A British Columbia city is so opposed to pipeline carrier Kinder Morgan’s bid to include it on an alternate route for the proposed Trans Mountain Pipeline expansion (TMX) that it’s ready to challenge the constitutionality of a federal law that would give the carrier access to city lands.
In documents filed with the National Energy Board (NEB) this week, a lawyer for the City of Burnaby has outlined the city’s case, challenging Kinder Morgan’s right to conduct surveys on city lands, some of which would be included in an alternative route to a preferred through-the-mountains route.
In late July, Derek Corrigan, Burnaby’s mayor, made his position clear, rejecting any effort by the carrier to include city land in an alternative route for the TMX.
Earlier, Trans Mountain Pipeline ULC, a Kinder Morgan subsidiary, wrote to the NEB, noting that, in earlier submissions, it had neglected to identify the proposed alternate route that would have included parts of Burnaby.
Also in July, sensing the city’s reluctance to grant access to city lands, Trans Mountain wrote to the city, advising that it would invoke a federal law to enter city lands for survey purposes if the city denied it access to the land.
As it turned out, that’s just what the city has done.
The federal law Trans Mountain has invoked, the National Energy Board Act, appears to give pipeline carriers under NEB purview the right to enter “any Crown land” on a proposed pipeline route to carry out surveys “or other necessary arrangements” to “fix” the route. The city of Burnaby is disputing the viability of that part of the law on constitutional grounds, arguing it does not override the city’s own jurisdiction and bylaws.
The city’s position is that any right Kinder Morgan or Trans Mountain might have to enter city lands under the NEB Act is subject to the city’s jurisdiction, and requires its permission. Alternatively, the city argues that its bylaws and the federal law must “operate concurrently to facilitate co-operative federalism.”
Greg McDade, Burnaby’s lawyer, has served or will serve notice of the town’s constitutional challenge not only on TMX project proponent Kinder Morgan (Trans Mountain) and the NEB, but on attorneys general for every province and territory in Canada, as well as the attorney general of Canada.
Neither McDade nor Shawn Denstedt, legal counsel for Trans Mountain, responded to the Bulletin by press time August 7.
