral resource. In this article, the Indian Mining Regulations, as part of a suite of regulations associated with the Indian Act, are outlined in relationship to Saskatchewan mining law. First is a general survey of First Nations’ mineral titles across Canada where the Indian Mining Regulations apply. This article then discusses the application of these Regulations; compliance with provincial law; the disposition of minerals; permits; leases; and, finally, the assignment of royalties. It is recommended that a critical review of mineral resource potentials, exploration, mine permitting, and standards for environmental monitoring and reclamation be established prior to any assignment of the existing Indian Mining Regulations against any mineral resource development that occurs on First Nation lands or reserves
Novel Uses of the Charter Following Doré and Loyola
No full textDoré and Loyola affirmed that administrative decision-makers have a duty to balance statutory aims and values protected by the Charter. In several cases, decision-makers have weighed Charter protections and values on both sides of a contested issue. Sometimes this is a matter of a genuine conflict between different Charter restraints on the state. In other situations, Charter values or even Charter rights have been found to weigh on the side of state action, providing support and justification for an otherwise Charter-infringing state act. Such cases challenge an orthodox understanding of the Charter’s nature and role. In this article, the author describes the orthodox view of the Charter within a broadly classical liberal model; that is, as being a restraint on the state, as affecting government rather than private conduct, and as being a source of few free-standing positive entitlements. The author then describes the pre-Doré exceptions to these basic precepts and contrasts the uses made of the Charter by administrative decision-makers via the balancing prescribed in Doré and Loyola, noting where the outcome or analysis has challenged an orthodox conception of our Charter. The article then situates these developments within contemporary discussions of the relevance of orthodox liberal constitutionalism in Canada
Keep Calm and ... Understand Cannibis: What Employers in the Energy Sector Want to Know About Legalized Cannabis in the Workplace
No full textWith the recent legalization of recreational cannabis in Canada, employers, particularly those with safety sensitive operations, are forced to evaluate the impact that cannabis will have on their workplaces. This article argues that the law has not yet fully evolved with the advances in scientific understanding of the effects of cannabis or the advances in the technology for testing methodologies. The article explores the current legal framework for workplace drug testing and provides best practices regarding drug testing programs and related workplace policies. It cautions that unless carefully designed, these policies may be found to be contrary to human rights or privacy legislation, or, in the case of unionized employers, unreasonable and outside the scope of the collective agreement
Will We Ever Have Paris? Canada\u27s Climate Change Policy and Federalism 3.0
No full textGlobal climate change is at the point where politics as usual is not sufficient to combat it. The author argues that a new conceptualization of constitutionalism and federalism will be required to respond to this change. What the author calls federalism 3.0 will be a bottom-up approach to politics, where individuals are empowered by governments and institutions to shape climate policy. This bottom-up approach is encapsulated in the Paris Climate Change Agreement. Canadian Prime Minister Justin Trudeau has publicly declared Canada’s commitment to climate leadership through mobilizing all elements of Canadian society. However, the author argues Trudeau’s policies to date are merely an example of formalistic, check-the-box constitutionalism, rather than substantive, federalism 3.0
Protecting Individual Self-Interest in Aggregate as the Basis of Fairness in Contract
No full textThis article puts forward a unifying principle for the exceptions to contractual enforcement, including unconscionability, undue influence, duress, and mistake. In coming to a unified analysis, this article explains and defends three general premises. First, contract law should be understood as operating to maximize societal welfare in the aggregate. Second, contractual enforcement encourages and enforces welfare-enhancing agreements, but only if we can assume that each party is able to rationally consider her own self-interest. Third, agreements that were rationally welfare-enhancing when made should be enforced later even in cases of regret. Based on these premises, the analysis of unenforceability of unfair contracts can be reduced to two questions: whether, in the circumstances, parties to a contract were rationally able to consider and protect their self-interest, and, if not, whether the other side knew or ought to have known this
Organized Pseudolegal Commercial Arguments as Magic and Ceremony
No full textThis article discusses ways in which Organized Pseudolegal Commercial Arguments (OPCA) litigants use pseudolegal concepts, techniques, and procedures before the courts. The author begins by looking at where OPCA legal arguments originate, and the historical sources where these arguments find grounding, while assessing the flaws in such. A thorough analysis is then conducted into some of the tactics used by OPCA litigants in order to evade legal consequences, including a survey of global case law where these arguments have been brought before the courts. The article culminates with an analysis of the implications of the use of pseudolaw by OPCA litigants and how tactics permeate through OPCA movements, while looking for solutions in dealing with OPCA litigants as they move through the courts
Rethinking the Ramifications of Reasonableness Review: Stare Decisis and Reasonableness Review on Questions of Law
No full textThe recent fashion in the Canadian law of judicial review is to apply the reasonableness standard of review to virtually any decision rendered by an administrative decision-maker. Reasonableness review is a deferential standard of review that requires a court to ensure that the administrative decision falls within a range of reasonable outcomes that are defensible in light of the facts and law. When reasonableness review is applied to questions of law, the Supreme Court has occasionally ruled that the question admits of only one reasonable interpretation and has affirmed or quashed an administrative decision on that basis.This article addresses the difficult question of whether a judicial decision affirming that a provision admits of only one reasonable interpretation is strictly binding on an administrative decision-maker interpreting that provision in the future. If reasonableness review is premised on deference, then deference ought to apply to an administrative decision-maker’s interpretation of that question in the future, even if it differs from the court’s interpretation. After situating this issue within the principled foundation of the Canadian law of judicial review, this article explores possible solutions to this problem, attempting to balance the need to protect the rule of law against the rationale for deference to administrative interpretations of law in the first place. It ultimately concludes by suggesting that, should Canadian courts continue to apply reasonableness review to virtually all questions of law, a uniquely administrative law approach to stare decisis will need to be developed in order to maintain a coherent and principled system of judicial review
Alberta’s Oil Sands: An Unsecured Asset? An Analysis of the Mine Financial Security Program in Relation to Surface Mining of the Alberta Oil Sands
No full textThis article conducts a comprehensive review of Alberta’s Mine Financial Security Program (MFSP), the provincial program that governs the collection of financial assurance for reclamation liabilities (also known as “reclamation liability security,” “financial reclamation sureties,” or “closure bonds”). This article assesses the MFSP program in relation to surface oil sands mining. It concludes that while the recently implemented MFSP has improved some aspects of the oil sands reclamation security regime, Alberta’s MFSP still suffers from issues of transparency, inadequate collection of financial security, and utilization of underinclusive classifications of environmental liabilities. Moreover, this article analyzes the particular risk that oil sands assets have of “stranding” (namely, being unanticipatedly or prematurely written off, downwardly revalued, or converted to a liability) as well as how stranding would impact Alberta’s financial assurance regime.This article concludes that while the oil sands are at a heightened risk for asset stranding compared to the international oil industry as a whole, international oil and gas assets are unlikely to become completely stranded. This article also finds that investors have likely already priced the risk of asset stranding at 1.5–2 percent and will be unlikely to readjust their portfolios unless divestment campaigns strengthen or environmental legislation becomes more certain. The MFSP uses a method that does not account for large fluctuations in oil prices, nor does it sufficiently account for the risk of partial stranding. If asset stranding were to occur, the only way the Alberta government would be able to afford the costs of reclamation would be to paradoxically develop the very resource that was defaulted on, against the environmental legislation or political pressures that caused the stranding