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Alberta Supreme Court declines to hear appeal of NEB decision that pipelines can disregard local bylaws

The Supreme Court of Canada’s refusal to hear an appeal of a decision that allowed Trans Mountain pipeline construction to bypass city bylaws should alarm any municipality opposed to a federally approved project, says Burnaby’s mayor.

Mayor Derek Corrigan, a vocal opponent of the pipeline that ends in his city, said Thursday that the decision means federal tribunals can green-light major national infrastructure projects without regard to local bylaws. Mr. Corrigan said the tribunals do not have enough legal oversight.

"It doesn’t matter whether it’s pipelines, or telecommunications lines or rail lines, it’s pretty clear that the Federal Court and the Supreme Court of Canada haven’t been prepared to review whether those tribunals are able to simply ignore the protections you have in municipalities for public safety or the environment,” he said.

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On Thursday, the Supreme Court of Canada declined to hear an appeal from Burnaby after the National Energy Board ruled that such major projects take precedence over local bylaws. The Supreme Court of Canada, as is standard, did not release details on why it would not hear the case. The Federal Court of Appeal also declined to hear the case earlier this year.

The Supreme Court’s rejection of the appeal was welcomed by the Alberta and federal governments, and mourned by environmental groups.

“Even those municipalities that may be very supportive of the fossil fuel industry, the oil industry, are going to recognize that this has more implications than simply one economic decision," said Mr. Corrigan, who once said he would be willing to stand in front of a bulldozer to stop the Trans Mountain expansion project.

Mr. Corrigan said his city is participating in four pending legal challenges and hopes the Federation of Canadian Municipalities (FCM) will intervene if one of them ends up at the Supreme Court of Canada.

The current president of the FCM was not available for comment, nor was anyone from the City of Vancouver, which has also been in court challenging the pipeline expansion.

Margot Young, a professor at the University of British Columbia’s Allard School of Law, said the Supreme Court’s decision Thursday reinforces that federal tribunals supersede municipal governments.

She said it is not surprising that Canada’s highest court did not hear the appeal, noting that it may eventually hear an appeal from the province of B.C., which has opposed the project. Still, she added, Thursday’s decision is a reminder to Canadians that their local governments don’t have much power to stop or slow down federally approved projects.

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The federal government approved the pipeline expansion in 2016, but the project faces significant opposition in B.C. Thursday’s ruling clears one hurdle for the pipeline, although it is still up against other legal challenges from First Nations groups and the B.C. government.

Earlier this week, protesters outside a cabinet retreat in Nanaimo, B.C., accused Prime Minister Justin Trudeau of fiddling “while B.C. burns,” referring to the province’s raging wildfires that some have attributed to climate change.

The cabinet met with B.C.’s NDP Premier, John Horgan, who reiterated his government’s staunch opposition to the pipeline expansion project.

Natural Resources Minister Amarjeet Sohi said Thursday that municipalities can decide on bylaws but the NEB’s ruling concluded a municipality cannot unduly withhold a permit required for the construction of a project within the federal jurisdiction.

The Alberta government is “batting a thousand” when it comes to fighting for the Trans Mountain pipeline expansion, Premier Rachel Notley said Thursday on social media, noting the courts have made 17 straight rulings in favour of the project.

If the federal government succeeds in closing the deal to buy the pipeline, it faces remaining expansion construction costs estimated at $6.3-billion ($1.1-billion has already been spent), although a recent report from Kinder Morgan suggested those costs could rise by as much as $1.9-billion under certain scenarios.

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With a report from Ian Bailey in Nanaimo and The Canadian Press

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