09/11/2014 03:23 EDT | Updated 11/11/2014 05:59 EST

B.C. mayor says fight over trees not a legal tactic to block pipeline

VANCOUVER - The mayor of Burnaby, B.C., says his city's lawsuit against Kinder Morgan over the removal of trees during work related to the Trans Mountain pipeline is not a legal tactic designed to stall — and ultimately stop — the project.

But Mayor Derek Corrigan acknowledges his opposition to the proposed Trans Mountain expansion wouldn't change if the company abandoned its plan to tunnel the pipeline through Burnaby Mountain, which is home to a treasured conservation area.

The city filed a lawsuit this week in B.C. Supreme Court asking for an injunction to prevent the company from conducting any work that destroys trees or disrupts parkland.

"This is one more battle in a long war between us and Kinder Morgan and their desire to put a pipeline through our city," Corrigan said in an interview Thursday.

"We've been clear about our opposition to the pipeline. This has exacerbated the issue by taking the pipeline through a park."

The City of Burnaby has been a staunch opponent of the Trans Mountain expansion — a $5.4-billion project to triple the flow of bitumen and other oil products from Alberta along a pipeline to a terminal in Burnaby.

The proposed project would see an expansion to the existing pipeline, with a significant part of the route in Burnaby being relocated. There would also be oil storage tanks added to the company's existing Burnaby tank farm and increased tanker traffic in the region.

That opposition boiled over earlier this month when city staff confronted Kinder Morgan workers conducting survey and geotechnical work on Burnaby Mountain and cited the company for violating local bylaws. City staff stood in front of trees to protect them and called in the RCMP.

That has prompted duelling applications at the National Energy Board and B.C. Supreme Court, with the company asking the energy regulator to allow its work to proceed and the city asking the court to stop it.

Corrigan said the city would be opposed to the work on Burnaby Mountain even if it supported the pipeline, but also said city would oppose the pipeline regardless of its route.

"We don't want hundreds of tankers moving through Burrard Inlet and we don't want five million litres of oil on top of Burnaby Mountain," he said.

The debate over pipelines — and the Trans Mountain project in particular — is a sensitive topic in Burnaby, where a 2007 construction accident along the pipeline rained down 230,000 litres of oil on a local neighbourhood. Kinder Morgan-owned Trans Mountain Pipeline and two other companies pleaded guilty to environmental charges.

Kinder Morgan has put its work on Burnaby Mountain on hold for now, but it's not clear how long that will last.

The National Energy Board issued a ruling last month that said Kinder Morgan didn't need permission to conduct its survey work on city land. The company filed another application with the energy board earlier this month asking for another ruling in its favour.

Burnaby's civil suit claims the National Energy Board can't exempt the company from following the city's bylaws, and it argues any attempt to do so would be unconstitutional. The city wants the National Energy Board decision set aside and an injunction against Kinder Morgan.

In its latest filing with the National Energy Board, submitted Wednesday, the city says it's not attempting to interfere with the board's jurisdiction over federally regulated energy projects.

"Rather, the city is acting to prevent destruction of trees and vegetation and the obstruction of traffic in contravention of its bylaws," the document says.

Kinder Morgan declined to comment on the city's latest submission to the National Energy Board.

The company has previously said it wants to work with the city and is prepared to mitigate any damage to trees and the environment, but that it would defend its right to access the land. The company says it needs the results of the survey work to meet application deadlines with the energy board, and delays could jeopardize the process.

Jason Unger of the Edmonton-based Environmental Law Centre said it's not clear what power a city has to use its own bylaws against a project operating under the approval of the National Energy Board. Unger stressed that while he is aware of the debate in Burnaby, he is unfamiliar with the specific details of the legal dispute.

"Generally, the ability of other levels of government — provinces and municipalities — to frustrate a federal undertaking is limited," he said in an interview.

"Where the NEB is involved with an interprovincial pipeline, the ability to limit that undertaking is diminished because of the constitution."

The National Energy Board plans to begin oral hearings examining the Trans Mountain expansion in July of next year. A final report is due to federal cabinet in January 2016.

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