City launches constitutional challenge

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Pipeline company wants access to Burnaby Mountain

The City of Burnaby is launching a constitutional challenge with the National Energy Board in the legal battle over Burnaby Mountain, while Kinder Morgan is arguing it has the right to work on the land, based on federal law.

The city’s lawyer, Gregory McDade, is calling for a fair hearing on the issue.

“The idea that in the 21st century that the federal government can just bulldoze through a community deserves some debate,” he told the NOW.

Kinder Morgan wants to survey Burnaby Mountain for a proposed route for the Trans Mountain pipeline expansion, but the city, which is opposed to the project, has not yet granted the company permission to do so. Kinder Morgan has two outstanding applications filed with the city, which is waiting on more information before making its decision.

Much of Burnaby Mountain is city-owned land and a designated conservation area.

In late July, Kinder Morgan sent a letter to the NEB, arguing it had the right to work on Burnaby Mountain, according to the National Energy Board Act.

The city’s main counter-argument, filed last week, is the act should not override local jurisdiction and bylaws.

“The constitutional question is: Can the company just pick any place they want and get (access) automatically or do they need to comply with municipal rules and bylaws,” McDade said. “This isn’t just a property issue. Where they are trying to build a helicopter pad and do drilling is in a conservation area – that would contravene municipal bylaws. … This is designated parkland; it needs to go to a referendum.”

Kinder Morgan’s response, issued on Friday, is that the city “mischaracterized or misunderstood” the company’s request. Kinder Morgan did not apply to the NEB to force the city to allow the company’s survey work to begin; it simply asked for an interpretation of existing law.

According to National Energy Board spokesperson Sarah Kiley, there is no plan yet on how to deal with the city’s challenge.

“We haven’t made any kind of decision or announced how we are going to proceed with that challenge. It’s very much wait and see, and the board will make its decision public,” she said. “All options are on the table.”

McDade said he hopes the board takes the issue seriously.

“The NEB hasn’t shown, so far, much of an open mind to the public interest. In terms of confidence, we may have to look to another court beyond them,” he said.