Burnaby embark on constitutional challenge of NEB

The City of Burnaby has launched a constitutional challenge of the National Energy Board. It claims the regulatory body doesn
The City of Burnaby has launched a constitutional challenge of the National Energy Board. It claims the regulatory body doesn't have the power to force a municipality to cooperate with Kinder Morgan, which wants to do surveying and testing work in the Burnaby Mountain Conservation Area for its proposed expansion of the Trans Mountain pipeline.
— image credit: Kinder Morgan/Contributed

The City of Burnaby doesn't think the National Energy Board (NEB) has the power to tell it what to do.

So it's launched a constitutional challenge to prove it.

Kinder Morgan now wants to run its proposed expansion of its Trans Mountain pipeline through Burnaby Mountain. And it needs to do geotechnical work, including drilling, to study the route. For that, it needs Burnaby city hall to issue permits for it to access the city-owned Burnaby Mountain Conservation Area.

But it says Burnaby, which is on record as opposing the expansion project, isn't cooperating.

The NEB has said if Burnaby rejects the company's permit application, it could force the city to cooperate.

Not so fast, says Burnaby's lawyer, Gregory McDade.

He's filed notice with the NEB that the city intends to pursue a constitutional challenge of Section 73 of the National Energy Board Act.

Burnaby plans to argue that the act does not give the NEB the power to make orders that override provincial law and municipal bylaws.

The move is in response to Kinder Morgan's own application asking the NEB to confirm what rights it has to access Burnaby's land.

McDade said in a letter to the NEB that while Kinder Morgan has cited previous NEB decisions giving the company the right to access land without the landowner's permission, this case is different.

That's because a municipality owns the property which has been dedicated for use as parkland under provincial law.

The intent of Section 73 is to allow companies to survey and examine land to help it determine a pipeline route. But it does not allow them to disturb or damage the property, McDade said.

"There is nothing in the language of that paragraph that indicates that the land can be intentionally breached or disturbed."

Kinder Morgan has applied for access to 218 parcels of land, he wrote. It proposes to drill two boreholes each in the Brunette River and Burnaby Mountain conservation areas. The plans include "removing and slashing vegetation" and setting up a helicopter staging area on Burnaby land.

So far, Burnaby city staff are not satisfied with the information provided in the company's application.

City engineering director Leon Gous noted in a letter to Kinder Morgan that one of the proposed drill sites is actually on property owned by Burlington Northern & Santa Fe Railway Co. And another requires access through land owned by Metro Vancouver. Burnaby wants proof Kinder Morgan has permission to enter those lands.

One of the two sites is in "close proximity" to two regional sewer mains. It's also in the middle of the Central Valley Greenway pedestrian and bike path, within about 11 metres of Lost Creek and within 25 metres of the Brunette River. Burnaby wants more information on the company's emergency response and mitigation plans.

Along with environmental concerns, Gous notes the proposed helicopter staging area and fly zone would be next to Centennial Way in a "very heavily used public park area."

Burnaby wants to know how the company will deal with the park visitors, tour groups, Simon Fraser University students, restaurant customers and delivery vehicles using the road daily.

How will it allow continued public access to Horizon's restaurant, and the Centennial Rose Garden and Centennial Pavilion area used by many for weddings and picnics? And if not, how will the company compensate the city and restaurant operator?

As for the constitutional question, Kinder Morgan's lawyer Shawn Denstedt said in a letter in response that Burnaby has "mischaracterized or misunderstood" the company's request.

It did not ask the NEB to order the city to give access to the lands but simply wants it to confirm the company's right to do so without the landowner's permission.

He said Burnaby doesn't have more rights than other landowners just because it has passed bylaws around how the land can be used.

"The wording couldn't be clearer. There is no basis on which the section can be interpreted as requiring the City of Burnaby's consent to access."

If Burnaby wins its argument, it "would give the City of Burnaby an unwarranted veto over energy development in the national interest," Denstedt said.

Meanwhile, the NEB has not yet decided how it will consider the constitutional challenge, said NEB spokesperson Sarah Kiley.

"At this point they're still reviewing it, they'll make a decision on how we'll hear this and what will happen next and we'll communicate that publicly, of course."

Kiley said such challenges are rare but noted the NEB did receive another one in May from a group of people from Greater Vancouver.

The group consists of eight individuals as well as the Forest Ethics Advocacy Association. It has launched a constitutional challenge of Section 55 of the NEB Act.

That section limited participation in the hearing process for the pipeline expansion application to those who are "directly affected" or who have "relevant information or expertise."

The group claims that's unconstitutional because it affects its Charter rights to freedom of expression.

"Up until this point I hadn't seen one before," Kiley said of such challenges. "Now I've seen two in three months."

Kinder Morgan proposes to almost triple capacity of its Trans Mountain pipeline between Edmonton and Burnaby to allow for increased exports of oil sands crude to overseas markets. Most of the existing pipeline will be twinned but in urban, developed areas such as Burnaby, sections of pipeline will have to be built along new routes.

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