Author Archives: Shaun Fluker

About Shaun Fluker

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

Let’s Shine Some Light into Creative Environmental Sentencing

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. Continue reading →

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

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. Continue reading →

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

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). Continue reading →

Jurisdictional Matters Concerning Environmental Protection Orders Under the Environmental Protection and Enhancement Act

By: Shaun Fluker

PDF Version: Jurisdictional Matters Concerning Environmental Protection Orders Under the Environmental Protection and Enhancement Act

Case Commented On: Director (EAP) v Alberta (Provincial Court), 2017 ABQB 3 (CanLII)

During April and May of 2010 a significant gasoline spill occurred at a gas station located at 6336 Bowness Road in Calgary. The underground petroleum plume spread to adjacent properties, and in December 2010 the Director of Alberta Environment issued a remediation order under the Environmental Protection and Enhancement Act, RSA 2000, c E-12 (EPEA). The site is now an empty lot, and while remediation activities have been conducted there is disagreement on whether the property is fully cleaned up. Metaphorically speaking, this petroleum plume also spread to the Alberta legal system. A preliminary search in preparation for writing this comment revealed no less than 10 decisions concerning the spill: (1) the Director’s December 2010 remediation order; (2) a December 2011 decision by the Alberta Environmental Appeals Board concerning an appeal of the December 2010 remediation order (Gas Plus Inc and Handel Transport v Director (Alberta Environment), Appeals No 10-034, 11-002, 008 & 023R; (3) a revised remediation order issued in January 2012 incorporating the Board’s recommendations; (4) an Order of the Court of Queen’s Bench issued in December 2012 concerning the January 2012 revised remediation order; (5) 2 interlocutory decisions by the Court of Queen’s Bench in relation to civil proceedings concerning the spill (Floate v Gas Plus, 2015 ABQB 545 (CanLII) and Floate v Gas Plus, 2015 ABQB 725 (CanLII)); (6) a decision by the Calgary Development Authority to deny a permit to construct a new gas station on the site and a March 2015 decision by the Calgary Subdivision and Development Appeal Board dismissing an appeal of the development decision (Re SDAB2014-0146, 2014 CGYSDAB 146 (CanLII)); and (7) a decision issued in January 2017 by the Honourable Mr Justice P.R. Jeffrey quashing a mediation order issued by the Honourable Judge H.A. Lamoureux in relation to the dispute over remediation. This comment examines this most recent decision by Justice Jeffrey in Director (EAP) v Alberta (Provincial Court), 2017 ABQB 3 (CanLII), which addresses jurisdictional matters concerning environmental protection orders under EPEA and the inherent authority of the court. Continue reading →

Municipal Government Board Rules on Development Impacts to the G8 Legacy Wildlife Underpass in the Bow Valley

By: Shaun Fluker

PDF Version: Municipal Government Board Rules on Development Impacts to the G8 Legacy Wildlife Underpass in the Bow Valley

Case Commented On: Town of Canmore v M.D. of Bighorn No. 8, 2017 ABMGB 10

Say again? The Municipal Government Board created by the Municipal Government Act, RSA 2000, c M-26 to adjudicate on municipal affairs such as linear property assessment, annexation, subdivision, and inter-municipal disputes has ruled on a significant wildlife issue in the Bow Valley? And not just any wildlife issue – a dispute concerning the functionality of the G8 Legacy Wildlife Underpass – a key wildlife connectivity feature located just east of Canmore and built with funds provided from the G8 Economic Summit hosted in Kananaskis during June 2002. How can this be? Well really, it should not be. There is a longstanding and seemingly bitter municipal dispute ongoing between the MD of Bighorn and Canmore over urban development in the Bow Valley, and the Board has just ruled in favour of proposed development by the MD of Bighorn for the hamlet of Dead Man’s Flats. However, the dispute between the MD of Bighorn and Canmore over development is just smoke and mirrors for what is really at stake here – the integrity of the G8 Legacy Wildlife Underpass as a highly used connectivity feature that allows wildlife to avoid crossing the highway while moving through the human-congested Bow Valley. With all due respect to the members of the Municipal Government Board who heard this matter and deliberated on the issues, I think the Board accepted pie-in-the-sky solutions to a serious and escalating land use problem in the Bow Valley. In my humble opinion the Board ought to have declined jurisdiction to hear this dispute. For reasons set out below, I suggest the Lieutenant Governor in Council should refer this to the Natural Resources Conservation Board pursuant to section 4(f) of the Natural Resources Conservation Act, RSA 2000, c N-3.  Continue reading →