Expanding our Constitutional Horizons: A Comprehensive Study of Quasi-Constitutionality in Canada

A number of laws in Canada which uphold rights are referred to as quasi-constitutional by the courts in recognition of their special importance. Quasi-constitutional statutes are enacted through the regular legislative process, although they are being interpreted and applied in a fashion which has become remarkably similar to constitutional law, and are therefore having an important affect over other legislation. Quasi-constitutionality has surprisingly received limited scholarly attention, and very few serious attempts at explaining its significance have been made. This dissertation undertakes a comprehensive study of quasi-constitutionality which considers its theoretical basis, its interpretation and legal significance, as well as its similarities to comparable forms of law in other Commonwealth jurisdictions. Part I examines the theoretical basis of quasi-constitutionality and its relationship to the Constitution. As a statutory and common law form of fundamental law, quasi-constitutionality is shown to signify an association with the Canadian Constitution and the foundational principles that underpin it. Part II proceeds to consider the special rules of interpretation applied to quasi-constitutional legislation, the basis of this interpretative approach, and the connection between the interpretation of similar provisions in quasi-constitutional legislation and the Constitution. As a statutory form of fundamental law, quasi-constitutional legislation is given a broad, liberal and purposive interpretation which significantly expands the rights which they protect. The theoretical basis of this approach is found in both the fundamental nature of the rights upheld by quasi-constitutional legislation as well as legislative intent. Part III explores how quasi-constitutional statutes affect the interpretation of regular legislation and how they are used for the purposes of judicial review. Quasi-constitutional legislation has a significant influence over regular statutes in the interpretative exercise, which in some instances results in conflicting statutes being declared inoperable. The basis of this form of judicial review is demonstrated to be rooted in statutory interpretation, and as such it provides an interesting model of rights protection and judicial review that is not conflated to constitutional and judicial supremacy.

WIPO and the Reinforcement of the Nagoya Protocol: Towards Effective Implementation of an Access and Benefit Sharing Regime for the Protection of Traditional Knowledge Associated with Genetic Resources

Traditional knowledge associated with genetic resources (TKaGRs) is acknowledged as a valuable resource. Its value draws from economic, social, cultural, and innovative uses. This value places TK at the heart of competing interests as between indigenous peoples who hold it and depend on it for their survival, and profitable industries which seek to exploit it in the global market space. The latter group seek, inter alia, to advance and maintain their global competitiveness by exploiting TKaGRs leads in their research and development activities connected with modern innovation. Biopiracy remains an issue of central concern to the developing world and has emerged in this context as a label for the inequity arising from the misappropriation of TKaGRs located in the South by commercial interests usually located in the North. Significant attention and resources are being channeled at global efforts to design and implement effective protection mechanisms for TKaGRs against the incidence of biopiracy. The emergence and recent entry into force of the Nagoya Protocol offers the latest example of a concluded multilateral effort in this regard. The Nagoya Protocol, adopted on the platform of the Convention on Biological Diversity (CBD), establishes an open-ended international access and benefit sharing (ABS) regime which is comprised of the Protocol as well as several complementary instruments. By focusing on the trans-regime nature of biopiracy, this thesis argues that the intellectual property (IP) system forms a central part of the problem of biopiracy, and so too to the very efforts to implement solutions, including through the Nagoya Protocol. The ongoing related work within the World Intellectual Property Organization (WIPO), aimed at developing an international instrument (or a series of instruments) to address the effective protection of TK, constitutes an essential complementary process to the Nagoya Protocol, and, as such, forms a fundamental element within the Nagoya Protocol’s evolving ABS regime-complex. By adopting a third world approach to international law, this thesis draws central significance from its reconceptualization of biopiracy as a trans-regime concept. By construing the instrument(s) being negotiated within WIPO as forming a central component part of the Nagoya Protocol, this dissertation’s analysis highlights the importance of third world efforts to secure an IP-based reinforcement to the Protocol for the effective eradication of biopiracy.