The City of Burnaby has lost round one of a constitutional challenge with the National Energy Board to keep Kinder Morgan off Burnaby Mountain.
Kinder Morgan wants to survey the 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 filed a request with the NEB in July, asking the board to confirm the pipeline company’s rights under the NEB Act to access the three-kilometre stretch of municipal land for survey and examination purposes.
The city responded earlier this month by arguing such access would contravene municipal bylaws since much of Burnaby Mountain is a designated conservation area.
The city argued a temporary access order from the NEB would override provincial and municipal jurisdiction and be unconstitutional.
In its decision Wednesday, however, the NEB ruled that section 73(a) of the NEB Act gives Kinder Morgan the power to access the city land without an NEB order, and that the company had not, in fact, asked for one.
“Throughout its submissions, including its Notice of Constitutional Question, Burnaby mischaracterizes the nature of Trans Mountains’ request,” states the NEB ruling.
The board went on to say a “plain reading” of the Act gives Kinder Morgan “the power to enter any Crown (federal or provincial) or privately owned land which lies in the intended route of its pipeline to make surveys and examinations. There is no requirement in paragraph 73(a) for companies to reach agreement with landowners, the Crown, or otherwise, before exercising the right to access land.”
The city could still file a motion for the board to review its decision, but for now Kinder Morgan looks to have the green light to begin surveys on Burnaby Mountain.
“The way it rests right now, we’ve confirmed the company has the right to access the land,” NEB spokesperson Sarah Kiley told the NOW.
