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Burnaby Appeals NEB Decision on City Bylaws to the Supreme Court of CanadaCity of Burnaby
BURNABY - On May 9, the City of Burnaby filed an appeal to the Supreme Court of Canada in relation to the National Energy Board’s (NEB) December ruling that declared Burnaby’s PPA and tree bylaws constitutionally inapplicable to Kinder Morgan’s Trans Mountain pipeline construction. The NEB decision is allowing Kinder Morgan to bypass City permitting processes put in place to protect the city’s residents, environment and economy.
The Order of the NEB exempting Trans Mountain from these laws was made December 7, 2017, with Reasons for the decision delivered January 18, 2018. On February 16, 2018, the City of Burnaby filed for leave to appeal the NEB decision, but on March 23, 2018, the Federal Court of Appeal denied the City’s application.
“The NEB accepted that Trans Mountain’s claim of deliberate delay for political reasons was not proven. But they then found, with no evidence, that the City’s standard, first-class development approval process was taking too long. We believe that even federal pipelines should follow normal rules within municipalities, and that the time taken for regulatory review should be part of the process. We don’t believe the federally appointed NEB is the right place to review municipal processes,” says Mayor Derek Corrigan. “The Court System should be the body that decides whether or not this is fair and just. The Federal Court of Appeal refused to do so – and they did so without providing any reasons. We are now, therefore, asking the Supreme Court of Canada to address this critical matter.”
Trans Mountain applied in October 2017 to be relieved of the requirement of Trans Mountain to comply with the municipal bylaw relating to planning approval and tree removal. Trans Mountain argued that the bylaws were unconstitutional because they conflicted with the federal approval and the NEB Act. Trans Mountain claimed that Burnaby was delaying the permits deliberately because of political interference.
The NEB ruled that the bylaws were not in constitutional conflict, and found that there was no evidence of political interference or deliberate obstruction, but held that the time for permitting was an ‘unreasonable delay’, and on that basis declared that the bylaws were constitutionally inapplicable.
Burnaby requested leave to appeal that ruling, to argue that municipal laws put in place to protect the environment should apply. Under the NEB Act, an appeal must be made to the Federal Court of Appeal, but first requires that Court to grant leave to appeal in the Federal Court of Appeal and this was denied.
The Leave Application describes the legal issue on which Leave is sought as follows:
The Constitutionality of Municipal By-Laws: Should the NEB Exercise Jurisdiction over Municipal Bylaw Processes?
(a) Does the National Energy Board have jurisdiction to review municipal processes for unreasonableness or inefficiency;
(b) Does the manner of and timing of the City of Burnaby’s application processing render the process constitutionally inapplicable or inoperable in the absence of intentional delay or obstruction;
(c) Does the National Energy Board have jurisdiction to make a constitutional declaration in respect of the City of Burnaby’s By-laws in the absence of any application by the City or action contrary to the NEB Act; and
(d) Are the City of Burnaby’s By-laws constitutionally inapplicable or inoperable by reason of the doctrines of interjurisdictional immunity or paramountcy?
City will also appeal NEB’s approval of Route through Burnaby
The City has also decided to appeal the NEB’s approval of Kinder Morgan’s choice of routing through Burnaby. The Detailed Route Hearing was held in January by a panel of three NEB members to approve the specific locations of the pipeline within Burnaby. The City argued that Trans Mountain had deliberately chosen a new route through parks and City greenways, and ignored their value to all the City residents. Trans Mountain had also revoked a promise to the NEB to use HDD (undersurface drilling) within the Brunette River Conservation Area.
“We are encouraged by the fact that at least one member of the NEB board expressed a dissenting view,” says Mayor Derek Corrigan. “He recognized that Kinder Morgan has already moved away from commitments made to mitigate damage in the Brunette River Conservation Area. He also questioned why the alignment couldn’t stay farther away from homes in the Shellmont area. “Because we know that this route would do serious damage to many areas of our City, we will continue to fight it through the courts.” The City will be filing an application before the Federal Court of Appeal in the next two weeks.
For further information, contact:
Office of the Mayor Mayor@burnaby.ca