CALGARY – One of the last remaining court challenges before the Trans Mountain pipeline expansion project could be removed on Thursday.
The Supreme Court of Canada will announce whether it will hear the city of Burnaby’s appeal of an order issued by the National Energy Board late last year, which gave pipeline proponent Kinder Morgan Inc. permission to bypass the municipality’s bylaws in certain cases to build its pipeline through the city.
Burnaby, which is the terminal point for the 590,000-barrels-per-day pipeline expansion from Alberta, appealed the NEB’s decision to the Federal Court of Appeal, which dismissed the appeal with costs on March 23.
Despite it’s long-standing opposition to the project, Burnaby evicted protestors camped outside the gates to the pipeline terminal last week. The city did not respond to a request for comment on its continued legal fight.
At the heart of the matter, according to a release from the Supreme Court, is whether delays “in an otherwise valid municipal permitting process result in findings of constitutional inapplicability of municipal bylaws” and whether the NEB has “jurisdiction to make a constitutional declaration in respect of municipal bylaws.”
The dispute between the city, where Mayor Derek Corrigan opposes the project, and the company escalated in June 2017, when Kinder Morgan submitted four preliminary planning applications and a plan for managing trees during construction of the pipeline. Burnaby had not decided on any of the company’s applications by late October, which prevented the company from beginning work.
At that point, the company asked the NEB to issue an order exempting it from Burnaby’s bylaws. The order was issued on Dec. 6, 2017 and the subsequent appeal failed in what pipeline supporters hailed as a “decisive victory.”
“It wasn’t that we won the decision, it was that the court wouldn’t even hear it. So it was a pretty definitive victory for the pipeline and for the people of Alberta and Canada,” Alberta Premier Rachel Notley said when the Appeals Court issued its decision.
To date, opponents of the project have fared poorly in court as Kinder Morgan, which agreed to sell the project to the federal government for $4.5 billion in the spring, has won 16 legal challenges to the pipeline in a row.
On May 24, the B.C. Supreme Court dismissed applications by the City of Vancouver and the Squamish Nation to overturn environmental certificates issued to the project and awarded Kinder Morgan costs.
The project still faces one other legal challenge. Opposed First Nations have taken their case of insufficient consultation to the Federal Court of Appeals, saying the NEB did not properly consult them on the project. A decision on that case is expected soon.
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