National Post (National Edition)
NEB RULES AGAINST BURNABY, B.C., IN ONGOING PIPELINE DISPUTE.
NEB RULES IN FAVOUR OF TRANS MOUNTAIN IN BYLAW IMPASSE
CALGARY • The National Energy Board has ruled that Kinder
Morgan Canada Inc. could ignore the City of Burnaby’s bylaws and start construction in the municipality on its stalled Trans Mountain expansion project.
In an announcement Thursday, the NEB issued an order declaring the company was not required to comply with two sections of the British Columbia city’s bylaws related to preliminary plan approvals and to tree cutting permits.
“This decision allows the company to begin work at its temporary infrastructure site near the Westridge Marine Terminal, and some work at the Burnaby Terminal, subject to any other permits or authorizations that may be required,” the NEB said in a statement.
Gregory McDade, Burnaby’s lawyer, said the municipality will consider an appeal. “We think the evidence was clear the municipality was regulating in good faith,” he said in an interview. “The NEB has ruled yet again in favour of the company, against the interest of the municipality, and that is a great concern to us.”
The regulators held two days of hearings in Calgary after the company complained the municipality, a staunch opponent of the $7.4 billion project, used stalling tactics to delay it, and putting it in jeopardy. The tactics included saying its staff was too busy, requesting time-consuming and unnecessary studies, duplicating information requests, and refusing to provide timelines.
On Monday, Kinder Morgan said lack of clarity around municipal permit processes and related judicial process could swell startup delays beyond the previously expected nine months. The company says that it expects to lose about $75 million before certain deductions for every month the in-service date is pushed back.
The company promised the NEB it would follow the spirit of the bylaws, but could no longer wait for Burnaby to issue permits under a process it described as opaque and arbitrary. Six months after applying for them, it said it had yet to receive a single one and that it was in the dark about what it was required to do.
The DECISION from NEB … REINFORCES … our view PROJECT is in the NATIONAL INTEREST
— IAN ANDERSON, CEO, KINDER MORGAN CANADA
The NEB has ruled … AGAINST the interest of the MUNICIPALITY, and that is a GREAT CONCERN to us
— GREGORY MCDADE, LAWYER FOR BURNABY. B.C.
Without NEB action, the company said it would be impossible to predict when the project could be built.
The request triggered a constitutional question about whether a single municipality could stop construction of an inter-provincial pipeline approved and deemed in the public interest by the federal government.
The hearings were attended by lawyers representing the governments of Alberta and Saskatchewan, which sided with Trans Mountain, and representing British Columbia, which sided with Burnaby after its NDP government promised to use every tool at its disposal to ensure the Trans Mountain project never moves forward.
At the hearing, the city denied it was giving the company the run around and blamed its incompetence for the delays. It said the pipeline project was subject to the same rules as every one else and that proponents should have known how to meet its requirements.
“We are pleased with the decision we have received from the NEB today, as it reinforces our view this federally approved Project is in the national interest,” Ian Anderson, president of Kinder Morgan Canada, said in a statement.
Burnaby can seek leave to appeal at the Federal Court of Appeal.
“Alberta welcomes today’s National Energy Board ruling,” Alberta premier Rachel Notley said in a statement. “It gets us another step closer to shovels in the ground and more markets for our energy resources – something that benefits each and every Canadian.”