The Trans Mountain Expansion Project, which involves the
proposed twinning of the existing Edmonton-Burnaby pipeline and the
expansion of a marine terminal, was the subject of a number of
court decisions last year involving the City of Burnaby (the
"City") and protestors. This update summarizes that
litigation, which is of interest to the oil and gas industry in
In 2013, Trans Mountain Pipeline ULC (the "Company")
applied to the National Energy Board ("NEB") for a
Certificate of Public Convenience and Necessity in respect of the
Project. In view of the Company's preferred pipeline corridor,
the NEB ordered the Company to complete certain field studies in
the Burnaby Mountain Conservation Area (the "Conservation
Area") within the City by December 2014.
Litigation with the City of Burnaby
In September 2014, the City ordered the Company to stop its
activities in the Conservation Area, alleging that the activities
contravened municipal bylaws. The City then applied for an
injunction to restrain the Company's activities. The B.C.
Supreme Court denied the City's application, primarily because
the matter of whether the Company could proceed in the face of the
City's bylaws was properly before the NEB.
In early October, the NEB concluded that it had the jurisdiction
to declare the City's laws inoperative or inapplicable to the
extent they impaired rights under the National Energy Board
Act. The NEB ordered the City not to interfere with or
obstruct the Company.
Later in October, the B.C. Court of Appeal denied the City's
application for leave to appeal the decision denying the City's
injunction. The ongoing NEB process once again factored heavily in
the Court's reasoning. The Court concluded that such an appeal
would constitute a collateral attack on the NEB's October
ruling, and that granting leave would constitute an abuse of
Subsequently, in December 2014, the Federal Court of Appeal
denied the City's application for leave to appeal the NEB's
Litigation with Protestors
The Company also faced protests and roadblocks regarding its
work in the Conservation Area. In September 2014, the
B.C. Supreme Court granted an injunction against
certain named and unnamed defendants, finding that the Company had
made out a strong prima facie case that some tortious
conduct had occurred. The Court acknowledged that "the right
of public dissent must be carefully protected". In weighing
the competing interests, the Court ultimately held that because the
Company's activities were "temporary" or
"minimally intrusive", they would not result in lasting
harm. On the other hand, the Company would be irreparably injured
in the form of costs and lost revenues without an injunction
restraining aspects of the protest activity.
Numerous protestors were arrested for failing to abide by the
injunction order. However, during a later application by the
Company to amend the injunction order, the Court was advised that
certain GPS coordinates referenced in the original order were
incorrect. The Court therefore waived the sanctions that had been
imposed against certain protesters for non-criminal contempt of
that aspect of the original order.
As strongly divergent views regarding the desirability of new or
expanded pipeline projects continue to emerge, the Trans Mountain
litigation indicates that disputes relating to pipeline approvals
may not remain confined to administrative forums and related
statutory appeals, but have the potential to spill over into the
courts in other contexts. The litigation involving the City's
injunction application confirms that the Court will not typically
condone litigation of related issues in two forums. The
Company's injunction application underscores the need for
precise and accurate identification of the area over which the
injunction is sought, particularly where the injunction is
geographically and temporally limited.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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