THE City of Burnaby on Tuesday announced that it will file an appeal to the Supreme Court of Canada in relation to the Federal Court of Appeal’s decision to deny Burnaby leave to appeal the decision of the National Energy Board (NEB) that declared Burnaby’s PPA (Preliminary Plan Approval) and tree bylaws constitutionally inapplicable to Kinder Morgan’s Trans Mountain pipeline construction.
The Order of the NEB exempting Trans Mountain was made December 7, 2017, with reasons for the decision delivered on January 18. On February 16, the City of Burnaby filed for leave to appeal the NEB decision. On March 23, the Federal Court of Appeal denied the City’s application.
“The federal court has refused to review the decisions made by the National Energy Board,” said Burnaby Mayor Derek Corrigan. “They’re not giving consideration to the arguments being made by the City and the provincial government that oppose the NEB ruling. The court system should be the body that decides whether or not this is fair and just, but they dismissed our application without reasons. Very clearly, it’s something the court should have dealt with and given reasons why it’s not allowing the provincial government to exert its authority to protect the environmental interests of the province. We will, therefore, now ask the Supreme Court of Canada to perform this function.”
The City has directed legal counsel to file the leave to appeal application. The application will be filed within 60 days.
Trans Mountain applied in October 2017 to be relieved of the Condition, under which the Certificate was granted, requiring Trans Mountain to comply with all municipal bylaws. Trans Mountain also argued that the bylaws were unconstitutional because they conflicted with the federal approval and the NEB Act. Trans Mountain claimed that Burnaby was delaying the permits deliberately because of political interference.
The NEB ruled that the bylaws were not in constitutional conflict, and found that there was no evidence of political interference or deliberate obstruction, but held that the time for permitting was an ‘unreasonable delay’, and on that basis declared that the bylaws were constitutionally inapplicable.
Burnaby requested leave to appeal that ruling, to argue that municipal laws should apply. Under the NEB Act, an appeal must be made to the Federal Court of Appeal, but first requires that court to grant leave to appeal in the Federal Court of Appeal and this was denied.
Attached is the Notice of Motion Burnaby filed on February 16, 2018.