Author Archives: Shaun Fluker

About Shaun Fluker

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

Justice for the Westslope Cutthroat Trout at Grassy Mountain

By: Shaun Fluker

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Decision Commented On: Report of the Joint Review Panel: Benga Mining Limited Grassy Mountain Coal Project, 2021 ABAER 010

On June 17, 2021, the Alberta Energy Regulator (AER) denied an application by Benga Mining Limited under the Coal Conservation Act, RSA 2000, c C-17, for approvals to construct, operate and reclaim an open-pit metallurgical coal mine (along with associated processing, transportation and related infrastructure) on the montane and subalpine lands of Grassy Mountain in the Crowsnest Pass region of southwestern Alberta. The application was considered by a federal-provincial joint review panel governed by terms of reference established under the Responsible Energy Development Act, SA 2012, c R-17.3, and the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 (CEAA 2012), terms which instructed the panel to exercise AER decision-making authority under the Coal Conservation Act and assess the environmental, economic, and social impacts of the project under various provincial statutes and CEAA 2012 (the federal registry for the environmental impact assessment is here). The panel’s decision consists of a whopping 3072 paragraphs (631 pages not including appendices). This comment focuses on the AER portion of this decision, and in particular just one aspect of this decision: the confrontation between coal development and preservation of the threatened Alberta population of westslope cutthroat trout (WSCT) along the eastern slopes of the Rocky Mountains. This comment is not reviewing the CEAA 2012 findings and recommendations because, as the panel indicates at paragraph 3066, without the provincial authorizations the project cannot proceed. Continue reading →

Kananaskis Conservation Pass

By: Shaun Fluker

PDF Version: Kananaskis Conservation Pass

Ministerial Order Commented On: Ministerial Order 51/2021 (Environment and Parks)

On May 27, the Minister of Environment and Parks (Jason Nixon) issued Ministerial Order 51/2021 to impose a fee to access Kananaskis Country. This new access fee applies to many popular parks and recreational areas in Kananaskis Country such as West Bragg Creek, Barrier Lake, Elbow Falls, Evans Thomas Creek, Spray Lakes, and Highwood Pass. Payment of the fee provides the purchaser with a Kananaskis Conservation Pass. The geographic scope of the fee requirement is curiously both over and under inclusive in relation to its name. The boundary map on the Alberta parks website (and attached to Ministerial Order 51/2021) indicates the access fee applies to areas outside of what is commonly known as Kananaskis Country (e.g. portions of the Bow Valley Wildland Park east of Canmore, including Grotto Canyon and Mount Yamnuska) and – as was pointed out by Nathan Schmidt (JD 2021) here – the fee does not apply to the McLean Creek area which is clearly within Kananaskis Country. This post critically examines the legislative changes made to implement the Kananaskis Conservation Pass requirement. Continue reading →

COVID-19 and Enforcement of Public Health Orders

By: Shaun Fluker

PDF Version: COVID-19 and Enforcement of Public Health Orders 

Legislation Commented On: Procedures (Public Health) Amendment Regulation, Alta Reg 92/2021

This amendment to the Procedures Regulation, Alta Reg 63/2017, was recently made by the Lieutenant Governor in Council with Order in Council 124/2021 (May 5, 2021). The amendment raises the specified penalty (the violation ticket amount) from $1000 to $2000 for contravention of a Chief Medical Officer of Health (CMOH) public health order issued under section 29 of the Public Health Act, RSA 2000, c P-37. The amendment came into force on May 19, 2021. This is the fine payable by a person who chooses to plead guilty (see Part 2 of the Provincial Offences Procedure Act, RSA 2000, c P-34) for such things as not wearing a mask where required, gathering in large groups outside, allowing non-family members into their home, or not keeping two metres apart from others. Premier Kenney announced the increased fine on May 4 during the initial ‘Stop the Spike’ announcement where the Premier also warned Albertans that section 73 of the Public Health Act provides for a penalty as high as $100,000 for a first offence in these matters. This is part of Alberta’s response to calls for stronger enforcement on non-compliance with COVID-19 public health orders. The third wave of this pandemic gave us a full display of just how inadequate the bare threat of legal enforcement is towards ensuring compliance with these rules. This deficiency in the authoritative punch of COVID-19 public health orders is also the reason why Alberta (and other provinces) went to the extreme measure of obtaining an injunction from the Court of Queen’s Bench to prohibit the very public and orchestrated violations of COVID-19 public health orders. While politicians across Canada begin to engage in what might end up being a foolhardy race to be the first jurisdiction to end COVID-19 restrictions (Premier Kenney announced Alberta’s ambitious Open for Summer Plan on May 26 – just three weeks after announcing tougher enforcement measures), it would be wise for these lawmakers to pause, reflect, and heed some lessons from the compliance and enforcement mess associated with their COVID-19 public health orders. Continue reading →

Proposed Amendments to the Public Health Act Confirm (Retroactively?) the Validity of the Chief Medical Officer of Health’s COVID-19 Legislation

By: Shaun Fluker and Lorian Hardcastle

PDF Version: Proposed Amendments to the Public Health Act Confirm (Retroactively?) the Validity of the Chief Medical Officer of Health’s COVID-19 Legislation

Bill Commented On: Bill 66, Public Health Amendment Act, 2021, 2nd Sess, 30th Leg, Alberta, 2021 (first reading 12 April 2021)

On April 12, the Minister of Health tabled Bill 66, the Public Health Amendment Act, 2021, in the Legislative Assembly for first reading. This Bill proposes amendments to the Public Health Act, RSA 2000, c P-37, on matters such as the qualifications for public health officials, developing plans to address chronic disease and injury prevention, the privacy of certain public health records, and decriminalizing the inhalation of intoxicants. As we discuss in this post, the Bill also proposes to address governance issues associated with the exercise of legislative powers by medical officers of health and Ministers under the Act, issues that have previously been identified on ABlawg (see e.g. here, here, and here). These amendments are a step in the right direction, but far more needs to be done to preserve the rule of law during exceptional times where executive rule by fiat has been uncomfortably normalized within a democracy.

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Federal Government Declines Emergency Order for Southern Mountain Caribou

By: Shaun Fluker

 PDF Version: Federal Government Declines Emergency Order for Southern Mountain Caribou

Matter Commented On: Government of Canada, Statement: Government of Canada’s approach to addressing the imminent threats to the recovery of Southern Mountain Caribou (18 March 2021)

The federal government recently added a Statement on Southern Mountain Caribou to the species at risk public registry announcing that the Governor in Council has declined to issue an emergency protection order under section 80 of the Species at Risk Act, SC 2002, c 29. This statement was a response to the recommendation for the order made by the federal Minister of the Environment following her finding in March 2018 that the southern mountain caribou face an imminent threat to their recovery. I wasn’t planning to comment on this announcement because it is fully consistent with the federal strategy of deference to the provinces on the woodland caribou file, a strategy which I debunked recently in Canada and Alberta Agree to More Pie-In-The-Sky on Woodland Caribou. Accordingly, this announcement was not surprising, or particularly newsworthy in Alberta. However, I changed my tune last Friday afternoon while perusing my inbox looking for a weekly fix of Alberta government spin, and Jason Nixon, the Alberta Minister of Environment and Parks, did not disappoint with his comments in Federal recognition of Alberta’s caribou recovery efforts: Minister Nixon, expressing that the federal Statement is a recognition of Alberta’s strong caribou recovery efforts to date.

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