Author Archives: Shaun Fluker

About Shaun Fluker

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

Polluter Pays Principle at Risk: Auditor General Finds Alberta’s Oil and Gas Liability Regime Still Badly Deficient

Regulatory Documents Commented on: Auditor General of Alberta, “Liability Management of (Non-Oil Sands) Oil and Gas Infrastructure”, March 2023

By: Drew Yewchuk, Shaun Fluker, and Martin Olszynski

PDF Version: Polluter Pays Principle at Risk: Auditor General Finds Alberta’s Oil and Gas Liability Regime Still Badly Deficient

Late last week, the Auditor General of Alberta released a scathing report that concludes that, notwithstanding some ongoing reforms, the management and regulation of end-of-life oil and gas liabilities by the Alberta Energy Regulator (AER) remains seriously deficient in several key areas. This assessment of the AER is one of four components of the Auditor General’s March 2023 report, and is set out as Section 2 Liability Management of (Non-Oil Sands) Oil and Gas Infrastructure (AG AER Report). The AG AER Report audited AER operations to assess (1) whether the AER’s current liability management system effectively mitigated the risks associated with the closure of oil and gas infrastructure and (2) whether the AER appropriately identified the risks and gaps in the previous liability management system and prepared an implementation plan for changes to effectively mitigate those risks and gaps. This comment focuses on the findings that the AER’s oil and gas liability management regime remains deficient in key areas. Continue reading →

Biodiversity Offsets and the Species at Risk Act (Canada)

By: Shaun Fluker

Matter Commented On: Environment and Climate Change Canada Draft Offsetting Policy for Biodiversity

PDF Version: Biodiversity Offsets and the Species at Risk Act (Canada)

The federal government has a laudable objective of ‘no net loss’ for development projects that will harm biodiversity in Canada. For threatened species who will lose habitat because of development, the concept of ‘no net loss’ means either avoidance, mitigation, or offsets. Avoidance of habitat loss (e.g. no project) is rarely seriously considered – and is really nonsensical when a project footprint overlaps with habitat – and efforts aimed at mitigation of adverse effects on threatened species are widely known to be pie-in-the-sky measures with little or no effectiveness (see here).  Thus, a ‘no net loss’ outcome in the context of choosing between development and protecting habitat necessarily means the use of biodiversity offsets. David Poulton has written extensively for ABlawg on the topic of biodiversity offsets and resource development (see e.g. here), and a constant theme in this topic is the legal and policy vacuum on biodiversity offsets. In 2016, the Public Interest Law Clinic submitted comments on a proposed offsets policy under section 73 of the Species at Risk Act, SC 2002, c 29 (Drew Yewchuk and I posted that submission to ABlawg here). Environment and Climate Change Canada (ECCC) has recently issued a draft Offsetting Policy for Biodiversity which will replace its 2012 policy, and this post publishes my submission letter giving comments to ECCC on the Offsets Policy as it relates to threatened species, in response to the public engagement which closed on February 17, 2023. Continue reading →

Judicial Review on the Vires of Subordinate Legislation: Full Vavilov, Partial Vavilov or No Vavilov?

By: Shaun Fluker

Cases Commented On: Auer v Auer, 2022 ABCA 375 (CanLII) and TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381 (CanLII)

PDF Version: Judicial Review on the Vires of Subordinate Legislation: Full Vavilov, Partial Vavilov or No Vavilov?

This comment examines two decisions issued concurrently by the Alberta Court of Appeal in late November 2022 that reject the application of a standard of review analysis when reviewing the vires (aka legality) of a ‘true’ regulation, (the need for the modifier is explained below). This is a topic that I have casually followed for some time. In 2016 I wrote Does the Standard of Review Analysis Apply to a Vires Determination of Subordinate Legislation? and in 2018 I wrote Judicial Review on the Vires of Subordinate Legislation. Together these earlier posts describe an uncertainty that has reigned for years over whether a standard of review analysis applies to the vires determination of subordinate legislation. In its overhaul on standard of review in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) (Vavilov), the Supreme Court of Canada did not explicitly address this question (for my overview on standard of review under Vavilov see Vavilov on Standard of Review in Canadian Administrative Law). The uncertainty has evolved into a jurisprudential conflict. In Portnov v Canada (Attorney General), 2021 FCA 171 (CanLII) (Portnov), the Federal Court of Appeal ruled that a Vavilov standard of review analysis applies to the vires determination of regulations (Portnov at paras 23 – 28; see more recently Innovative Medicines Canada v Canada (Attorney General), 2022 FCA 210 (CanLII)). In Auer v Auer, 2022 ABCA 375 (CanLII) (Auer) and TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381 (CanLII) (TransAlta Generation) the Court of Appeal rules that Vavilov may partially apply to some regulations but not ‘true’ regulations (Justice Feehan departs from the majority in Auer on this point: Auer at para 117)). Continue reading →

Confirmed in Law: The Decision-Maker for COVID-19 Public Health Orders in Alberta is the Chief Medical Officer of Health

By: Lorian Hardcastle and Shaun Fluker

Decision commented on: CM v Alberta, 2022 ABKB 716 (See here for the decision, which was not on CanLII as of the date of writing)

PDF Version: Confirmed in Law: The Decision-Maker for COVID-19 Public Health Orders in Alberta is the Chief Medical Officer of Health

In the winter of 2022, the Alberta government repealed the bulk of its COVID-19 public health measures in an effort to be among the first provinces to re-open. On February 8, 2022, the Premier announced that children would no longer be required to mask in school and, on that same day, the Minister of Education (Adriana LaGrange) issued a written statement that “school boards will not be empowered by provincial health order or recommendations from the CMOH to require ECS – grade 12 students to be masked to attend school in person or to ride a school bus.” Continue reading →

For the Record: Who Makes COVID-19 Public Health Orders in Alberta?

By: Shaun Fluker and Lorian Hardcastle

Decisions commented on: CM v Alberta, 2022 ABQB 462 (CanLII); CM v Alberta, 2022 ABQB 357 (CanLII)

PDF Version: For the Record: Who Makes COVID-19 Public Health Orders in Alberta?

In an effort to be a frontrunner in the race to remove COVID-19 public health measures during the early months of 2022, the Alberta government made several notable moves, including decisions on masking. On February 8, 2022, the Premier announced that children would no longer be required to wear masks in school as of February 14 and that children under 12 would not be required to mask anywhere. On the same day, the Minister of Education took the opportunity to issue her own written direction that “[A]s of February 14, 2022 school boards will not be empowered by provincial health order or recommendations from the CMOH to require ECS – grade 12 students to be masked to attend school in person or to ride a school bus.” This direction by the Minister was a notable departure from her earlier position that schools were explicitly permitted to implement public health measures to respond to their own local context. Continue reading →