The National Energy Board's decisions can trump bylaws imposed by local governments, a British Columbia court said in dismissing an appeal by the city of Burnaby that sought to impose restrictions on development of Kinder Morgan Inc.'s Trans Mountain oil pipeline expansion.
The March 27 decision by the Court of Appeal for British Columbia upheld a lower court's ruling that held that the NEB has the constitutional power to direct or limit the enforcement of a city's bylaws. The three-member panel agreed that Burnaby's bylaws were "inapplicable or inoperative" in relation to the Trans Mountain work.
"At issue on appeal is whether the trial judge erred in determining that the National Energy Board had jurisdiction to determine the operability or applicability of municipal bylaws in the exercise of its power under its enabling statute," the court's ruling said. "Appeal dismissed. The NEB has jurisdiction to resolve constitutional conflicts between the powers granted under the NEB Act and Burnaby's bylaws."
The NEB gave Trans Mountain permission to enter a city park in 2014 to conduct studies on the feasibility of tunneling through the mountain as part of its project to boost the capacity of the Eisenhower-era line to 890,000 barrels a day from 300,000 bbl/d. Burnaby has been a vocal opponent of Houston-based Kinder Morgan's C$7.4 billion plan to expand Trans Mountain, which was approved by the Canadian government in late 2016.
In writing the judgement of the three-member panel, Justice Lauri Ann Fenlon said that while generally only courts can declare bylaws invalid, in limited situations the NEB has the power to override local rules. "In my view, the trial judge did not err in concluding that the NEB had jurisdiction to resolve the constitutional conflict between Burnaby's bylaws and the powers granted under the NEB Act," she wrote. "It follows that I would dismiss the appeal." (Burnaby v. Trans Mountain Pipeline ULC, 2017 BCCA 132.)