Alberta Law Review (ALR)
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Charter Rights and Regulation by Financial Incentives
Full text linkThis article challenges the conventional view that the Charter is not applicable to the protection of individuals from regulation by financial incentives. The Charter applies whenever individuals are coerced by government. This coercion can be direct and overt, as with punishment, but it can also be indirect and covert as in the case of regulation by licensing, the awarding of contracts and tax incentives. Regulation by financial incentives gives rise to the possibility of subtle coercion in the forms of clever dealing, unconscionable bargains, deceptive expectations and covert punishment. The author argues that the liberty schema of the Charter should apply when regulatory enticement is coercive and not purely facilitative
The Extinguishment of Aboriginal Rights and the James Bay Agreement: The Condition 14 Test
Full text linkIn 1977, an Act of the Parliament of Canada approved the James Bay and Northern Québec Agreement signed by the Crown and the Cree and the Inuit of Quebec. The Act purported to extinguish the Aboriginal title and interests of “all Indians and all Inuit” in and to the territory covered by the Agreement, thus extending the extinguishment clause to the land claims of Aboriginal peoples that were not parties to the Agreement. This purported unilateral extinguishment clause was met with immediate resistance from various non-signatory Indigenous groups who claimed that they were not properly consulted and that their Aboriginal title was unjustly extinguished. This article examines the validity of this claim, particularly whether, prior to the enactment of section 35 of the Constitution Act, 1982, there were any constitutional constraints on Parliament’s ability to unilaterally extinguish the rights of Indigenous peoples. The article argues that the 1870 Order in Council admitting Rupert’s Land into Canada, in particular Condition 14 of the Order, provides such constraints and thus precludes the unilateral extinguishment of the Aboriginal title of the non-signatory people. This article ultimately calls for negotiation and reconciliation among all parties involved in order to resolve the outstanding land claims and ensure the equitable recognition of Aboriginal rights
Preface: Vavilov at 5: Looking Ahead while Looking Back
No full textThis is the preface for the Vavilov at 5 special issue of the Alberta Law Review
The Pore Space Race: Conflicts of Subsurface Rights in the Age of Carbon Capture and Sequestration
Full text linkAs carbon capture and sequestration expands to meet climate goals, conflicts of subsurface rights present a significant obstacle. This article examines the ownership and regulation of pore space across Canada and the United States. It analyzes divergent common law and statutory frameworks governing pore space ownership and the management of convergent subsurface rights across various jurisdictions, with a particular focus on Alberta. The authors demonstrate how fragmented subsurface rights create legal uncertainty and assess legal mechanisms for mitigating these conflicts to enable the responsible deployment ofcarbon capture and sequestration
Transforming Canadian Criminal Justice: A Review of Indictment: The Criminal Justice System on Trial, Benjamin Perrin (Toronto: University of Toronto Press, 2023)
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The Wrong of Constructive Expropriation
Full text linkThis article discusses the cause of action of constructive expropriation recently restated in Annapolis Group Inc. v. Halifax Regional Municipality. It argues that this cause of action came into existence through a series of Supreme Court of Canada decisions that deviated from principle, precedent, and respect for legislative supremacy, culminating vividly in Annapolis itself. The result, it argues, is a common law chimera — a cause of action that seems unique in private law. This raises a puzzle: taxonomically, what is constructive expropriation in law? This article argues that constructive expropriation is best seen as a tort, even though it sits uneasily beside its more established tort brethren. Framing the post- Annapolis constructive expropriation cause of action as a tort reveals the incoherencies between constructive expropriation and other doctrines of private law. Drawing on the jurisprudential history of constructive expropriation before the Supreme Court, this article argues that the courts are ill-equipped to make constructive expropriation more coherent on their own. It therefore argues that legislative intervention is warranted, either to restructure the cause of action or to abolish it altogether