Author Archives: Shaun Fluker

About Shaun Fluker

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

The Cost of Justice for the Western Chorus Frog

PDF Version: The Cost of Justice for the Western Chorus Frog

Case Commented On: 9255-2504 Québec Inc. v Canada, 2020 FC 161 (CanLII)

This decision is a bit dated as it was issued back in January, but an English translation was only recently published and it caught my attention because I have been following the saga of the western chorus frog under the Species at Risk Act, SC 2002, c 29 (SARA) for several years (see Justice for the Western Chorus Frog? and More Justice for the Western Chorus Frog). In many ways, the case of the western chorus frog encapsulates the SARA story since it was enacted back in 2003: politics over science; missed statutory deadlines; and inadequate funding. SARA has certainly systematized efforts to develop recovery frameworks for threatened species and provided some additional transparency. However, the legislation has done very little to actually protect critical habitat beyond what would already be available under protected area or wildlife legislation. 9255-2504 Québec Inc. v Canada offers a glimpse into the question of who pays the cost of protecting critical habitat for a threatened species. The judgment also includes an unusual amount of detailed testimony from federal officials on how SARA has been applied in this case. Accordingly, this is an important decision not just for the western chorus frog but for all SARA-listed species and those interested in following the application of SARA generally.

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Some Comments on Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020

By: Shaun Fluker

PDF Version: Some Comments on Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020

Legislation Commented On: Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020, 2nd Sess, 30th Leg, Alberta, 2020

Lawmaking by the Alberta government in response to COVID-19 has been somewhat disorganized and very non-transparent. As well, Alberta seems to be the only Canadian jurisdiction which seized on the public health emergency as an opportunity to double-down on Henry VIII lawmaking by the Executive. These are troubling observations in a political system where the legitimacy of governance is based upon an open, accountable, and predictable legislative process. The need to act swiftly and flatten the curve of COVID-19 certainly justified some deviation from the lawmaking norm in a representative democracy, but Alberta has relied extra heavily on executive and delegated legislative authority in its COVID-19 lawmaking. Accordingly, it would have been reasonable to expect the Legislature to restore some normalcy to lawmaking when the state of public emergency ended in Alberta on June 15.

On June 18, the Minister of Health introduced Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020 into the Legislature, and most of the Act came into force on June 26 with royal assent. As the Legislature’s first comprehensive post-emergency response to COVID-19, as opposed to subject-specific legislation or the lawmaking thus far enacted by the Executive and its delegates, it is disappointing to observe how little this statute offers. However, on its first reading the Minister of Health did at least promise a forthcoming comprehensive review of the Public Health Act, RSA 2000, c P-37, and Bill 24 requires this to commence no later than August 1.

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Oil and Gas Consortium Intervenes in the Jurisdictional Challenge to the Alberta Inquiry into Anti-Alberta Energy Campaigns

By: Shaun Fluker

PDF Version: Oil and Gas Consortium Intervenes in the Jurisdictional Challenge to the Alberta Inquiry into Anti-Alberta Energy Campaigns

Case Commented On: Ecojustice Canada Society v Alberta, 2020 ABQB 364 (CanLII)

In July 2019, the Lieutenant Governor in Council commissioned the Allan Inquiry with Order in Council OC 125/2019, issued under section 2 of the Public Inquiries Act, RSA 2000, c P-39. The Order in Council directs Commissioner Steve Allan to investigate and report on any anti-Alberta energy campaigns that are supported, in whole or in part, by foreign organizations. Several ABlawg posts have been critical of the Allan Inquiry, commenting on its mandate, process, interference with the freedom of expression protected by the Charter, and lack of transparency. Ecojustice has brought an application for judicial review seeking an order quashing Order in Council 125/2019 and prohibiting the Allan Inquiry from proceeding. This post comments on a decision by Justice Karen M. Horner granting an application made by an “Industry Consortium” for leave to intervene in this proceeding.

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AER Refuses Transfer of Foothills Sour Gas Approvals from Shell Canada to Pieridae Energy

By: Shaun Fluker and Nigel Bankes

PDF Version: AER Refuses Transfer of Foothills Sour Gas Approvals from Shell Canada to Pieridae Energy

Decision Commented On: Alberta Energy Regulator Decision, Shell Canada Limited Transfer of Ownership Including the Waterton Sour Gas Plant EPEA Application No 021-258 and Jumping Pound Sour Gas Plant EPEA Application No. 015-11587, May 13, 2020

On May 13, the Alberta Energy Regulator (AER) denied an application by Shell Canada to transfer regulatory approvals with respect to its foothills sour gas assets (facilities, wells, pipelines, and related infrastructure) to Pieridae Energy. The subject approvals are issued under a host of energy and environmental legislation, including the Environmental Protection and Enhancement Act, RSA 2000, c E-12 (EPEA). This post comments on the rationale given by the AER for this decision.

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COVID-19 and the Suspension of Environmental Monitoring in the Oil Sands

By: Shaun Fluker

PDF Version: COVID-19 and the Suspension of Environmental Monitoring in the Oil Sands

Decisions Commented On: Alberta Energy Regulator Decisions 20200505A, 20200501C, 20200501B, and 20200501A

Last week the Alberta Energy Regulator (AER) issued decisions 20200429D (subsequently replaced with 20200505A), 20200501C, 20200501B, and 20200501A, which suspend environmental monitoring requirements associated with oil sands mines operated by Canadian Natural Resources Limited, Suncor Energy, Fort Hills Energy Corporation, Syncrude Canada, and Imperial Oil Resources Limited. These decisions relieve the named operators from environmental monitoring on matters such as groundwater, surface water, sulphur emissions, wildlife, and wetlands. The suspension is in place until further notice. Similar to Order 17/2020 issued by the Minister of Environment and Parks under section 52.1 of the Public Health Act, RSA 2000, c P-37, which suspended routine environmental reporting by industry, these AER decisions were made in response to COVID-19 but offer little justification for granting such extraordinary relief from regulatory requirements.

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