Jocelyn Stacey’s The Constitution of the Environmental Emergency is a unique text in the area of environmental law. It argues for reframing environmental law from the premise that environmental issues confront lawmakers as emergencies that are impossible to reliably predict. Stacey relies on a constructive tension between two somewhat overlapping theories of legitimate government action: common law constitutionalism and deliberative democracy. When Stacey argues that environmental issues constitute emergencies, she shows how lawmakers are confronted with problems that entail “deep uncertainty where the possibility of a catastrophe cannot be reliably eliminated in advance.” This approach allows her to draw on insights from scholarship on emergencies and the rule of law to reimagine the purpose and orientation of environmental law, namely the centrality of having government institutions publicly justify important decisions. This book review is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/ iss1/8
乔斯林·斯泰西的《环境紧急状态宪法》是环境法领域的一部独特著作。它主张重新制定环境法的前提是，环境问题是立法者无法可靠预测的紧急情况。斯泰西依赖于两种有些重叠的合法政府行为理论之间的建设性张力:普通法宪政和协商民主。当斯泰西认为环境问题构成紧急情况时，她展示了立法者是如何面对这些问题的，这些问题包含“严重的不确定性，在这种情况下，灾难的可能性无法事先可靠地消除”。这种方法使她能够借鉴关于紧急情况和法治的学术见解，重新构想环境法的目的和方向，即让政府机构公开为重要决策辩护的中心地位。这篇书评可以在Osgoode Hall Law Journal上找到:https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/ iss1/8
{"title":"The Constitution of the Environmental Emergency, by Jocelyn Stacey","authors":"G. Reeder","doi":"10.60082/2817-5069.3593","DOIUrl":"https://doi.org/10.60082/2817-5069.3593","url":null,"abstract":"Jocelyn Stacey’s The Constitution of the Environmental Emergency is a unique text in the area of environmental law. It argues for reframing environmental law from the premise that environmental issues confront lawmakers as emergencies that are impossible to reliably predict. Stacey relies on a constructive tension between two somewhat overlapping theories of legitimate government action: common law constitutionalism and deliberative democracy. When Stacey argues that environmental issues constitute emergencies, she shows how lawmakers are confronted with problems that entail “deep uncertainty where the possibility of a catastrophe cannot be reliably eliminated in advance.” This approach allows her to draw on insights from scholarship on emergencies and the rule of law to reimagine the purpose and orientation of environmental law, namely the centrality of having government institutions publicly justify important decisions. This book review is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/ iss1/8","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43858130","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Founders: Four Pioneering Individuals Who Launched the First Modern-Era International Criminal Tribunals, Edited by David M. Crane, Leila N. Sadat and Michael P. Scharf","authors":"C. Rubin","doi":"10.60082/2817-5069.3595","DOIUrl":"https://doi.org/10.60082/2817-5069.3595","url":null,"abstract":"","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42453357","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The mid-nineteenth century was an age of reform in the civil courts of the common-law world. Why, in spite of the clamour for change within Upper Canada and the introduction of reforms in adjacent common-law jurisdictions, were Upper Canada’s leading lawyers and politicians so reluctant to act? The answer is found in the conservatism of the province’s leaders, which stemmed not only from the legal training of the lawyers, but also from the moderate conservative ideology of the Upper Canadian leadership as a whole. At an almost unprecedented time of public debate, when resentment to lawyers and the courts was being expressed and a radical critique of the courts and the profession was emerging, Upper Canada’s most influential residents managed to maintain political control and steadfastly refused to act in advance of the mother country. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss2/3
{"title":"The “Majestic Equality” of the Law: Conservatism, Radicalism, and Reform of the Civil Courts in Upper Canada, 1841-1853","authors":"William N. T. Wylie","doi":"10.60082/2817-5069.3582","DOIUrl":"https://doi.org/10.60082/2817-5069.3582","url":null,"abstract":"The mid-nineteenth century was an age of reform in the civil courts of the common-law world. Why, in spite of the clamour for change within Upper Canada and the introduction of reforms in adjacent common-law jurisdictions, were Upper Canada’s leading lawyers and politicians so reluctant to act? The answer is found in the conservatism of the province’s leaders, which stemmed not only from the legal training of the lawyers, but also from the moderate conservative ideology of the Upper Canadian leadership as a whole. At an almost unprecedented time of public debate, when resentment to lawyers and the courts was being expressed and a radical critique of the courts and the profession was emerging, Upper Canada’s most influential residents managed to maintain political control and steadfastly refused to act in advance of the mother country. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss2/3","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45798569","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 2003, the Supreme Court of Canada (SCC) released its unanimous reasons for judgment in R v Powley. Powley was—and remains—the high court’s only consideration of Métis rights, as “[A]boriginal rights,” protected by section 35 of the Constitution Act, 1982. In addition to setting out the legal test for the establishment of Métis section 35 rights, Powley slayed a multitude of Métis rights denial dragons that had emerged over the generations, including two of the dragons most often relied on by governments: (1) that difficulties in identifying Métis rights-holders, and, (2) competing Métis representation claims made Crown inaction in relation to Métis rights justifiable. Instead of accepting these arguments, the SCC in Powley recognized a positive Crown duty to negotiate with the Métis. The author, who is a Métis lawyer that has been involved in much of the Métis rights litigation and negotiations that have occurred over the last seventeen years, argues that Powley and this duty have been effectively leveraged by rights-bearing Métis communities from Ontario westward to secure several significant negotiated agreements as well as keep most of the slayed Métis rights denial dragons at bay. This article goes on to review a disconcerting 2016 decision of the Alberta Court of Queen’s Bench on Métis consultation, which, if applied further, has the potential to re-invigorate these most duplicitous dragons. In Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta, while the trial judge recognized that Métis harvesting rights had been accommodated in the Fort Chipewyan area, the court accepted the Alberta government’s arguments that difficulty in identifying the “proper rights-holder” and the potential of competing Métis claims were justifications for Crown inaction and its position of consulting with no Métis whatsoever. The author argues that the court’s flawed reasoning in Fort Chipewyan turns Powley and the Crown’s positive duties owing to the Métis on their head as well as has the potential to see the two above-noted Métis rights denial dragons take flight again. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/6
2003年，加拿大最高法院(SCC)公布了R v Powley案判决的一致理由。鲍利案是——并且仍然是——高等法院对姆萨梅斯权利的唯一考虑，作为“原始权利”，受到1982年宪法法案第35条的保护。除了为建立msamims第35条权利提出法律检验之外，Powley还驳斥了几代人以来出现的众多否认msamims权利的“龙”，包括政府最常依赖的两条“龙”:(1)确定msamims权利持有人的困难，以及(2)相互竞争的msamims代表主张使得王室对msamims权利的不作为是合理的。而不是接受这些论点，在鲍利的SCC认识到一个积极的国王的责任，与msamutis谈判。作者是一名msamims律师，在过去的17年里，他参与了许多msamims权利诉讼和谈判。他认为，从安大略省向西的msamims维权社区有效地利用了Powley和这项义务，以确保几个重要的谈判协议，并阻止了大多数被杀害的msamims权利否认龙。这篇文章继续回顾了2016年阿尔伯塔省女王法院关于msamutis咨询的一项令人不安的决定，如果进一步应用，有可能重新振兴这些最奸诈的龙。在奇佩维恩堡姆姆塔斯国家艾伯塔省地方#125诉阿尔伯塔一案中，虽然初审法官承认姆姆塔斯的采收权已被纳入奇佩维恩堡地区，但法院接受了艾伯塔省政府的论点，即难以确定“适当的权利所有人”，以及姆姆塔斯的主张可能存在竞争，这是王室不作为的理由，也是不与任何姆姆塔斯协商的理由。作者认为,法院的有缺陷的推理堡Chipewyan Powley和王冠的积极义务由于梅蒂斯人在他们的头上也有可能看到两个above-noted梅蒂斯人权利否认龙再次起飞。这篇文章可在奥斯古德霍尔法律杂志:https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/6
{"title":"The Re-Emergence of Previously Slayed Metis Rights-Denial Dragons: The Dangers and Duplicity in Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta","authors":"J. Madden","doi":"10.60082/2817-5069.3589","DOIUrl":"https://doi.org/10.60082/2817-5069.3589","url":null,"abstract":"In 2003, the Supreme Court of Canada (SCC) released its unanimous reasons for judgment in R v Powley. Powley was—and remains—the high court’s only consideration of Métis rights, as “[A]boriginal rights,” protected by section 35 of the Constitution Act, 1982. In addition to setting out the legal test for the establishment of Métis section 35 rights, Powley slayed a multitude of Métis rights denial dragons that had emerged over the generations, including two of the dragons most often relied on by governments: (1) that difficulties in identifying Métis rights-holders, and, (2) competing Métis representation claims made Crown inaction in relation to Métis rights justifiable. Instead of accepting these arguments, the SCC in Powley recognized a positive Crown duty to negotiate with the Métis. The author, who is a Métis lawyer that has been involved in much of the Métis rights litigation and negotiations that have occurred over the last seventeen years, argues that Powley and this duty have been effectively leveraged by rights-bearing Métis communities from Ontario westward to secure several significant negotiated agreements as well as keep most of the slayed Métis rights denial dragons at bay. This article goes on to review a disconcerting 2016 decision of the Alberta Court of Queen’s Bench on Métis consultation, which, if applied further, has the potential to re-invigorate these most duplicitous dragons. In Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta, while the trial judge recognized that Métis harvesting rights had been accommodated in the Fort Chipewyan area, the court accepted the Alberta government’s arguments that difficulty in identifying the “proper rights-holder” and the potential of competing Métis claims were justifications for Crown inaction and its position of consulting with no Métis whatsoever. The author argues that the court’s flawed reasoning in Fort Chipewyan turns Powley and the Crown’s positive duties owing to the Métis on their head as well as has the potential to see the two above-noted Métis rights denial dragons take flight again. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/6","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44965579","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article will assess the case for reforming the Irish law on adverse possession to confer additional protection on the owner. Assuming such reform is warranted, it is possible that an existing judicial solution, known as the rule in Leigh v Jack, has already been devised. Ontario’s experience with an equivalent rule, known as the inconsistent use test, is of interest in this context and certain academic literature is discussed which explains why the inconsistent use test was developed and argues in favour of its retention or resurrection. An alternative model of protection is then analyzed: the English Qualified Veto System of adverse possession introduced by the Land Registration Act 2002. I argue that a judicial or legislative reincarnation of the rule in Leigh v Jack would be an extremely flawed method of reforming the law in jurisdictions, such as Ireland, which are considering reform, as the Qualified Veto System more effectively responds to the difficulties which the inconsistent use test appears to be attempting to resolve. I conclude that such a Qualified Veto System, similar, although not identical to the one introduced in England, should be introduced in Ireland. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss2/2
{"title":"Protection for Owners under the Law on Adverse Possession: An Inconsistent Use Test or a Qualified Veto System?","authors":"Una Woods","doi":"10.60082/2817-5069.3580","DOIUrl":"https://doi.org/10.60082/2817-5069.3580","url":null,"abstract":"This article will assess the case for reforming the Irish law on adverse possession to confer additional protection on the owner. Assuming such reform is warranted, it is possible that an existing judicial solution, known as the rule in Leigh v Jack, has already been devised. Ontario’s experience with an equivalent rule, known as the inconsistent use test, is of interest in this context and certain academic literature is discussed which explains why the inconsistent use test was developed and argues in favour of its retention or resurrection. An alternative model of protection is then analyzed: the English Qualified Veto System of adverse possession introduced by the Land Registration Act 2002. I argue that a judicial or legislative reincarnation of the rule in Leigh v Jack would be an extremely flawed method of reforming the law in jurisdictions, such as Ireland, which are considering reform, as the Qualified Veto System more effectively responds to the difficulties which the inconsistent use test appears to be attempting to resolve. I conclude that such a Qualified Veto System, similar, although not identical to the one introduced in England, should be introduced in Ireland. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss2/2","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45307828","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Embodying Punishment: Emotions, Identities, and Lived Experiences in Women’s Prisons, by Anastasia Chamberlen","authors":"Joshua Shaw","doi":"10.60082/2817-5069.3588","DOIUrl":"https://doi.org/10.60082/2817-5069.3588","url":null,"abstract":"","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45680920","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Canadian Charter of Rights and Freedoms contains not one but two kinds of equality rights—general equality rights, set out in section 15, and linguistic equality rights, set out in sections 16 to 23—but the relationship between them is not well understood. Do official language rights rest on a distinct set of values, or do they simply instantiate the same general principle expressed in section 15? If the former, what are these values, and how do they relate to other principles of constitutional justice? The matter is further complicated by the need to account for the special constitutional status of Indigenous peoples, who also claim a form of equality. If we are to do justice to all concerned, we need to determine if and how these different claims to equality can and should fit together. However, this requires that we have a clear account of their underlying principles, and our understanding of linguistic equality in this respect lags far behind. While the concept of general equality and the status of Indigenous peoples have both received sustained theoretical attention, linguistic equality has not, leaving a number of fundamental questions—namely its basic analytical structure and its moral foundations—unresolved. The purpose of this article is to lay the groundwork for a theoretical account of linguistic equality, one that situates this concept within a broader framework of constitutional values that includes general equality rights and the rights of Indigenous peoples. Creative Commons License This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss2/5
{"title":"Towards an Account of Linguistic Equality","authors":"Érik Labelle Eastaugh","doi":"10.60082/2817-5069.3586","DOIUrl":"https://doi.org/10.60082/2817-5069.3586","url":null,"abstract":"The Canadian Charter of Rights and Freedoms contains not one but two kinds of equality rights—general equality rights, set out in section 15, and linguistic equality rights, set out in sections 16 to 23—but the relationship between them is not well understood. Do official language rights rest on a distinct set of values, or do they simply instantiate the same general principle expressed in section 15? If the former, what are these values, and how do they relate to other principles of constitutional justice? The matter is further complicated by the need to account for the special constitutional status of Indigenous peoples, who also claim a form of equality. If we are to do justice to all concerned, we need to determine if and how these different claims to equality can and should fit together. However, this requires that we have a clear account of their underlying principles, and our understanding of linguistic equality in this respect lags far behind. While the concept of general equality and the status of Indigenous peoples have both received sustained theoretical attention, linguistic equality has not, leaving a number of fundamental questions—namely its basic analytical structure and its moral foundations—unresolved. The purpose of this article is to lay the groundwork for a theoretical account of linguistic equality, one that situates this concept within a broader framework of constitutional values that includes general equality rights and the rights of Indigenous peoples. Creative Commons License This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss2/5","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45178793","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Hunting Down a Lasting Relationship with Canada—Will UNDRIP Help?","authors":"Sara Mainville","doi":"10.60082/2817-5069.3583","DOIUrl":"https://doi.org/10.60082/2817-5069.3583","url":null,"abstract":"","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43202782","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Canadian Free Trade Agreement 2017 (CFTA), which replaced the Agreement on Internal Trade 1995 (AIT), provides a forum to resolve internal trade disputes against provinces, territories, and the federal government. Under its predecessor, the AIT, thirteen dispute panels and two appeal panels convened to adjudicate such claims; to date, no cases have yet been brought under the CFTA. Despite its lengthy lifespan and repeated use, little literature exists that critically examines the substantive findings and analytical methods found in the AIT’s jurisprudence (case law now inherited by the CFTA). Academic dialogue on the legal reasoning found within the body of rulings of Canada’s unique dispute forum can offer future CFTA adjudicators insights so as to improve the coherence, clarity, and consistency of their decisions. This article focuses, in particular, on the state of CFTA jurisprudence on the national treatment obligation, which is analogous to article III of the World Trade Organization’s General Agreement on Tariffs and Trade 1994 (GATT). By investigating the trajectory of CFTA case law on the national treatment obligation, while interweaving insights from WTO jurisprudence, this article is able to identify the current state of doctrine, as well as continued shortcomings and uncertainties. In addition, this method of research can identify possible insights from WTO jurisprudence to fill analytical gaps. Especially in light of the Supreme Court of Canada’s firm 2018 pronouncement in R v Comeau, which essentially shuttered court doors to domestic trade disputes, this research is of particular relevance as CFTA dispute panels going forward will only take on a heightened significance as a means to address internal barriers to trade. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss2/4
{"title":"Internalizing International Trade Law: A Critical Analysis of the Canadian Free Trade Agreement’s National Treatment Jurisprudence","authors":"Ryan Manucha","doi":"10.60082/2817-5069.3584","DOIUrl":"https://doi.org/10.60082/2817-5069.3584","url":null,"abstract":"The Canadian Free Trade Agreement 2017 (CFTA), which replaced the Agreement on Internal Trade 1995 (AIT), provides a forum to resolve internal trade disputes against provinces, territories, and the federal government. Under its predecessor, the AIT, thirteen dispute panels and two appeal panels convened to adjudicate such claims; to date, no cases have yet been brought under the CFTA. Despite its lengthy lifespan and repeated use, little literature exists that critically examines the substantive findings and analytical methods found in the AIT’s jurisprudence (case law now inherited by the CFTA). Academic dialogue on the legal reasoning found within the body of rulings of Canada’s unique dispute forum can offer future CFTA adjudicators insights so as to improve the coherence, clarity, and consistency of their decisions. This article focuses, in particular, on the state of CFTA jurisprudence on the national treatment obligation, which is analogous to article III of the World Trade Organization’s General Agreement on Tariffs and Trade 1994 (GATT). By investigating the trajectory of CFTA case law on the national treatment obligation, while interweaving insights from WTO jurisprudence, this article is able to identify the current state of doctrine, as well as continued shortcomings and uncertainties. In addition, this method of research can identify possible insights from WTO jurisprudence to fill analytical gaps. Especially in light of the Supreme Court of Canada’s firm 2018 pronouncement in R v Comeau, which essentially shuttered court doors to domestic trade disputes, this research is of particular relevance as CFTA dispute panels going forward will only take on a heightened significance as a means to address internal barriers to trade. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss2/4","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48257355","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The duty to consult and accommodate has increasingly become front and centre in a wide range of resource and development projects and the related litigation. The Supreme Court of Canada has stated that it seeks to foster negotiation and limit litigation through its approach to the duty. This article examines, from a theoretical perspective, whether the Court is furthering this objective. It builds on a simple model of How the legislature and courts interact in the administrative law context and discusses how the relationship changes with the addition of Indigenous peoples seeking enforcing the government’s constitutional duty to consult and accommodate. It examines both decisions made by Cabinet and by an “independent” body such as the Canada Energy Regulator (CER). The model points to the importance of both the approach taken by the reviewing court and the relative political positions of relevant actors. The interpretation of the standard of review by different types of judges will impact the incentives to litigate and the probability of success from litigation. In addition, the incentive to litigate shifts as policy positions shift for Cabinet, for boards or for judges, but not in a straightforward fashion. The model informs not only the duty to consult, but judicial review in the standard administrative law context and involving other constitutional issues.
{"title":"Judicial Influence on the Duty to Consult and Accommodate","authors":"Andrew Green","doi":"10.60082/2817-5069.3566","DOIUrl":"https://doi.org/10.60082/2817-5069.3566","url":null,"abstract":"The duty to consult and accommodate has increasingly become front and centre in a wide range of resource and development projects and the related litigation. The Supreme Court of Canada has stated that it seeks to foster negotiation and limit litigation through its approach to the duty. This article examines, from a theoretical perspective, whether the Court is furthering this objective. It builds on a simple model of How the legislature and courts interact in the administrative law context and discusses how the relationship changes with the addition of Indigenous peoples seeking enforcing the government’s constitutional duty to consult and accommodate. It examines both decisions made by Cabinet and by an “independent” body such as the Canada Energy Regulator (CER). The model points to the importance of both the approach taken by the reviewing court and the relative political positions of relevant actors. The interpretation of the standard of review by different types of judges will impact the incentives to litigate and the probability of success from litigation. In addition, the incentive to litigate shifts as policy positions shift for Cabinet, for boards or for judges, but not in a straightforward fashion. The model informs not only the duty to consult, but judicial review in the standard administrative law context and involving other constitutional issues.","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2020-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47516176","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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