UPDATE: Kinder Morgan doesn't need Burnaby's permission to access land: NEB

The verdict is in from the National Energy Board—Kinder Morgan does not need the City of Burnaby's permission to access city land for its geotechnical studies.

Despite that, Burnaby still believes it can enforce any violations of its bylaws by the pipeline company.

The company has applied to the NEB to expand its Trans Mountain pipeline and has announced its current preferred route between its Burnaby tank farm and Westridge Marine Terminal on Burrard Inlet is to drill through Burnaby Mountain.

The NEB extended the review process by seven months to allow the company time to do the necessary surveys and geotechnical work in the city-owned Burnaby Mountain Conservation Area.

But so far, Burnaby city hall, which opposes the project, has not yet given the company permission to do the work on its parkland.

Kinder Morgan asked the NEB to confirm that the NEB Act allows pipeline companies to access land, even without the owner's permission, to undertake such work.

Burnaby city hall argued against that interpretation, even launching a constitutional challenge claiming the NEB did not have the power to override municipal bylaws.

But the NEB rejected Burnaby's arguments on both counts.

"The Board considers it telling that the legal basis so described lacks any reference to a violation of the Constitution," the NEB decision said in dismissing the constitutional challenge.

As for the land access issue, the NEB said, "Trans Mountain has the power to enter into and on Burnaby land without Burnaby's agreement … Trans Mountain does not require a Board order for temporary access, nor has it requested a Board order."

It added that "it would not be logical that the Board be required to recommend approval or denial of a project without all the necessary information before it. This would not be in the public interest."

Carey Johannesson, Trans Mountain's project lead for land and right-of-way, said it's good news for the company but it still wants to work with Burnaby. It has applied to the city for permission and has answered its questions.

"It doesn't just apply to Burnaby, it's just a general right that any pipeline company gets under Section 73 [of the NEB Act] when it's trying to fix the route of a pipeline that's under NEB jurisdiction," Johannesson said.

He said the company plans to contact the city in light of the ruling. It intends to move forward with its surveying work and will let them know when it will happen.

"Our plan is to still see if we can work with the city. We've had a relationship with Burnaby on this pipeline for over 60 years. With the new pipeline it's going to continue for a lot longer. So it's in nobody's best interests to not have a good working relationship."

But Burnaby officials still believe they can enforce their bylaws and plan to do so.

“We launched our Constitutional challenge because we absolutely believe that our bylaws trump the Act in this case," said Mayor Derek Corrigan in a press release.

Corrigan said in its decision, the NEB did not deny the city's assertion but only offered its interpretation of the NEB Act.

“We will, therefore, continue to enforce our bylaws, ensuring that Kinder Morgan does not access Burnaby parkland and the Brunette Conservation area on which they want to perform deleterious actions that would contravene the laws put in place by our City and citizens to protect our parkland.”

“The NEB refused to address the City of Burnaby’s constitutional question,” said  Burnaby’s legal counsel, Greg McDade. “By refusing to grant an access order, they ignored the question completely, meaning that Kinder Morgan still cannot access Burnaby’s land without the City’s permission.”

NEB spokesperson Sarah Kiley said Burnaby could file a motion asking the NEB to reconsider either decision but otherwise it's up to the company and city to decide how to proceed.

"Should Trans Mountain go ahead with this they are required to compensate the city for any damages that they cause," Kiley noted.

The proposed expansion of the pipeline between Edmonton and Burnaby would almost triple capacity to allow for increased oil sands crude exports to overseas markets.

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