Kinder Morgan's pipeline work on Burnaby Mountain has been left in the legal lurch, following a National Energy Board decision on the company's request for an access order.
Before deciding, the board is asking Kinder Morgan to file a "notice of constitutional question," – a notice, also sent to the Canada's attorney generals, outlining the company's legal argument.
Kinder Morgan was asking the NEB for an access order that would have effectively nullified the city's bylaw against cutting trees in a public park.
"In our view, that clearly raises a constitutional question," said Sarah Kiley, spokesperson for the National Energy Board. "No constitutional question has been placed before us, and there's a formal process for that."
Kiley indicated the NEB would consider a notice quickly, should Kinder Morgan file one.
The city's lawyer Greg McDade considered the board's ruling a success for Burnaby.
The decision, announced Thursday afternoon, reaffirms that Burnaby's bylaws still stand, for now, despite the National Energy Board Act provisions that allowed private companies to access land without the owners' permission.
"They dismissed Trans Mountain's application," McDade said. "They lost because they hadn't dealt with the constitutional question we said they had to deal with. ... The NEB has decided Burnaby bylaws are valid for now. They are valid until declared unconstitutional."
Kinder Morgan is hoping to expand the Trans Mountain pipeline and was conducting NEB-sanctioned survey work on Burnaby Mountain, when the city issued a stop-work order and fines for breaking the bylaw against cutting trees. The company backed off, asked the NEB for an access order and vowed to stop the working till the board released its decision.
The showdown raised an important legal question: Can the NEB or federal government override local bylaws? Meanwhile, the City of Burnaby has argued the legal question should be decided by the B.C. Supreme Court and has asked for an injunction on the matter. (An initial temporary injunction request was rejected last week.)
Kinder Morgan is still reviewing today's NEB decision.
"I can tell you we are not going to work right now, and we are not sending crews in today," said Lisa Clement, a media relations consultant for the pipeline expansion project. The company is reviewing the full decision and deciding on its next steps, she added.
Kinder Morgan's plan to cut through Burnaby Mountain was not in the original application sent to the NEB. The company chose that route after receiving negative feedback on its original path through the Westridge neighbourhood, where the line would have to cross four private properties. In a recent interview with the NOW, Kinder Morgan said it would reconsider the Westridge route if the mountain survey work was delayed too long.
