Open Access. Powered by Scholars. Published by Universities.®

Law Commons™

Open Access. Powered by Scholars. Published by Universities.®

2001

Schulich School of Law, Dalhousie University

Articles 1 - 27 of 27

Full-Text Articles in Law

Multi-Disciplinary Professional Practices: A Consumer Welfare Perspective, Michael Trebilcock, Lila Csorgo Oct 2001

Multi-Disciplinary Professional Practices: A Consumer Welfare Perspective, Michael Trebilcock, Lila Csorgo

Dalhousie Law Journal

Multi-disciplinary professional practices (MDPs) involving lawyers, accountants and otherprofessionals, have been the subject of considerable industrystudyand controversy in Canada and abroad. In this article, the authors evaluate the advantages and disadvantages of MDPs strictly from a consumer welfare perspective. They argue that, although MDP critics' concerns surrounding such issues as solicitor-client privilege, independence, conflicts of interest, and unauthorized practice are valid, they are often overstated and are, in many cases, encountered even today by professionals outside the MDP context. The advantages to consumers of permitting the evolution of such practices would, in any event, significantly outweigh such disadvantages. The authors'analysis …

Go to article

Seeking Historical Truth: The International Commission Of Inquiry Into The 1932-33 Famine In Ukraine, A J. Hobbins, Daniel Boyer Oct 2001

Seeking Historical Truth: The International Commission Of Inquiry Into The 1932-33 Famine In Ukraine, A J. Hobbins, Daniel Boyer

Dalhousie Law Journal

In the 1980s the WCFU (World Congress of Free Ukrainians) undertook many initiatives to "educate" Western public opinion on the Ukrainian Famine of 1932- 33, claiming that the famine was a Soviet act of genocide against the Ukrainian people. The WCFU sponsored an international commission of enquiry, composed of seven eminent international jurists, and appeared before the commission as plaintiff. The Commission dealt with a number of controversial issues in international law, including the question of whether the charge of genocide could predate the 1948 convention. The Commission deliberations are examined in detail, frequently with the use of unpublished sources …

Go to article

A Comment On The Complementary Jurisdiction Of The International Criminal Court: Adding Insult To Injury In Transitional Contexts?, Jennifer J. Llewellyn Oct 2001

A Comment On The Complementary Jurisdiction Of The International Criminal Court: Adding Insult To Injury In Transitional Contexts?, Jennifer J. Llewellyn

Dalhousie Law Journal

The author examines the principle of complementarity on which the jurisdiction of the International Criminal Court (ICC) is based. Unlike its predecessors, the International Criminal Tribunals for the former Yugoslavia and Rwanda, the ICC can only take jurisdiction over a case when a state is unwilling or unable to investigate or prosecute. The Court is thus designed to complement the work of national criminal courts. This article assesses whether this admissibility standard will allow the ICC to complement the work of truth commissions like that of the South African Truth and Reconciliation Commission. It concludes that the prospect of an …

Go to article

The Institutional And Substantive Effects Of The Human Rights Act In The United Kingdom, Christopher D. Jenkins Oct 2001

The Institutional And Substantive Effects Of The Human Rights Act In The United Kingdom, Christopher D. Jenkins

Dalhousie Law Journal

This article reviews the institutional and substantive impact that the Human Rights Act has on English law through its incorporation of the European Convention on Human Rights. Under the Act, higher courts can now move beyond a formalistic method of judicial review and substantively evaluate legislation in light of the Convention. The judiciary can accordingly issue declarations that statutes are incompatible with the Convention which, although not invalidating the act in question, will bring considerable political pressure to bear on Parliament to ensure compliance. The Act further directs courts to give special regard to the decisions of the European Court …

Go to article

The Legislature, The Executive And The Courts: The Delicate Balance Of Power Or Who Is Running This Country Anyway?, A Wayne Mackay Oct 2001

The Legislature, The Executive And The Courts: The Delicate Balance Of Power Or Who Is Running This Country Anyway?, A Wayne Mackay

Dalhousie Law Journal

The expanding role of Canadian courts since the introduction of the Charter has prompted critics to decry what they see as excessive and "anti-democratic" judicial activism. The author addresses such criticisms, responding, in particular, to the arguments of Ted Morton and Rainer Knopff. The article critiques the basic elements of Morton/Knopf's thesis: that activist courts are anti-democratic, excessively political, and engaging in illegitimate law-making. Rejecting the claim that Canada's judiciary is a less democratic state institution, the author notes the powerful law and policy-making role performed by the federal cabinet-for practical purposes, an unelected body. The author endorses the dialogue …

Go to article

Brightening The Covenant Chain: Aboriginal Treaty Meanings In Law And History After Marshall, Mark D. Walters Oct 2001

Brightening The Covenant Chain: Aboriginal Treaty Meanings In Law And History After Marshall, Mark D. Walters

Dalhousie Law Journal

The decision of the Supreme Court of Canada in R. v. Marshall raises some difficult questions about the interpretation of Crown-Aboriginal treaties, especially treaties dating from the eighteenth century. The Court acknowledged that the treaty context is important to establishing the meaning of treaty texts, and Aboriginal and non-Aboriginal perspectives must be considered. As a result, judges must have regard to historical analyses of Crown-Aboriginal relations when interpreting these old treaties. In this article, the author explores some of the complex theoretical problems that such legal-historical analyses create, focusing in particular upon the possibility that lawyers and judges may reach …

Go to article

Securing Assets Of Oil And Gas Projects Offshore Nova Scotia, Robert W. Carmichael Apr 2001

Securing Assets Of Oil And Gas Projects Offshore Nova Scotia, Robert W. Carmichael

Dalhousie Law Journal

Offshore oil and gas projects sometimes require financing, and project financing usually requires the taking of security in project assets. In this article, the author examines the legislative framework comprised of the traditional provincial and federal security legislation and the specialized Nova Scotia Accord Acts to determine that there is presently no effective regime in place for taking security in many types of assets of offshore oil and gas projects.

Go to article

Cooperative Environmental Assessments: Their Increasing Role In Oil And Gas Projects, Judith Hanebury Apr 2001

Cooperative Environmental Assessments: Their Increasing Role In Oil And Gas Projects, Judith Hanebury

Dalhousie Law Journal

As the subject matter of "environment" is not specifically assigned in the Constitution to only the federal government or the provinces, there has been an increasing trend toward cooperative environmental assessment processes to avoid jurisdictional friction points. This article describes the relevantjurisdictional friction points that have encouraged this trend and describes some issues and considerations that have arisen in relation to recent cooperative environmental assessments carried out for oil and gas projects.

Go to article

Foreword, Michael F. Harrington Apr 2001

Foreword, Michael F. Harrington

Dalhousie Law Journal

As the Chair of the Organizing Committee for the inaugural East Coast Seminar of the Canadian Petroleum Law Foundation, I am pleased to mark the publication of the papers presented at that Seminar in this special publication of the Dalhousie Law Journal.

Go to article

Legal Framework In The Canadian Offshore, Van Penick Apr 2001

Legal Framework In The Canadian Offshore, Van Penick

Dalhousie Law Journal

In this article, the author examines the legal framework in effect in the Atlantic Canada offshore through a comparative analysis of the Western Canada onshore regime in five basic areas: property rights, oil and gas rights, the constitutional division of oil and gas authority, basic agreements and the application of laws. The major differences exposed by this analysis should aid east coast oil and gas practitioners in properly advising their clients.

Go to article

Oceans Act: Uncharted Seas For Offshore Development In Atlantic Canada?, Aldo Chircop, Bruce A. Marchand Apr 2001

Oceans Act: Uncharted Seas For Offshore Development In Atlantic Canada?, Aldo Chircop, Bruce A. Marchand

Dalhousie Law Journal

Canada's Oceans Act, now five years old, is a ground-breaking piece of legislation in marine law which provides a framework for the development of a national oceans strategy, integrated planning and management, and institutional responsibilities. In this article, the authors review the Act and its issues and argue that the uncertainties found there provide opportunities for participants in the Atlantic Canada offshore oil and gas industry to influence the development of an oceans policy, legal and institutional framework that accommodates all interests.

Go to article

Regulatory Regime: Canada-Newfoundland/ Nova Scotia Offshore Petroleum Board Issues, Angus Taylor, Jim Dickey Apr 2001

Regulatory Regime: Canada-Newfoundland/ Nova Scotia Offshore Petroleum Board Issues, Angus Taylor, Jim Dickey

Dalhousie Law Journal

This article identifies and comments on some of the issues which may be of interest respecting petroleum operations in the Newfoundland and Nova Scotia offshore areas. An emphasis has been placed on identifying some of the issues from an operational context and from a regulator's perspective, with some legal analysis provided where appropriate.

Go to article

Financial Responsibility Requirements For Oil And Gas Activities Offshore Nova Scotia And Newfoundland, Boris Bde Jonge Apr 2001

Financial Responsibility Requirements For Oil And Gas Activities Offshore Nova Scotia And Newfoundland, Boris Bde Jonge

Dalhousie Law Journal

This article outlines the regime of statutory liability and financial responsibility requirements for the Nova Scotia and Newfoundland offshore areas with a particular emphasis on the content and validityof the Nova Scotia and Newfoundland Boards' jointly issued Guidelines for Financial Responsibility.

Go to article

Drainage Issues In The Atlantic Canada Offshore Petroleum Industry, Richard A. Neufeld, Robert G. Grant Apr 2001

Drainage Issues In The Atlantic Canada Offshore Petroleum Industry, Richard A. Neufeld, Robert G. Grant

Dalhousie Law Journal

In this article, the authors examine the issue of drainage in the Atlantic Canada offshore. The offshore statutory regimes for production of oil and gas, together with the common law, are analyzed for their approaches to dealing with drainage issues. In addition, the law of drainage in Alberta is comprehensively reviewed to provide some guidance as to how the law of drainage may develop in Atlantic Canada.

Go to article

Are Royalty Agreements Required For Canada East Coast Offshore Oil And Gas?, Alan T. Pettie Apr 2001

Are Royalty Agreements Required For Canada East Coast Offshore Oil And Gas?, Alan T. Pettie

Dalhousie Law Journal

This article examines the royalty regime in the area offshore the two oil and gas producing provinces on the east coast of Canada. A review of the historical background of the legislative framework is provided. The right to levy royalties on the production of oil and gas is reviewed. The legislative provisions relating to the execution of royalty agreements and the introduction of generic royalty regulations are examined. The article describes specific fiscal and commercial terms which are not included in the current Nova Scotia generic royalty regime and might not be included in the generic regime which might be …

Go to article

East Coast Project Financing Issues, Raymond E. Quesnel, R J. Thrasher Apr 2001

East Coast Project Financing Issues, Raymond E. Quesnel, R J. Thrasher

Dalhousie Law Journal

In this article, the authors provide a comprehensive review of project financing as a means to fundoilandgasprojects in the Atlantic Canada offshore. Inparticular, the nature and characteristics of project financing are examined, together with a review of some recent East Coast project financings and an analysis of the legal and contractual framework that comes into play. This is followed byan extensive discussion on the structuring of a project financing including a consideration of the risks involved and how those risks may be allocated.

Go to article

Testing The Limits: Alcohol & Drug Testing For Offshore Employees, Brian Johnston, Tara Erskine Apr 2001

Testing The Limits: Alcohol & Drug Testing For Offshore Employees, Brian Johnston, Tara Erskine

Dalhousie Law Journal

The legal limits of drug and alcohol testing by employers in the Atlantic Canada offshore are not yet entirely clear. To shed light on where these limits may lie, the authors examine the relevant law in the United Kingdom and the United States, together with the law on testing in Canada generally and the applicable provisions of the Accord Acts.

Go to article

Offshore Oil And Gas Facility Decommissioning In Nova Scotia And Newfoundland, Phillip Abraham Apr 2001

Offshore Oil And Gas Facility Decommissioning In Nova Scotia And Newfoundland, Phillip Abraham

Dalhousie Law Journal

While planning for the ultimate decommissioning of Atlantic Canada offshore oil and gas facilities is a necessary requirement of project approval, this issue has not yet graduated to the level of attention it receives in other parts of the world with more mature offshore petroleum industries. In this article, the author reviews some decommissioning methods and examines the international and domestic law applicable to the decommissioning of oil and gas facilities on the continental shelf offshore Atlantic Canada.

Go to article

A Brief Overview Of The Enforceability Of Forum Selection, Choice Of Law, And Arbitration Clauses And The Doctrine Of Forum Non Conveniens Under The Admiralty Law Of The United States, Donald R. Abaunza Apr 2001

A Brief Overview Of The Enforceability Of Forum Selection, Choice Of Law, And Arbitration Clauses And The Doctrine Of Forum Non Conveniens Under The Admiralty Law Of The United States, Donald R. Abaunza

Dalhousie Law Journal

Forum selection, choice of law and arbitration clauses are of great significance in offshore contracts, where disputes may arise in locations far removed from the fora identified in those contracts. In this article, the author provides an examination of the enforceability of these clauses in the United States, together with an explanation of the operation of the doctrine of forum non conveniens in that country.

Go to article

The Citizen Submission Process Of The North American Commission For Environmental Cooperation, Jaime Miguel Carreno-Martinez Jan 2001

The Citizen Submission Process Of The North American Commission For Environmental Cooperation, Jaime Miguel Carreno-Martinez

LLM Theses

In order to address the environmental concerns raised by the existence of a continent-wide free trade zone, the North American Free Trade Agreement (NAFTA), Canada, United States and Mexico created an environmental side agreement, the North American Agreement for Environmental Cooperation (NAAEC). NAAEC established the Commission for Environmental Cooperation (CEC), a trilateral body created to help the NAFTA Parties achieve the goal of free trade while at the same time avoiding or lessening environmental industrial degradation. Although imperfect, the NAAEC embodies several processes that were innovative. The key innovation is the Citizen Submission Process that allows citizens and NGOs to …

Go to article

Reconstructing A Divided Society: Development Of Self-Government And Judicial Reform In Kosovo, Sasha Baglay Jan 2001

Reconstructing A Divided Society: Development Of Self-Government And Judicial Reform In Kosovo, Sasha Baglay

LLM Theses

For the past decade the Kosovo has been a subject of conflict. Since June 1999 the Province is undergoing the reconstruction of civil society under the direction of the United Nations in the form of the United Nations Interim Administration in Kosovo (UNMIK). This thesis analyzes the prospects of developing democratic government in a post-conflict Kosovo. On a larger scale, the Kosovo study serves the basis for the analysis of the techniques available for the international community to build democracy in ethnically divided societies. The argument of this thesis rests on the premise that in ethnically divided societies traditional democratic …

Go to article

Finding A Sense Of Self In The World: A Process For Overcoming Personal And Collective Alienation After Institutional Abuse, Seetal Kaur Sunga Jan 2001

Finding A Sense Of Self In The World: A Process For Overcoming Personal And Collective Alienation After Institutional Abuse, Seetal Kaur Sunga

LLM Theses

The author examines three aspects of dispute resolution involving cases of physical and sexual abuse in institutions and other environments. She focuses on judicial and alternative processes that deal with identity formation, empowerment and monetary compensation. She argues that sexual abuse and physical abuse create specific harms to the identity and power of abused persons. These harms should be addressed through a process that can allow for identity-formation and re-configuration of the power relationship between the parties. The author concludes that judicial processes recognize identity formation that occurs outside the legal arena, and are capable of recognizing the power of …

Go to article

Genetic And Metabolic Screening Of Newborns: Must Health Care Providers Seek Explicit Parental Consent?, Sheila Wildeman, Jocelyn Downie Jan 2001

Genetic And Metabolic Screening Of Newborns: Must Health Care Providers Seek Explicit Parental Consent?, Sheila Wildeman, Jocelyn Downie

Articles, Book Chapters, & Popular Press

In this paper, we provide some background on the history of newborn screening and the legal context within which questions regarding consent must be answered, and then turn to the various arguments that can be made for and against the current approach to parental consent to genetic and metabolic tests administered as part of provincial/territorial newborn screening programs. In the end, we conclude that either practice should be changed to align it with current law such that explicit parental consent is sought for the established tests, or that advocates for maintaining current practices should lobby for legislation permitting newborn screening …

Go to article

Health Care Ethics Experts In Canadian Courts, Jocelyn Downie Jan 2001

Health Care Ethics Experts In Canadian Courts, Jocelyn Downie

Articles, Book Chapters, & Popular Press

In this paper, I will first describe the traditional approach to the use of experts in Canadian courts. Then I will consider whether, on this approach, health care ethics experts should be permitted to testify in Canadian courts. I will argue that they should be permitted to testify but caution should be exercised by the courts, the parties, and the experts themselves. The objective of the paper is to highlight the strengths and raise some concerns about the weaknesses of a practice that appears to be growing, so that the potential harmful consequences might be anticipated, problems with the practice …

Go to article

Genetic And Metabolic Screening Of Newborns: Must Health Care Providers Seek Explicit Parental Consent?, Sheila Wildeman, Jocelyn Downie Jan 2001

Genetic And Metabolic Screening Of Newborns: Must Health Care Providers Seek Explicit Parental Consent?, Sheila Wildeman, Jocelyn Downie

Articles, Book Chapters, & Popular Press

In this paper, we provide some background on the history of newborn screening and the legal context within which questions regarding consent must be answered, and then turn to the various arguments that can be made for and against the current approach to parental consent to genetic and metabolic tests administered as part of provincial/territorial newborn screening programs. In the end, we conclude that either practice should be changed to align it with current law such that explicit parental consent is sought for the established tests, or that advocates for maintaining current practices should lobby for legislation permitting newborn screening …

Go to article

The Arctic Environmental Protection Strategy, Arctic Council And Multilateral Environmental Initiatives: Tinkering While The Arctic Marine Environment Totters, David Vanderzwaag, Robert Huebert, Stacey Ferrara Jan 2001

The Arctic Environmental Protection Strategy, Arctic Council And Multilateral Environmental Initiatives: Tinkering While The Arctic Marine Environment Totters, David Vanderzwaag, Robert Huebert, Stacey Ferrara

Articles, Book Chapters, & Popular Press

The Arctic marine environment is not pristine, as commonly imagined, but is facing numerous pressures,' the most serious arguably coming from outside the region. Melting of sea ice, linked to global warming, threatens the long-term survival of various species including polar bears and has potential to seriously disrupt ocean currents. Persistent organic pollutants (POPs), including pesticides, industrial compounds and combustion by-products, are transported via air and water currents from regions outside the Arctic and become concentrated in the fatty tissues of animals." The pollutants threaten not only the well being of wildlife but the health of northern residents heavily dependent …

Go to article

Peer-To-Peer Sharing On The Internet: An Analysis Of How Gnutella Networks Are Used To Distribute Pornographic Material, Michael D. Mehta, Don Best, Nancy Poon Jan 2001

Peer-To-Peer Sharing On The Internet: An Analysis Of How Gnutella Networks Are Used To Distribute Pornographic Material, Michael D. Mehta, Don Best, Nancy Poon

Canadian Journal of Law and Technology

By our very nature, humans are creatures that communicate and network. Over the past several decades much of this communicating and networking has been facilitated by developments in information and communication technology. The social and economic transformations resulting from developments on the Internet have created several challenges for policymakers, lawmakers, courts and a wide range of other kinds of institutions. Some of these challenges are associated with the technologies and applications themselves. Other challenges result from content made available on the Internet and how users exchange data. Recent developments in peer-to-peer data exchange bring these two sets of challenges together.

Go to article