Burnaby has so far delayed in deciding on Trans Mountain's request for access over outstanding concerns about environmental protection, environmental remediation, safety and inadequate notice to owners. A number of properties affected are located in conservation areas under the authority of the City, and the activities that may be carried out on lands dedicated for park and recreation use are extremely limited. In other words, the proposed access and use of the lands being sought by Trans Mountain are in conflict with municipal by-laws.
Trans Mountain applied for access under Section 73(a) of the NEB Act, which sets out that the powers of a "company" include the power to enter onto land "lying in the intended route of its pipeline, and make surveys, examinations or other necessary arrangements on the land for fixing the site of the pipeline." In past instances involving private landowners, the NEB has readily granted access to pipeline companies in spite of landowner objections and without the company having served a notice under Section 87 of the NEB Act. Section 87 requires that a company serve a notice to landowners where the company requires their land for a pipeline. The notice then provides protection to the landowner for any costs incurred in dealing with the proposed pipeline if the project is later withdrawn.
Not surprisingly, the NEB has also ruled that the company can serve the Section 87 notice whenever it wants - there is no obligation on it to serve the notice prior to entering on lands pursuant to Section 83(a) even though the company obviously knows by that point that it "may require" the lands in question.
Burnaby challenged the NEB on Section 83(a) on a different basis. First, Burnaby questioned whether a company may even apply for access under Section 83(a), arguing that the section does not provide for making such an application. Second, Burnaby argued that Section 73 does not override provincial law or muncipal by-laws. Burnaby submitted, "There is room for both the operation of Section 73(a) of the NEB Act and Burnaby's by-laws, if access to Burnaby lands is granted subject to Burnaby reviewing the Request and making a determination. Trans Mountain, for instance, would still be able to access the land to survey and examine, even if such access was subject to conditions imposed by Burnaby to protect the purpose for which the property was reserved [i.e. as park or conservation land], pursuant to its by-laws."
Burnaby also argued that Section 73(a) does not authorize the intentional disturbance of land as proposed by Trans Mountain, including the installation of infrastructure or facilities.
A notice of constitutional question was filed with the NEB and the Attorneys General of Canada and the provinces and territories. The specific issues raised were:
- Section 73(a) of the NEB Act does not empower the NEB to make orders that override provincial and municipal jurisdiction pursuant to Section 92(8) of the Constitution Act, 1867; and,
- In so far as Section 73(a) of the NEB Act purports to empower a company to enter land, Section 73(a) does not override municipal jurisdiction or by-laws enacted pursuant to the Community Charter, S.B.C. 2003, c. 26 and the Municipal Act, S.B.C. 1958, c. 32, as amended. Further, or in the alternative, to the extent that they are able, Section 73(a) of the NEB Act and by-laws enacted pursuant to the Community Charter and the Municipal Act, as amended, must operate concurrently.
On that basis, the NEB also found that the Notice of Constitutional Question was misdirected, saying that Trans Mountain did not apply for access. The NEB added that it did not find that "co-operative federalism" should apply to or influence the powers of Trans Mountain under Section 73(a) of the NEB Act.
Since this decision was made, Burnaby's mayor has said that the City will continue to enforce its by-laws prohibiting access to Burnaby mountain. We can speculate on what will happen if the City continues to hold out against Trans Mountain. Trans Mountain would likely have to apply to the NEB for an access order (the application the NEB says Trans Mountain didn't already make). Assuming the order would be granted, Burnaby could appeal the decision in court. It would be helpful to have some judicial consideration of the NEB's interpretation of Section 83. Individual landowners are generally in no position to fight this issue - the City of Burnaby may be in that position.