Focus On

OIL AND GAS - Constitutional powers and ownership - Constitutional law - Federal jurisdiction - Pipelines - Inter-provincial

Wednesday, April 05, 2017 @ 11:30 AM | By John Carson

Lexis Advance® Quicklaw®
Appeal by the City of Burnaby from a ruling that the National Energy Board (NEB) had jurisdiction to limit Burnaby’s ability to enforce bylaws when they conflicted with the National Energy Board Act. Trans Mountain, operator of a petroleum pipeline routed through Burnaby, contravened several Burnaby bylaws in the course of expanding its pipeline by cutting down trees, clearing vegetation, drilling boreholes and operating heavy machinery. A ruling was issued by the NEB confirming that Trans Mountain was authorized to enter onto Crown or private land in the intended route of its pipeline to make surveys and examinations for the purpose of the NEB’s assessment of the expansion project. The NEB also confirmed that Trans Mountain could enter onto Burnaby’s land without Burnaby’s consent. Burnaby did not appeal from the ruling, but when engineering studies commenced, Burnaby had Trans Mountain workers served with notices of bylaw violations. Trans Mountain obtained from the NEB an order directing Burnaby to give it access to city lands to complete the required studies. Burnaby filed a civil claim, seeking injunctive and declaratory relief restraining work from continuing on the expansion project, and asserting that the NEB lacked jurisdiction to issue an order limiting Burnaby in the enforcement of its bylaws. Burnaby’s application was dismissed because the matter was properly before the NEB. The NEB subsequently ruled that it had jurisdiction to determine that specific Burnaby bylaws were inoperative or inapplicable to the extent that they conflicted with Trans Mountain’s work. Burnaby was denied leave to appeal the NEB’s ruling to the Federal Court. It was granted leave to proceed before the British Columbia Court of Appeal in applying for a declaration based on the constitutional question of the NEB’s jurisdiction. Although the Court considered the application an abuse of process, it nonetheless made a ruling that the NEB had jurisdiction to address the constitutional issues and that it had correctly determined that Burnaby’s bylaws were inapplicable or inoperative in relation to the work conducted by Trans Mountain.

HELD: Appeal dismissed. The Federal Court of Appeal, when it declined to grant leave to Burnaby to appeal from the NEB’s decision, had a statutory grant of jurisdiction and the authority to address the bylaw dispute between Trans Mountain and Burnaby. The authority derived from the fact that Trans Mountain had applied under section 73 of the NEB Act to enforce its right to enter onto municipal land to conduct its work. The NEB had jurisdiction to determine the constitutional issues relevant to the exercise of its authority. The NEB did not make a general declaration that Burnaby’s bylaws were invalid, inapplicable or inoperative, but rather made a limited declaration in relation to the matter before it.

Burnaby (City) v. Trans Mountain Pipeline ULC, [2017] B.C.J. No. 562, British Columbia Court of Appeal, S.D. Frankel, L. Fenlon and G. Dickson JJ.A., March 27, 2017. Digest No. TLD-Apr32017009