Author Archives: Shaun Fluker

About Shaun Fluker

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

The AER is Seeking Public Input on its Proposed Regulatory Solution for the Growing Orphan Well and Other Unfunded Liabilities Problem in Alberta’s Oil and Gas Sector

By: Shaun Fluker & Drew Yewchuk

PDF Version: The AER is Seeking Public Input on its Proposed Regulatory Solution for the Growing Orphan Well and Other Unfunded Liabilities Problem in Alberta’s Oil and Gas Sector

Matter Commented On: Proposed amendments to AER Directive 067: Eligibility Requirements for Acquiring and Holding Energy Licences and Approvals

 On January 13, 2021 the Alberta Energy Regulator (AER) issued Bulletin 2021-01 seeking public comments on proposed amendments to Directive 067: Eligibility Requirements for Acquiring and Holding Energy Licences and Approvals. These amendments are an implementation component of Alberta’s policy initiative, announced in July 2020 as the new Liability Management Framework, to improve the effectiveness of laws intended to address Alberta’s growing (and already enormous) problem of unfunded end-of-life closure and reclamation liabilities in the energy sector. The proposed amendments to Directive 067 constitute the details of the Licensee Capability Assessment System – the AER’s replacement for the catastrophic failure known as the Licensee Liability Rating program used in the oil and gas sector. The AER will receive public comments on the proposed changes to Directive 067 until and through February 14, and this post constitutes our comments – which will be submitted to the AER in its requested form (which can be downloaded here  and sent via email to Directive067@aer.ca – alternatively you can submit the comments form by mail to the AER, Directive 067 Feedback, Suite 1000, 250 – 5 Street SW, Calgary, AB T2P 0R4).

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COVID-19 and Cabinet Secrets

By: Shaun Fluker

PDF Version: COVID-19 and Cabinet Secrets

Matter Commented On: CMOH Order 38-2020

The Opposition is calling for the release of public health recommendations made by the Chief Medical Officer of Health to cabinet which informed the decision announced on November 24 to declare a second public health emergency and to impose enhanced measures to contain the spread of COVID-19. These enhanced measures are described at COVID-19 info for Albertans: Mandatory public health measures and those which came into force on November 24 are set out in CMOH Order 38-2020. In response to questions from the media at the November 26 update, both the Minister of Health and the Chief Medical Officer of Health stated the recommendations cannot be disclosed because of cabinet confidence – a constitutional convention in a Westminster government which keeps cabinet deliberations in secret for purposes of governance (see here for a discussion of these important functions). This convention is also codified in section 22 of the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25. What does the common law say on this?

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COVID-19 and Rule by Fiat under Alberta’s Public Health Act

By: Shaun Fluker and Lorian Hardcastle

PDF Version: COVID-19 and Rule by Fiat under Alberta’s Public Health Act

Matters Commented On: Order in Council 354/2020, CMOH Order 38-2020, and COVID-19 info for Albertans: Mandatory public health measures

Alberta declared its second COVID-19 related public health emergency on November 24 with Order in Council 354/2020, which was issued under section 52.1 of the Public Health Act, RSA 2000, c P-37 (the Act). This declaration is in place for 90 days, unless extended by resolution of the legislature pursuant to section 52.8 of the Act. This declaration also reinstates the controversial power of ministers to unilaterally amend statutes (see here) over the holiday season. On the same day as this declaration, the Premier, the Minister of Health, and the Chief Medical Officer of Health announced new restrictions to “bend the curve” at a news conference. The Premier and the Minister of Health stated that many of the new restrictions would take effect immediately with the backstop of legal sanction (including $1000 tickets). These measures were considered and determined without any legislative debate, despite the fact that the Legislature is currently sitting. Public debate on these new legislative measures seems to have amounted to nothing more than questions from media at the news conference. COVID-19 has many victims; democracy should not be one of them.

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Canada and Alberta Agree to More Pie-In-The-Sky on Woodland Caribou

By: Shaun Fluker

PDF Version: Canada and Alberta Agree to More Pie-In-The-Sky on Woodland Caribou

Agreement Commented On: Agreement for the conservation and recovery of the Woodland Caribou in Alberta entered into by Canada and Alberta on October 19, 2020 (the “Canada-Alberta Agreement on Woodland Caribou”)

Decisions Commented On: Canada Energy Regulator Report – Nova Gas Transmission GH-003-2018 (February 2020) and Order-in-Council PC 2020-811 (19 October 2020)

On October 23, Alberta and Canada announced they had finalized an agreement under section 11 of the federal Species at Risk Act, SC 2002, c 29 (SARA) concerning the threatened woodland caribou in Alberta. As I predicted here several years ago, this agreement is the federal government’s response to Alberta’s failure to implement recovery measures and habitat protection for caribou in accordance with the SARA recovery strategy, which clearly documents the Alberta populations as the most at-risk of all the woodland caribou remaining in Canada. This comment examines the actual significance of this agreement for the protection of remaining caribou habitat in Alberta. The short answer is that the caribou would be wise to hold off on celebrating this announcement. This section 11 agreement is unlikely to amount to much, if anything, for them in terms of actual habitat protection on the ground. No one should be fooled by the applause from industry or the self-congratulatory remarks made by our politicians: this agreement is yet another shameful exercise by those who merely want to give the appearance of effective public policy on reversing the decline of woodland caribou populations in Canada. It will do nothing to change the steadfast reliance by regulators on ‘manage and mitigate’ measures – as demonstrated most recently by the Canada Energy Regulator in its Nova Gas Transmission Report GH-003-2018 – that have proven to be overwhelmingly ineffective.

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COVID-19 and Masking in Alberta K-12 Schools

By: Shaun Fluker

PDF Version: COVID-19 and Masking in Alberta K-12 Schools

Order Commented On: Record of Decision CMOH Order 33-2020

Many parents and their children are excited about the return to K-12 school, but they are also anxious about the potential for a COVID-19 outbreak at their schools. The barrage of information delivered to parents in the past week by schools regarding protocols for COVID-19 probably isn’t helping to ease any feelings of discomfort. Nor are reports that some schools have already delayed the start of classes because of an infection. Now is the time for a voice of authority to give assurance that the Government of Alberta has taken all possible measures to assess and mitigate the risk of contracting COVID-19 in schools. These measures would include the enactment of rules governing a return to school which are clear, organized, justified, and developed in a transparent process. Instead, the Chief Medical Officer of Health (CMOH) and the Premier have been responding to criticism and confusion about the return to school plan, and in particular the rules pertaining to masking and social distancing in Alberta’s K-12 schools. This is a very unfortunate outcome and is raising questions of trust in the CMOH, but it does not come as a surprise to me. I have been following Alberta’s COVID-19 law and policy since the declaration of the public health emergency in March, and I have consistently remarked that CMOH decisions have been plagued with non-transparency and disorganization (see here). This messy approach to lawmaking breeds confusion, and that is exactly what has transpired here. With these thoughts in mind, this post takes a critical look at the back to school rules set out in CMOH Order 33-2020.

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