The Federal Court determined that the authorization previously granted to the Kearl Oil Sands Project under subsection35(2) of the federal Fisheries Act is a nullity. The Court decision to nullify the 35(2) authorization was based on the fact that an earlier Court decision of March 5, 2008 found that the report of the Kearl Joint Review Panel was incomplete due to the lack of a rationale on greenhouse gas emissions.
The Joint Review Panel has reconvened and issued this rationale on May 6, 2008, and has submitted it to the federal government. This rationale satisfies the direction given by the Court in its March 5, 2008 judgment. Noting the regulatory approval stages set out in the Canadian Environmental Assessment Act, Justice Douglas Campbell held the Minister’s authorization was issued before the requisite environmental assessment approval of the Kearl project. Accordingly, the Judge held the Minister’s authorization was issued without jurisdiction and was thus a nullity.