Constitutional showdown: Kinder Morgan and Burnaby battle over cities' say on pipelines
NEB hearing constitutional arguments over whether should cities should have a legal say over the pipeline transport of explosive oil through dense urban areas
In a legal clash being eyed across the country, the City of Burnaby and Kinder Morgan took their intense battle over the $5.4-billion Trans Mountain pipeline expansion to a National Energy Board hearing in Calgary on Thursday.
The constitutional dispute could decide if Canadian cities have a say over the pipeline transport of high pressure, explosive oil from Alberta though highly populated urban areas, or whether the federal Harper government has the final authority.
“It’s a perfect storm. You’ve got [the federal] government doing whatever big business wants. And you’ve got [the provincial government] that is ignoring the issues and hiding its head in the sand,” said Burnaby Mayor Derek Corrigan.
Texas-based Kinder Morgan has tried for months to do test drilling in Burnaby Mountain’s conservation forest to explore the feasibility of an underground tunnel to complete its proposed Edmonton-to-Burnaby pipeline to get Alberta oil onto tankers.
But stopping it at every step has been Burnaby’s mayor and legal team.
“In any rational planning exercise, this is probably the last place that one would think to put a pipeline through a very, very congested municipal area,” Burnaby’s lawyer, Gregory McDade, told the NEB panel Thursday.
McDade argued that cities have responsibilities, enshrined in provincial constitutions, to protect citizens from fire and traffic dangers, as well as to conserve city parks and waterways from environmental harm. The construction, planning and operation of oil pipelines are therefore inherently within city jurisdictions, he suggested.
“Does the NEB really want to be in the position of asking pipeline companies, ‘you can go ahead and interrupt traffic in whatever way you want in the municipality, without organizing that with the municipality?’ he asked the board Thursday.
Trans Mountain Pipeline expansion map - source: Kinder Morgan
But Kinder Morgan stated that inter-provincial pipelines – such as the proposed Trans Mountain pipeline expansion – is a matter of federal law, that is ruled upon by the NEB, and ultimately the Harper cabinet.
“We don’t take issue with [Burnaby's] bylaws,” stated the company’s lawyer, Maureen Killoran. “Trans Mountain just wants to get the work done.”
“It is fairly basic -- municipal bylaws do not trump federal legislation."
One of the main disputes is over trees in a conservation forest on Burnaby Mountain.
The energy giant argued that Burnaby’s position of not allowing the company to even explore the feasibility of a pipeline tunnel -- with geotechnical drilling and tree removals - is not justifiable.
Kinder Morgan's lawyer quoted a trial judge:
“I’m not persuaded that felling the limited trees that Trans Mountain has felled, and proposes to fell, in a relatively small area of Burnaby Mountain Conservation Area would constitute irreparable harm,” Killoran said of the judge’s recent remarks.
What if the pipeline sliced through Calgary?
In response, Burnaby's lawyer said the city's battle is not just about a few trees. He said significant safety issues are at play, and offered this analogy.
“If this project was happening in Calgary, even among a citizenry that supports the oil and gas industry... if there was an oil loading facility in middle of the city, perhaps on the slopes below McMahon Stadium or near the University of Calgary.... how would City Council react? How would the citizens of Calgary react?”
Many municipal governments are following the legal saga closely.
Vancouver, Abbotsford, Langley and Metro Vancouver all asked to participate in the hearing as interveners, but the NEB denied all of them.
B.C. gov't stays silent on battle
With so much legally at stake, some hoped that B.C.’s Attorney General -- Minister Suzanne Anton -- would also participate, but she declined. The province said she may play a more active role if the projects reaches a federal court.
“The Province continues to play an active role in the National Energy Board's review of the project, with a particular focus on marine and terrestrial spill prevention, response and mitigation,” said her office.
NDP MP Kennedy Stuart suggested the Clark government is biased in support of the Kinder Morgan.
“Perhaps the provincial Liberals are inclined to supporting this pipeline. But they have a larger responsibility not just to a single project. I am disappointed they have not participated,” Stuart said from Ottawa Thursday.
The Canadian Natural Resource Alliance recently called the actions of the mayor of Vancouver and Burnaby "activist" and harmful to the economy and job creation, in a commentary to the Financial Post. The business group argued the mayors should focus on issues in their jurisdiction, such as roads, transit, bike lanes and garbage collection.
The Trans Mountain pipeline expansion would triple the flow of the existing oil pipeline, thereby increasing the tankers in the Port of Vancouver from 60 to 400 per year.
Kinder Morgan also wants the new pipeline to cut through three B.C. parks: Finn Creek, North Thompson River and Bridal Veil, as well as the Lac Du Bois Grasslands protected area.