The City of Burnaby has filed a civil claim in B.C. Supreme Court to keep Kinder Morgan out of the Burnaby Mountain conservation area.
The move, made Monday, is the latest in the legal battle over the city-owned land, where Kinder Morgan has been cutting trees for survey work for a new pipeline route. The city is also asking the court for a temporary injunction to stop the company from cutting trees before the court decides on the matter.
"We have no other options. We tried to raise these issues at the NEB, we tried to deal with the company itself, and now we are in B.C. Supreme Court," said the city's lawyer, Gregory McDade. "It's fairly straight forward. Municipal bylaws are enforceable by court injunction."
The bylaw McDade was referring to forbids anyone from cutting trees in a city park, something Kinder Morgan did last week during survey work.
The city should know by Thursday if the B.C. Supreme Court will grant the temporary injunction, but that still won't solve the larger question of jurisdiction. Much of the mountain is city property, yet the National Energy Board Act says companies can conduct work without the landowners' permission. The city, which is opposed to the pipeline expansion, has argued that cutting trees is breaking the local bylaw.
"Eventually the question will be whether the NEB ruling has the jurisdiction to override Burnaby's bylaws," McDade said. "That can only be raised in B.C. Supreme Court, and it has to be raised by the company if they are going to make that argument."
The notice of civil claim also argues the NEB has no jurisdiction to override city bylaws, McDade added.
"The company has been claiming they have that right, but no court has given it to them. Now they are not cutting, so we want the court to ensure the status quo continues while we have that constitutional discussion," he said.
Last week, Kinder Morgan applied to the National Energy Board for an order that would compel the city to comply with the NEB Act, allowing the pipeline company to finish working in the conservation area. The order could be enforced by a court if need be. The NEB is giving the City of Burnaby till Sept. 10 to comment on Kinder Morgan's request, and then the company has a further five days to state its position before the board makes a decision on the matter.
McDade said the court's final decision on jurisdiction could take weeks or months.
Kinder Morgan was not available for immediate comment, but Mayor Derek Corrigan issued a press release blasting the company.
"This pipeline has not been approved, but Kinder Morgan thinks nothing of illegally entering
our park, causing irreparable harm to the ecosystem and defying the laws our citizens have
put in place," he said in a release.
"We will do everything we can as a City to ensure Kinder Morgan does not return."
Meanwhile, there is an anti-Kinder Morgan protest planned for Saturday, Sept. 13, from 2 to 4 p.m. in Burnaby Mountain Park on Centennial Way. At press time, more than 200 people had RSVPd on Facebook for the event.
