Tensions are rising between the City of Burnaby and Kinder Morgan after company employees arrived in the Burnaby Mountain Conservation Area Tuesday with chainsaws to remove trees and brush in order to assess a proposed route for the Trans Mountain pipeline expansion.
The City of Burnaby issued a stop work order for the conservation area, saying Kinder Morgan does not have the right to do damage to property protected by city bylaws.
“I think it’s unfortunate that it has come to this,” city Mayor Derek Corrigan said in a press release, “but we can’t let Kinder Morgan cut down trees and do irreparable damage in a conservation area protected by our City’s bylaws.”
Corrigan added those bylaws are in place to protect the “rights and values” of local residents. “It’s astonishing that, as a private corporation, Kinder Morgan thinks they have the right to override our citizens’ wishes and the laws that have been put in place to reflect the value our citizens place on these sensitive, irreplaceable ecosystems.”
Lizette Parsons Bell, lead of stakeholder engagement and communications for Trans Mountain, said Kinder Morgan is conducting fieldwork and studies “to determine the feasibility of routing a two kilometre section of proposed pipeline between our Burnaby tank terminal and our Westridge marine terminal through the Burnaby Mountain.”
“What we’ve been doing is last week we started with clearing some brush to do some geophysical work and this week we started some geotechnical work,” she said.
Parsons Bell said the company hopes to route the pipeline through Burnaby Mountain using “trenchless construction,” a technique that requires drilling samples of the mountainside.
“This investigation informs our larger work of understanding the subsurface of Burnaby Mountain,” she said.
Burnaby is willing to grant Kinder Morgan access to the conservation land for “non-invasive work” according to mayor Corrigan, “but absolutely not to do what they arrived to do [Tuesday] – to cut down trees to create helicopter landing pads and sites for drilling bore holes on this protected land,” he said.
Parsons Bell said a helipad was being constructed for the delivery of equipment, but not for the landing of helicopters. “What I can categorically say to you is at no time will a helicopter land in the conservation area,” she said.
It appears that what is at issue between Kinder Morgan and Burnaby is a competing interpretation of the National Energy Board Act’s Section 73.
Section 73 states “a company may…enter into and on any Crown land without previous licence therefor, or into or on the land of any person, lying in the intended route of its pipeline, and make surveys, examinations or other necessary arrangements on the land for fixing the site of the pipeline, and set out and ascertain such parts of the land as are necessary and proper for the pipeline.”
The section also allows for a company to “take and hold of and from any person any land or property necessary for the construction, maintenance and operation of its pipeline.”
According to Mayor Corrigan, Kinder Morgan is using Section 73 to justify work that may damage the local region against city bylaws.
“As we’ve said before, there is nothing in Section 73…which Kinder Morgan is aggressively asserting gives them the right to do this damage – that does, in fact, allow them to do it.”
“The work that we’re looking to do now on this two kilometre section of the proposed pipeline between the proposed terminal and the Westridge terminal on August 19, the National Energy Board confirmed that Trans Mountain – that we – had Section 73 rights to be able to do that,” Parsons Bell said.
Kai Nagata, energy and democracy director with the Dogwood Initiative said, as a municipality, Burnaby is in a difficult situation.
“The first problem, the first sticking point, for Burnaby is that Section 73 allows a company onto private land or municipal land before a project is approved,” he said.
“So building a helipad or cutting trees down – all of that can happen before a project is approved.”
Nagata criticized the National Energy Board for failing to provide a legitimate forum to assess the desirability of a proposed pipeline in the first place, pitting local communities and their elected officials against federal regulators who appear to be pushing through projects like Northern Gateway and Trans Mountain.
“There is no credible democratic forum in which to contest these projects,” Nagata said. “But in the meantime Burnaby is flexing its limited jurisdiction any way it can in order to register its opposition to this project at the level of governance.”
“It begs the question of where the province is in all of this,” Nagata said. “If the city of Burnaby can hold up a project by seven months and they can issue stop work orders and if they can be a stick in the spokes of Kinder Morgan as they have been, what could the province be doing to represent its constituents and uphold the public interest with the resources and jurisdiction available to them?”
“I think what we’re seeing is provincial leaders basically wash their hands of this whole fight and leave it up to First Nations and municipalities and individual citizens rather than asserting their responsibilities.”
Nagata said it’s unclear exactly where federal jurisdiction ends and where First Nations or local jurisdiction begins.
“We applaud Burnaby for pushing the envelope and finding out what the limits of their jurisdiction are and setting and example for other municipalities and local governments in opposing this project,” he said.
Greg McDade, legal counsel for the city said Kinder Morgan has overstepped what is allowable under local laws.
“Kinder Morgan has not only damaged the Conservation Area in contravention of the law, they have also attempted to interfere with traffic on public roads and to obstruct park staff in their duties,“ he said.
“The actions of the company are unprecedented, and they appear to believe they can act as if the rule of law doesn’t apply to them.”
He added the city will seek a court injunction to uphold its laws and protect its parkland. The city also plans to ensure “ongoing protection” of the conservation area.
Burnaby officially opposes the Trans Mountain pipeline expansion which will triple the amount of oil stored on Burnaby Mountain and increase the movement of oil through residential areas. The expansion would also increase the number of tankers traversing the Burrard Inlet to 400 supertankers a year.
Image Credit: Playground of the Gods on Burnaby Mountain. Kyle Pearce via Flickr.
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