National Energy Board rules in Kinder Morgan's favour

Kinder Morgan Canada can bypass two of Burnaby’s bylaws and proceed with work, the National Energy Board announced on Thursday.

The NEB order states the Texas-based company is not required to comply with two sections of the city’s bylaws as it prepares to begin construction in Burnaby.

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“This decision allows the company to begin work at its temporary infrastructure site near the Westridge Marine Terminal, and some work at the Burnaby Terminal, subject to any other permits or authorizations that may be required,” reads the order.

In October, Kinder Morgan asked the NEB to intervene and allow it to continue with construction in the area. At the time, the company had yet to acquire local permits related to the city’s tree-cutting and zoning bylaws, and alleged the city was stalling by not issuing them. Burnaby’s position, however, has been that its regulatory process has been applied in good faith.

Last month, the NEB announced a three-member panel would decide on the matter and would hold oral hearings in Calgary on Nov. 29 and Dec. 4.

Reasons for the NEB’s decision were not given, but “will follow,” according to the order.

Sarah Kiley, a spokesperson for the national energy regulator, couldn’t give a specific timeline on when those details would be forthcoming, but said “I wouldn’t think it would be an extended period.”

“I know there will be people who are disappointed, and we certainly understand that,” she told the NOW.

“However, in this case, the panel, did a very thorough review of this motion. We had more than 3,000 pages of evidence from all sides; also, the attorney generals would have filed arguments as well. This is a request we took very seriously. We considered it very thoroughly and in the end, the panel decided this was the right thing to do.”

Mayor Derek Corrigan said he wasn’t surprised to hear of the board’s decision.

“(Kinder Morgan) has had pretty big success going to the National Energy Board on a repeated basis. It’s kind of their home base to go back to the National Energy Board anytime they’re (having) any issue that isn’t making them happy.

“We don’t have anything more to say about what they’re going to do. We don’t have any ability to mitigate the impact or look for compensation in regard to replacement trees or any of those kind of issues. We lose an opportunity to protect Burnaby’s interest during the project,” he said.

The mayor still stands by his promise to stand in front of a bulldozer if comes down to it.

“I’ve always said I was going to exhaust all the legal and political avenues that I have, and we still are going through legal proceedings at the Federal Court of Appeal and we may continue proceedings here. I don’t take any kind of civil disobedience lightly, and I don’t want to set a bad example for people in that regard, so I’m being very, very careful to ensure that I’m only going to do something like that when I have absolutely no other choice.”

Greg McDade, a lawyer with the City of Burnaby, said the NEB is trying to “boldly assert federal power” and “doesn’t care much about municipalities.”

“They seem to care more about pipeline companies than municipalities,” he said.

McDade added his team is satisfied that the evidence and the law was on their side.

“The constitutional case law says there’s room for operation of provincial, federal and municipal law in appropriate circumstances, and by making this simple order, the NEB says, in effect, there are no appropriate circumstances,” he said.

It was the company’s “ineptness” and “refusal to deal with simple development rules” that caused the permit delays, according to McDade.

“Municipal staff were worried about legitimately municipal things, like parking and traffic and sediment, and all of those things are now at risk. One of the things people of Burnaby should be wondering about is if the NEB isn’t going to allow Burnaby staff to deal with those issues, is the NEB going to deal with it? When gravel trucks come out on to Barnet Highway, are they going to be able to respect cycling lanes and bus stops and stuff like that? If Burnaby can’t protect those things, then the obligation’s on the NEB to do it, and are they going to do it?”

The next step is waiting for the reasons behind the panel’s decision, noted the lawyer, and from there, counsel will decide if there are any legal steps left to take.

In an emailed statement, Kinder Morgan Canada president Ian Anderson said the company is “pleased ... as it reinforces the view this federally approved project is in the national interest.”

The $7.4-billion project was approved by the federal government in November 2016. Once complete, the Edmonton-to-Burnaby pipeline will carry bitumen at nearly three times its current capacity.

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