Kinder Morgan’s proposed Trans Mountain Pipeline expansion has been meeting with significant resistance from the City of Burnaby. The company has consequently found itself embroiled in multiple legal battles, as those concerned about the environmental and social impact of the expansion seek out creative avenues by which to halt the project.
The proposed Trans Mountain expansion would see the twinning of the existing 1,150-kilometre pipeline oil pipeline, which would almost triple the pipeline’s capacity and bring an extra 590,000 barrels of oil sands bitumen to Burnaby each day. The proposal is under study by the National Energy Board, and Trans Mountain (a subsidiary of Kinder Morgan) has been attempting to do survey work in the Burnaby Mountain Conservation Area. Mayor Derek Corrigan of the City of Burnaby has opposed the project and the survey work, claiming that they are in violation of city by-laws and would result in the destruction of the conservation area’s trees and natural habitat. Mayor Corrigan has also claimed that in Burnaby, 90% of the proposed line would follow a new route and not be a ‘twinning’ of the existing pipeline.
The result has been a protracted legal battle waged in the BC courts and before the National Energy Board (NEB), the federal energy regulator.
Trans Mountain filed a motion in July with the NEB, asking for confirmation of its rights under paragraph 73(1) of the NEB Act (RSC 1985, c N-7) with respect to accessing Burnaby lands for survey and examination purposes. Burnaby filed a response in which it raised concerns regarding fairness and the interpretation of section 73 of the NEB Act. Burnaby also filed a Notice of Constitutional Question on the basis of S92(8) of the Canadian Constitution, arguing that the National Energy Board was not empowered to make orders that override provincial and municipal jurisdiction. As a result, the Board issued Ruling No. 28 on August 19th, where it confirmed Trans Mountain’s rights to enter onto Crown or privately owned lands, without needing the landowner’s consent in order to make surveys or examinations. The Board also rejected the constitutional challenge raised by Burnaby.
On September 17th B.C. Supreme Court Judge Brenda Brown dismissed an application by the City for an injunction against survey crews on Burnaby Mountain, on the basis that another forum existed in which the matter could be decided—the National Energy Board—which Burnaby and Trans Mountain were already engaged in (2014 BCSC 1820).
Eight days later, the Board went the opposite way in its Ruling No. 32, where it struck down Trans Mountain’s request for an order to forbid Burnaby city staff from obstructing the survey work.
However, in Ruling No. 40 issued on October 23rd, the Board decided that it had jurisdiction to determine that specific Burnaby bylaws are inoperative or inapplicable insofar as they conflicted with or impaired Trans Mountain’s exercising of its powers under paragraph 73(1) of the NEB Act. The Board also found that the doctrine of federal paramountcy, or in the alternative, interjurisdictional immunity, renders the impugned bylaws inapplicable or inoperative. Finally, the Board also determined that it had the authority under subsection 13(b) of the NEB Act to issue an order against the Burnaby in which it forbids the city from undertaking any bylaw enforcement or blocking of Trans Mountain’s activities in the Conservation Area.
The Board also found that since the proposed survey work at issue was not a designated project under the Canadian Environmental Assessment Act, 2012 (CEAA 2012) an environmental assessment was not required, nor was the Board required to consider the environmental harm that could be caused before issuing its order. The Board added that the survey work was necessary, in part, to inform the Proposed Pipeline Expansion Project’s environmental assessment as required under CEAA 2012.
Burnaby has now appealed the BCSC decision on September 17th to the BC Court of Appeal and will be arguing that the city has the constitutional right to enforce its bylaws and block the survey work. Mayor Corrigan stated “it is inappropriate for the National Energy Board to rule on the critical constitutional issue of whether a multinational pipeline company can override municipal bylaws and cause damage to a conservation area, for a project that no level of government has deemed to be in the public interest”. The Office of the Mayor of Burnaby also stated that “many cities may ask to intervene, as the Union of British Columbia Municipalities has adopted as policy the fact that they share Burnaby’s concern about the flawed approval process put in place for Kinder Morgan’s proposal”.
The Trans Mountain proposed pipeline expansion continues to face increasing controversy, highlighting the growing role that environmental concerns play within local communities. Stay tuned for Part Two, which will focus on the civil suits started by Kinder Morgan against several protestors, as well as challenges made to BC Elections regarding Kinder Morgan’s advertising within the Burnaby community during a civic election.