Local residents and city staff are keeping a protective eye on Burnaby Mountain, in the midst of a legal battle with Kinder Morgan, which hopes to survey the conservation area for a new pipeline route.
The National Energy Board recently ruled Kinder Morgan can conduct work without permission from the city, which opposes the pipeline project. That contradiction poses a serious legal conundrum for the city’s lawyer Gregory McDade.
“I think there’s an important constitutional question in this country as to whether Ottawa, in pursuit of energy policy, should be able to override municipalities in terms of local questions – where the route goes, what time of day you cut, and close roads or not close roads,” he told the NOW. “In our constitutional system, municipalities should have the right to make those decisions, so this is likely to be a long struggle.”
On Thursday morning, roughly two dozen concerned citizens gathered on the mountain, many from Simon Fraser University or BROKE, the local residents’ group opposing the pipeline, but Kinder Morgan’s work crews did not show up that morning.
Burnaby-Douglas MP Kennedy Stewart was there and explained to the crowd that the National Energy Board Act allows the company to work on the land without the city’s permission.
“Kinder Morgan can do the same things to private property owners as they are doing to the city here,” Stewart told the crowd.
The group held a short memorial for some trees Kinder Morgan cut down this week, and retired teacher Yvon Raoul played the bagpipes. The group members agreed to take turns monitoring the area daily until the situation is resolved.
The NOW made a short trek through the woods where Kinder Morgan had started clearing an area to bore a hole for geotechnical work. Several trees had been cut, and a few city staff were on site, watching over the land, ready to enforce city bylaws, in case Kinder Morgan showed up. (Kinder Morgan also wants to build a heli-staging area to drop equipment off by helicopter.) City staff plans to stay in the woods, keeping an eye on the area, but couldn’t say for how long.
The city issued Kinder Morgan a stop-work order on Tuesday and handed out tickets on Wednesday, after work crews cut down trees. (Kinder Morgan says seven trees were cut, while the city has said 10 or 13.)
On Wednesday, Kinder Morgan went back to the NEB to apply for an order forcing the city to obey section 73 of the NEB Act, which gives the company the right to work on the mountain without the city’s permission.
“The question of whether the NEB has the jurisdiction to override Burnaby’s bylaws is a really critical legal question. This is somewhat unprecedented,” said McDade.
The National Energy Board’s Sarah Kiley told the NOW that Kinder Morgan and the City of Burnaby clearly had two different interpretation’s of the board’s previous ruling. When asked which side was correct, she was reluctant to say.
“I can’t answer that one. This is an issue that could end up in the courts,” Kiley said. “We’re not going to step in the middle of two parties.”
Earlier this week, the city issued a press release stating it would seek a court order to protect the park, but McDade said that plan was contingent on Kinder Morgan going to court.
“Now that they’ve decided not to go to court, because I think they think the NEB is more friendly, we may have to look at our options,” he said. “Up until now, I assumed this was going to end in court one way or the other.”
Both sides are considering their legal options.
