Local Governments, Administrative Tribunals, and the Ongoing Dispute Over the Trans Mountain Pipeline

Administrative tribunals are decision-making bodies that are part of the system of justice in Canada, and the decisions they make can have significant impacts on local governments. The British Columbia Court of Appeal’s recent ruling, Burnaby (City) v Trans Mountain Pipeline ULC, 2017 BCCA 132, confirms that, when interpreting and applying their enabling statutes, certain administrative tribunals can make orders that, in effect, prevent local governments from enforcing their own bylaws.

Burnaby v Trans Mountain is the latest ruling to come out of Kinder Morgan’s proposed Trans Mountain expansion project, which involves twinning an existing petroleum pipeline that runs from Alberta to the Burrard Inlet. Briefly stated, the facts of the case are as follows:

  • In 2013, Trans Mountain applied to the National Energy Board (the “NEB”) to twin its existing pipeline, whose route was proposed to run through the Burnaby Mountain Conservation Area.
  • To assess the proposed route, Trans Mountain needed to conduct field studies on Burnaby Mountain. The field studies involved activities, like cutting down trees, which violated the City of Burnaby’s bylaws.
  • Burnaby attempted to prevent Trans Mountain from conducting the studies on Burnaby Mountain and asserted that Trans Mountain did not have the authority to violate the City’s lawfully enacted bylaws.
  • Trans Mountain responded that the National Energy Board Act, federal legislation, gave it authority to enter City property and conduct the studies despite City bylaws.

The parties were at an impasse, and to resolve it, Trans Mountain applied to the NEB (an administrative tribunal with authority over interprovincial pipelines) for an order directing Burnaby to let Trans Mountain access City land and carry out its field studies.

Before it could make this order, the NEB needed to decide if it had the jurisdiction to rule on the constitutional question of whether Burnaby’s bylaws were inoperative or inapplicable to the extent that they conflicted with Trans Mountain’s powers under the NEB Act. Remember, the Canadian constitution prohibits one level of government from regulating within the exclusive jurisdiction of another level of government. If valid federal and provincial laws (like bylaws) are in direct conflict, the doctrines of paramountcy and interjurisdictional immunity render the provincial law inoperative or inapplicable to the extent that it conflicts with the federal law.

The NEB found that it had the authority to decide the constitutional question. It also found that, in this instance, the City’s bylaws were invalid or inapplicable, as they conflicted with Trans Mountain’s powers under the NEB Act.  Accordingly, the NEB issued Trans Mountain’s requested order against Burnaby.

Burnaby then proceeded to ask the B.C. Supreme Court to determine whether the NEB had the jurisdiction to issue an order that limited the City’s ability to enforce its own bylaws. The B.C. Supreme Court found that the NEB had acted within its jurisdiction. Burnaby appealed this decision to the B.C. Court of Appeal.

In Burnaby v Trans Mountain, the Court of Appeal refused the City’s appeal. It ruled that the NEB had acted within its jurisdiction and that in making the order against Burnaby, the NEB had not “struck out into uncharted constitutional waters.” The Court was also clear that its conclusion followed precedents established by the Supreme Court of Canada in cases like Cuddy Chicks v Ontario (Labour Relations Board), [1991] 2 SCR 5, and Paul v British Columbia (Forest Appeals Commission), 2003 SCC 55.

The Court of Appeal explained that an administrative tribunal must interpret and apply its enabling legislation (in this case, the National Energy Board Act) in accordance with all legal rules, including the constitution, when rendering decisions on matters within its jurisdiction. In this case, the NEB had to decide whether Trans Mountain could proceed in contravention of Burnaby’s bylaws and it could not make that decision without applying the constitution law doctrines of paramountcy and interjurisdictional immunity.

The Court noted that administrative tribunals only have a limited power to treat a provincial law as invalid or inoperative for the purposes of a specific hearing or matter. Here, the NEB could only treat Burnaby’s bylaws as invalid or inapplicable insofar as they conflicted, in this particular circumstance, with Trans Mountain’s application for a pipeline expansion. The NEB could not, the Court stated, issue a general declaration that the bylaw was invalid or inapplicable, as this type of remedy could only be granted by a superior court.

That administrative tribunals are authorized to resolve constitutional conflicts involving the division of powers and treat unconstitutional legislation is well established. In that regard, Burnaby does not establish new precedent. But, the case is of interest insofar as it highlights the fact that a local government’s authority to regulate within its own jurisdiction is subject to the supreme law of the land, the Constitution. It also reminds us that when constitutional questions arise, a local government’s authority to regulate can be curtailed by administrative tribunals, as well as by the courts.

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