A legal battle is shaping up on Burnaby Mountain that threatens to delay the Trans Mountain pipeline expansion project in much the same way First Nation challenges have thrown Enbridge's Northern Gateway pipeline off track.
In an application filed late Wednesday, Trans Mountain is "urgently" asking the National Energy Board to order the City of Burnaby to allow survey crews access to the Burnaby Mountain Conservation Area.
The application will likely lead to court ruling about what has precedence, local bylaws or federal statutes in the National Energy Board Act.
The company says it will have a hard time filing mandatory reports with the NEB if it can't do technical survey work for a proposed tunnel through Burnaby Mountain.
"Trans Mountain respectfully requests the Board's earliest possible attention to this application," the company states. "The results from the geotechnical and other surveys are urgently required to complete necessary design evaluations in order to satisfy the deadlines set out by the NEB."
On Thursday, Enbridge Inc. executive John Carruthers admitted the Northern Gateway pipeline will have difficulty meeting its 2018 startup date because of opposition from First Nations, which have filed several legal challenges and are widely objecting to the project.
In the case of Trans Mountain's pipeline, the company requests an NEB order "forbidding the City of Burnaby from denying or obstructing Trans Mountain" or its work crews.
The application complained the city physically blocked survey crews and intimidated a local, subcontracted tree-cutting crew with "threats of economic sanctions."
Documents contained in the Trans Mountain application include a letter from the city to the Davey Tree Expert Co. of Canada Ltd., warning that an investigation into a possible bylaw violation was started after trees were cut in the park this week, and it cautioned that "any continued breach of our bylaws is a matter that may affect your company in future activities in the City."
Davey Tree promptly advised Trans Mountain that it was no longer available to clear vegetation on the proposed pipeline route.
The application foreshadows the legal fight that is likely to follow, stating that without an order from the NEB, "Trans Mountain submits that it cannot enforce or defend its rights to perform surveys or examinations on the Subject Lands through the courts."
Burnaby Mayor Derek Corrigan, a leading critic of the proposal to twin Trans Mountain's existing pipeline, and triple the amount of oil shipped, has already said he is prepared to go to court over the issue.
"We're in kind of a standoff right now," Mr. Corrigan said. "[Trans Mountain] has been attempting to push forward in their work despite the stop-work order. They seem convinced that the regulations of the NEB give them the ability to proceed to cut down trees and build a helicopter staging area if they choose to do so. We don't believe they have that authority and so our stop-work order is saying you are contravening the bylaws of the state."
In an interview shortly before Trans Mountain filed its application, Mr. Corrigan said the city's lawyers have told him the issue should end up in the Supreme Court of B.C.
He said he's determined to stop the pipeline and while the first line of defence is being drawn on Burnaby Mountain, it won't be the last place of conflict.
"Oh, this is just one battle in a long and protracted war," he said.
Trans Mountain began writing to the city months ago, trying to clear the way for work in the conservation area, a collection of parks and greenways that surrounds Burnaby Mountain.
But when Trans Mountain crews began cutting trees on Tuesday, city officials ordered a stop to the work, citing Parks Regulation Bylaw 1979, which states: "No person shall cut, break, injure, damage, deface, destroy, foul or pollute any personal property or any tree, shrub, plant, turf or flower in or on any park."
Sarah Kiley, and NEB spokesperson, said the board has not yet determined what the next step is, but it would be standard practice to now ask the city to reply to the Trans Mountain application.