Author: Shaun Fluker Page 3 of 37

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary).
Associate Professor.
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By: Shaun Fluker

Report Commented On: First Report on the implementation of the Section 11 agreement for the conservation and recovery of the woodland caribou in Alberta (January 19, 2024)

PDF Version: ‘Negative Population Growth’ for Boreal Caribou in Alberta

In late January, Alberta issued the first Report on implementation of the Agreement for the conservation and recovery of the Woodland Caribou in Alberta, signed by Alberta and Canada under section 11 of the Species at Risk Act, SC 2002, c 29 [SARA] in October 2020. Commentators have noted that the Report reveals little progress by Alberta on protecting what is left of boreal caribou in this province. This criticism is certainly warranted, however the commitments made by Alberta in this Agreement will never result in progress towards halting the march of caribou towards extirpation (see “Canada and Alberta Agree to More Pie-In-The-Sky on Woodland Caribou”). What the Report does make transparent is: (1) Alberta continues to authorize the destruction of caribou habitat despite saying publicly that the government is committed to achieving population recovery; and (2) Alberta’s only real action plan to save caribou is to kill wolves.

Grading the AER Liability Management Performance Report

By Shaun Fluker

On February 8, 2024

In Energy, Oil & Gas

By: Shaun Fluker, Drew Yewchuk, and Martin Olszynski

Report Commented On: Liability Management Performance Report

PDF Version: Grading the AER Liability Management Performance Report

On January 17, 2024 the Alberta Energy Regulator (AER) published a Liability Management Performance Report. This is the first published AER report to the public on progress being made by industry under the Liability Management Framework to reduce Alberta’s massive unfunded closure liability in the conventional (non-oil sands) oil and gas sector. The last comparable report from the AER on liability management was from September 2005. Somewhat predictably, in its news release, the AER reflected positively on industry’s performance and indicated that this will be an annual report with the objective of “. . . improving transparency of industry’s management of conventional oil and gas liabilities as well as to develop performance measure baselines and ongoing assessments of the industry as a whole and licensees specifically.” The response elsewhere was less enthusiastic. Some, like the Rural Municipalities of Alberta, reserved judgment pending further analysis; while others more critically noted that the Report curiously understates the overall liability amount, using a liability calculation method from 2015 that subsequent analysis by the AER revealed to be a vast under-estimation. The Report provides some aggregated data and licensee-specific information and accordingly gets partial marks for some transparency, but it absolutely fails to give the public adequate context to fully understand whether this should be read as good or poor performance by industry and says almost nothing at all about the AER’s performance. Secrecy and capture continue to govern liability management in Alberta.

Auditor General Updates Recommendations Unaddressed by the AER on the Effectiveness of Regulating Closure Liabilities in Conventional (Non-Oil Sands) Oil and Gas

By Shaun Fluker

On December 22, 2023

In Energy, Oil & Gas

By: Shaun Fluker, Drew Yewchuk, and Martin Olszynski

Report commented on: Report of the Auditor General – December 2023

PDF Version: Auditor General Updates Recommendations Unaddressed by the AER on the Effectiveness of Regulating Closure Liabilities in Conventional (Non-Oil Sands) Oil and Gas

Earlier this month, the Auditor General of Alberta filed a report under section 19 of the Auditor General Act, RSA 2000, c A-46, with the Legislative Assembly. The Report includes a summary of 113 recommendations the Auditor General has made to the government since November 2022, including those made by the Auditor General in March 2023, directing the Alberta Energy Regulator (AER) to improve performance of the management and regulation of end-of-life oil and gas liabilities in the conventional (non-oil sands) sector. The December 2023 report indicates that none of the 9 recommendations made to the AER in March are ready for reassessment. In other words, the AER has not yet taken sufficient action.

Haste Makes Waste: Amending the Public Health Act

By Shaun Fluker

On November 28, 2023

In COVID-19, Health Law

By: Lorian Hardcastle and Shaun Fluker

Bill Commented On: Bill 6, Public Health Amendment Act, 2023, 1st Sess, 31st Leg, Alberta, 2021 (first reading 2 November 2023)

PDF Version: Haste Makes Waste: Amending the Public Health Act

If there is one point of consensus on public health decisions made in Alberta during the COVID-19 pandemic, it is probably that the Public Health Act, RSA 2000, c P-37 failed to provide a proper framework for general lawmaking by executive order. The enactment of COVID-19 public health orders that applied restrictions to the general public did not adhere to basic matters of democratic governance such as organization and clarity, predictability and consistency, transparency and justification, and accountability to the elected assembly. The Act contains no provisions to ensure these lawmaking attributes are followed in making public health orders. Indeed, just weeks after the onset of the pandemic in 2020 it was readily apparent the Act was wholly inadequate in this regard (see here and here). Instead of addressing these fundamental issues, the UCP government has been fixated on amendments that score political points. For example, in April 2021, Alberta made a number of relatively inconsequential amendments to the Act (which we discuss here), but still found space to repeal Cabinet powers to compel vaccination in a public health emergency. In this post we explain why Bill 6, Public Health Amendment Act, 2023 is more of the same.

Democratic Accountability and the Banff Centre

By Shaun Fluker

On October 31, 2023

In Uncategorized

By: Shaun Fluker

Order commented on: Order in Council 184/2023 (Post-Secondary Learning Act)

PDF Version: Democratic Accountability and the Banff Centre

The Banff Centre for Arts and Creativity, located in the Town of Banff, is an internationally known and respected institution for the study of arts and culture. The Centre describes itself as “. . . a leader in the development and promotion of creative work in the arts, sciences, business, and the environment.” Many Canadians eventually cross paths with the Centre for one reason or another, even if they do not study the arts, because the Centre hosts a wide range of live performances, conferences, and similar public events annually. The Centre also has a very well-established program in Indigenous Leadership. For me, the Centre is most familiar as the home of the Banff Mountain Book and Film Festival, which is held at this time every year (late October to early November). This past week however, the Centre was in the news for a very different reason: on October 26 the Alberta government removed the entire board of governors and replaced them with an individual administrator. This change was implemented by the Lieutenant Governor in Council with the issuance of OC 184/2023. This short comment describes the legislative framework for this Order, and I argue that this sort of power over an important institution in our democracy needs some accountability and transparency measures to ensure it is truly exercised in the public interest.