The Moot Times UCalgary Law
Ask the Experts with Shaun Fluker
By Glenn McAleer
I had the opportunity to sit down with Professor Shaun Fluker, the Executive Director of the University of Calgary Faculty of Law’s Public Interest Law Clinic. The clinic was established in 2015 to help clients influence the direction of public law and policy through legislative reform and strategic litigation. The clinic’s work advances government transparency and democratic accountability, environmental stewardship and habitat protection, and public engagement in areas of public interest.
The Public Interest Law Clinic is a teaching program. Each year, a class of law students participate in the clinic, along with enrolment in the corresponding Public Interest Theory course. Under the supervision of Professor Fluker, other members of the faculty, and volunteer lawyers, students gain valuable theoretical and practical exposure to public interest litigation. The clinic works closely with the Faculty of Law to provide experiential learning to upper-year law students while advocating for environmental and public interest issues that shape the communities in which we live. To achieve reform in public law or policy, the clinic can pursue both impact litigation and legislative reform. The two processes are often intertwined.
Can you tell me a little bit about your career and how you got involved with the clinic?
I graduated from law school in 1995 and moved to Calgary and started my practice at Parlee McLaws. After about 5 years of a corporate-commercial practice, in my early 30s I finally started listening to my inner-self and realized that my real interest in law was associated with environmental issues. And so, in the Winter of 2000, I enrolled in Professor Al Lucas’ Environmental Law course as an unclassified student. Professor Lucas inspired me to pursue a graduate law degree, and in 2001 I enrolled in the graduate programme here at UCalgary Law. I studied under the supervision of Professor Nigel Bankes and Professor Jonnette Watson-Hamilton, and in 2004 I graduated with a master’s degree with a specialization in energy and environmental law. I joined the law school as an Assistant Professor in 2007.
Public interest litigation is a tough road generally, but even more so in private practice, and I tip my hat to all the lawyers who dedicate their practice to public interest lawyering. Coming to the law school provided me with a fabulous opportunity to get more involved in public interest work and combine that with a research agenda in energy and environmental work. I started a small public interest/environmental law clinic here in 2010 as a pilot project. That started as a clinical course. We had 3 JD students enrolled in the first year and that grew to 12-15 students a year. In 2015, we attracted a major funder who expressed an interest in providing us with the money we would need to institutionalize not just the clinic I was running, but also a few other clinics that other faculty were involved in. The idea was to group together these public interest-oriented clinics under an overarching umbrella of a Public Interest Law Clinic, and the Peacock Family Foundation donated $1 million to the law school for that purpose. The Public Interest Law Clinic opened its doors in 2016.
Can you give me an overview of how you choose files for the clinic?
The idea behind the clinical course is to:
1. Give students the chance to apply their education to real files, work with clients, and dig into public interest issues that they may also be interested in.
From the student perspective, it’s not the only clinical program we offer at the U of C, but any experiential learning is a unique opportunity for students to get involved in interesting legal work. In the clinic’s associated theory course, I try to provide students with a basic parameter of public interest learning so they can explore the area and commit to work that interests them. It’s such a huge and diverse area, so I try to structure the course so that students can go wherever their imagination takes them. That’s what law school is all about, so take advantage and experience it because these opportunities are hard to come by once you graduate. Collaborating with students in the clinic is such a rewarding experience. We always work in groups; no one is left to work on something alone. And the clinic would simply not be able to perform all the work it does without students who provide extra eyes, ears, and hands to help get the work done and provide different perspectives on files. Students are a huge reason for the successes enjoyed by the clinic.
2. Contribute to the community as a law school.
Law clinics provide our faculty with opportunities to help members of our community who are not well-served by the legal profession and work on files that serve and contribute to the collective good. Part of this work is dealing with the reality that there are so many issues that you could tackle. That’s one of the frustrations with public interest law clinics is that there’s always something else that deserves your attention, but there is a shortage of resources and a capacity that limits what you can focus on.
3. Provide an opportunity for faculty members to apply their research.
I often think of the clinic as a laboratory for the application of faculty research—over the years some of the bigger cases we have done were built on our research—like, in my case, public participation in energy and environmental decision-making. So, you think okay, I’ve written a handful of articles or maybe a book, how can I help ensure this work is applied and operationalized? Either you hope that other lawyers will incorporate your research findings into their arguments, or you can implement your research more directly in a clinical program like the Public Interest Law Clinic. The synergy between the research energy and the clinical agenda really gives faculty a chance to apply the research. To me, this only works if you can pull it all together like that and operationalize it.
So those three ideas—experiential learning, community engagement, and operationalizing research—are the essence of a successful clinical education model in my view. So, whenever I’m selecting through files for the clinic in an upcoming academic year, I’m thinking about those things.
Could you talk a little about the clinic’s current projects?
This year’s projects are great in terms of the diversity in the work we’re doing. One of our files involves acting as legal counsel for a public interest intervener seeking to participate in the Supreme Court of Canada proceedings wherein Alberta is asserting that the federal Impact Assessment Act is unconstitutional as beyond the scope of federal legislative authority. The Alberta Court of Appeal ruled in favour of Alberta, and so Canada is appealing the ruling to the Supreme Court of Canada, which will hear arguments in March 2023. Our client is seeking leave to intervene in this appeal to confirm that the consideration of climate impacts is within federal legislative jurisdiction. We are working with Professor Sharon Mascher, Professor Martin Olszynski, and Professor David Wright. It is a super experience for students and faculty alike.
Another file this year involves acting as legal counsel for an individual client who is challenging a pipeline licence issued by the Alberta Energy Regulator under the Pipeline Act. Students on this matter are working on a regulatory tribunal hearing.
Our third file involves acting as legal counsel for a local wildlife rehabilitation centre in relation to troubles they are having with Alberta Environment and Parks with respect to their permit to rehabilitate orphaned black bear cubs.
Our fourth file involves acting as legal counsel for a public interest organization who opposes the development of a gravel pit near Big Hill Springs Provincial Park located just NW of Calgary. This matter may end up as a regulatory hearing before the Alberta environmental appeals board. The proposed mine is located on 323 acres of land overlying a groundwater aquifer which feeds a nationally significant thermal spring in the provincial park.
We also have two law-reform projects that we’re working on. Firstly, we are proposing the implementation of Anti-SLAPP (Strategic Litigation Against Public Participation) provisions in Alberta legislation. There is nothing in AB legislation directly related to Anti-SLAPP. There are provisions in Ontario and British Columbia. However, as a claimant in Alberta, if you were the target of a SLAPP suit (like if someone was trying to silence you by threatening you with defamation), you would have to apply to have that litigation thrown out using the existing Rules of Court, which is very difficult to do and expensive. We also plan to look at Alberta’s residential tenancies legislation, for which there are a significant number of oustanding issues to make the dispute resolution process more just and fair for tenants.
So that’s a good diversity of projects, and there are always one or two more knocking on my door. I say we’re full for this year, but it’s always good to have potential projects working their way into the docket so you can move seamlessly from one year to the next.
In preparing for this interview, I discovered you will be running as an NDP candidate for Airdrie-Cochrane. Could you tell me a bit about that?
One of the reasons I decided to put my name forward is because of how much public interest work I have done—doing this work for the better part of 10 or 15 years has kept me really close to the development and implementation of public policy. I have seen firsthand the limitations of litigation as a means to address community issues and assert the collective good—there are certain matters for which it is simply more effective to handle in the legislative or executive branch. To tie it back to the clinic, in the past I have applied for research grants to investigate the question “why are public interest law clinics in Canadian law schools growing in popularity?” What is the gap or niche that they’re filling? There’s no shortage of work for these clinics. They’re across the country; there are dozens of these clinics. They’re all filling a gap or a need in the legal system. They have strong connections to underrepresented and marginalized communities. The fact of the matter today is that we are experiencing a significant democratic deficit, and I think that is why law school clinics are more popular than ever because they are one means by which people can respond to this deficit. I feel it is helpful and important for me to bring my experiences in public interest work into political dialogue.
Some of these files seem critical from a public interest or environmental perspective, do you find it interesting to see it trickle down to law school clinics and to students?
It doesn’t really trickle down to students per se. It stops on my desk, and that is an important aspect of the Public Interest Law Clinic is that no student is ever left alone to work on a file—I’m always involved, along with other collaborators.