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BC NDP to appeal NEB ruling on Trans Mountain bylaw

Last Updated Feb 17, 2018 at 4:48 pm PDT

(Source: transmountain.com)

BC government follows in steps of Burnaby, files legal action following NEB decision

NDP government to file appeal against Kinder Morgan decision made in December

VICTORIA (NEWS 1130) – Another development in the ongoing fight over the construction of a controversial pipeline project on the West Coast.

In a statement, the provincial government says it intends to appeal a ruling by the National Energy Board (NEB) that allowed Kinder Morgan to, what it calls “bypass,” a City of Burnaby bylaw about doing work at the Burnaby Terminal at the Westridge Marine Terminal.

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“The province’s position is that the NEB erred by too broadly defining federal jurisdiction over interprovincial pipelines. The Federal Court of Appeal will now consider the application. British Columbia first appeared as an intervener in the October 2017 Federal Court of Appeal hearing over the NEB’s approval of the Trans Mountain pipeline expansion project,” says the government in a statement.

This moves comes soon after Burnaby filed an appeal of the NEB decision that exempts Kinder Morgan from local land and tree clearance bylaws in the expansion of the pipeline project.

Earlier this week, the board released three decisions this week approving a tunnel route for a portion of the pipeline through Burnaby.

The city argues the company should have to comply with all municipal bylaws, despite its argument they were unconstitutional because they conflicted with approval from the federal government and the National Energy Board Act.

The city also wants to appeal an energy board’s ruling that found Burnaby’s timeline for issuing permits represented an “unreasonable delay.”

This comes amid tension between BC and Alberta which are locked in a dispute over the project’s future after Premier John Horgan’s NDP government announced it is looking at limiting shipments of diluted bitumen. pending a review of spill safety measures.

Alberta Premier Rachel Notley has said such restrictions would be “unconstitutional” and would effectively kill the $7.4 billion project, which the province deems critical to getting a better price for its oil.

Notley has banned wine imports from BC, ended talks of buying energy from the province and struck a committee to look at further retaliatory measures.

Issue is becoming ‘increasingly complex’: professor

The BC government’s latest move makes things increasingly complex and “legalistic,” according to one political scientist.

Michael Prince, Lansdowne Professor of Social Policy at the University of Victoria, believes this escalation is going to make it increasingly harder for the public to understand the ongoing pipeline dispute. “The BC government is already in court and involved in litigation on the whole pipeline issue… This is yet another wrinkle on it with getting involved with what the National Energy Board decided last December in basically saying that a municipality’s bylaws cannot really prevent the approval by the government of Canada on the expansion.”

He says with all levels of government now involved, there will be all sorts of constitutional and jurisdictional issues as to what powers municipalities or provinces have, and what the federal government’s role is in mediating the dispute. “Not surprisingly, the lawyers are going to get involved and this is not going to be solved quickly. This will have to wind its way now through the Federal Court of Appeal and perhaps even to the Canadian Supreme Court sometime later this year or into 2019.”

According to Prince, there were questions after Alberta’s BC wine boycott as to what would happen next. While he believes Horgan is still trying to keep political temperatures “cooler”, he admits this move to appeal may be seen as a provocative move, and has definitely heated things up. “So it’s an action toward the Government of Canada, a federal agency –the National Energy Board, and this is after a week of Prime Minister Trudeau under a lot of pressure by people certainly in Alberta and elsewhere, in Ottawa, to speak more strongly in favour of the decision and to insist upon or assert federal jurisdiction.”

As the two NDP provincial governments continue butt heads, Prince says the issue needs to be resolved properly. He believes the courts may be the right avenue to take. “It’s expanding into other arenas now. And although hopefully, but it won’t be any time soon, there’ll be some definitive, constitutional, and legal resolution on this. That’s not to say that there won’t be continued political actions, or war of words, or even political protests by community groups.”

One of Horgan’s key campaign promises last year was the fact that he would do whatever he could — within his power — to prevent or delay the expansion of the Trans Mountain pipeline. Prince says Horgan has taken on a slightly more “moderate” stance in the short term by ordering a spill response study, but adds it was his stronger statements and rhetoric around killing the the pipeline expansion last year that may be drawing a stronger response from Notley and Alberta. “And I think that’s what Premier Notley is responding to is that this might be seen as just a first step in a major objective, which is to scare Kinder Morgan off the investment, lose the opportunity for the pipeline expansion and harm the ability of Alberta resource companies of getting their product out to market in the Asia-Pacific rim.”

Prince says the dispute has also spilled over into the NDP’s national convention. “This is putting their new federal leader in an awkward position, and this is a family feud within the NDP as much as it is a dispute between two governments over jurisdiction.”