B.C.’s attorney general has chosen not to get involved in the legal dispute between Kinder Morgan and the City of Burnaby, even though the National Energy Board’s Oct. 9 hearing on the matter is precedent setting and could have wide-ranging implications for other municipalities.
Kinder Morgan filed a “constitutional challenge” with the board, hoping to override Burnaby’s bylaw against cutting trees in a city park, so the company can survey Burnaby Mountain for a new pipeline route. The fundamental question is: Can the federal government, via the National Energy Board, override the City of Burnaby’s bylaw?
On constitutional questions, Canada’s attorneys general are invited to participate. But on Friday, the NOW learned B.C. Attorney General Suzanne Anton would not become involved in the case.
That means the NEB will decide if it can overrule municipalities, without any provincial government input, even though the provincial government grants the municipalities the power to enact bylaws. The upcoming hearing could have implications for other cities facing pipelines in their communities.
The NOW requested an interview with Anton, but she was not available and no reasons were given for her decision.
Burnaby Mayor Derek Corrigan found the news surprising, especially because the provincial government's authority is at stake.
“That is surprising that the provincial government wouldn’t protect their interest at this hearing, because this is in essence an attack on the provincial government and their power,” Corrigan told the NOW. “It’s not a matter of them taking sides, it’s about defending their ability to make legislative authority.”
Corrigan said the provincial government was “failing to defend municipalities.”
“They are allowing a very bad precedent being set,” he said. “This is a confrontation that’s building into something much bigger than the Kinder Morgan pipeline, … it’s a confrontation that’s going to the fundamental nature of democracy in Canada.”
The city’s lawyer, Greg McDade, was equally dismayed.
“You wonder why they wouldn’t intervene to defend provincial jurisdiction,” he said. “Makes you wonder how sincere they are about protecting the province with their own law, for Kinder Morgan and Enbridge.”
The cities of Langley and Abbotsford also wanted to weigh in on the Oct. 9 hearing, but the National Energy Board announced they would not be allowed to participate, even though they are intervenors in the larger pipeline hearing. McDade said the City of Vancouver was also hoping to participate but the NEB won’t allow it.
“I think it’s quite surprising they’ve refused to hear from the municipalities on this issue,” he said. “Other lawyers I’ve talked to are quite surprised by that.”
McDade also said the case was precedent setting.
“The NEB has never in history claimed the power to declare municipal bylaws invalid, and that’s what Kinder Morgan is asking them to do here,” McDade said.
