Canada: The Battle For Burnaby Mountain: The Constitutional Limits Of Municipal Bylaws


In 2013, Trans Mountain Pipeline ULC applied to the National Energy Board ( the "NEB") for permission to twin its existing interprovincial pipeline, which transports petroleum products from Alberta to BC, and to expand its storage facilities on Burnaby Mountain and its terminal facilities on Burrard Inlet at the base of Burnaby Mountain (the "Trans Mountain Expansion Project").  This project, which is still under review before the NEB, has given rise to a number of challenges by parties concerned with its potential health, safety and health impacts, including the City of Burnaby ('Burnaby").

In the most recent decision to address the Trans Mountain Expansion Project, Burnaby (City) v. Trans Mountain Pipeline ULC, 2015 BCSC 2140, Justice Macintosh was asked to rule on several constitutional questions relating to the power of the NEB to order access over municipal lands, regardless of whether that access is in contravention of a municipal bylaw.  In the end, Justice Macintosh ruled that the court should defer to a previous NEB ruling that had already decided the same issues.  However, in the alternative, he noted that he would have agreed that municipal bylaws cannot limit an interprovincial pipeline proponent's access for testing where ordered by the NEB.

History of Litigation between Burnaby and Trans Mountain

An understanding of the history of the dispute between Burnaby and Trans Mountain is necessary to place this most recent decision in context.

On July 15, 2014, the NEB determined that engineering, environmental, socio-economic, and geotechnical studies were required from Trans Mountain before the NEB would be in a position to make a recommendation about the Trans Mountain Expansion Project's proposed routing.  The studies would require drilling and access in the Burnaby Mountain Conservation Area, a municipal park.

Burnaby refused to allow the access, instead maintaining that the works, which obstructed roads and required the cutting of trees, violated the Burnaby Parks Regulation Bylaw and the Burnaby Street and Traffic Bylaw.

On August 19, 2014, the NEB ruled that the Federal National Energy Board Act ("NEB Act"), provides Trans Mountain with the authority to enter onto public or private lands to conduct surveys and examinations provided that as little damage as possible is done and compensation is paid to the property owner.

On August 28, 2014, Trans Mountain commenced work on Burnaby Mountain.  On September 2 and 3, 2014, Burnaby's staff issued orders to cease bylaw contraventions.

Trans Mountain then brought an application to the NEB for an order requiring Burnaby to grant Trans Mountain access to Burnaby Mountain, arguing that the Burnaby bylaws, while validly enacted, could not function to block the federally ordered studies. On October 23, 2014, the NEB agreed. 

In Ruling No. 40, the NEB reasoned that since municipal bylaws fall under provincial jurisdiction and since federal laws are paramount over provincial laws to the extent of any conflict between the two, the fact that Burnaby's bylaws are in conflict with studies ordered under the federal NEB Act means that the bylaws are inoperative to the extent of the conflict.  In the alternative, the NEB held that, since provincial laws cannot impair the core of constitutional powers granted to the federal government, and since the federal government was granted exclusive power over the routing of interprovincial pipelines, the Burnaby bylaws cannot apply to impair the access required to make routing decisions.

In response to the NEB's Ruling No. 40, Burnaby applied to the Federal Court of Appeal for a judicial review.  On December 12, 2014, the Federal Court of Appeal denied leave to appeal Ruling No. 40 without issuing any reasons. It is not uncommon for a court of appeal to deny leave without reasons. This effectively means that the Federal Court of Appeal has neither endorsed nor overturned the NEB ruling.

Burnaby had also applied to the BC Supreme Court for a statutory injunction to enjoin Trans Mountain from violating its bylaws.  In September 2014, the BC Supreme Court denied the application and in November 2014, the BC Court of Appeal upheld that decision, reasoning in part that the dispute was more properly before the Federal Court of Appeal.  In February 2015, the BC Court of Appeal declined to reconsider its November 2014 decision.

Most Recent Decision

In October 2015, the parties once again returned to the BC Supreme Court, this time on a constitutional application rather than an injunction application.

As was the case before the NEB, two constitutional doctrines were at the core of the parties' arguments.  The first is the rule that federal laws are paramount to provincial laws such that where a valid provincial law directly conflicts with a valid federal law, the provincial law yields and is inoperative.  The second is the rule that neither the provincial nor federal level of government can act to impair the core of a power constitutionally assigned to the other level of government.

In brief, Burnaby argued that (a) the NEB Act, properly interpreted, could not override municipal bylaws, (b) to the extent that it could, it was in relation to the locally focused matters assigned to the province and so not valid federal legislation, (c) or in the further alternative, the NEB Act is inapplicable to a municipality's enforcement of its land use bylaws.

Trans Mountain framed its arguments more squarely around the two doctrines.  It argued that Burnaby's bylaws were both constitutionally inoperative and constitutionally inapplicable.

In the result, Justice Macintosh declined to answer any of the constitutional questions put before the court.  He reasoned that while the Supreme Court had the jurisdiction to hear the questions, it should not do so in light of the NEB's prior decision and the fact that a review of that decision should be, and had been, placed before the Federal Court of Appeal.  He noted that "Burnaby is here because it was unsuccessful elsewhere".

Justice Macintosh then went on to opine on the constitutional matters before him so that his reasons would be available in the event that his first conclusion is later overturned on appeal. The effect of Justice Macintosh's initial decision to decline jurisdiction is that his constitutional conclusions, while perhaps persuasive to future disputes, are not binding.

With respect to the constitutional questions, Justice Macintosh noted NEB's summary of the two applicable constitutional doctrines was "clear and brief, as well as being right" and then engaged in his own constitutional analysis of the facts, ultimately coming to the same conclusions arrived at in Ruling No. 40. 

On the issue of whether Burnaby's bylaws impermissibly interfered with the core of a federal power, Justice Macintosh concluded that obtaining the research results was central to the decision of where to locate the pipelines.  He reasoned that:

If the NEB did not have the power to overrule the interests of NEB intervenors [such as Burnaby and other municipalities] as to the location of pipelines, and the related preparatory studies, virtually no pipeline could ever be built.  Given the political, economic, cultural and other competing interests now associated with pipelines, that is why I expect the final say as to whether an interprovincial pipeline is approved now rests with the federal cabinet.

On the issue of whether there was a conflict between the municipal bylaws and the federal NEB Act, he concluded that despite increasing legislative cooperation between the levels of government, "when examining interprovincial undertakings at the stage of determining where such undertakings will be located, one legal regime needs to prevail over the other where there is a conflict".

Implications of Decision

In a time when municipalities, and their residents, are becoming increasingly concerned about the potential health, safety and environmental impacts of energy sector infrastructure within their borders, this decision provides important considerations for municipal decision makers.

While this most recent decision does not technically affirm the NEB ruling, it provides a good indication of how the court may respond to similar questions.1 In particular, bylaws are at most risk of being declared inoperative or inapplicable where they seek to directly control or impact a pipeline. 

Further, the court's willingness to decline to exercise its jurisdiction where the same issue had been addressed within the NEB regime, emphasizes that it is all the more important that municipalities consider applying to have a voice, as an intervenor or a commenter, at the NEB proceedings that affect them.


1 Burnaby has appealed the decision. We will provide an update on the outcome of appeal in a future newsletter or blog post.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Kathleen Higgins
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.