Author: Shaun Fluker Page 4 of 37

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary).
Associate Professor.
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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.

Public Participation under the Water Act (Alberta): A Very Short Window of Opportunity

By Shaun Fluker

On September 26, 2023

In Water Law

By: Shaun Fluker

Legislation commented on: Water Act, RSA 2000, c W-3

PDF Version: Public Participation under the Water Act (Alberta): A Very Short Window of Opportunity

The Faculty’s Public Interest Law Clinic regularly gets inquiries from the public seeking guidance on how to participate in decision-making under the Water Act, RSA 2000, c W-3. As well, the Clinic maintains an active list of projects on the subject of public participation in environmental decision-making. Common matters of concern that we hear about include draining wetlands, as well as impacts to groundwater. As water scarcity in southern Alberta becomes an acute problem, I expect to see a growth in public concern with development projects that affect surface and ground water. This very short comment is simply a reminder that if someone wants to provide feedback or comments on an application made under the Water Act, for example an application made by a company that plans to drain a wetland so that the area can be developed, they normally have only 7 days from the date of the application to submit a ‘statement of concern’ to Alberta Environment and Protected Areas.

E. coli and the Public Health Act (Alberta)

By Shaun Fluker

On September 25, 2023

In Administrative Law, COVID-19, Health Law

By: Shaun Fluker and Lorian Hardcastle

Legislation commented on: Public Health Act, RSA 2000, c P-37; Communicable Diseases Regulation, Alta Reg 238/1985; Food Regulation, Alta Reg 31/2006

PDF Version: E. coli and the Public Health Act (Alberta)

The beleaguered public health system in Alberta is back in the spotlight with the devastating E. coli outbreak in Calgary. As of September 19, there were 38 lab-confirmed cases connected to the outbreak, 8 of whom were receiving care in hospital, along with 27 cases of secondary transmission. The outbreak is believed to be linked to daycares that use a central kitchen, although a precise food source has not yet been identified. The kitchen suspected to be the source of the E. coli outbreak has previous public health violations and there are calls for a public inquiry. The particular strain of E. coli involved in this outbreak secretes a toxin that can lead to serious organ damage. Nine children connected with this outbreak have been diagnosed with hemolytic uremic syndrome, which can lead to kidney failure.

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

By Shaun Fluker

On March 31, 2023

In Oil & Gas

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.

Biodiversity Offsets and the Species at Risk Act (Canada)

By Shaun Fluker

On February 27, 2023

In Environmental, Protection of Species

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.