NEB to rule on legal imbroglio over Burnaby Mountain

The National Energy Board is holding an oral hearing on Oct. 8 in Calgary to resolve the legal imbroglio between the city and Kinder Morgan over the Burnaby Mountain conservation area.

While Burnaby is arguing Kinder Morgan is breaking the local bylaw by cutting trees in a city park, the pipeline company maintains it has the federally sanctioned right to work on the city-owned property, whether Burnaby grants permission or not.

The NEB wants the two parties to weigh in on the issue at the Calgary hearing and answer questions on whether the board has the legal authority to strike down Burnaby’s bylaw, so Kinder Morgan can work on the mountain.

“We’ll hear arguments from both sides and any attorney generals, should they choose to participate,” said NEB spokesperson Sarah Kiley.

Mayor Derek Corrigan took issue with the Calgary location, pointing out that the distance makes it difficult for Burnaby residents to attend.

“We requested that the hearings take place here,” Corrigan said in a media release on Monday.

Langley and Abbotsford, two municipalities already granted intervenor status in the pipeline hearing, plan to back Burnaby in the Oct. 8 hearing, and the city’s lawyer expects more to come forward.

“The big issue here is whether the NEB has the power to strike down municipal laws,” Greg McDade told the NOW. “This is a really important constitutional principle with ramifications beyond this particular fight. If the NEB is going to seize the power to strike down (these) laws, then we’re all in trouble.”

As part of the larger, $5.4 billion Trans Mountain expansion, Kinder Morgan wants to build a pipeline through the conservation area. However, when crews started clearing the land in September, the city issued a stop-work order and tickets for cutting down trees. Kinder Morgan then asked the NEB for an access order to force Burnaby to cooperate, but the board rejected that, asking instead for a “notice of constitutional question” since granting the request would mean overriding Burnaby’s bylaw. Kinder Morgan filed that notice Friday, and the NEB has been quick to respond, as promised.

While the city has applied to the B.C. Supreme Court to rule on the conflict, Kiley said the board can handle constitutional questions.

“We have the jurisdiction to rule on a constitutional issue. It says that in the NEB Act, we have that right, but generally speaking we would want to hear from both parties, and the attorney generals,” she said.

After the hearing, the three-person panel handling the Trans Mountain expansion will make a decision.

Meanwhile, Kinder Morgan has stopped work on Burnaby Mountain but has alerted
Westridge residents that survey work will continue in their neighbourhood, which was the original plan. Kinder Morgan opted for the Burnaby Mountain route to avoid crossing four private properties and backlash from local residents.

The current pipeline, in place since the 1950s, runs through the Westridge area, but Kinder Morgan would like to decommission it and run it through Burnaby Mountain, along with the new pipeline.

Last week, the city’s anti-pipeline motion at the Union of B.C. Municipalities conference was narrowly defeated, but Burnaby’s emergency resolution calling for NEB hearing reform was passed.

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