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 B.C.

Background

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 process.

Subsequently, in December 2014, the Federal Court of Appeal denied the City’s application for leave to appeal the NEB’s October ruling.

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.

Looking Forward

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.