Category Archives: Protection of Spaces

Legal Designation of the New Castle Wilderness Protected Areas

By: Shaun Fluker

PDF Version: Legal Designation of the New Castle Wilderness Protected Areas

Orders in Council commented on:

Order in Council 020/2017 (amendments to South Saskatchewan Regional Plan under Alberta Land Stewardship Act)

Order in Council 021/2017 (amendments to Forest Provincial Recreation Areas Order)

Order in Council 022/2017 (designation of the Castle Provincial Park under Provincial Parks Act)

Order in Council 023/2017 (designation of the Castle Wildland Provincial Park under Provincial Parks Act)

Order in Council 024/2017 (amendments to the Public Lands Administration Regulation)

On January 20, 2017 the Lieutenant Governor in Council issued 5 Orders in Council and thereby followed thru on Alberta’s commitment announced back in September 2015 to legally protect the area in southwestern Alberta known as the Castle wilderness with a new wildland provincial park and a new provincial park. What remained to be seen back in September 2015 was what this legal protection would exactly amount to, and these Orders in Council provide us with the important details. At the time of the announcement back in September 2015 I provided some context for these new designations in At Long Last – Legal Protection for the Castle Wilderness. Collectively these Orders in Council create the Castle Wildland Provincial Park and the Castle Provincial Park effective February 16, 2017, and implement consequential amendments to existing regulations to accommodate these new designations. Continue reading →

Comments on the Proposed Species at Risk Act Permitting Policy

By: Shaun Fluker and Drew Yewchuk

PDF Version: Comments on the Proposed Species at Risk Act Permitting Policy

Proposed Policy Commented On: Government of Canada. Species at Risk Act Permitting Policy [Proposed]

Environment and Climate Change Canada has released a series of proposed new guidelines for interpreting various portions of the Species at Risk Act, SC 2002, c 29 (SARA). One of these new proposals is policy guidance on how section 73 of SARA will be interpreted and applied – the Species at Risk Act Permitting Policy. Section 73 is the provision in SARA which allows for the authorization of harm to listed endangered or threatened species or their critical habitat. In the absence of a section 73 permit, such harm constitutes an offence under SARA. The Public Interest Law Clinic was retained by the Alberta Wilderness Association and the Timberwolf Wilderness Society to assist them in formulating a submission to Environment and Climate Change Canada on this proposed new policy guidance for section 73, and this post reproduces the essence of that submission below.

This submission begins by setting out principles which should guide the interpretation of the Species at Risk Act, SC 2002, c 29 [SARA]. This submission then provides the relevant portions of section 73 along with judicial consideration thereof. This submission then proceeds by providing our comments on the proposed policy guidance. Continue reading →

At Long Last – Legal Protection for the Castle Wilderness

By: Shaun Fluker

PDF Version: At Long Last – Legal Protection for the Castle Wilderness

Matter Commented On: Alberta Environment and Parks, News Release “Province to fully protect Castle area” (September 4, 2015)

On September 4 the Alberta government announced its intention to legally protect the area in southwestern Alberta known as the Castle wilderness with a new wildland provincial park and a new provincial park. What this legal protection exactly amounts to remains to be seen, but the September 4 announcement states there will be no further approvals granted for resource development in the Castle and existing approvals, other than for oil & gas, will be cancelled. Readers who follow land use decision-making in Alberta will know this announcement follows on the heels of the South Saskatchewan Regional Plan which was enacted just one year ago in September 2014 with its own direction for protecting the Castle. And those familiar with the Castle wilderness specifically will know this announcement is a monumental shift in policy direction. What follows is some context for this announcement, and some consideration of the applicable law in relation to implementing this new policy direction. The analysis concludes by suggesting the Alberta government consider enacting dedicated legislation to protect the Castle wilderness.

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The Curious Case of the Greater Sage Grouse in Alberta

By Shaun Fluker

PDF Version: The Curious Case of the Greater Sage Grouse in Alberta

Legislation commented on: Emergency Order for the Protection of the Greater Sage Grouse, PC 2013-2045

The Greater Sage Grouse is on the brink of disappearing from the Canadian landscape and, in doing so, is leaving its mark on the Species at Risk Act, SC 2002, c 29 (SARA). Readers may recall that the sage grouse recovery strategy prepared under SARA was the subject of dispute several years back over the extent to which critical habitat for a species listed as endangered or threatened must be identified in the strategy (See Nigel Bankes’ ABlawg post “Is SARA growing teeth?”). The sage grouse recovery strategy has recently been amended (2013) to include all known critical habitat – both mating sites and year-round habitat – in Canada and to identify threats to the sage grouse (see here). But since the overwhelming majority of sage grouse habitat falls on provincial lands in Alberta, SARA offers little real protection to the sage grouse here in the absence of an Order in Council from federal Cabinet directing that SARA apply to provincial lands. Cabinet issued an Emergency Protection Order under section 80 of SARA in December 2013 that, to my surprise, applies to Alberta lands and the Order comes into force on February 18, 2014. This comment discusses the significance of the Order, adding to existing commentary (see Martin Olszynski’s earlier ABlawg post here, Janice Walton of Blakes LLP here and Jason Unger of the Environmental Law Centre here).

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Compensation for cancelled oil sands rights under the terms of the draft Lower Athabasca Regional Plan

PDF version: Compensation for cancelled oil sands rights under the terms of the draft Lower Athabasca Regional Plan

Documents commented on: Draft Lower Athabasca Regional Plan 2011 – 2021, Strategic Plan and Implementation Plan; Proposed Lower Athabasca Integrated Regional Plan Regulations

In an earlier blog on a draft version of the Lower Athabasca Regional Plan (LARP) under the Alberta Land Stewardship Act, SA 2009, c.A-26.8 (ALSA) I suggested that I might provide a further blog on the implications of the Plan (if implemented) for existing property interests. This is that blog but with a focus on oil sands rights that will be cancelled if the Plan is implemented as proposed. The Draft LARP also addresses other Crown resource interests that might be affected including timber harvesting interests.

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