The Federal Court of Appeal denied leave to appeal from a National Energy Board (NEB) decision that federally regulated pipeline companies have the power to access public and private lands for the purposes of performing surveys and investigations under the National Energy Board Act (NEB Act).

The City of Burnaby (Burnaby) denied Trans Mountain Pipeline ULC (Trans Mountain) access to city-owned lands to complete NEB-mandated studies. Burnaby asserted that access was denied due to contraventions of its by-laws by Trans Mountain.

On September 26, 2014, the NEB received a Notice of Motion and Notice of Constitutional Question from Trans Mountain seeking an order pursuant to sections 12, 13 and paragraph 73(a) of the NEB Act, permitting access to Burnaby lands for the purpose of completing NEB-mandated studies.

On October 23, 2014, the NEB issued Ruling No. 40 wherein the Board granted Trans Mountain’s request for an order pursuant to paragraph 73(a) of the NEB Act. The Board concluded that preventing access to lands as needed for the completion of surveys and studies relating to pipeline routing is contrary to the NEB Act. Refer to our Osler Update on Ruling No. 40.

Burnaby applied for leave to appeal the NEB Order to the Federal Court of Appeal. In its application for leave, Burnaby argued that the NEB does not have the jurisdiction to forbid Burnaby from enforcing its by-laws with respect to Trans Mountain’s section 73 rights or to determine constitutional questions relating to the interpretation of section 73 and Burnaby’s by-laws. Trans Mountain argued that there was no error of jurisdiction. It said the Board was within its jurisdiction to make factual findings and determine that those factual findings support the granting of the Order.

On December 12, 2014, the Federal Court of Appeal dismissed Burnaby’s leave application with costs.

Impacts for Resource Development

The Federal Court of Appeal’s decision provides greater certainty regarding the powers of federally regulated pipeline companies in circumstances where federal laws conflict with municipal by-laws and dual compliance is impossible. The NEB Order, for which leave to appeal was denied, confirms that federally regulated pipeline companies have the power to access public and private lands for the purposes of performing surveys and investigations under the NEB Act.