The B.C. Supreme Court is expected to hand down its final decision this October in a City of Burnaby court case that will have implications for provinces and municipalities pushing back against pipeline and other major federal projects.
The legal conflict started last fall, when Burnaby ticketed Kinder Morgan workers for cutting trees in a municipal park, while the National Energy Board backed Kinder Morgan, effectively overriding the city’s bylaw.
“Burnaby had a bylaw to protect its park, and the NEB says, ‘We want to ram our pipeline through your park, and you have no ability to stop us,’” said Burnaby’s lawyer Greg McDade. “There’s a conflict of laws there, and the questions is: Does the federal law trump everything or are we in co-operative federalism, where local authorities have some jurisdiction?”
The B.C. Supreme Court’s final hearing for the case is set for Oct. 19 to 21, but it might not end there.
“This is probably an issue that will have to be resolved by the Supreme Court of Canada,” McDade said. “The mayor (Derek Corrigan) has already spoken publicly that he’s going to take this as far as he can.”
The conflict pits federal power against provincial, since the provinces grant cities the right to enact bylaws.
“(The decision) will have a fairly significant impact in terms of inter-provincial undertakings, not just pipelines but railways and highways and airlines and anything that’s considered to be federal in nature,” McDade said.
According to McDade, the B.C. Supreme Court tends to support “cooperative federalism,” which is the application of both sets of rules, but in the Burnaby Mountain case, those rules are in direct conflict with each other.
Because the conflict raises constitutional questions, the on both sides of the issue, attorneys general across the country have a chance to weigh in, and B.C.’s attorney general plans to participate in the case.
“The province had no choice but to come in, it’s the responsible thing to do,” McDade said.
Kinder Morgan spokesperson Lizette Parsons Bell declined to comment on the case.
“We have to leave it before the courts,” she said.
