The City of Burnaby has hit another legal roadblock in the fight against Kinder Morgan. Burnaby is caught between two levels of court, neither of which are willing to hear the city's case against the pipeline company.
On Friday, the city received news that the Federal Court of Appeal is refusing to hear Burnaby's appeal challenging the National Energy Board order that allowed Kinder Morgan to conduct survey work on Burnaby Mountain. The work was done against the city's wishes and in violation of local bylaws against cutting down trees in public parks. Burnaby's lawyer Greg McDade told the NOW the federal court will not hear Burnaby's appeal, but the judge gave no reasons.
"We don't know why. It's quite frustrating," McDade said. "We kind of have a squabble between courts, and we are caught in the middle of it."
At issue is whether a federally appointed body can overrule city bylaws, as the National Energy Board did with the City of Burnaby, by granting Kinder Morgan the order to survey Burnaby Mountain. The work led to a 10-day standoff with police standing between protesters and company contractors, and more than 100 people were arrested.
The B.C. Supreme Court already dropped a similar case, where Burnaby was seeking a temporary injunction against the company. The judge in that case felt the issue was important but that the federal court should deal with it.
"We have this ironic situation where the B.C. Court of Appeal said this was a really important matter of public interest, and it should be heard by the Court of Federal Appeal, and the Court of Federal Appeal doesn't want to hear it," McDade said. "I do feel that the courts are failing Burnaby and failing the public somewhat at this stage by passing the matter back and forth."
This latest hurdle doesn't mean the legal battle is over. Burnaby has already filed a motion with the B.C. Court of Appeal, asking for reconsideration of the issue.
Mayor Derek Corrigan could not be reached for immediate comment.
