TMEP – Municipal Bylaws
In this decision, the Canada Energy Regulator (“CER”) considered an application filed by Trans Mountain Pipeline ULC (“Trans Mountain”) regarding the application of Bylaws of the City of Burnaby (“Burnaby”) regarding access and tree clearing near Burnaby. The CER decided that the sections of Bylaw in question are not applicable under the doctrines of federal paramountcy and interjurisdictional immunity.
CER Analysis and Findings
Pursuant to Certificate OC-065, Condition 2, Trans Mountain is required to implement all the commitments it has made in its project application or on the record of the related proceedings. Among these is the commitment to “apply for, or seek a variance from, all permits and authorizations that are required by law.” Condition 1 requires Trans Mountain to comply with all conditions unless the CER otherwise directs.
Trans Mountain sought a determination that Section 3 of Burnaby’s Bylaw No. 10482 (“Tree Bylaw”) and 24(1) of Burnaby’s Bylaw No. 4299 (“Access Bylaw”) was inapplicable, invalid or inoperative under the doctrines of interjurisdictional immunity and/or federal paramountcy..
Findings of Fact Regarding Tree Clearing and Access
The CER determined that additional tree clearing is needed to construct the Trans Mountain Expansion Project (the “Project”) as designed and approved. Trans Mountain submitted that Burnaby’s past conduct demonstrates that it will not issue Tree Cutting Permits for the Project under any circumstances. Based on information submitted by Trans Mountain, the Majority found as a fact that Burnaby will not issue Tree Cutting Permits for the Project.
The rationale provided by Burnaby for not granting the Access Permit was that it had not been provided with a satisfactory explanation for why additional access was necessary to construct the pipeline, nor why the application for the North Road (South) Access alternative was not made at the same time as that for the North Road (North) Access option.
The CER determined that Trans Mountain had provided Burnaby with an explanation with respect to both matters. The CER also determined that Trans Mountain’s evidence demonstrates that North Road (North) Access was required earlier in the construction schedule and that Access Permits are only valid for one month. In the absence of evidence demonstrating that application must be brought for both access points at the same time, it was not reasonable for Burnaby to deny the application on that basis in any event.
Where there are inconsistent or conflicting validly enacted federal and provincial laws, the federal law prevails. Paramountcy renders the provincial law inoperative to the extent of the inconsistency or conflict. In order for paramountcy to apply, there must be an inconsistency or a conflict between federal and the provincial law. A conflict or inconsistency can arise if there is an impossibility of dual compliance or a frustration of a federal purpose. Paramountcy applies where an application or operation of the provincial law would frustrate the purpose of the federal law. If it is possible to interpret the two laws in a manner to avoid conflict or inconsistency, that is preferable to an interpretation that results in a conflict or inconsistency. The CER was of the view that where dual compliance is theoretically possible, such as in this case, the application of paramountcy turned on whether there was a frustration of a federal purpose.
Under the doctrine of interjurisdictional immunity, undertakings falling within federal jurisdiction, such as the Project, are immune from otherwise valid provincial laws (and by extension municipal bylaws) that would have the effect of impairing (not just affecting) a core competence of Parliament or vital part of the federal undertaking. First, it must be determined if the provincial law trenches on the protected core of a federal competence. If so, it must be determined if the provincial law’s effect on the exercise of the protected federal power is sufficiently serious to invoke the doctrine of interjurisdictional immunity.
The CER noted that the doctrines of paramountcy and interjurisdictional immunity require an actual, rather than a speculative or hypothetical, conflict or impairment
Application of Constitutional Principles to Tree Clearing
Considering the finding that Burnaby will not issue any permits for tree cutting for the Project, the Majority was of the view that Trans Mountain’s application is reasonable and not premature. As tree clearing is required for the Project’s construction, the operation of the Tree Bylaw frustrates a federal purpose in these circumstances. The CER therefore found that the doctrine of paramountcy applies to render section 3 of the Tree Bylaw inapplicable, invalid, or inoperative to the additional tree clearing and any Future Tree Clearing.
With respect to interjurisdictional immunity, the Majority found that Burnaby’s refusal to issue Tree Cutting Permits trenches on the protected core of federal competence. Because the removal of trees is required to construct the Project, as designed and approved, this effect is sufficiently serious to invoke the doctrine of interjurisdictional immunity in respect of section 3 of the Tree Bylaw.
Application of Constitutional Principles to Access
The CER unanimously determined that the application of the Access Bylaw frustrates a federal purpose in these circumstances. Accordingly, the doctrine of paramountcy applies to render section 24(1) of the Access Bylaw inapplicable to the construction of the North Road (South) Access. The CER further unanimously found that Burnaby’s denial of Trans Mountain’s Access Permit application trenches on the protected core of federal competence. It found that this effect is sufficiently serious to invoke the doctrine of interjurisdictional immunity in respect of section 24(1) of the Access Bylaw.
Relief from Certificate Condition 2 in Respect of Tree Clearing
The CER Majority determined that construction of the Project, which has been found to be in the public interest, requires the removal of trees. If an exemption from Condition 2 is not granted, Trans Mountain will not be able to obtain the Tree Cutting Permits necessary to conduct this work.
For the additional tree clearing, Trans Mountain committed to following the mitigation, monitoring, and compensation measures to which it committed in the 2020 Motion. It further made additional commitments in its 2021 Motion. These commitments essentially bind Trans Mountain to the same obligations to which it would have been subject if Tree Cutting Permits had been issued by Burnaby.
The Majority has determined that it is in the public interest to relieve Trans Mountain of the requirement under Certificate Condition 2 to obtain Tree Cutting Permits under section 3 of the Tree Bylaw with respect to the additional tree clearing and any Future Tree Clearing.
Relief from Certificate Condition 2 in Respect of Access
Because the CER concluded that the safe and efficient construction of the Project, which has been found to be in the public interest, requires the North Road (South) Access, the CER unanimously determined that it is in the public interest to relieve Trans Mountain of the requirement under Certificate Condition 2 to obtain an Access Permit under section 24(1) of the Access Bylaw to construct the North Road (South) Access. Trans Mountain committed to adhering to the mitigation measures submitted to Burnaby within and pertaining to the Access Permit application.