Canadian energy pipelines, like this one under construction by Kinder Morgan, are subject to extensive regulatory oversight to make them as safe as possible.
Kinder Morgan's proposed twinning of the Trans Mountain pipeline travels for 1,000 kilometres over mountains and around pristine parks, but the final five-kilometre stretch through Burnaby, B.C., may be the project's toughest, as the company now faces a constitutional challenge to its plans.
In a brief filed earlier this week with the National Energy Board, a lawyer for the City of Burnaby questions whether the board has the constitutional authority to override municipal bylaws that could prohibit Kinder Morgan from undertaking surveying activities in a conservation area.
The latest confrontation comes only two months after Mayor Derek Corrigan vowed to stop the pipeline project.
The company wants the $5.4-billion pipeline to pass through Burnaby Mountain.
Gregory McDade, the city's lawyer, said the challenge is about more than Burnaby's "opposition to the pipeline," but about whether the federal agency can allow a company to ignore municipal rules before a project is even approved. The bylaws established the park that includes Burnaby Mountain and give the municipality authority over it.
"Our primary concern is that they are planning on destructive activities, including building a helipad in a park set aside by public referendum. Once you declare something by referendum, even council can't change it," Mr. McDade said, noting more than 75 per cent of local voters approved of the park.
"There's a significant question about whether three people at the NEB have the right to change that result."
Burnaby has said it remains open to working with Kinder Morgan if it files an application to work within the city's bylaws.
In a written response, the company said on Friday it does not need to consult Burnaby. Section 73 of the NEB Act suspends the common law that would otherwise require a company seek consent from an owner before it enters their land, the statement said.
According to the company's lawyer, Shawn Denstedt, the act is "very broad" and gives Kinder Morgan full powers to make wide-ranging surveys and studies without Burnaby's permission as long as it seeks to minimize damages.
The NEB has given Kinder Morgan a December deadline to file studies on the proposed pipeline's route. After Burnaby officials suggested in July that they might consider a challenge, the NEB said it could order the city to allow Kinder Morgan crews onto park land even if the city refuses to provide them with access.
"Trans Mountain has indicated that they do need access to City of Burnaby lands. If the city refuses access, Trans Mountain can request an order from the National Energy Board to gain access to those lands," NEB spokeswoman Sarah Kiley said in July.
Burnaby could still challenge the NEB in a higher court. Mr. Denstedt said a victory for the city would grant "Burnaby an unwarranted veto over energy developments in the national interest."
The Trans Mountain project would triple the capacity of a pipeline built in 1953. While other proposed pipelines to the West Coast have faced tough questions and delay, including Enbridge's Northern Gateway, Kinder Morgan's proposal was promised as an easy fix to move oil from Alberta. More than 10,000 questions were filed in response to the firm's application to the NEB.
Justin Giovannetti