Trains, Planes, and Pipeline Lanes:
Municipalities and the Federal Government
Presented By:
Kathleen Higgins and Olga Rivkin
June 17, 2015
Pipeline Lanes!
• Why does this topic matter?
Transportation Issues
• Railways
• Lac-Mégantic Tragedy
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Train derailment spilling approximately 6 million
litres of petroleum crude oil. 42 casualties.
• Vancouver vs. CP Railway
>
Railway pressures City to purchase railway along
the Arbutus Corridor
Transportation Issues
• Pipelines
• Kinder Morgan Trans Mountain Expansion
• Enbridge
Transportation Issues
• Potential for Spills
• Increased tanker traffic means increased risk
of marine spills
• Pipeline ruptures
Transportation Issues
• Dangerous Goods
• Information sharing issues
• Local emergency preparedness
• Potential for serious harm
• Goals and overview for today’s
presentation
Goals for Today
• Set out the relevant Federal players and
the legal playing field
• Federal government’s authority over
transportation issues
• Relevant transportation legislation and
regulatory bodies
• Who governs what and how?
Goals for Today
• Local Government Options for Influence
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Bylaws
Participation in Federal Regulatory Proceedings
Challenges to Federal Legislation
Challenges to Decisions of Federal Bodies
Non-Legal Options
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Lobbying/Policy Influence
Cooperation with Federal Governmental Authorities
Public Pressure and the Media
• Part 1: Jurisdiction and Authority
Federal and provincial undertakings
• The Constitution Act, 1867 recognizes the
federal and the provincial governments,
and lists matters – undertakings – within
their authority
• Federal (ex.): navigation and shipping,
criminal matters, interprovincial
transportation
• Provincial (ex.): property and civil rights,
municipal institutions, local matters
Sources of local government
authority
• Local governments are statutory entities created
by the province
• The main sources of authority for local
governments in British Columbia are the
Community Charter and the Local Government
Act
• Other statutes include the Environmental
Management Act, the Freedom of Information
and Protection of Privacy Act, the Island Trust
Act, the Interpretation Act and more
Limits on local government authority
• Municipalities can do only what provincial
statutes enable them to do (for proper municipal
purpose)
• Municipalities cannot impair a federal
undertaking
• Municipalities cannot make it impossible to
comply with a federal or a provincial enactment
(some statutes set out a different relationship)
How does the analysis work?
• Is the bylaw valid (is it within the authority
of a local government?)
• Does the bylaw apply to an undertaking
(or is the undertaking immune?)
• Does the bylaw apply to the actor (or is the
actor immune?)
• Is there a superseding (paramount) law?
Is the bylaw valid?
• Quebec (Attorney General) v. Lacombe
(SCC) - 2010
• Municipal zoning bylaw prohibits “water
aerodromes” or “aeronautics” uses on lake
• Bylaw invalid because, on the specific facts
of Lacombe, the bylaw did not “further the
general function” of land use legislation, but
rather was a “stand-alone prohibition”
Is the bylaw applicable to the
undertaking?
• Quebec (Attorney General) v. Canadian
Owners and Pilots Association (SCC) 2010
• Provincial land use regulation prohibiting all
non-agricultural uses in agricultural areas
• Regulation is valid but inapplicable to the
extent that it regulates the location of
aerodromes
Is the bylaw applicable to the actor?
• Section 17 of the federal Interpretation Act
exempts the federal government from all
enactments, except as specifically stated
• Section 14 of the BC Interpretation Act
states that all enactments apply, except
those that bind the government in the use
of land, planning, services…
Is there a superseding law?
• Attorney General (British Columbia) v.
Lafarge Canada Inc. (SCC) - 2007
• Lafarge proposed to build a ship offloading
and concrete facility on waterfront lands
owned by Vancouver Port Authority (VPA)
• Municipal height restrictions inoperative
because they conflicted with regulations made
under the Canada Marine Act
Overlapping jurisdiction
• There may be overlapping federal,
provincial and municipal laws
• Assuming all are lawfully enacted, all will
have force unless there is a conflict in
operation
• For example: pesticide use, gaming and
gambling, taxi licensing…
• Part 2: Planes
“Aeronautics” falls within federal
jurisdiction
• Aeronautics not mentioned in Constitution
Act 1867 (not surprising)
• Federal Government given authority to
make laws “Laws for the Peace, Order,
and good Government of Canada”
• Johannesson v. West St. Paul
>
Aeronautics falls under “peace, order and good
Government” jurisdiction
Laws and regulatory bodies
• Legislation (not an exhaustive list)
• the Canada Transportation Act
• the Aeronautics Act
• Regulatory Bodies
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Transport Canada
Canadian Transportation Agency
NAV Canada (non-governmental)
Transportation Safety Board
• Part 3: Trains
Joint federal and provincial
jurisdiction
• Provinces given authority over “Local
Works and Undertakings” except for:
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“…, Railways, … connecting the Province with any
other or others of the Provinces, or extending
beyond the Limits of the Province”
• Thus, federal jurisdiction only if the railway
is “interprovincial” in nature
Federal laws and regulatory bodies
• Legislation (not an exhaustive list)
• the Canada Transportation Act
• the Railway Safety Act
• the Transportation of Dangerous
Goods Act
• the Canadian Transportation
Accident Investigation and
Safety Board Act
• Regulatory bodies
• Transport Canada
• Canadian Transportation Agency
• Transportation Safety Board
Provincial laws and regulatory bodies
• Legislation (not an exhaustive list)
• the BC Railway Act
• the Railway Safety Act
• the Safety Standards Act
• Regulatory bodies
• BC Safety Authority (compliance with RSA
and SSA)
• Ministry of Transportation and Infrastructure
Is the railway federal or provincial?
• Operational, not just physical, connection
• United Transportation Union v. Central
Western Railway Corp.
• Local railway operates only within the
province, but transports grain to CN Rail’s
interprovincial railway
• Physical connection insufficient; railway was
not itself operational interprovincially
• Part 4: Pipeline lanes
Joint federal and provincial
jurisdiction
• Federal Government’s jurisdiction over…
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“Lines of Steam or other Ships, Railways, Canals, Telegraphs,
and other Works and Undertakings connecting the Province
with any other or others of the Provinces, or extending
beyond the Limits of the Province”
• Same “operational connection”
requirement as railways
Federal laws and regulatory bodies
• Legislation (not an exhaustive list)
• the National Energy Board Act
• the Canada Environmental Assessment Act
• Regulatory Bodies
• The National Energy Board
• Canadian Environmental Assessment Agency
Provincial laws and regulatory bodies
• Legislation (not an exhaustive list)
• the Oil and Gas Activities Act
• the Petroleum and Natural Gas Act
• the Utilities Commission Act
• Regulatory bodies
• British Columbia Utilities Commission
• Oil and Gas Commission
Gas processing plant located in BC
subject to federal jurisdiction
• Westcoast Energy v. Canada,
[1998] 1 SCR 322
• Gas transported into an interprovincial
pipeline operated by the same company
• Processing plants and interprovincial
pipelines managed as a single enterprise
• Thus, an interprovincial undertaking subject to
federal jurisdiction
Pipeline not necessary for the whole operation is
not federal
• Reference re National Energy Board Act
(Canada) (FCA) – 1987
• Cyanamid Canada Pipeline Inc.’s bypass
pipeline operated solely within Ontario
•
Pipeline connected to TransCanada Pipelines
Limited’s meter station
• TCPL operations are interprovincial, but
pipeline not necessary for the whole
operation, therefore, not federal
• Part 5: Declaratory power
Federal Declaratory Power
• Federal jurisdiction also applies to: “Such
Works as, although wholly situate within the
Province, are before or after their Execution
declared by the Parliament of Canada to be
for the general Advantage of Canada or for
the Advantage of Two or More of the
Provinces”
• Declaration can deem an otherwise local
undertaking to be under federal jurisdiction
Legal Options for Influence
Bylaws
• Pith and Substance
• Determine the purpose and effect of the law
• Municipalities only have jurisdiction to pass a law in
relation to a subject matter under Provincial jurisdiction
• If the law is within Provincial jurisdiction, it can have an
incidental effect on Federal Subject Matters
• Interjurisdictional Immunity
• No incidental effects permitted if it impairs a “core” of the
other Government’s jurisdiction over the subject matter
• Bylaws inapplicable if they are within Provincial/Municipal
jurisdiction, but nevertheless impair the Federal “core”
• Paramountcy
• Where a valid Provincial, or Municipal, law conflicts
with a valid Federal law, the Federal law applies to
the extent of the conflict
• “Conflict” = impossibility of simultaneous operation
Complying with one requires contravening the other; or
> Complying with one would frustrate the purpose of the other
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• Thus, bylaws must…
• Be “pith and substance” within a Provincial jurisdiction
• Not impair a “core” of Federal Jurisdiction
• Not conflict with a valid Federal law
Zoning Bylaws
• Zoning bylaws regulate the use of property within a
municipality
• Provinces granted jurisdiction to make laws regarding
“Property and Civil Rights in the Province”
• This authority may still run afoul of Federal Jurisdiction
• Example: Comox Strathcona (Regional District) v. Hansen
• Municipality amends zoning bylaw to remove “airports”
from permitted uses
• Resident later acquires approval from Transport Canada to
use the land as landing strip
• Municipality seeks injunction to restrain landing strip use
Comox Strathcona (Regional District) v
Hansen
• Court: “Pith and substance” of the bylaw is
land use zoning, not aeronautics
• BUT, prohibition of landing strip use impairs
the “core” of Federal Government’s
jurisdiction over aeronautics
• Bylaw read down to the extent that it applies
to airfield
Construction Bylaws
• Regulating local construction practices
• Provinces granted Jurisdiction to make laws regarding
“Property and Civil Rights in the Province”
• Issues arise when the bylaws’ construction
standards affect the operation of Federal
undertakings
• Two examples from
cases regarding
the construction of
airports
Construction Bylaws
• Greater Toronto Airports Authority v.
• Mississauga
• City attempts to enforce Provincial Building Code and
local Bylaws on construction of airport upgrades
• Court: Building Code and Bylaws inapplicable
>
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Found that Building Code and Bylaws would prescribe
certain elements regarding the design and construction
of the airport’s new buildings
“a direct effect on [the airport’s] operational qualities,
and, therefore, upon its suitability for the purpose of
aeronautics”
• Thus inapplicable
Construction Bylaws
• Burlington Airpark Inc. v. Burlington (City)
• City attempts to enforce bylaw regulating the use of fill on
construction of airport upgrades
• Court: Regulating the use of fill was not an attempt to
regulate the operation of aerodromes for the purposes of
aeronautics
• Regulating fill quality will not have any direct effect on the
operational qualities of the product
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“requiring Airpark to use clean fill regulated by the municipality for
the benefit of other residents in the municipality will not be
permanently reflected in the structure of the finished product”
• Bylaw does not impair federal authority over aeronautics.
Thus, the Bylaw was applicable
Street and Traffic Bylaws
• Local governments also have power to enact
Street and Traffic Bylaws
• Falls under Provincial Jurisdiction over “all Matters of a
merely local or private Nature in the Province”
• Can this apply to restrict access rights of Federal
Undertakings?
• Burnaby (City) v. Trans Mountain Pipeline ULC
• TMP applied to expand its pipeline running through
Burnaby Mountain. NEB required environmental studies.
• City sought to prohibit TMP from carrying out these studies
unless TMP complied with the City’s Parks Regulation
Bylaw and Street and Traffic bylaws
Burnaby (City) v.
Trans Mountain Pipeline ULC
• Court: Refused to issue the injunction
• Matter to be decided by the NEB hearing
• NEB does not have the power to declare a bylaw to be
invalid, but it can issue orders that treat the provision as
invalid for the purposes of the matter before it
• NEB decided that the
bylaws are
inoperative due to
paramountcy or
interjurisdictional
immunity
Bylaws and Provincial Legislation
(LNG and Coal)
• Coal and LNG sectors generally under
provincial jurisdiction
• Provincial Legislation
the Mines Act
> the Oil and Gas Activities Act
> the Petroleum and Natural Gas Act
> the Environmental Management Act
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• Potential for Conflict with Municipal
Enactments
Export of Energy Products &
Municipal Bylaws
• Currently 19 LNG proposals on the books
• PETRONAS (Pacific NorthWest LNG)
• MOU with the province has been signed
• Tentative Investment Decision Expected
Lax Kw’alaams opposed to plan
> Awaiting Canadian Environmental Assessment
Agency Report and Minister Recommendation
>
• Key consideration is federal governments
jurisdiction over “Navigation and Shipping”
Attorney General (BC) v. Lafarge
Canada Inc.
• Lafarge proposed to build a ship offloading and concrete
facility on waterfront lands owned by Vancouver Port
Authority (VPA)
• Land also covered by Vancouver zoning and
development bylaws
• SCC found municipal bylaws to be inoperative as they
conflicted with regulations made under the Canada
Marine Act
• Takeaways:
• Municipal bylaws not automatically precluded
• LNG and Coal export facilities may similarly be subject to
municipal bylaws
Participation in Federal Regulatory
Proceedings
• Bylaws only valid if their “pith
and substance” falls under
Provincial Jurisdiction
• Cannot conflict with existing
Federal Laws
• Cannot impair a “core” of Federal
Jurisdiction
• Directly influencing Federal Matters may require
participation in decision-making process
Participation in Federal Regulatory
Proceedings
• National Energy Board Act allows for
participation in an application hearing
• An individual, company, organization, or group may
apply to participate
• Applicant must demonstrate to the Board’s
satisfaction that they are:
a) directly affected by the proposed project; and
b) have relevant information or expertise for the Board to
consider
Intervenor Status
• Intervenors are able to fully participate in the
public hearing process for proposed projects
• Trans Mountain Pipeline Project
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Intervenor status granted to the City of Vancouver, Burnaby,
Coquitlam, and New Westminster
• Port Moody’s Mayor Clay
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“it’s the only opportunity to get our two bits in”
• City of Surrey Counselor Bruce Hayne
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“[w]e want to go in as a representative of the city so we can
take part in critical issues that are discussed.”
Intervenors: Adding Motions
• With Intervenor status, municipalities can
also attempt to broaden the issues
• Vancouver sought to include climate change and
“socio-economic effects” of oil sands
development in the Kinder Morgan hearings
• Board ultimately denied this motion
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Held that the motion would bring in considerations
outside scope of those required of the Board
• Possible that other motions to broaden issues
before the NEB will succeed, however
Intervenors: Adding Motions
• Intervenors have had success in obtaining additional
information
• Kinder Morgan released a redacted emergency response plan.
• Board: Public interest outweighs Kinder Morgan’s request to
keep its emergency management program confidential.
• Kinder Morgan given until October 17 to release the information
to Intervenors
• The new ruling instructs Kinder Morgan to keep any redactions
narrow and to provide justifications for them.
• However, Kinder Morgan ultimately successful in
keeping more than 70 sections of plan secret
Participation as a Member of the Public
• Municipality can apply as a commentator
• Provides Board with a written letter setting out
its position on the public hearing’s issues
• Commentator Status
• Less onerous than Intervenor participation
• NEB does not accept unsolicited Letters of
Comment
• Letters of Comment become public documents
accessible through the NEB’s website
Legal Challenge to Constitutionality
of a Federal Law
• Standing: The applicant must establish…
1) A serious issue as to the validity of the legislation
2) That the applicant has a genuine interest in the
legislation’s validity
3) That the proposed litigation is a reasonable and
effective means to bring the challenge to court
• Must also give notice to the Attorney General
before challenging the constitutional validity of
legislation before a Federal Court or Board
Recent Example from Burnaby
• City of Burnaby challenge to NEB Act provision that
grants Kinder Morgan access to city lands
• Valid in opposition to the City’s Traffic and Parks bylaws?
• Kinder Morgan applied to the NEB for an order
against the City of Burnaby
• NEB decided that the bylaws are
inoperative due to paramountcy or interjurisdictional
immunity
•
City officials ordered to refrain from blocking access to
Burnaby Mountain
Legal Challenge to a Decision made by a
Federal Regulatory Body
• Vancouver sought review of NEB process
• Previous motion to expand issues to consider climate
change denied by NEB
• Application to Federal Court of Appeal for judicial
review of the NEB’s process was denied
• Argued that NEB is refusing to consider the pipelines’
impact on global climate change
• Ecojustice seeks judicial review of Port Metro
Vancouver’s approval of coal transfer facility
• Cites PMV’s inadequate public consultation and
failure to consider climate impact
Adoption of resolution not to
do business with a specific company
• Shell Canada Products Ltd. v. Vancouver (City)
• Vancouver adopted resolution not to do business with
companies working in South Africa’s apartheid regime
• Court quashes resolutions as outside of City’s
authority to act for “municipal purposes”
• Dissenting judgment ultimately
received more support in
ensuing cases!
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Dissent delivered by
Beverley McLachlin,
now Chief Justice of the
Supreme Court of Canada
Beverley McLachlin
• “Recent commentary suggests an emerging consensus that
courts must respect the responsibility of elected municipal
bodies to serve the people who elected them and exercise
caution to avoid substituting their views of what is best for
the citizens for those of municipal councils. Barring clear
demonstration that a municipal decision was beyond its
powers, courts should not so hold”
• “…courts must accord proper respect to the democratic
responsibilities of elected municipal officials and the rights
of those who elect them. This is important to the continued
healthy functioning of democracy at the municipal level. If
municipalities are to be able to respond to the needs and
wishes of their citizens, they must be given broad
jurisdiction to make local decisions reflecting local values”
Shell Canada Products Ltd. v.
Vancouver (City)
• Dissent illustrates
the Court’s growing
acceptance of the
role of local
governments
• Municipalities
embody the values
of the local
community
Non-Legal Options
Lobbying/Policy Influence
• Union of British Columbia Municipalities
• Policy conventions, representations to
cabinet, meetings with Ministers
• 2010 resolution opposing Enbridge in contrast
to principles of BC Climate Action Charter
>
Minister of Energy response affirms commitment to
ensuring that development is environmentally
responsible and scientifically sound
Non-Legal Options
Lobbying/Policy Influence
• Union of British Columbia Municipalities
• April 24, 2015 UBCM met with NEB to discuss
concerns re:
Pipeline Safety
> Environment
> NEB Infrastructure
>
• UBCM resolutions regarding NEB hearing
process and Safety Plans, as well as other
local government concerns, directly to NEB
chair and CEO, Peter Watson
Non-Legal Options
Lobbying/Policy Influence
• Federation of Canadian Municipalities
• Consolidation of over 2000 municipalities
addressing matters of Federal Jurisdiction
Provided comments on prosed railway regulations
> Appeared at House of Commons Transport
committee to discuss rail safety
> Established “National Municipal Rail Safety
Working Group” to demand greater disclosure and
cooperation between rail companies, federal
bodies, and local government.
>
Non-Legal Options
Lobbying/Policy Influence
• Federation of Canadian Municipalities
(FCM)
• Bill C-52 the Safe and Accountable Rail Act
•
•
•
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Minimum insurance requirements
Levies for crude oil shippers
Enhanced oversight
Information sharing
• Ongoing Input by the FCM Working Group
Non-Legal Options
Lobbying/Policy Influence
• Federation of Canadian Municipalities
City of Burnaby submitting an emergency
resolution regarding oil spill response concerns to
the FCM and the UBCM
> Burnaby council concerned about what a similar
spill to English Bay could do in Burnaby waters
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Non-Legal Options
Lobbying/Policy Influence
• Federation of Canadian Municipalities
www.proximityissues.ca
> FCM and Railway Association of Canada
collaborate through a MOU
> Objective: Assist stakeholders with becoming
aware of proximity issues and provide information
to assist with resolving issues
>
• Guidelines for New Development in Proximity
to Railways
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Guidelines for municipalities to assist in proactively
avoiding proximity conflicts
Cooperation with Federal
Governmental Authorities
• YVR Airport in Richmond
• Federal Jurisdiction over Airports
• City staff members sit on Airport Noise
Committee
• Vancouver Port Authority (VPA)
• VPA consults with City of Vancouver for
development projects
• City gives “advice and recommendations” as
development permits unnecessary after Lafarge
decision
Public Pressure
Public Pressure
• Denying Public’s “Social Licence”
• Example: Kitimat plebiscite to oppose the proposed
Northern Gateway oil pipeline
• Local plebiscite does not have force of law
• But illustrates how industry groups have yet to obtain a
“social licence to operate”
• Pressure to continue to improve consultation and
cooperation
Public Pressure
• Vancouver Airport Project Opposition for Richmond
(VAPOR)
• Citizens’ group opposed to jet fuel pipeline from South Richmond
to Vancouver International Airport, and tank farm
• December 2013, the province announced that a conditional
environmental assessment certificate would be issued for the
project
• VAPOR applied for judicial review of the procedural fairness of
the consultation process
Public Pressure
• Tsleil-Waututh Opposition to Trans Mountain Expansion
• Independent assessment indicates “unacceptable risk” to
environment and band’s culture
• “…79% to 89% likelihood of a spill in the inlet in a 50-year
period…”
• Calling the NEB process flawed
• Withholding consent for the expansion project in their territory
• In addition to potential legal challenges, indication that it will be
made an election issue
Media
• Burnaby Mayor vows to block bulldozers
• Vancouver Deputy City Manager criticizes to NEB’s
review process
• Only 60% of questions answered
• “it’s really become quite undemocratic, the way the
NEB is running the process...”
Media
• Mayor Derek Corrigan
• “If we go to court, we’re going to go to court with
clean hands and ensure we’ve done everything
humanly possible before I stand with you and
probably 10,000 other people and get arrested to
stop this”
• “That’s a hard thing to promise for a lawyer and a
mayor. It will probably be the end of my career.
But if I end my career on that note, it will be
something that I’m very proud of, that I stood my
ground”
Conclusions
• Transportation issues pose great
importance for local communities
• Oftentimes large-scale projects are subject
to Federal Jurisdiction
• Although Federal Jurisdiction presents
hurdles, influence is not impossible
Conclusions
• Federal Jurisdiction is rarely all-encompassing
• Local Rails subject to Local bylaws
• Interprovincial projects without “operational”
connections considered “local undertakings”
• Bylaws can have incidental effects
• Options for participation in decision-making
procedures
• Intervenor status
• Legal challenges to decisions and laws
Conclusions
• Non-Legal Options provide opportunities
to make concerns known
• Policy Development with other Municipalities
• Cooperation with Federal Authorities
• Public Pressure/Media
Conclusions
• As local communities ultimately bear the
costs of development, they deserve to
have their concerns heard
• By making use of all the available options,
Local Governments can help safeguard
their communities and exert influence on
Federal Transportation Issues