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Author: Shaun Fluker Page 9 of 36

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary).
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Some Comments on Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020

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On July 10, 2020

In Administrative Law, COVID-19, Rule of Law

By: Shaun Fluker

 PDF Version: Some Comments on Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020

Legislation Commented On: Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020, 2nd Sess, 30th Leg, Alberta, 2020

Lawmaking by the Alberta government in response to COVID-19 has been somewhat disorganized and very non-transparent. As well, Alberta seems to be the only Canadian jurisdiction which seized on the public health emergency as an opportunity to double-down on Henry VIII lawmaking by the Executive. These are troubling observations in a political system where the legitimacy of governance is based upon an open, accountable, and predictable legislative process. The need to act swiftly and flatten the curve of COVID-19 certainly justified some deviation from the lawmaking norm in a representative democracy, but Alberta has relied extra heavily on executive and delegated legislative authority in its COVID-19 lawmaking. Accordingly, it would have been reasonable to expect the Legislature to restore some normalcy to lawmaking when the state of public emergency ended in Alberta on June 15.

On June 18, the Minister of Health introduced Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020 into the Legislature, and most of the Act came into force on June 26 with royal assent. As the Legislature’s first comprehensive post-emergency response to COVID-19, as opposed to subject-specific legislation or the lawmaking thus far enacted by the Executive and its delegates, it is disappointing to observe how little this statute offers. However, on its first reading the Minister of Health did at least promise a forthcoming comprehensive review of the Public Health Act, RSA 2000, c P-37, and Bill 24 requires this to commence no later than August 1.

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Oil and Gas Consortium Intervenes in the Jurisdictional Challenge to the Alberta Inquiry into Anti-Alberta Energy Campaigns

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On June 23, 2020

In Energy, Intervenors and Standing

By: Shaun Fluker

PDF Version: Oil and Gas Consortium Intervenes in the Jurisdictional Challenge to the Alberta Inquiry into Anti-Alberta Energy Campaigns

Case Commented On: Ecojustice Canada Society v Alberta, 2020 ABQB 364 (CanLII)

In July 2019, the Lieutenant Governor in Council commissioned the Allan Inquiry with Order in Council OC 125/2019, issued under section 2 of the Public Inquiries Act, RSA 2000, c P-39. The Order in Council directs Commissioner Steve Allan to investigate and report on any anti-Alberta energy campaigns that are supported, in whole or in part, by foreign organizations. Several ABlawg posts have been critical of the Allan Inquiry, commenting on its mandate, process, interference with the freedom of expression protected by the Charter, and lack of transparency. Ecojustice has brought an application for judicial review seeking an order quashing Order in Council 125/2019 and prohibiting the Allan Inquiry from proceeding. This post comments on a decision by Justice Karen M. Horner granting an application made by an “Industry Consortium” for leave to intervene in this proceeding.

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AER Refuses Transfer of Foothills Sour Gas Approvals from Shell Canada to Pieridae Energy

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On May 15, 2020

In Energy, Oil & Gas

By: Shaun Fluker and Nigel Bankes

PDF Version: AER Refuses Transfer of Foothills Sour Gas Approvals from Shell Canada to Pieridae Energy

Decision Commented On: Alberta Energy Regulator Decision, Shell Canada Limited Transfer of Ownership Including the Waterton Sour Gas Plant EPEA Application No 021-258 and Jumping Pound Sour Gas Plant EPEA Application No. 015-11587, May 13, 2020

On May 13, the Alberta Energy Regulator (AER) denied an application by Shell Canada to transfer regulatory approvals with respect to its foothills sour gas assets (facilities, wells, pipelines, and related infrastructure) to Pieridae Energy. The subject approvals are issued under a host of energy and environmental legislation, including the Environmental Protection and Enhancement Act, RSA 2000, c E-12 (EPEA). This post comments on the rationale given by the AER for this decision.

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COVID-19 and the Suspension of Environmental Monitoring in the Oil Sands

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On May 7, 2020

In COVID-19, Energy, Environmental, Oil & Gas

By: Shaun Fluker

PDF Version: COVID-19 and the Suspension of Environmental Monitoring in the Oil Sands

Decisions Commented On: Alberta Energy Regulator Decisions 20200505A, 20200501C, 20200501B, and 20200501A

Last week the Alberta Energy Regulator (AER) issued decisions 20200429D (subsequently replaced with 20200505A), 20200501C, 20200501B, and 20200501A, which suspend environmental monitoring requirements associated with oil sands mines operated by Canadian Natural Resources Limited, Suncor Energy, Fort Hills Energy Corporation, Syncrude Canada, and Imperial Oil Resources Limited. These decisions relieve the named operators from environmental monitoring on matters such as groundwater, surface water, sulphur emissions, wildlife, and wetlands. The suspension is in place until further notice. Similar to Order 17/2020 issued by the Minister of Environment and Parks under section 52.1 of the Public Health Act, RSA 2000, c P-37, which suspended routine environmental reporting by industry, these AER decisions were made in response to COVID-19 but offer little justification for granting such extraordinary relief from regulatory requirements.

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COVID-19 and the Exercise of Legislative Power by the Executive

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On April 22, 2020

In Constitutional, COVID-19, Health Law

By: Shaun Fluker

PDF Version: COVID-19 and the Exercise of Legislative Power by the Executive

Legislation Commented On: Regulations Act, RSA 2000, c R-14 and Public Health Orders issued in relation to COVID-19

The COVID-19 pandemic has become a rare opportunity to study the widespread exercise of emergency lawmaking powers in Canada. Governments have enacted legal rules on matters such as social distancing, quarantine, economic controls, regulatory relief, employment standards, landlord-tenant, access to justice, and health care protocols. Commentators have warned that we must remain vigilant in ensuring these emergency measures do not offend the rule of law, and this message is likely to intensify as more emergency measures are used to either further the current shutdown or control our emergence from it; for example, in relation to surveillance and privacy rights as Joel Reardon, Emily Laidlaw, and Greg Hagen recently noted here. These substantive concerns are amplified by the fact that most COVID-19 emergency powers are being exercised by the executive branch of government and its delegates, using legislative power delegated to them in public health or emergency statutes. Because it is unlikely that legislatures envisioned such an extensive use of these powers for a prolonged time period, shortcomings and gaps in the lawmaking process are becoming apparent. Hallmarks such as organization, clarity, predictability, consistency, transparency, and justification – which, in normal times, provide the executive with much of its legitimacy to govern – have been impaired or are missing altogether in the exercise of legal power to contain COVID-19. This post examines how Alberta ministers and the Chief Medical Officer of Health have been exercising emergency powers so far during the pandemic, and makes some pointed observations on the hallmarks of legitimate governance and the role of the Regulations Act, RSA 2000, c R-14, in this regard.

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