In July 25, 2014, Kinder Morgan asked the National Energy Board (NEB) to clarify its rights with respect to accessing and impacting protected, environmentally sensitive City of Burnaby parkland.
On August 5 and 6, the City of Burnaby responded to Kinder Morgans request with a Notice of Constitutional Question, noting that:
The land Kinder Morgan wants to access for testing includes parkland on which the drilling of bore holes and construction of a helicopter staging area would be contrary to applicable by-laws, and the provincial laws under which they were enacted.
The NEB Act does not empower the Board to make orders that override municipal jurisdiction or bylaws.
Today, in a response, Mayor Corrigan’s office said that the National Energy Board offered an interpretation of the applicable section of the Act, but failed to grant Kinder Morgan an access order, leaving Burnaby able to continue to enforce its bylaws.
We launched our Constitutional challenge, says Mayor Derek Corrigan. because we absolutely believe that our bylaws trump the Act in this case. We continue to believe this to be true and nothing the Board said today changes that fact.
In their response, the National Energy Board did not deny our assertion. Instead, they merely offered an interpretation of Section 73a of the National Energy Board Act. We will, therefore, continue to enforce our bylaws, ensuring that Kinder Morgan does not access Burnaby parkland and the Brunette Conservation area on which they want to perform deleterious actions that would contravene the laws put in place by our City and citizens to protect our parkland.
The NEB refused to address the City of Burnabys constitutional question, said Burnabys legal counsel, Greg McDade, QC. By refusing to grant an access order, they ignored the question completely, meaning that Kinder Morgan still cannot access Burnabys land without the Citys permission.