National Energy Board members are now deciding whether to override a Burnaby's bylaw against tree-cutting so Kinder Morgan can survey Burnaby Mountain for a new pipeline route.
The NEB hearing on Kinder Morgan's "constitutional question" took place Thursday Oct. 9 in Calgary.
The key issue is whether the NEB has the constitutional power to trump Burnaby's bylaws, which makes it a precedent-setting case that could have implications for other cities facing pipelines.
According to the official transcript, Kinder Morgan's lawyers opened with arguments supporting the NEB's legal authority on the issue, stating the board can determine Burnaby's bylaws. "inoperative," in regards to Burnaby Mountain but can't deem them unconstitutional. Kinder Morgan's counsel also took a stab at Burnaby's press releases on the pipeline.
"They are inflammatory, to say the least. They are political. It is absolutely clear they are opposed to the pipeline. And it's our submission that this is not a bonafide attempt to apply bylaws," said Maureen Killoran, one of three Kinder Morgan lawyers. "This is about a grand purpose of attempting to stop the pipeline and attempting to stop it at this very early stage, when the Proponent is attempting to do environmental assessment work, and work to facilitate the Board process."
Killoran said Burnaby's actions are "a collateral attack on not just the pipeline but on the board's mandate as well."
Burnaby's lawyer Greg McDade argued the NEB did not have the authority to quash Burnaby's bylaws.
"There is no clear power within section 12 or 13 or anywhere else in the NEB Act to say that you can declare or determine that municipal bylaws are invalid," he said.
NEB spokesperson Sarah Kiley wasn't sure when the board's decision would be announced but said it could be in the next couple of weeks. Kiley also noted the hearing was formal and respectful.
"I was pleasantly surprised at how cordial it was," she said.
The National Energy Board Act already allows companies access to Crown land and private property without the landowners' permission, but never before has the act come in direct conflict with city bylaws, as it has in Burnaby.
