About a month ago, I posted about a fight going on before the National Energy Board between Trans Mountain Pipeline (Kinder Morgan) and the City of Burnaby with respect to property access for the proposed Trans Mountain Pipeline Expansion Project. At that time, the NEB sided with Trans Mountain in rejecting a request by Burnaby for answers to constitutional questions including whether a company's right to survey under Section 73 of the National Energy Board Act (NEB Act) could displace a municipality's by-laws. The NEB said that Trans Mountain had not made any application for an order requiring Burnaby to allow access to City lands.
My guess a month ago was that Trans Mountain would have to bring an application for access, and it has. Now the NEB says that the constitutional question must be answered and has ordered that Trans Mountain provide the Notice of a Constitutional Question to be served on the attorneys-general of Canada and the provinces and territories. The decision can be accessed at: Ruling No. 32.
Although the NEB continues to maintain its interpretation of Section 73 (i.e. that companies have a right to enter upon lands and complete surveys and examinations), it explains why the Burnaby situation raises a constitutional question:
The Board accepts that it has the authority to consider constitutional questions as they relate to its enabling legislation, pursuant to section 12. The Board can refuse to apply provisions within its enabling legislation if the Board determines that those provisions are contrary to constitutional law. However, this is not the relief requested by Trans Mountain from the Board, nor has Burnaby argued in this instance that the provisions of the NEB Act are unconstitutional.
While the draft order proposed by Trans Mountain does not specifically request that the Board order Burnaby to stop enforcing its by-laws, it is clear from the above quote that this is the desired effect of such an order. This may require the Board to find, either directly or indirectly, that, on the facts before it, legislation or by-laws enacted by another level of government are inapplicable to Trans Mountain and that, consequently, that government should be forbidden by the Board to take any actions to enforce those laws. In the Board’s view, this clearly raises a constitutional question.
This is a case to keep your eyes on. Should NEB-regulated pipeline companies have a right to run roughshod over pre-existing municipal by-laws?
Storm
Showing posts with label City of Burnaby. Show all posts
Showing posts with label City of Burnaby. Show all posts
Monday, September 29, 2014
Friday, August 29, 2014
City of Burnaby challenges NEB on access rights of companies for pre-approval project work - NEB sides with company
The National Energy Board (NEB) is considering an application by Trans Mountain Pipeline ULC (Kinder Morgan) to access lands owned by or within the authority of the City of Burnaby for preliminary work related to the proposed Trans Mountain Expansion Project. The work includes land surveying and related studies that Trans Mountain wishes to conduct in anticipation of the eventual approval of its project. In particuar, the work relates to a new proposed pipeline route that was not inclued in Trans Mountain's original application for approval to the NEB.
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:
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.
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.
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