Author: Shaun Fluker Page 18 of 38

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

By: Shaun Fluker

PDF Version: Apply … Deny … Repeat: A Victim of Crime Story

Case Commented On: Johnson v Alberta Criminal Injuries Review Board, 2017 ABCA 281 (CanLII)

This decision caught my attention because it reminded me of the movie Edge of Tomorrow wherein the main character lives the same day over and over fighting and dying in a repetitive time loop. Johnson v Alberta Criminal Injuries Review Board concerns an application by Johnson for a financial award under the Victims of Crime Act, RSA 2000 c V-3 as compensation for an injury he sustained as the victim of a stabbing. His initial 2010 application for compensation has been considered in numerous administrative adjudications under the Act and judicial scrutiny, and this most recent decision by the Court of Appeal sends it back for yet one more consideration. It is an interesting glimpse into a repetitive loop formed within an administrative regime, and the case also demonstrates why judicial oversight over the exercise of statutory power is an essential component of our legal system.

Chronicles of the Canadian High Court of Environmental Justice: Wildlands League v Ontario (Natural Resources and Forestry)

By Shaun Fluker

On July 10, 2017

In Environmental, Protection of Species

By: Shaun Fluker

PDF Version: Chronicles of the Canadian High Court of Environmental Justice: Wildlands League v Ontario (Natural Resources and Forestry)

Case Commented On: Wildlands League v Ontario (Natural Resources and Forestry), 2016 ONCA 741 (CanLII) (leave denied, [2016] SCCA No 549)

In a decision issued May 4, 2017 the Supreme Court of Canada denied the Wildlands League and Federation of Ontario Naturalists leave to appeal a decision of the Ontario Court of Appeal dismissing their application for judicial review on the vires of regulations enacted by the Lieutenant Governor in Council under the Ontario Endangered Species Act 2007, SO 2007, c 6 [Ontario ESA]. The Supreme Court did not provide reasons for denying leave. The applicants seek a declaration from this Court that the regulations are ultra vires the Lieutenant Governor in Council on the ground that the regulations defeat the purpose of the Ontario ESA to facilitate the protection and recovery of endangered species in Ontario.

Let’s Shine Some Light into Creative Environmental Sentencing

By Shaun Fluker

On June 21, 2017

In Environmental, Provincial Court

By: Shaun Fluker

PDF Version: Let’s Shine Some Light into Creative Environmental Sentencing

Case Commented On: R v Canadian National Railway Company sentencing order dated June 2, 2017 (ABPC)

On June 12 the Alberta government announced that Canadian National Railway Company (CN Rail) had pled guilty to two offences under the Environmental Protection and Enhancement Act, RSA 2000, c E-12 (EPEA) with respect to the release of hydrocarbons that occurred in April 2015. The penalty imposed on CN Rail was a total of $125,000, consisting of $15,000 in fines and a $110,000 payment in funds directed to the Edmonton and Area Land Trust to support conservation in the Edmonton region with a focus on aquatic and riparian habitat. This payment of funds to the Land Trust is known as a creative environmental sentence, and this post asks some critical questions about how this increasingly popular form of punishment for environmental offences is being implemented in Alberta.

Federal Court Grants Alberta Leave to Intervene in TransMountain Proceedings: Has Alberta Earned the Privilege?

By Shaun Fluker

On June 2, 2017

In Aboriginal, Intervenors and Standing, Oil & Gas

By: Shaun Fluker

PDF Version: Federal Court Grants Alberta Leave to Intervene in TransMountain Proceedings: Has Alberta Earned the Privilege?

Case Commented On: Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 102 (CanLII)

In Tsleil-Waututh Nation v Canada (Attorney General) Justice Stratas deals with two leave to intervene motions filed in the consolidated Kinder Morgan TransMountain pipeline judicial review proceedings currently before the Federal Court of Appeal. Justice Stratas grants Alberta’s application to intervene on the presumption that the Crown represents the interest of Albertans in the proceedings (at paras 11-27) and denies the application to intervene made by the Tsartlip First Nation on the basis it is really an application for judicial review under the guise of an intervention and its submissions would be duplicative of existing parties (at paras 35-54). Both applications were opposed by existing parties – the Tsleil-Waututh Nation opposed Alberta’s intervention and Kinder Morgan opposed the Tsartlip intervention. This comment focuses on the reasoning given by Justice Stratas in granting Alberta intervener status in these proceedings, and in particular I question why Alberta was not asked to justify or explain its basis for intervening in these proceedings. The privilege of representing the public interest is something which must be earned, and it isn’t clear to me Alberta has done so in this case.

The Expert Panel Report on Federal Environmental Assessment: Discretion, Transparency, and Accountability

By Shaun Fluker

On April 19, 2017

In Environmental

By: Shaun Fluker and Drew Yewchuk

PDF Version: The Expert Panel Report on Federal Environmental Assessment: Discretion, Transparency, and Accountability

Report Commented On: Expert Panel on the Review of Federal Environmental Assessment Processes, Building Common Ground: A New Vision for Impact Assessment in Canada

Last November, the University of Calgary’s Public Interest Law Clinic, on behalf of the Canadian Parks and Wilderness Society (CPAWS) Southern Alberta Chapter, presented to the Expert Panel responsible for Canada’s federal environmental assessment process. The presentation focused exclusively on problems with the federal environmental assessment process in Canada’s national parks under the Canadian Environmental Assessment Act 2012, SC 2012 c 19 s 52 (CEAA 2012). We described that presentation here, and the full written submission to the Panel including exhibits is available here (CPAWS Submission). The Expert Panel Report, Building Common Ground: A New Vision for Impact Assessment in Canada, was released April 5, 2017. Professor Arlene Kwasniak provided some background and an overview of key aspects of the report here. CPAWS left the Expert Panel with three messages in relation to the current federal environmental assessment process in the national parks: there is (1) too much discretion; (2) not enough transparency; and (3) a complete lack of accountability. In this post, we comment on how the Report addresses each of these points.

As an overall comment, it is disappointing the Expert Panel did not specifically address environmental assessment in the national parks. The Report focuses on sustainability as the measuring stick for impact assessment: “Federal IA [impact assessment] should provide assurance that approved projects, plans and policies contribute a net benefit to environmental, social, economic, health and cultural well-being.” (at 2.1.3) While sustainability is a commendable objective generally, this commitment to sustainability and its polycentric consideration of factors is not consistent with the legislated priority of maintaining or restoring ecological integrity in the national parks. The legislated ecological integrity mandate set out in section 8(2) of the Canada National Parks Act, SC 2000 c 32 demands an assessment process which skews in favour of environmental protection over economic and other social considerations. Perhaps, however, the Expert Panel was thinking of national parks and the ecological integrity mandate in its recommendation for regional impact assessments. The Report specifically calls for regional impact assessments that address matters such as baseline conditions and thresholds for federal lands with the potential for cumulative effects problems (at 3.5).