Author Archives: Shaun Fluker

About Shaun Fluker

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary). Associate Professor. Please click here for more information.

Oversight and Enforcement in Bill C-69 Re: the Impact Assessment Act and the Canadian Energy Regulator Act

By: Shaun Fluker

PDF Version: Oversight and Enforcement in Bill C-69 Regarding the Impact Assessment Act and the Canadian Energy Regulator Act

Bill Commented On: Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts

This post continues the conversation on ABlawg regarding Bill C-69. Martin Olszynski and Nigel Bankes provided an overview of the proposed Impact Assessment Act and Canadian Energy Regulator Act here and here. This post examines some of the oversight and enforcement provisions in the Bill, looking specifically at changes with respect to oversight by the Federal Court and enforcement of project conditions. There are a couple of problems which deserve some attention as Bill C-69 makes its way through the legislative process. Continue reading →

Alberta Releases Draft Woodland Caribou Range Plan: Pie in the Sky

By: Shaun Fluker

PDF Version: Alberta Releases Draft Woodland Caribou Range Plan: Pie in the Sky

Matter Commented On: Alberta Draft Woodland Caribou Range Plan

In late December, Alberta issued its draft Woodland Caribou Range Plan. The Government is seeking public input on the content of this Caribou Range Plan, and is hosting several in-person community sessions over the next couple of months. For more detail on how to submit your comments or attend one of the face-to-face sessions, see here. The Caribou Range Plan has been issued by Alberta in response to the federal Woodland Caribou Recovery Strategy issued in 2012 pursuant to the Species at Risk Act, SC 2002 c 29. The federal Recovery Strategy called upon the provinces to develop range plans by October 2017 to demonstrate how they will protect caribou habitat in their respective jurisdictions. The primary reason for why a federal strategy would rely on provincial action to meet its objectives is because the majority of caribou habitat in Alberta falls on provincial lands, and SARA has very little application on provincial lands. This comment explores the legal framework for the Caribou Range Plan and the content in the draft. Continue reading →

Procedural Fairness in the Issuance of a Ministerial Order to Dismiss a Municipal Councilor under Section 574 of the Municipal Government Act

By: Shaun Fluker

PDF Version: Procedural Fairness in the Issuance of a Ministerial Order to Dismiss a Municipal Councilor under Section 574 of the Municipal Government Act

Case Commented On: Buryn v Alberta (Minister of Municipal Affairs), 2017 ABQB 613 (CanLII)

Municipalities in Alberta are creatures of statute and thus subject to both the oversight of the Minister of Municipal Affairs (Minister) and Alberta courts. When the affairs in a municipality go offside, the Municipal Government Act, RSA 2000, c M-26 (MGA) provides mechanisms for bringing matters back into line. Municipal affairs in Thorhild County seem to have taken a turn for the worse several years ago, and led to the submission of a petition by electors asking the Minister to inquire into the conduct of the Thorhild municipal council and its chief administrative officer. The MGA provides the Minister with authority to conduct an inquiry into the affairs of a municipality or the conduct of municipal councilors. These powers are exercised on a fairly regular basis, with 33 entries listed on the government website since December 2009. The inspection into the affairs at Thorhild culminated in a Ministerial Order dismissing three members of the Thorhild council. On the eve of the recent municipal election, in Buryn v Alberta (Minister of Municipal Affairs) Madam Justice Dawn Pentelechuk quashed the Ministerial Order as unlawful for failing to afford the councilors procedural fairness.

Continue reading →

A Closer Look at Leave to Appeal Requirements Under the Municipal Government Act (Alberta)

By: Shaun Fluker

PDF Version: A Closer Look at Leave to Appeal Requirements Under the Municipal Government Act (Alberta)

Case Commented On: Arctos & Bird Management Ltd v Banff (Town), 2017 ABCA 300 (CanLII)

This is a decision by Justice Barbara Veldhuis to deny the applicant leave to appeal an approval for development of lands in the Town of Banff. Statutory leave to appeal decisions such as this rarely attract legal commentary because no substantive law is decided. These decisions result from an application before a justice in chambers from a person who seeks permission to proceed with a substantive appeal of an administrative decision. Nonetheless, I have been studying these leave to appeal decisions to better understand the basis upon which superior courts decide whether to hear an appeal from an administrative decision. Arctos & Bird Management provides me with an opportunity to add to the findings Drew Yewchuk and I previously disseminated on ABlawg in “Seeking Leave to Appeal a Statutory Tribunal Decision: What Principles Apply?” (“Seeking Leave”). Continue reading →

A Proposal for Effective Legal Protection for Endangered Species in Alberta: Introducing the Wildlife Species Protection and Recovery Act (Alberta)

By: Shaun Fluker

PDF Version: A Proposal for Effective Legal Protection for Endangered Species in Alberta: Introducing the Wildlife Species Protection and Recovery Act (Alberta)

Case Commented On: Wildlife Species Protection and Recovery Act, SA 2017, c W-?

I have followed law and policy on endangered species protection for nearly a decade, focusing primarily on Canada’s federal Species at Risk Act, SC 2002 c 29 [SARA]  and Alberta’s Wildlife Act, RSA 2000 c W-10 and the policies enacted thereunder. From time to time, I have glanced into the Ontario Endangered Species Act, 2007, SO 2007, c 6 [Ontario ESA] and observed a selection of decisions by the Ontario Environmental Review Tribunal – for example its decisions concerning the threatened blanding’s turtle. There are many who are working hard on the endangered species file, and some have enjoyed success in Federal Court obtaining rulings under SARA which are favourable towards protecting endangered species in Alberta and elsewhere. There is also an impressive amount of empirical research being conducted by scientists that sheds important light on the application of SARA. All of this is encouraging, but nevertheless I keep returning to an ABlawg post I wrote 7 years ago entitled Endangered species under Alberta’s Wildlife Act: Effective legal protection? In that piece I noted meaningful and effective legal protection for endangered species is largely a provincial matter in Canada and Alberta’s Wildlife Act does not provide effective legal protection for endangered species in this province. Nothing here has really changed since then. Enter the proposed Wildlife Species Protection and Recovery Act (Alberta). Continue reading →