Alberta Law Review (ALR)
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Calculating the Incalculable: Principles for Compensating Impacts to Aboriginal Title
Get PDFThere continues to be significant uncertainty over the scope of Aboriginal rights in Canada, which results in significant uncertainty for infrastructure development in the energy sector. Developing a framework for determining fair and reasonable compensation for potential impacts to Aboriginal title is therefore a pressing need for governments as well as proponents. This article explores options on how to ensure greater certainty in the process of determining appropriate compensation for impacts to Aboriginal title. It conducts an analysis of the nature of Aboriginal title, the present compensation methodology for all land types, and the Australian experience with these matters. The article is intended to consider compensation for impacts to Aboriginal title, although it is recognized that impacts to Aboriginal title are not the sole challenges arising from energy infrastructure development in Canada. Also, the proposed framework does not suggest that all infringements to Aboriginal title can be justified with appropriate compensation and there may be situations where no level of payment can compensate for the impact to the community’s way of life. The article concludes there are at least three potential approaches to determine appropriate compensation for impacts to Aboriginal title, and regardless of the method chosen all will require extensive reform from the present approach
Recent Judicial Decisions of Interest to Energy Lawyers
Get PDFThis article summarizes a number of recent judicial decisions of interest to energy lawyers. The authors review and comment on the past year’s case law in several areas, including Aboriginal law, environmental law, employment law, contractual interpretation, enforcement of foreign judgments, surface rights, utility regulation, and selected developments in civil procedure. Specific topics addressed include the availability of summary judgment for operators’ claims in the face of countervailing non-operators’ claims, recent appellate case law regarding the duty to consult, and the application of the “polluter pays” principle in contaminated sites litigation
"Now it\u27s My Rights Versus Yours" Equality in Tension with Religious Freedoms
Get PDFThis article focuses on cases involving the equality rights of gay, lesbian, bisexual, and queer people in tension with the religious freedoms of faith-based communities that denounce gay, lesbian, bisexual, and queer identities and same-sex intimacy. Part II focuses on the idea of rights in tension and considers the jurisprudence of competing rights, as well as the existing legal framework for reconciling conflicting Charter rights. Part III considers four appellate level religion-equality cases from the past 15 years. Part IV discusses the conflict of rights in these cases and their future implications
Restrictive Covenants: When the Honeymoon Ends
Get PDFThe law governing restrictive covenants in employment agreements has evolved rapidly in recent years and continues to do so. This article provides an in-depth examination of the function of restrictive covenants in the employment context through an evaluation of jurisprudence. The article analyzes various aspects of restrictive covenants, including their enforceability, relationship with the doctrine of severance, interpretation through the functionalist and formalist approaches, and effects on pre-existing employment agreements and wrongful termination. The author concludes by providing recommendations for drafting and implementing restrictive covenants
To Serve and Protect Whom? Proximity in Cases of Police Failure to Protect
Get PDFThis article examines the duty of care owed by police to potential victims of crime, focusingspecifically on the issue of proximity. The author surveys both Canadian and UK cases inorder to examine the factors that potentially give rise to a special relationship in thesecircumstances, and compares the Canadian courts’ more plaintiff-friendly approach to theEnglish courts’ persistent refusal to recognize proximity in the relationship between thepolice and victims of crime. The case law is then analyzed in order to shed light on the utilityand content of the proximity requirement for the duty of care, taking into consideration thefactual context, statutory framework, and policy considerations
The Rise and Fall of Plaintiff-Friendly Causation
Get PDFStarting about a generation ago, Canadian courts altered the rules governing causation to make them more plaintiff-friendly. However, these changes came to be regarded as misguided. In the 2012 decision Clements v. Clements, the Supreme Court of Canada modified the doctrine, reversing the plaintiff-friendly trend that had defined the law of causation for decades. This article will explore how Clements effectively curtailed the test of causation. It will do so in part by examining the impact it has had on the lower courts in subsequent years
The Substance of Procedure: Non-Party Disclosure in the Canadian and U.S. Online Music Sharing Litigation
Get PDFThe music recording industry is suing Internet subscribers in Canada and the United States for alleged copyright infringement in unprecedented numbers. The procedure for obtaining non-party disclosure has taken on renewed significance in this context, as the industry requests disclosure of identifying and private information from Internet Service Providers (ISPs) who provide online communicators with their Internet connections. Legislative measures adopted in the U.S. expedited the disclosure process through an administrative mechanism with low threshold requirements for issuance of a subpoena against an ISP. In Canada (and after late 2004 in the U.S.), disclosure requests proceeded under federal rules of court. Comparison of the expedited administrative and the judicially interpreted rules-based processes raises important questions about the connection between procedure and substance, and procedural justice more generally. Not only are more permissive rules for disclosure often inconsistent with protecting substantive rights, such as privacy, bin they also cannot be presumed to enhance the likelihood of achieving accurate substantive legal outcomes. If non-party disclosure rules are not contextually designed and implemented to reflect the power and resource imbalance between the plaintiff music industry and the individual defendants pursued in online music sharing litigation, the public and private interest in substantive adjudication of critical questions relating to copyright law may be foreclosed for reasons wholly unrelated to substantive legal merits
Recent Regulatory and Legislative Developments of Interest to Energy Lawyers
Get PDFThis article provides an overview of recent regulatory and legislative developments of interest to energy lawyers. This includes the legal, political, and economic background to, and consequences of, new legislation and regulatory regimes. This also includes discussions of recent and ongoing judicial and regulatory decisions involving energy law. Topics discussed include market access, environmental and climate change regulation, Aboriginal consultation, and utilities regulation
Energy Superpower in Waiting: New Pipeline Developments in Canada, Social Licence, and Recent Federal Energy Reforms
Get PDFA growing lack of public confidence in governmental regulation of business has created a climate in which industry must go beyond obtaining mere regulatory approvals for new projects: a “social licence” must also be acquired from stakeholder groups. This article explores the concept of social licence in the context of current pipeline project proposals. Governments play a significant role in this debate, as social licence is intertwined with the Canadian regulatory scheme. The authors address different models of regulatory reform, and explore how recent federal amendments have altered the social licence and regulatory landscape