Author Archives: Shaun Fluker

About Shaun Fluker

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

Unlawful Delay in the Preparation of Recovery Strategies under SARA and New Questions about Northern Gateway

By: Shaun Fluker

PDF Version: Unlawful Delay in the Preparation of Recovery Strategies under SARA and New Questions about Northern Gateway

Case commented on: Western Canada Wilderness Committee v Canada (Fisheries and Oceans), 2014 FC 148

The federal government is failing to adhere to legislated timeframes for implementing recovery strategies under the Species at Risk Act, SC 2002, c 29 (SARA). In Western Canada Wilderness Committee v Canada (Fisheries and Oceans), 2014 FC 148, the Federal Court has declared this to be unlawful conduct by the Minister of Fisheries and Oceans and the Minister of the Environment in relation to 4 species at risk: the pacific northwest humpback whale; marbled murrelet; woodland caribou (southern population); and Nechako river white sturgeon. Readers may recall that I referred to these proceedings in my recent post concerning the Northern Gateway pipeline recommendation. The failure by the Ministers to adhere to SARA timelines was never in dispute here, the argument of the parties and the decision by the Honourable Madam Justice Mactavish instead focuses on the legal consequences this failure.

Continue reading →

Get Ready For a Whale of a Time: Northern Gateway and Species at Risk

By: Shaun Fluker

PDF Version: Get Ready For a Whale of a Time: Northern Gateway and Species at Risk

Decision commented on: Report of the Joint Review Panel for the Enbridge Northern Gateway Project

In December 2013 federal authorities recommended the construction of the Enbridge Northern Gateway pipeline to transport bitumen from the Alberta oil sands to the west coast. Professor Martin Olszynski has previously commented on Northern Gateway here, and my comment adds to his by investigating in particular how species at risk factor into the Northern Gateway report. But prior to getting there, I can’t resist a few general remarks.

Continue reading →

The Curious Case of the Greater Sage Grouse in Alberta

By Shaun Fluker

PDF Version: The Curious Case of the Greater Sage Grouse in Alberta

Legislation commented on: Emergency Order for the Protection of the Greater Sage Grouse, PC 2013-2045

The Greater Sage Grouse is on the brink of disappearing from the Canadian landscape and, in doing so, is leaving its mark on the Species at Risk Act, SC 2002, c 29 (SARA). Readers may recall that the sage grouse recovery strategy prepared under SARA was the subject of dispute several years back over the extent to which critical habitat for a species listed as endangered or threatened must be identified in the strategy (See Nigel Bankes’ ABlawg post “Is SARA growing teeth?”). The sage grouse recovery strategy has recently been amended (2013) to include all known critical habitat – both mating sites and year-round habitat – in Canada and to identify threats to the sage grouse (see here). But since the overwhelming majority of sage grouse habitat falls on provincial lands in Alberta, SARA offers little real protection to the sage grouse here in the absence of an Order in Council from federal Cabinet directing that SARA apply to provincial lands. Cabinet issued an Emergency Protection Order under section 80 of SARA in December 2013 that, to my surprise, applies to Alberta lands and the Order comes into force on February 18, 2014. This comment discusses the significance of the Order, adding to existing commentary (see Martin Olszynski’s earlier ABlawg post here, Janice Walton of Blakes LLP here and Jason Unger of the Environmental Law Centre here).

Continue reading →

Protecting Alberta’s Environment Act: A Keystone Kops Response to Environmental Monitoring and Reporting in Alberta

By Shaun Fluker

PDF Version: Protecting Alberta’s Environment Act: A Keystone Kops Response to Environmental Monitoring and Reporting in Alberta

Legislation commented on: Protecting Alberta’s Environment Act, SA 2013, c P-26.8

The Protecting Alberta’s Environment Act received royal assent on December 11, 2013, and the statute will come into force on proclamation at a later date. The title of this new legislation suggests it is a reworking of environmental protection laws, along the lines of the Alberta Land Stewardship Act, SA 2009, c A-26.8, which enacted a new framework for land use planning in 2009, or the Responsible Energy Development Act, SA 2012, c R-17.3,which reconfigured energy project regulation this year in Alberta. Anyone with these kinds of expectations will be disappointed though. The sweepingly broad title is misleading as the Act really just targets environmental monitoring and reporting, and is the Alberta legislature’s response to the 2012 Report issued by the Alberta Working Group on Environmental Monitoring, Evaluation and Reporting (see here). What follows are my comments on the Protecting Alberta’s Environment Act. My overall synopsis is that the Act accomplishes very little, reads as if it was put together in a hurry, and unfortunately allows politics to override science and transparency when it comes to environmental monitoring and reporting.

Continue reading →

Amended Rules of Practice for the Alberta Energy Regulator: More Bad News for Landowners and Environmental Groups

PDF Version: Amended Rules of Practice for the Alberta Energy Regulator: More Bad News for Landowners and Environmental Groups

Legislation commented on: Alberta Energy Regulator Rules of Practice as amended by Alta Reg 203/2013

In the Fall of 2012 ABlawg published a series of entries concerning the enactment of the Responsible Energy Development Act, SA 2012, c R-17.3 (REDA) and the transition to a single regulator for energy projects in Alberta. That transition is now underway. The Alberta Energy Regulator is responsible for the approval and ongoing oversight of energy projects – and will soon be responsible for all energy project approvals and oversight other than the disposition of mineral rights by Alberta Energy.

Continue reading →