Author Archives: Shaun Fluker

About Shaun Fluker

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

What Policy Direction should Alberta Follow on Carbon Emissions?

By: Shaun Fluker

PDF Version: What Policy Direction should Alberta Follow on Carbon Emissions?

Matter Commented On: Climate Leadership – Discussion Document (Government of Alberta, August 2015)

Alberta’s Climate Change Advisory Panel is seeking public input on what direction provincial climate change policy should follow going forward. One method of providing your input is to complete an online survey on or before September 18. This is the second part of a two-step process announced by the Minister of Environment and Parks in late June 2015 (see here for the post by my colleague Nigel Bankes on this announcement). To inform this important public dialogue, in August 2015 the Climate Change Advisory Panel published the Climate Leadership – Discussion Document. This 62 page document sets out the overall carbon emissions profile in Alberta (at 9 – 17) and then discusses emissions by individual economic sector and summarizes policy tools that have been used in Alberta and elsewhere to reduce emissions in that sector: oil & gas (at 20 – 26), electricity (at 27 – 34), transportation (at 35 – 40), commercial and residential buildings (at 41 – 46), industrial and manufacturing (at 47 – 51), agriculture, forestry, and waste (at 52 – 56). The Minister’s announcement together with the overall tone and content of the discussion document make it clear the current intensity-based emissions reduction policy implemented by the Specified Gas Emitters Regulation, Alta Reg 139/2007 will be replaced on or before the end of 2017. I believe the centrepiece of Alberta’s new direction should be joining the cap-and-trade system currently operating in Quebec and California, along with Ontario which in April 2015 announced its intention to join.

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At Long Last – Legal Protection for the Castle Wilderness

By: Shaun Fluker

PDF Version: At Long Last – Legal Protection for the Castle Wilderness

Matter Commented On: Alberta Environment and Parks, News Release “Province to fully protect Castle area” (September 4, 2015)

On September 4 the Alberta government announced its intention to legally protect the area in southwestern Alberta known as the Castle wilderness with a new wildland provincial park and a new provincial park. What this legal protection exactly amounts to remains to be seen, but the September 4 announcement states there will be no further approvals granted for resource development in the Castle and existing approvals, other than for oil & gas, will be cancelled. Readers who follow land use decision-making in Alberta will know this announcement follows on the heels of the South Saskatchewan Regional Plan which was enacted just one year ago in September 2014 with its own direction for protecting the Castle. And those familiar with the Castle wilderness specifically will know this announcement is a monumental shift in policy direction. What follows is some context for this announcement, and some consideration of the applicable law in relation to implementing this new policy direction. The analysis concludes by suggesting the Alberta government consider enacting dedicated legislation to protect the Castle wilderness.

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Justice for the Western Chorus Frog?

By: Shaun Fluker

PDF Version: Justice for the Western Chorus Frog?

Case Commented On: Centre Québécois du droit de l’environnement v Canada (Environment), 2015 FC 773 (CanLII), TransCanada PipeLines Limited King’s North Connection Pipeline Project (July 2015), GHW-001-2014 (National Energy Board)

These two decisions were issued about a week apart in late June, and have nothing in common except for the fact that both concern the threatened Western Chorus Frog species in Canada. Québécois du droit de l’environnement v. Canada (Environment) is a Federal Court judgment issued by Justice Martineau ordering the federal Minister of the Environment to reconsider her refusal to issue an emergency protection order for the Western Chorus Frog under section 80 of the Species at Risk Act, SC 2002, c 29. The King’s North Connection Pipeline Project decision issued by the National Energy Board under section 58 of the National Energy Board Act RSC 1985, c N-7 exempts TransCanada from having to obtain a certificate under section 31 and thus effectively approves the construction of an 11 kilometre gas pipeline thru known habitat for the Western Chorus Frog in southern Ontario. I consider these posts together as a means for another comment on the intersection between species at risk protection and development in Canada. These decisions also demonstrate that species at risk issues can arise in congested urban areas, not just in the far away wilds.

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Statutory Interpretation and the Traffic Safety Act

By: Shaun Fluker

PDF Version: Statutory Interpretation and the Traffic Safety Act

Case Commented On: R v Kirollos, 2015 ABQB 474

Anyone who drives a vehicle in Alberta knows the law requires the vehicle be registered and insured. The two requirements effectively go hand-in-hand since obtaining a current registration at a registry office will require that you produce evidence of insurance coverage for the vehicle. The legal rules themselves are set out in the Traffic Safety Act, RSA 2000 c T-6 and if you fail to comply with these rules before a police officer you may find yourself in Traffic Court. R v Kirollos is decision by Madam Justice J.B. Veit concerning the appeal by Kirollos to the Court of Queen’s Bench of his conviction in Traffic Court on two counts: (1) failure to have insurance for his vehicle; and (2) failure to produce a certificate of registration for his vehicle. Justice Veit overturns the conviction of Kirollos on count #1 and she orders a new trial on count #2. This comment serves as a reminder on the importance of statutory interpretation in the law as I prepare to introduce the subject to a new class of law students next month.

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Some Observations about Evidence in the Electronic Age

By: Shaun Fluker

PDF Version: Some Observations about Evidence in the Electronic Age

Case Commented On: Kon Construction v Terranova Development, 2015 ABCA 249

This Court of Appeal decision concerns a dispute over the performance of a contract. Terranova retained Kon Construction to grade lands for residential development. The work was to be done in 2005 but was delayed into 2006 and the agreement went sour. Kon Construction filed a claim for unpaid invoices and Terranova counterclaimed that Kon Construction breached the agreement on a number of grounds thereby allowing it to retain another firm to complete the grading work. At trial Madam Justice B.A.Brown ruled that Terranova did not have grounds to terminate its contract with Kon Construction and was therefore liable for a portion of the unpaid invoices which she found had been improperly inflated (Kon Construction v Terranova Development, 2014 ABQB 256). The issues on appeal were primarily on the admissibility of certain electronic records.

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