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Friday, October 24, 2014

NEB rules in favour of Kinder Morgan Trans Mountain - City of Burnaby prohibited from interfering or obstructing destruction of park land

In a decision dated October 23, 2014, the National Energy Board (NEB) has ruled that: 1) it has the jurisdiction to determine that City of Burnaby by-laws are inoperative or inapplicable to the extent that they conflict with or impair the exercise of Trans Mountain's powers under paragraph 73(a) of the NEB Act; 2) the doctrine of federal paramountcy, or alternatively, interjurisdictional immunity renders those by-laws inapplicable or inoperative for the purposes of Trans Mountain's exercise of its powers under paragraph 73(a) of the NEB Act; and, 3) the NEB has authority under subsection 13(b) of the NEB Act to issue an order against the City of Burnaby.

The NEB has issued that order, which prohibits Burnaby from interfering with or obstructing Trans Mountain and its staff, representatives, contractors, or agents from exercising Trans Mountain's powers under paragraph 73(a) of the NEB Act to enter into an on lands owned by or controlled by the City of Burnaby (including park lands and conservation lands) to complete surveys and examinations.  The NEB then specifies that there is a "broad range of necessary activities and arrangements that must be performed in completing the surveys and examinations", including but not limited to "associated brush clearing, tree removal, movement of equipment, traffic management and bore hole drilling necessary to complete the geotechnical site investigations."

The NEB also ordered that Burnaby could not order or authorize its own personnel to be present within any "safety zone" set by Trans Mountain during the survey and examination work.