Kinder Morgan surveyors could be on Burnaby Mountain as early as this week counting birds and sampling soil along the proposed Trans Mountain pipeline expansion route.
The city opposes the expansion plan and has denied the company an encroachment permit for the work, but a National Energy Board ruling Tuesday rendered that permit irrelevant, according to Kinder Morgan.
The board ruled that the federal National Energy Board Act gives pipeline companies like Kinder Morgan the power to enter and conduct surveys and tests on any Crown or private land that lies on their intended pipeline routes.
“There is no requirement … for companies to reach agreement with landowners, the Crown, or otherwise, before exercising the right to access land,” stated the board’s ruling.
The city had argued an NEB order granting Kinder Morgan access to the land would be unconstitutional since it would override municipal and provincial jurisdiction.
The board, however, said it hadn’t issued Kinder Morgan an access order, and the company hadn’t asked for one.
Kinder Morgan sent the city a letter Wednesday morning, stating it would like to start surveys this week, Trans Mountain project leader Carey Johannesson told the NOW.
“We have to confirm the drill rigs, heli rigs that we’re going to be using, and that kind of thing isn’t something that just happens over night,” he said. “We’re just working with them to figure out when that would be. Having a biologist in the field, that can be done pretty quickly.”
But counting birds and sampling soil is as far as Kinder Morgan will get before running into further roadblocks from the city, according to Mayor Derek Corrigan.
While the federal legislation may allow the company access to the land for activities like environmental surveys, he said, it does not give it licence to violate the city’s bylaws by activities like geotechnical drilling and building a helicopter pad.
“It simply gives access in this limited way,” Corrigan said of the legislation.
The NEB ruling appears to contradict that position.
“To interpret the survey power, as Burnaby has submitted, to allow only ‘superficial access’ would not provide the board with the information it needs and would go against the intent of the legislation,” states the ruling.
The board added it would not be logical or in the public interest for the NEB to recommend approval or denial of a project like the Trans Mountain expansion without all the information before it.
But by dodging the issue of an NEB access order, the board still stopped short of giving Kinder Morgan licence to violate Burnaby’s bylaws, according to Corrigan.
He said the city intends to force the board’s hand by stopping Kinder Morgan from drilling or building a helicopter pad.
“If, in fact, we tell [Kinder Morgan] that they can’t do it, they should, I would expect, go to the National Energy Board and say, ‘We need an order from you for access,’” Corrigan said. “At that point, now the Constitutional issue comes alive.”
