scholarly journals Comparing Aboriginal and Other Duties to Consult in Canadian Law

2012 ◽  
Vol 49 (4) ◽  
pp. 855
Author(s):  
Peter Carver
Keyword(s):  
Great Difficulty ◽  
Administrative Law ◽  
Court Decisions ◽  
Aboriginal Rights ◽  
Canadian Charter ◽  
Labour Relations ◽  
Canadian Law ◽  
The Way

This article compares recent Aboriginal rights and labour relations court decisions to assess the way the Canadian jurisprudence has conceptualized the duty to consult. While traditionally the duty to consult has been considered a constitutional duty, enshrined in section 35(1) of the Constitution Act, 1982 and section 2(d) of the Canadian Charter of Rights and Freedoms, the author suggests that courts have had great difficulty conceptualizing this duty as a constitutionally required process. The author’s analysis reviews the sources and purposes of constitutional duties to consult and the hurdles the courts have faced in applying the duty meaningfully, and drawing on concepts from administrative law, offers a tentative solution to the problem of making consultative practices effective.

Revisiting the risk of undesired appeal in investment treaty arbitration: is deference to the tribunal’s award still less likely in the ICSID context?

2021 ◽  
Author(s):  
Alexander J Marcopoulos
Keyword(s):  
Ad Hoc ◽  
De Novo ◽  
Case Law ◽  
Court Decisions ◽  
Investment Treaty ◽  
Investment Treaty Arbitration ◽  
The Way

Abstract Although they are generally not subject to appeal the way court decisions typically are, investor-State arbitration awards can be reviewed—and potentially set aside—in a number of ways and on various bases. In this respect, investor-State arbitration under the auspices of ICSID is notable in that it provides a self-contained system for the review of arbitral awards by ICSID-appointed ad hoc committees. In the period 2000–2010, this feature of the ICSID system attracted criticism as ad hoc committees appeared to be overreaching in their review of arbitral awards, exercising less deference to the tribunal’s decisions than what would be expected given the narrow bases for setting aside an award under the ICSID Convention. This article revisits the issue 10 years later, exploring whether ICSID practice has evolved in these areas and whether there remains a greater risk of unexpected de novo review by ICSID ad hoc committees. Looking at recent ICSID annulment decisions as well as the case law of arbitration-friendly jurisdictions, the article concludes that although the ICSID ad hoc committees have recently shown more restraint, they continue to interfere more with the tribunal’s reasoning and decisions than many courts exercising the same function.

scholarly journals The Possible Impact of the Canadian Charter of Rights and Freedoms on Administrative Law

2005 ◽  
Vol 26 (2) ◽  
pp. 339-359
Author(s):  
Andrew J. Roman
Keyword(s):  
Present Article ◽  
Administrative Law ◽  
Canadian Charter ◽  
Mise En Œuvre

Bien que la Charte canadienne des droits et libertés ait généré dans un premier temps surtout de la jurisprudence criminelle, il est à prévoir qu'elle exercera aussi une influence considérable sur le droit administratif. Elle ne changera pas beaucoup le droit relatif au contrôle judiciaire de l'Administration, mais par rapport à un droit administratif conçu plus largement il ne fait pas de doute qu'elle va produire des effets substantiels. Le présent article a pour objet principal l'article 8 de la Charte, qui protège contre les fouilles, perquisitions et saisies abusives. Il analyse cette disposition en référant à des situations spécifiques en matière d'impôt, de monopoles, d'immigration, de douanes et d'étiquetage. L'auteur en arrive à la conclusion que la Charte a d'une certaine façon constitutionnalisé la pratique et les procédures administratives. L'administration ne doit désormais exercer que les pouvoirs qui sont absolument nécessaires pour s'acquitter des tâches que lui confie le parlement. Les mécanismes de mise en oeuvre des lois doivent d'autre part être conçus en fonction de situations normales et non pas en fonction des pires hypothèses.

scholarly journals Through a Glass Darkly: The Role and Review of "National Security" Concepts in Canadian Law

2015 ◽  
Author(s):  
Craig Forcese
Keyword(s):  
Public Policy ◽  
Decision Making ◽  
National Security ◽  
Administrative Law ◽  
The Public ◽  
Precise Meaning ◽  
Canadian Law ◽  
Real Importance ◽  
The Government

The expression "national security" or its close similes lacks a precise meaning, even in the public policy literature. Nevertheless, the concept appears in over 30 federal statutes. In most instances, the term is undefined, an important oversight in light of the significant powers these statutes accord the government. Under these circumstances, how courts review government invocations of "national security" is of real importance. With some exceptions, courts applying s. 7 of the Charter and standard administrative law doctrines have accorded substantial deference to government national security determinations. When largely deferential substantive review of the ambiguous concept of national security is coupled with the ex parti and in camera context in which these cases are often heard, the net effect is to leave government with a freer hand in national security matters than in other domains of administrative decision making. Several possible responses to this problem are proposed.

scholarly journals The new jurisdiction: the impact of the Labour Relations Act

1970 ◽  
Vol 13 (3) ◽  
Author(s):  
John Hughes
Keyword(s):  
Trade Unions ◽  
Training Group ◽  
The State ◽  
Grievance Procedure ◽  
State Sector ◽  
Labour Relations ◽  
The Impact ◽  
And Training ◽  
The Way

The new jurisdiction conferred on the Labour Court by Part IX of the Labour Relations Act 1987 has a number of facets. First, there has been a widening of the categories of worker who may use the procedure, not only under the 1987 Act but also by virtue of the State Sector Act 1988. Secondly, there have been substantial changes to the way in which the personal grievance procedure operates. Thirdly, the grounds upon which a personal grievance claim may now be brought have been expanded. Fourthly, the available remedies, whilst not substantially changed, have been "tidied up". The treatment of these changes in this paper will be selective. The procedural changes have been excellently covered in Mike Dawson's indispensable guide Handling Personal Grievances Under the Labour Relations Act 1987 (Canterbury Trade Unions Research and Training Group/UEA, 1988). I would like to take the opportunity to highlight what seem to me to be some of the more far-reaching changes and, in the course of the paper, touch only lightly on the distinctly "procedural" aspects of the changes since the Labour Relations Act 1987 carne into force. Surprisingly few decisions so far have turned on the new provisions. Most retread the familiar ground of unjustifiable dismissal.

scholarly journals A Choice among Values: Theoretical and Historical Perspectives on the Defence of Necessity

1969 ◽  
pp. 848 ◽  
Author(s):  
Benjamin L. Berger
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Historical Perspectives ◽  
Theoretical Approaches ◽  
A Value ◽  
Canadian Law ◽  
The Supreme Court ◽  
History Of ◽  
The Law ◽  
The Way

The author explores various theoretical approaches to the defence of necessity, rejecting both excusatory conceptions of the defence and those based on the notion of moral involuntariness. Rather, the author argues that necessity is properly understood as a justificatory defence based on a lack of moral blameworthiness. After extensively surveying the history of the defence in Canadian law, the author critiques the way in which the Supreme Court of Canada has restricted the defence. He contrasts the current Canadian approach with the treatment of the defence in other jurisdictions and concludes that Canadian law would be served best by a robust defence of necessity, which would acknowledge that, in some circumstances, pursuit of a value of greater worth than the value of adherence to the law can be justified.

Post-withdrawal Prospects for Iraq’s ‘Ultra-minorities’

2015 ◽  
Author(s):  
Nicholas Al-Jeloo
Keyword(s):  
Human Rights ◽  
Minority Groups ◽  
Administrative Law ◽  
Religious Minorities ◽  
Successes And Failures ◽  
The Way

The signing of Iraq's Transitional Administrative Law on 8 March 2004 ushered in a new, more pluralistic era for Iraq. It was now a ‘country of many nationalities’. In addition, all Iraqi citizens were equal in their rights ‘without regard to gender, sect, opinion, belief, nationality, religion, or origin’; ‘discrimination on the basis of gender, nationality, religion, or origin’ was prohibited. However, ‘ultra-minorities’ have been the subjects of sustained oppression and active persecution. This chapter explores the successes and failures with regard to Iraq's ethnic, linguistic and religious minorities, referring especially to recent human rights reports, making for a valuable case study in the way contemporary states deal with their minority groups.

scholarly journals Access to information: Information disclosure in some South African organisations

2007 ◽  
Vol 38 (1) ◽  
pp. 25-36
Author(s):  
R. Van Der Walt
Keyword(s):  
South Africa ◽  
South African ◽  
Trade Unions ◽  
Information Disclosure ◽  
Industrial Democracy ◽  
Access To Information ◽  
Labour Relations ◽  
Disclosure Of Information ◽  
The Way

Legislation such as the Labour Relations No 66 of 1995 and the Promotion of Access to Information Act No 2 of 2000 has paved the way for creation of a culture of un-coerced disclosure of information in South African organisations. The article reviews progress in respect of information disclosure in South Africa and other countries and discusses the effects of the LRA in regard to disclosure of information to trade unions and workplace forums. It then describes a study conducted by the author and discusses the findings. It concludes with pointing out certain weaknesses in the disclosure process and exhorts managements and the trade unions to work together to improve this important tool for achieving success in organisations and enhancing industrial democracy.

Part III Indigenous Peoples and the Canadian Constitution, C Indigenous Peoples and the Constitution Act, 1982, Ch.15 The Form and Substance of Aboriginal Title: Assimilation, Recognition, Reconciliation

2017 ◽  
Author(s):  
Macklem Patrick
Keyword(s):  
Indigenous Peoples ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Constitutional Order ◽  
Canadian Law ◽  
Aboriginal Title ◽  
Ways Of Life

This chapter highlights law’s participation in the colonizing projects that initiated the establishment of the Canadian constitutional order. Imperial and subsequently Canadian law deemed legally insignificant the deep connections that Indigenous peoples had with their ancestral territories, and imposed alien norms of conduct on diverse Indigenous ways of life. In doing so, law legitimated the manifold political, social, and economic acts of dispossession and dislocation that collectively bear the label of colonialism. The constitutional entrenchment of Aboriginal and treaty rights in 1982 formally recognized a distinctive constitutional relationship between Indigenous peoples and Canada. The judiciary has begun to see the purpose of formal constitutional recognition to be a process of substantive constitutional reconciliation of the interests of Canada and Indigenous peoples. This chapter argues that constitutional reconciliation can only commence by comprehending Aboriginal rights and title as protecting Indigenous interests associated with culture, territory, treaties, and sovereignty in robust terms.

Canadian Supreme Court: Delgamuukw V. British Columbia

1998 ◽  
Vol 37 (2) ◽  
pp. 261-333
Author(s):  
Catherine Bell
Keyword(s):  
British Columbia ◽  
Legal Reasoning ◽  
Legal Rights ◽  
Aboriginal Rights ◽  
Canadian Law ◽  
Aboriginal Title ◽  
British Colonial ◽  
Potential Impact ◽  
British Colonies

Delgamuukw v. B.C. is a pivotal decision in the evolution of Canadian law on Aboriginal rights.Numerous meetings, round-tables, workshops and conferences have been held to discuss its potential impact on litigation and negotiation.1 Delgamuukw has also served as a vehicle for discussion of more fundamental issues such as the appropriateness of selecting the judicial forum to resolve Aboriginal title claims and the role of legal reasoning in furthering the process of colonization.2 Given the influence of British colonial law on the development of Aboriginal rights jurisprudence in former British colonies and the restrictions placed by evidentiary presumptions originating in English courts, Delgamuukw may also have persuasive precedential value outside of Canada. In particular, the Supreme Court's elaboration of the concept of Aboriginal rights and its discussion of the weight to be given to oral histories may influence other commonwealth courts which face the demanding task of accommodating the rights of colonized peoples within a contemporary political and legal rights regime.3

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