Pembina Institute for Appropriate Development v. Canada (Attorney General).

Imperial Oil’s proposed oil sands mining project (the Kearl Project) is a truck and shovel operation with associated bitumen extraction facilities, tailings management facilities and other supporting infrastructure. The Kearl Project required approvals from the Alberta Energy and Utilities Board and Alberta Environment and an environmental assessment under the provincial Environmental Protection and Enhancement Act (EPEA). It also required approval from the federal Minister of Fisheries and Oceans under section 35(2) of the Fisheries Act due to expected harmful alteration, disturbance or destruction of fish habitat, which is otherwise illegal. The Minister is unable to give such an approval unless an environmental assessment is conducted under the CEAA. Through operation of an agreement between Alberta and the government of Canada, a Panel was constituted to conduct an assessment of the Kearl Project. In February 2007, the Panel’s report was released. It contained the approval of the Energy and Utilities Board and the Panel’s recommendation to the Department of Fisheries and Oceans (DFO) to approve the project. This recommendation was based on the Panel’s view that the implementation of proposed mitigation measures and recommendations would make the Kearl Project unlikely to cause significant adverse environmental effects. The applicants sought judicial review of the Panel’s decision on the grounds that the Panel’s reliance on mitigation measures that were not technically or economically feasible and the Panel’s failure to comply with CEAA requirements to provide a rationale for its recommendations to the DFO constituted reviewable errors. The Federal Court has found that the decision of the Panel did not meet the requirements set out under the Canadian Environmental Assessment Act (CEAA). The Court found that the Panel failed to provide the rationale for its determination that mitigation strategies identified by the project proponent would be effective in reducing the amount of greenhouse gas emissions from the project to an insignificant amount. The case was remitted back to the Panel with a direction to provide a rationale for its conclusions respecting mitigation of greenhouse gas emissions.